What Can ICE Learn from the Byzantine Migration Enforcement?  

Recent actions by U.S. Immigration and Customs Enforcement (ICE) agents have intensified public debate about how migration should be regulated and enforced. In these discussions among Catholics, much attention has been given to the Church’s teaching on migration, particularly the idea that people have a right to immigrate. At the same time, the methods sometimes used in enforcement, especially when actions are harsh and violent, have drawn significant criticism, including from the U.S. Conference of Catholic Bishops. Beneath these debates lies a deeper question: to what extent can migration be legitimately regulated and enforced, and under what circumstances may migrants already residing within a country be returned to their place of origin? 

One way to approach this question is by examining the Catholic intellectual tradition. An early example of such engagement appears in Novel 80, a decree issued in 539 by Emperor Justinian that regulated migration to Constantinople, the capital of the Byzantine Empire, and which instituted an office similar to ICE. By examining Novel 80’s context and content, I argue that Catholic tradition contains a basis both for the regulation and enforcement of migration and for the protection of migrants based on human dignity—particularly the dignity of the most vulnerable migrants. 

The Historical Background 

Emperor Justinian was himself a migrant of humble origin from the province of Dardania. At an early age, he moved to Constantinople to live with his uncle. He rose to the top of Byzantine society through political connections and the favors of his uncle, who later became emperor. As emperor, Justinian attempted to restore the old glory of Rome and to tighten a centralized imperial rule. Many aspects of life were delineated in detail by the emperor, such as religion, economy, and family. In fact, for Justinian, faith and law were pillars of unity in the empire. Justinian saw himself as a representative of God in his office. 

Justinian compiled the Roman legal tradition in the Corpus Iuris Civilis. It was constituted by the Codex Justinianus, a compilation of Roman imperial law; the Digest, a collection of jurists’ opinions; the Institutes, a legal textbook for law students; and finally, the Novelle, the new laws Justinian enacted after the publication of the Corpus.  

The Corpus was one of the main legal achievements of antiquity, rediscovered in the eleventh century. Once rediscovered, it was highly influential in shaping canon law and scholastic thought. Scholastic theologians like Peter Lombard and Thomas Aquinas used its method of rational analysis and systematic organization to compose their theology, especially posing questions and citing authorities. The content of the Corpus was also influential. Aquinas, for instance, subscribes to the Corpus division of law into the categories of natural and human law. He also uses Justinian’s definition of justice. 

Historical Context for Migration Control 

Constantinople had a central role in the empire. It was a synthesis of the identities of the Byzantine world. It was the most important city in the East due to its strategic position linking Europe, Asia, and Africa, and served as a bridge between East and West. It was a privileged place for political centralization. For these reasons, Constantinople was famous for attracting all kinds of people, from businessmen and merchants to diplomats, military leaders, clergymen, adventurers, and especially judicial litigants.  

Despite Novel 80’s declaring in its text that it was based on ancient Roman laws, its migration regulatory decree was a novelty. Cities like Constantinople and Rome were never concerned about limiting their populations, but rather, increasing them. 

This situation changed drastically in the 530s. Constantinople started to face food shortages as the population reached half a million. The city was forced to import food from other provinces. Moreover, rising taxes compelled people to move out of the farmland, raising the number of idle wanderers, especially at the capital, and drastically decreasing the number of farmers producing food. The increasing population was unsustainable due to the dependence on imported food. The imperial capital was on the brink of a widespread famine, which would certainly cause civil unrest and compromise the imperial unity.  

Novel 80 

The Novellae Constituciones or “new laws” were imperial legislation that supplemented the earlier codification of Justinian’s Corpus. Some historians argue that these laws represented a transition from classical Roman legal tradition to Christian and Byzantine law. They brought to Roman law some Christian theological ideas such as divine law, the dignity of the human person and the family, and the important role of Christian leaders, such as the emperor and Church hierarchy. 

Justinian addressed Novel 80 to John Cappadocian, the prefect of the provinces of the East. The law was promulgated in March of 539. After the acknowledgment of the emperor’s divine mission to protect his people, the preface articulated its goal to prevent the depopulation of the provinces, which had the role of producing food for the capital, and the overpopulation of Constantinople. 

The first paragraph of Novel 80 is dedicated to the creation of the role of this quaestor, translated in English as “inquisitor,” which highlights the investigative role of the new official who will lead the migration control of the capital. The name is related to other ancient Roman offices, which shared the same title but had different roles. In fact, there were many government offices in ancient Rome by the name of quaestor. By using the same terminology, Justinian indicated that he was restoring the Roman legal tradition. However, despite the name’s being the same, the function is a novelty; there was never an office of migration control in Rome with such broad responsibilities. 

After establishing the name of the new role, the Novel explained in general terms the investigative responsibilities of the quaestor. This official is supposed to seek out everyone who arrives in Constantinople, independent of their origin or status. Then he must inquire about who the newcomers are, where they come from, and what purposes bring them to the capital. Thus, the investigative role, similar to modern-day immigration and border patrol such as ICE, is one of the quaestor’s central duties. 

Next, the text addressed the situation of people who came to the capital in order to settle legal disputes in the high courts of the empire. This was one of the main reasons for traveling to Constantinople. The imperial courts of appeal were situated in the capital, and this law-centered society drew people from across the provinces to bring their cases there. The law was especially concerned with farmers who were litigants and left their provinces for extended periods of time. This type of person both depopulated farming areas and overpopulated the capital, which was already suffering from a shortage of food. For this reason, Justinian granted judicial power to the quaestor to hasten the legal processes and make sure that these litigants were returned to their homes in a timely manner. 

The decree also provided a set of rules regarding those who did not come to the city due to litigation. The text was especially concerned about those who were unemployed and idle, such as beggars. If the newcomer did not have an occupation, he or she should be sent away in order to avoid their committing crimes for lack of resources. If he or she was elderly or handicapped, charitable support should be provided and the newcomer should not be disturbed. Though it allowed for deportation in some cases, the decree protected the most vulnerable. This support for those in need reflects the broader development of charity and social assistance for the poor and vulnerable through both Church and state institutions at the time of Novel 80.  

The text makes no mention of any special measures for those who were neither idle nor involved in litigation, indicating that if someone, foreign or not, was employed and actively engaged in work while in the city, the quaestor had no authority over them, and they were free to carry on with their business. The problematic situation that Novel 80 sought to solve was when people were idle, committing crimes, or awaiting a court’s ruling on their resident status.  

At the end of the decree, Justinian gave another justification for the migration control he established. He stated a goal to protect his own subjects by helping them avoid leaving their homelands and being subject to a hard life somewhere else, deprived of their possessions, and unable to be buried in the land of their ancestors. This is very similar to the idea of a right to stay in modern Catholic Social Teaching as a critique of dysfunctional migration, which we see from Pope Leo XIII in Quam Aerumnosa and most recently from Pope Francis.  

There is little historical evidence of the efficacy of Novel 80. It most likely fell into disuse after the year 542, when Constantinople was struck by a devastating plague that wiped out between one-third and one-half of its population. The sharp decline in population rendered migration control unnecessary once more.  

One question remains. What is Novel 80’s connection to Christian migration ethics? Can we draw conclusions from it for how Christian should deal with migrants? Justinian did not make explicit references to scripture or any theological principles. However, one of the main connections of this decree with Christian ethics comes from Dominican friar Domingo de Soto (1494–1560), a Spanish theologian in the sixteenth century and professor at the University of Salamanca. 

De Soto uses Novel 80 in his defense of economic migrants in Europe in Deliberation on the Cause of the Poor, published in 1545. In his time, several European cities had promulgated laws prohibiting public begging, particularly by foreigners. De Soto rejected such restrictions, grounding his argument in natural law and Christian hospitality. Referring to Novel 80, he argued that people should be supported, or at least not disturbed, when engaged in a lawful activity (including begging) provided that they neither commit crimes nor harm the community.  

Justinian’s Novel 80 reveals some of the early roots of Christian migration ethics. It upholds both the duty to care for the vulnerable and the legitimacy of regulating migration, particularly in cases involving crime, idleness, or the protection of the common good amid scarcity. Much like modern Catholic Social Teaching on migration, it affirms the right to stay and opposes dysfunctional migration while still recognizing the possibility of migrating and the dignity of migrants. Domingo de Soto, acknowledging the importance of these principles, draws on Novel 80 as a central foundation for his defense of economic migrants in the Deliberation on the Cause of the Poor, thus adding it to the rich tradition of Christian ethics.  

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