II Jurisprudence
Four texts from the third century concerning Jews are preserved in classical legal literature in four different works: two texts of Modestin (Nos. 1 and 4), one of Ulpian (No.
2), and one of Paul (No. 6). Modestin and Ulpian referred specifically to imperial legislation unknown to us from legislative sources, while Paul stated the legal reality of his own time. The legally binding character of these texts stemmed from the personal status of their authors, who had ‘ius respondendi’, and were thus recognized by the emperor as binding authorities during their lifetime, while their opinions compelled the judges by the force of the ‘auctoritas principis’, that is, not only in the specific cases in which they were given, but in similar cases, and unlimited in time. Paul's Sentences—apparently composed in the West during the third century around a core of authentic decisions of Paul—was recognized as an authoritative legal source in a law of Constantine from 328 (CTh 1:4:2). Consultatio VII :3 provides us with evidence of the practical effects of this recognition. In 426, Valentinian reorganized the recourse to jurisprudential sources in the courts. Among other things, he ruled that all the works of the five great jurists—which included Paul, Ulpian, and Modestin—had legal authority,13 a rule which remained in force even after the promulgation of Codex Theodosianus. In the Visigothic West it was abolished only in 506, when it was ruled that only those jurisprudential texts included in the Breviarium, which was promulgated in the Visigothic Kingdom that same year, would have legal authority. A similar situation came into effect in the East when exclusive legal authority was granted to the Digest and the Institutiones on 30 December 533. The four above-mentioned texts of these jurists are, consequently, known to us exclusively through the versions of the Breviarium (No. 6) and the Digest (Nos. 1, 2, and 4).The validity of the traditional jurisprudential literature was never formally abolished in some Western regions. In the Lombard Kingdom (early sixth century) it remained in force alongside the Roman Law of the Burgundians, while in the Ostrogoth Kingdom it was maintained with the Edict of Theodoric (489-526). The jurisprudential literature practically disappeared with the collapse of the political frameworks and the destruction of secular culture in the West in the early Middle Ages. We have twelve extant texts from the later jurisprudential literature. These are texts of the Interpretatio, the “Commentary,” which was probably composed in Gaul in the final years of the fifth century. They are known to us in the version of the Breviarium, in which they are combined with nine laws from the Theodosian Code, the Third Novel of Theodosius II, and a text from Paul. Four of them—Nos. 6 (twice), 12, and 16—contribute no more than the statement that the law under discussion required no commentary. The others—Nos. 10, 17, 18, 28, 40 (in Hannel’s ed.), and 54—are either paraphrases of the law’s essentials or a real commentary.