Jurists' Law and Imperial Legislation Before Justinian

The Consolidation of Jurists Law and the Transmission of Juristic Writings

Classical Roman legal science produced a great variety of legal literature, but the crisis of empire which began after the assassination of emperor Alexander Severus in March 235 caused this literary production to dry up.¹ It was only under Diocletian (who ruled from AD 284-305) that jurists of the time once again published legal compendia, treatises on specific issues, and collections of imperial constitutions under their own names (below, 120).

But legal textbooks and more demanding works on legal problems are no longer attested in this period.² At the same time, authors whose names we do not know published works under the names of renowned late-classical jurists (pseudo-epigraphic works) - probably in order to enhance the reputation of their works.³ lang=EN-US>One example is Pauli Sententiae, probably dating from the end of the third century. Around AD 330 the last known pseudoepigraphic work - Pseudo-Ulpian’s Opinionum libri sex — was produced.⁴In addition, the works of the classical jurists continued to be copied frequently. For the most part, however, only small fragments of late- antique manuscripts with legal content have survived;⁵ the exception is the Institutes of Gaius.⁶ From the time of Constantine (who reigned from AD 306—337) the available legal literature therefore consisted of the works of the classical jurists, some few new works by authors whose names are known, and those new productions which circulated under the names of classical jurists. This stock of legal literature did not expand until Justinian’s age and formed the basis for his great collection of jurists’ law (or ‘jurisprudence’), the Digest (see Section 2).

The fact that the jurists’ writings as sources of law were now fixed also led to legislation by the emperors.

In AD 321 Constantine declared void critical notes (notae) by the jurists Ulpian and Paul on the works of Papinian.⁷ In AD 327 (or 328) the same emperor affirmed that the Pauli Sententiae were just as valid as Paul’s other writings.⁸ One hundred years later an address to the senate (oratio) by Valentinian III of 7 November 426 dealt in great detail with imperial legislation and jurisprudence.⁹ The part dedicated to jurisprudence regulated the citation of the jurists’ writings in court (the ‘Law of Citations’). Some writings were admissible without preconditions: those of Papinian, Paul, Gaius, Ulpian, and Modestinus. If a party wished to cite the work of another jurist, he had to produce at least two manuscripts of the work concerned. In cases where the views of the jurists differed, the majority was to prevail. If opinions were split equally, the judge was to follow the view of Papinian, who was held in high esteem in late antiquity. The ‘Law of Citations’ was included in the Theodosian Code, which was valid throughout the empire (below, 121), and also in the first edition ofJustinian’s Code of AD 529 (below, 123-4). Justinian explicitly freed the Digest commission from the constraints of this law (below, 124).

Imperial Legislation and the Collections of Imperial Constitutions

In late antiquity legislation by the emperors became the most important source oflaw. The classical jurists had already included imperial rescripts in their works on many occasions. In Diocletian’s reign, the first actual collections of imperial constitutions were created: the Codex Gregorianus and the Codex Hermogenianus, named after their respective authors.¹⁰ Gregorius (who is not otherwise attested) put together a collection of imperial constitutions in chronological order, from Hadrian to Diocletian.11 He completed it in or a little after AD 291. The collection was subsequently expanded to include constitutions from the later years of Diocletian’s reign.

Aurelius Hermogenianus, who was praetorian prefect under Diocletian and also wrote a work containing legal rules, continued chronologically where the Codex Gregorianus left off and completed the first edition of his collection in AD 295.1² Both collections remained in circulation until the time of Justinian and formed part of the material from which the Codex Iustinianus was created (below, 123).

About 150 years after these two codices another collection of imperial legislation was produced, the Codex Theodosianus.1³ This time, however, the collection was promulgated as an imperial enactment - just as Justinian’s Code would be later. First, in March 429 the eastern Roman emperor Theodosius II (who ruled from AD 408—450) put together a commission consisting mainly of high-ranking officials, which was to collect general laws from the time of Constantine up to his own reign (C.Th. 1.1.5). The project failed, however, for unknown reasons. In December 435 (C.Th. 1.5.6) Theodosius II again appointed a commission, which completed its work after about two years. In an enactment dating from 15 February 438 Theodosius II conferred on this collection - the Codex Theodosianus - the force of law in the eastern part of the empire, effective from і January 439.¹⁴ A little later the Theodosian Code was also published in the west.1⁵ It contains laws dating from 306 to 437 and is a genuine codification - that is to say, all original imperial laws from the period covered by the Theodosian Code lost their legal validity. The Theodosian Code is made up of 16 books,¹⁶ which are divided into titles according to subject matter. Within each title, the constitutions appear in chronological order. At the beginning of each constitution there is a note stating the names of the emperors who enacted it and the persons to whom it is addressed (inscription), and at the end the place and date of the enactment are given (subscription).

The constitutions are, however, no longer complete. The commission was to leave out all superfluous parts - for example, the introduction and the ending. It had explicit permission to modify the text of the constitutions and was under no obligation to indicate when it had changed the text. If necessary, the commission could allocate different parts of a single constitution to dilang=EN-US style='font-size:8.0pt;line-height:115%;font-family:"Arial",sans-serif'>fferent titles. The same principles were also applied later in the production of Justinian’s Code (below, 123-4). The extent to which a text in the Theodosian Code has been modified can, however, only be known when the constitution concerned has also been transmitted elsewhere: this is not often the case. One example is the constitutiones Sirmondianae,1⁷ a compilation of 16 late- antique imperial constitutions from the years AD 333 to 425 concerning ecclesiastical law. Ten of these constitutions are also transmitted in the Theodosian Code.

Originally the commission of 429 - after completing its work on imperial legislation - was to collect the jurists’ law. This, however, did not happen. It was not until 100 years later that Justinian could realize a project of this magnitude. In the east the Theodosian Code remained law until Justinian’s Code came into force on 16 April 529. In the west the Theodosian Code continued to be influential until the high middle ages, especially in the form of an extensive extract which was included in the Visigothic Lex Romana Visigothorum of AD 506 and was widespread in Gaul even after the collapse of the Visigothic kingdom.¹⁸

Legal Education

In order to understand fully the conditions under which Justinian could put his plans of codification into practice, it is necessary to consider late- antique legal education in the eastern part of the empire.

In Berytus (Beirut) organized legal education¹⁹ is attested as early as the beginning of the third century.²⁰ In Constantinople Theodosius II established a law school run by the state in AD 425 (C.Th. 14.9.3). By the end of the fifth century legal education also took place in Antioch and Alexandria. We can gain more detailed insights into the course of legal education from a law of Justinian dating from 16 December 533 (const. Omnem: below, 126). This law introduces reform of the programme of legal studies and for this purpose gives an account of the old curriculum which Justinian had found to be inadequate. Before Justinian’s reform legal education was based on a five-year plan of study which encompassed the reading of selected legal works as well as the imperial constitutions.²¹ Our evidence for the methods which law professors used to explain the jurists’ texts in class also dates from the period between the middle of the fifth century and Justinian’s reform.²² The sources of law and legal terminology were in Latin, but the classes were taught in Greek. Justinian made use of the law professors’ expertise for the first edition of the Code, and even more so for his codification ofjurisprudence and for the second edition of the Code (below, 124).²³

Thematic Collections

Even before Justinian’s time there were works which collected excerpts from various jurists’ writings and ordered them thematically. Remains of a collection which must originally have been rather extensive and which was probably produced in Rome around AD 320 are still extant in a Vatican manuscript (Fragmenta Vaticana). Neither the author nor the original title of the collection is known. The work was divided into titles according to subject matter (e.g., Ex empto et vendito, De usufructu, and so on); each title contained relevant excerpts from the writings of classical jurists and from imperial constitutions.²⁴ Excerpts from juristic writings are preceded by the name of the jurist, the title of the work, and the number of the book from which the excerpt is taken (e.g., FV 119: Ulpianus libro II de officio proconsulis..., 120: Ulpianus libro XXXIII ad edictum..., and so on).

Some significantly shorter works with excerpts from jurists’ writings and imperial constitutions have also survived - for example, the Consultatio veteris cuiusdam iurisconsulti, which was created in the reign of Theodosius II and Valentinian III in southern France,²⁵ and the Lex Dei (Collatio legum Mosaicarum et Romanarum), a juxtaposition of Mosaic and Roman Law which was produced in Italy (probably in Rome) between AD 392 and 438.²⁶ The authors of these works are not known either. At the beginning each excerpt names the jurist, the work, and the number of the book, and in most cases the title (or chapter) heading too (e.g., Cons. 6.8: Libro II sententiarum Pauli titulo ex empto et vendito; Coll. 2.3.1: Papinianus libro definitionum secundo sub titulo de iudicatis). Justinian’s Digest also gives for each excerpt the name of the jurist, the work, and the number of the book; the title heading, however, is not mentioned.

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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