Justinian

The great majority of the information on Roman law that we have available to us comes to us, not directly from the original writings, but indirectly through a com­pilation made in the sixth century under the authority of the emperorJustinian.^[259] This compilation, the Corpus luris Crnlisp consists of an introductory textbook, a collection of (mostly classical) juristic writings, and a collection of imperial pro­nouncements, and is the focus of the final section of this chapter.

(1) Preliminary Work

On becoming emperor in 527,Justinian did not launch immediately into the Corpus Iuris Civilis. Instead, his initial aims seem to have been less ambitious than they were to become.

The fruits of these initial efforts were two collections, both unfortunately now lost to us (though much of what they contained undoubtedly found its way into the Corpus Iuris Civilis). The First Codex was a collection of imperial pronounce­ments prepared by a commission chaired by John of Cappadocia, issued in 529 to update the collection issued by Theodosius II almost a century before. The other work is the Fifty Decisions, in which a number of controversial legal ques­tions were settled.

(2) The Corpus Iuris Civilis

At some point,Justinian conceived a more ambitious project, a collection that would give a comprehensive statement of the whole law. This is what would become the Corpus Iuris Civilis·. It is sometimes described as a codification of Roman law. This term, though, is misleading: a code in the modern sense is a systematic statement of the whole law or a part of it. In only one of its parts is there any attempt at a systematic approach. This is the Institutes, whose structure is based on Gaius' textbook of the same name (considered above). Subject to this exception, the structure of the Corpus Iuris Civilis· is not in the least systematic.

It may not be out of place to note here that, in its own time, the awkwardness of this arrangement was increased by the part that the Corpus Iuris Civilis· played inJustinian's reforms to legal education. In this reformed scheme, the student would start by spending most of first year studying the Institutes, to get a general overview. The student would then move on to the Digest, and only in his fifth and final year would he move on to look at the Codex. Given that almost everything in the Digest was more than 300 years old at the time the Digest was compiled, it is hard to see how it could ever have been hoped that a student would acquire an accurate knowledge of the law as it stood. For comparison, imagine a five-year course in Scots law, in which almost everything until the fifth year was taken from Stair's Institutions⁹ or earlier works, with some editing,^{[261] [262] and later cases and statutes were not seen until that final year.}

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(3) The Digest

(a) Compilation

The compilation of the Digest was instructed by Justinian in a pronouncement called, for its opening words, Deo auctore (‘By the authority of God'), dated 15 December 530.

From the work of a German scholar named Bluhme in the early nineteenth century, it appears that the commission managed its workload by dividing itself into three committees, each dealing with a particular collection, or ‘mass', of material.^[266] These committees and masses of material have been given the names Sabinian, Edictal and Papinian,^[267] and are normally found in each title^[268] of the Digest in that order. There was also a fourth mass, called the Appendix, normally found at the end of the title, perhaps made up of texts that were only found after the three masses had already been allocated.^[269]

The completed Digest was issued almost three years to the day after Deo auctore, on 16 December 533.^[270]

(b) Interpolations

It is not to be expected, then, that all of the texts in the Digest are in the form that their original writers gave them, and it is undoubtedly the case that altera­tions were made. These alterations — whether by substituting, deleting or adding words, or in any other way giving something other than the jurist's own words — are known as ‘interpolations'.

So much is certain. What is more difficult, though, is determining to what extent the Digest is interpolated. There are fashions and trends in this, as in all things. At times, scholars of Roman law have been very prepared to consider a text to be interpolated. Indeed, at one point, in the early twentieth century, this enthusiasm was such as to attract the name ‘interpolation hunt'. It would be an exaggeration to say that there is scarcely a single text in the Digest that has not been said at some point, on some grounds, to be interpolated. It would not, how­ever, be a gross exaggeration. There is no doubt that some scholars have allowed their support for a particular position on a point of Roman law to colour their view, and have failed to resist the temptation to dismiss any text not fitting that view as interpolated. Often these views depended on dubious linguistic argu­ments to the effect that a particular word or phrase could not have been used by a classical jurist, or that what a jurist is presented in the Digest as saying is not consistent with his alleged style.^[271]

Nowadays, a more restrained view prevails, possibly even to the extent of overreaction to the interpolation hunt.^[272] It has been pointed out that Justinian's instructions to the compilers did not authorise them to innovate.^[273] The compil­ers' conscientiousness in attributing even very short fragments to the correct jurist also weighs against the idea of widespread interpolation of substance.^[274] Again, the lack of significant Christianisation of the texts is a strong argument that the compilers were not engaging in large-scale law reform, given that the jurists were all pagans and Justinian was a man of strongly Christian convictions.^[275] Add to this the fact that the whole job was completed in three years, a tall enough order even without the compilers taking on the added burden of law reform.^[276]

In detecting those interpolations that do exist, linguistic arguments are rarely seen as conclusive without more: it would be rash to assume that classical jurists were incapable of writing bad Latin. Every writer slips up on occasion, and this is true even though the compilers, coming from the Greek-speaking Eastern Empire, were perhaps more likely to make linguistic mistakes in the Latin than were the jurists.

So how are interpolations to be detected? Something has already been said of linguistic arguments, but there are other tools available. The clearest test is where a text has survived independently. Obviously, if an independently surviving text differs from how it is presented in the Digest, one or both of the versions that we have must have been altered at some point. Where there has been no such inde­pendent survival, the most reliable sign of interpolation is where the text states something as law which is known from other sources not to have been the posi­tion at the time the jurist was writing.^[280] Cases where a text has been presented by the compilers in a misleading context can sometimes be identified by considering the inscription showing the original source of the text. If enough of the original source is preserved in the Digest, it may be possible to determine the original con­text of the words used.

(c) Contents

The contents of the Digest are divided into fifty books, most of which are sub­divided into titles. It is not in any way systematically organised.^[281] The order of books and titles is based on that of the praetor's edict, which, having grown up over centuries, was rather haphazardly organised. As a result, related sub­ject-matter is often scattered through the whole compilation, and the Digest is extremely difficult to manage without guidance.

Each title is made up of extracts from the writings of a number of jurists. In all, extracts from the writings of thirty-eight jurists are included, although many more are referred to by thejurists who are included. Some jurists are featured much more prominently than others: around a third of the total content of the Digest comes from Ulpian, and around a sixth from Paul. A considerable amount is taken from Gaius as well. Each text has an inscription at the beginning, show­ing the author and source. There is a tendency to take a single jurist's treatment as the basis for coverage of a topic, with linking words (called catenae) taken from another jurist when the first does not deal with a particular point. The following is an example taken from D.41.1 (Digest, book 41, title 1):

5 Gaius, Common Matters or Golden Things, book 2:... 7. Again, under the law of nations, that which is taken from enemies immediately becomes the property of the taker,

6 Florentinus, Institutes, book 6: so also under the same law are the young of animals which we own,

7 Gaius, Common Matters or Golden Things, book 2: so indeed freemen are taken into slavery...

Here the compilers have made Gaius the basis of their account.^[282] Presumably Gaius' own words, in the original, went straight from telling us that according to the ‘law of nations' (ius gentium) one can acquire ownership of things taken from an enemy, to telling us that on the same basis prisoners of war become slaves of their captors. The compilers decided to add in a few words from Florentinus, in which we are told something else about the ius gentium, namely that it also is the basis on which we own the offspring of animals we own.^[283]

Justinian boasted that there was no apparent conflict in the texts that could not be reconciled by a sufficiently agile mind.^[284] This claim has not, however, been borne out by experience. There are many conflicts in the texts that almost a millennium and a half of debate has been unable to resolve.

(4) The Institutes

The Institutes were intended as an introductory textbook to be studied, as we have seen, as part of the first year of the five-year law course. It must be said that it is an unusual student textbook, as Justinian enacted it as law, and so it had a some­what greater authoritativeness than is usual for such books.^[285] It was issued almost a month before the Digest, on 21 November 533, although it was apparently com­missioned only after the Digest was completed, in March 533.

Justinian’s Institutes followed the structure of Gaius' work of the same name — the institutional scheme — and included much of its content, though other sources were used too. Justinian’s version was compiled by Tribonian and two of the pro­fessors in the Digest commission, namely Theophilus and Dorotheus. It must be said that it is a flawed work, containing errors:

They seem to have had in front of them when they worked only the writings of the old — pre-235 — writers of elementary works... When these works were insuf­ficient, the draftsmen relied upon their memories, with disastrous results.^[286]

Nonetheless, it was a highly important part of the Corpus luris Civilis and of Justin­ian’s reforms of legal education. In his foreword to the Institutes, Justinian calls it a legum cunabula, a ‘cradle of the law’. It is intended to provide the beginner with an overview of private law, with the intention that more advanced material will be more easily absorbed once this firm foundation is laid down. Without this, he goes on to say, the student would either give up or would in the end ‘with great toil reach the same level that they would have reached earlier without great effort and self-doubt if they could have been taken along an easier road’.^[287]

Through this, the influence of the institutional scheme has been profound, to the extent indeed that it distracts us from the shortcomings of the jurists’ more usual approach to organising their material. The institutional scheme is com­monly used to organise textbooks covering private law (including this one). As we saw earlier, though, its influence has gone well beyond introductory textbooks.

(5) The Codex

The Codex is, as has been said above, a collection of imperial pronouncements.^[288] By and large, the contents of the Codex are later than the texts included in the Digest, although there are some overlaps. As has already been said, it updates the First Codex to take account of subsequent developments (and in particular the Fifty Decisions), and for this reason it is sometimes called the Second Codex. It was compiled by a sub-committee of the Digest commission, chaired by Tribonian, and was issued on 16 November 534.

(6) The Novels

Legislative activity did not cease with the Codex, of course, and many major reforms postdate the promulgation of the Codex in AD 534. As we shall see in Chapter 16,^[289] for example, Justinian substantially overhauled the law of succes­sion after 534. Later pronouncements were collected in a compilation called the Novels (in Latin, Novellae Constitutiones, or ‘New Pronouncements’). Unlike the rest of the Corpus Iuris Civilis·, however, this is not an official compilation. Instead, the Novels as we have them are based on unofficial collections.