THE JUSTINIAN CODE
The codification project initiated by Justinian took place in two stages: first, the compilation and promulgation of the Codex Vetus, the “Old Code”; second, the promulgation of the Codex Repetitae Praelectionis, the “Revised Code.”
The Old Code was compiled by a committee of ten jurists and senior officials appointed on 13 February 528 (Constitutio Haec).
In the appointment document the committee was charged with incorporating within one code all the laws contained in the codes of Gregorius, Hermogenian, and Theodosius II, as well as the laws which had been enacted since the completion of the Theodosian Code. They were allowed to delete superfluous preambles, as well as duplicated, contradictory, and inapplicable laws; to add to and subtract phrases from the laws and to alter their language; to combine several laws into one text; and to arrange the laws in chronological order. The code was promulgated on 7 April 529 (Constitutio Summa), and went into effect on 16 April. However, by 29 December 534, it was superseded and put aside.The revised code, compiled by a new committee of five members, was promulgated on 16 November 534 and went into effect on 29 December of that year (Constitutio Cordi). In the act of promulgation Justinian declared that the need for a revision of the Codex Vetus arose in light of the codification activities which had taken place since the completion of that code. The editors were consequently ordered to rearrange the code, add new laws, eliminate those laws which had been abrogated as the result of later legislation, remove duplicated or contradictory laws, complete the partial versions of some laws, and clarify any ambiguous language. The Justinian Code remained in effect in the East, in practice, until the composition of the codes of the Macedonian Emperors in the ninth century, particularly the Basilica, compiled during the reign of Basil I (867-886), and completed and promulgated during the reign of his son, Leo VI Philosophus (886911) 32 The Justinian Code had no influence in the West until the twelfth century, when, with the renaissance of Roman law, it displaced the Theodosian Code as the main source of information about ancient Roman legislation.
The appointment document of the first committee and the two promulgation acts clearly indicate the sources used by the editors.
These were, first, Codex Gregorianus and Codex Hermogenianus from the pre-Constantinian period; second, Codex Theodosianus for the period between Constantine and 438; third, the collections of Novels and of ‘extravagant’ laws from 438. One must conclude, therefore, that the compilers of the Justinian Code relied completely upon previous codes, and not upon original legal texts, in their search for sources, with the exception of the fifth and sixth century legislation. There are 37 laws (38 texts) concerning the Jews in the Justinian Code, the great majority of which—25 texts—were taken directly from the Theodosian Code. Three texts were taken from the Third Novel of Theodosius II, probably from Theodosius Il’s collection of Novels (see No. 54), while two texts were probably taken from the codes of Gregorius (No. 3) and of Hermogenian (No. 5). The source of eight texts (Nos. 22, and 55-61) is unclear, but there is reason to assume that some of them—Nos. 5556 and 59-61—came from the archives of Constantinople. The texts dealing with the Jews in the Justinian Code thus came primarily from laws enacted during the fourth and early fifth century, and these texts depended exclusively upon the texts found in the Theodosian Code. This conclusion agrees with the accepted opinion about the dominant position of the Theodosian Code among the sources of the Justinian Code.33While all the texts included in the Theodosian Code were defined as “general laws,” the Justinian Code added two ‘rescripta’ (Nos. 3 and 5). The appointment document of the first editorial committee established that laws of this type would acquire the force of general laws as the result of their incorporation within the Code, a rule repeated in the Code's act of promulgation.
In the various chapters and books of the Code, Justinian’s editors followed the Theodosian Code in their arrangement of the texts concerning the Jews.
The vast majority of the texts are concentrated in chapters 1-13 of the Code's first book, which dealt with the Christian Church, with sects, and with the other religions, similar to Book 16 of the Theodosian Code. Justinian’s compilers devoted two full chapters to the Jews: Chapters 9 and 10. Chapter 9, entitled ‘De ludaeis et Caelicolis’, “On Jews and Heaven Fearers,” contains eighteen texts, and is parallel to CTh 16:8. Chapter 10, entitled ‘Ne Christianum mancipium haereticus vel paganus vel ludaeus habeat vel possideat vel circumcidat’, “That a heretic, Pagan or Jew shall not have or keep a Christian slave nor circumcise him,” includes two texts, and is parallel to CTh 16:9. Nevertheless, the compilers of the Justinian Code differed from the editors of the Theodosian Code in that they separated the Samaritans from the Jews. They grouped Samaritans together with the heretics and the Manichaeans in Chapter 5; they grouped, again, heretics and pagans together with the Jews in Chapter 10, while the parallel chapter of the Theodosian Code dealt with the Jews alone. Only four texts are included in other books of the Code: two texts (Nos. 5 and 50) are included in Book 3, and two texts (No. 19 and 29) in Book 10. It is always possible that certain texts did not come down to us because of the incomplete preservation of the Justinian Code in manuscript tradition. Kruger’s edition, for example, supplements two texts (Nos. 56 and 59) from the Basilica, one text (No. 57) from the Nomocanon XIV Titulorum, and one text (No. 58) from the Collectio Tripartita Constitutionum Ecclesiasticarum.^ Not only does this raise serious doubts about the reliability of the texts preserved in the later epitomes and collections, it also strengthens the view that the Justinian Code contained many more texts concerning the Jews than are extant today.The complete dependence of Justinian’s editors on the Theodosian Code as a source for the laws of the fourth and early fifth centuries, through 438, enables us to determine the degree to which the text was edited by them and to what extent they used the considerable latitude granted them by Justinian.35 Of the twenty-five texts originating in the Theodosian Code, only seven were received with no real changes; the other eighteen were very thoroughly edited, whether in terms of language or of content.
Linguistic changes intended to simplify complex rhetorical style or to update the language to sixth century usage also introduced alterations of meaning, e.g., the change of ‘constituta’ to ‘constitutus’ or of ‘iussimus’ to ‘iubemus’ (as a result, an entire sentence takes on a new meaning [No. 12]); the change of ‘datur’ to ‘dabatur’ (No. 15), and that of ‘compromissum’ to ‘pactio’ (No. 28).Of the many deletions made by the compilers, some concerned material regarding past events and personalities, which was considered to be of little interest to the users of the style='font-style:italic'>Code. Deletions of this kind are found in Nos. 8, 15, 16, 38, 41, and 49. A typical example is the omission of the reference to the patriarchs (Nos. 28 and 53) and their substitution by ‘seniores ludeorum’ (No. 41); the editors adjusted the text, in this case, to the changed circumstances of their time. Similar considerations motivated the compilers to paraphrase the application clause of No. 38, adjusting it to the new administrative reality in Africa.
Several laws underwent much more radical editing, which resulted in a complete departure from the original intentions of the legislator. To this category belongs the mitigation of the punishment of persecutors of Jews in No. 49, and an interpolation which served to obscure the original pro-Jewish intentions of No. 40 by the grant of a parallel right to Christians. An extreme example of this type of editing was the elimination of the word ‘non’ in No. 28. While the legislator distinguished between religious litigation, entrusted to the autonomous jurisdiction of the Jews, and non-religious litigation, pertaining to the Roman courts, the new version combined both types of litigation and subjected them to the jurisdiction of the Roman courts. In other cases, the editors revealed a comparable degree of freedom when they selected isolated sentences and words from texts in the Theodosian Code and interpolated them, mosaic fashion, into totally new contexts.
Thus, in No. 35 they took one sentence from CTh 16:5:43 and interpolated it into CJ 1:9:12, which is an edited version of the rules concerning “God-fearers” taken from CTh 16:8:19. In some cases entirely new texts were created in this manner; CJ 1:10:1 (No. 11) is composed of three texts: CTh 16:9:1, 16:9:2, and 16:9:4. Likewise, CJ 1:9:12 (No. 35) is composed of two texts: CTh 16:5:43 and CTh 16:8:19.The editors did not usually alter the chronological data they found in their sources, but it did happen on occasion that dates were changed in the course of editing and dividing the text; as a result more errors were added to those already present in the Theodosian Code. The name of Constantinople was added to the subscription of No. 11, and on this basis Constantius was identified as the author of that law. In No. 28 they changed the inscription found in the Theodosian Code, ‘Idem AA’—Arcadius and Honorius—to Tmppp’. Gratianus Valentinianus et Theodosius AAA’, which indicated a date prior to the death of Gratian (383), but left unchanged the original subscription, ‘Hono- no A. IIII et Eutychiano conss.’, that is, the year 398. The division of the Third Novel of Theodosius II into three separate texts (No. 54) led the editors to complete the original subscription—which lacked the name of the Western consul—by three different identifications; as a result the truncated texts were attributed to the years 435, 438, and 439!
We may conclude that most of the texts in the Justinian Code taken from the Theodosian Code are not faithful to the original version in content and in language, and should be considered, at times, as totally new texts.
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