The Reign of Justinian

The Legislation of Justinian

On 1 August 527 Justinian,²⁷ who was already co-regent with his uncle Justin I, acceded to the imperial throne in Constantinople.

He died on 14 November 565 after reigning for 38 years. Within the first years of his reign (528-534) he realized three great legislative projects - the Digest, the Institutes, and the Code - collectively known as Justinian’s compilation. Furthermore, in the 30 years after that he enacted a great number of laws - the Novels - which were to apply either throughout the empire or only in a certain territory. In the high middle ages the Glossators referred to the whole ofJustinian’s legislation (compilation and Novels) as the corpus iuris.²⁸ Corpus iuris civilis, the name that is common today, is first found as the title of a print edition in 1583.²⁹

Six months after his accession Justinian arranged for the creation of a new collection of imperial constitutions (const. Haec, 13 February 528) which was to bear his name: Codex Iustinianus.³⁰ This process was necessary, Justinian argued, in order to reduce the great number of imperial constitutions and thus also the number of court proceedings (const. Haec pr.). The new Code was to encompass and replace the earlier collections (the codes of Gregorius, Hermogenian, and Theodosius) and the laws enacted subsequently. The commission appointed for this task mainly consisted of high-ranking imperial officials, including already Tribonian (on whom, see below, 124). The other members were Theophilus, a professor of law in Constantinople, and two advocates of the court of the praetorian prefect of the east.³¹ The collection was to be arranged in titles according to subject matter (const.

Haec § 2). Within each title - as in the earlier collections — the laws were to be ordered chronologically. The commissioners were explicitly authorized to leave out or change text; in particular, they were to delete what was obsolete or contradictory (const. Haec § 2). The work was completed quickly and, after little more than a year, on 7 April 529 Justinian could by means of const. Summa enact the Codex Iustinianus, conferring on it the force of law in the whole empire as from 16 April 529. From this date all earlier constitutions and the Theodosian Code were no longer in force (const. Summa § 3). Justinian ordered the Code to be sent to all provinces (const. Summa § 5). As little as five years later, however, a second edition of the Code followed. For this reason the only parts of the first edition to have survived are the two constitutions Haec and Summa, which also appear at the beginning of the second edition of the Code, and some small fragments of the text.³² The first edition still contained the Law of Citations of Valentinian III (see Section 1). Some conclusions about the further contents of the first edition can be drawn from a few isolated remarks found in works by law professors.³³

A little more than a year after the enactment of the first edition of the Code Justinian directed his attention to jurisprudence. Between July 530 and about September 531 he authoritatively decided a number of controversies among the classical jurists (quinquaginta decisiones - the Fifty Decisions).³⁴ Six months after beginning this revision of the jurists’ lang=EN-US>law Justinian directed constitution Deo auctore of 15 December 530 to Tribonian, who in the meantime had risen to the post of quaestor sacri palatii (a kind of minister of justice). The constitution appointed a commission which was to survey the traditional jurists’ law, shorten it, bring it up to date, and compile it in a new, contemporary codification: the ‘Digest or Pandects’ (Digesta vel Pandectae: const.

Deo auct. § 12). The commission was to base its decisions on objective considerations alone; favouring certain jurists - as in the Law of Citations (see above, 120) - was explicitly prohibited (const. Deo auct. § 6). The double name (‘Digest or Pandects’), each part of which had already been used by classical jurists in the titles of their works, was chosen in order to underline the work’s aspiration towards comprehensiveness. Justinian stated that the collection was necessary because the traditional jurists’ law was so extensive that it had become unmanageable (const. Deo auct. § 1). The Digest commission had 17 members (the ‘compilers’). It was chaired by Tribonian; the other members were one high-ranking official, four respected law professors (Theophilus and Cratinus from Constantinople, Dorotheus and Anatolius from Berytos), and 11 advocates of the court of the praetorian prefect of the east³⁵ (const. Tanta/Dedoken § 9). They were assisted by an unknown number of chancellery officials³⁶ and scribes. The commission read the works of those classical jurists who had possessed - at least as far as known in Justinian’s time - the ius respondendi³⁷ and whose works were still available. In total, there are excerpts from 38 jurists in the Digest. The great bulk of the material is taken from the late-classical jurists Ulpian and Paul; about two-fifths and one-fifth of the excerpts, respectively, originate from them. The commission was able to complete its work within three years. The commissioners, especially the law professors, had long been familiar with the original writings, and this certainly made it easier for them to locate related texts and select the relevant passages from the material. The hypothesis that the Digest is based on extensive earlier collections of jurists’ law (predigesto) is now out of date.

Building upon a tradition of introductory works (institutiones) which had already been written by the classical jurists, Justinian also made plans for an elementary textbook for first-year students (const.

Deo auctore § 11). After work on the Digest had been completed, a commission with three members (Tribonian, Theophilus, Dorotheus) created - probably in the second half of 533 - the ‘Institutes or Elements’ (Institutiones sive Elementa). Justinian prefaced the work with a short introductory law (const. Imperatoriam) dating from 21 November 533 and addressed to the cupida legum iuventus (‘young people yearning to study the laws’). The commission used the elementary works of classical jurists,³⁸ especially the Institutes and the Res cottidianae of Gaius, but also the Institutes of Marcianus, Florentinus, and Ulpian (const. Imperatoriam § 6). The Institutes take into account Justinian’s reforming legislation, but often they also sketch the earlier state of the law (const. Imperatoriam § 5). Again and again the reader is referred to the Digest for further details on a certain subject. On 16 December 533 Justinian published the Digest and the Institutes through a constitution, of which a Greek and a Latin version have survived (const. Tanta/Dedoken); the two versions of the constitution are more or less identical in content. On 30 December 533 the Digest and the Institutes obtained the force of law throughout the empire (const. Tanta/Dedoken § 23), including North Africa, which had only recently been recaptured from the Vandals. The original juristic writings could no longer be cited in court proceedings (const. Tanta/Dedoken § 19). Several safeguards were put into place to protect the text of the compilation against corruption in the course of copying and re-copying of the manuscripts for distribu- tion.³⁹ In the law schools the study of the original writings of the classical jurists was replaced by the Digest and the Institutes (below, 126-7).

While work on the Digest was ongoing Justinian continued to decide juristic controversies and to legislate on other matters. This meant that the Code of 529 soon became outdated.

Therefore, after the work on the Digest had been completed, the Code was revised by a smaller

committee made up of members of the Digest commission; this committee was also chaired by Tribonian. Through the const. Cordi of 16 November

534 Justinian brought into force the revised edition of the Code (Codex repetitae praelectionis), effective from 29 December 534. After some major military successes in the course of the reconquest of Italy - probably around 540 - Justinian had all three of these works (the Digest, the Institutes, and the revised edition of the Code) sent there. In 554 he re-affirmed their validity in Italy.⁴⁰ By the time the revised edition of the Code came into force Justinian had already made plans for a codification that would also collect his subsequent legislation. This new collection was to bear the title novellae constitutiones (const. Cordi § 4). These plans, however, were not realized (below, 138—9). The law professors of the time frequently referred to laws Justinian enacted after 29 December 534 as a ‘new law’, a ‘new constitution’ (novella lex/constitutio;in Greek: νεαρNew Roman",serif;font-style:italic'>ά διάταξις), or simply as novella or νεαρά; sometimes even Justinian himself used this description.⁴¹ The name ‘Novels’ for Justinian’s laws dating from

535 or later is still used today. The first Novel was enacted as early as 1 January 535; the last dates from 25 March 565. In 554 Justinian ordered his legislation from 535 on to be published in Italy too.⁴² Most of the extant laws date from the period between 535 and 541. Unlike the constitutions in Justinian’s Code, these later laws have mostly survived unshortened (below, 138-9).

Legal Education Under Justinian

By means of const.

Omnem of 16 December 533 Justinian reformed the legal curriculum⁴³ and limited legal education to the law schools of Berytos, Constantinople, and Rome. The teaching of law was now based on Justinian’s three great works of codification. The new curriculum lasted five years. At the beginning the Institutes were taught, followed by the Digest. Not all parts of the Digest were treated in lectures; some were left to private study. The fifth year was reserved for the Code. The Novels were necessarily taken into account because of the changes to the law they contained. It is possible that later a sixth year of study was added, dedicated solely to the Novels. The teaching activities of the law professors — who referred to themselves as antecessores (‘those who lead the way’) - yielded a rich literature in Greek including introductions (indices), word-for-word translations (kata poda) as an aid to understanding the Latin text, and explanations of certain words and references to other parts of Justinian’s legislation (paragraphae, parapompae). An introductory course in Latin to the Novels has survived (below, 140). The methods used by the antecessores are relatively well attested. Towards the end of the ninth century emperor Leo VI created a great codification (later called Basilica;⁴⁴), which was based on Justinian’s legislation. For this work Leo’s compilers did not draw directly on the Latin text of the Digest, the Institutes, and the Code; instead, they used the Greek paraphrases or translations which had originated in legal education. Furthermore, scholars added glosses to the manuscripts of the Basilica (scholia⁴⁵); these explanatory notes are based on works used in legal education which are now lost and thus signifilang=EN-US>cantly enhance our knowledge of the literature created by law professors in Justinian’s time.

<< | >>

↑

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

More legal literature on Laws.Studio

The Reign of Justinian

More on the topic The Reign of Justinian: