A The sources of classical law

The most important source for our knowledge of “classical” Roman law is the Digest of Justinian, comprising fifty books of selections from the voluminous commentaries of the most influential jurists.² The Digest was compiled under the sixth-century emperor Justinian (reigned 527-565), much later than the jurists whose work it collects.

Justinian instructed his team of legal scholars to read through thousands of pages of classical legal texts and distill them into a much shorter work, preserving only what was still valid and useful (hence the title “Digest”). The fifty books of the Digest are divided into “titles,” denoting the topics treated in the particular book. Within each title is a varying number of excerpts from different juristic works. Justinian’s compilers carefully noted which jurist and which work by that jurist were being cited, thus enabling modern scholars to reconstruct (to a limited extent) the content of the original works, which are now lost. Most of the jurists whose works are excerpted in the Digest wrote in the second or early third centuries C.E. The most famous and influential was Ulpian, from Phoenicia (Syria), who wrote in the early third century. Other important jurists are Modestinus and Paulus, both also writing in the early third century, and Julian (writing under the emperor Hadrian in the early second century). It should be remembered, however, that the Justinianic compilers took their excerpts out of their original contexts, which were much longer works. The final shape of the Digest is due to the sixth-century lawyers, not to the jurists whose works are quoted.³

Unlike the emperors and the Senate, jurists were not makers of law, but rather interpreters of it. However, passages from the jurists preserved in the Digest often discuss, and sometimes quote verbatim, imperial enactments and also laws passed by the Roman Senate (senatusconsulta).

Nor were jurists always in agreement with each other on points of law: though most evidence of disagreement among legal authorities was omitted by Justinian’s compilers, who were harmonizing and condensing the hundreds of volumes of juristic writings, it is still possible to find evidence for such differences of opinion and interpretation in the Digest.

Though the Digest is the major source for our knowledge of classical Roman law, a sourcebook of this size and scope can only include a small selection of the entire fifty books. Selections from the Digest in this sourcebook are indicated by “D.,” followed by the number of the book, title, and number within the title from which the excerpt is taken. After the Digest book, title, and selection numbers, in parentheses, is the name of the jurist from whose work the excerpt was taken. Some of the Digest’s fifty books are much better represented here than others: for instance, Book 23, which deals exclusively with marriage, is quoted extensively in Chapter 2, Part I.

Other Roman legal texts from the “classical” period have been preserved outside of the Digest. The most important is the Institutes of Gaius, a handbook dating to the second century C.E. which has survived virtually complete.⁴ Gaius’ Institutes are particularly valuable in providing information about aspects of classical law no longer valid in Justinian’s day, which were therefore not included in the Justinianic corpus. For instance, almost all our knowledge of the legal guardianship of women (tutela mulierum) derives from Gaius’s Institutes (see Chapter 1, Part III.A). Later handbooks setting forth the law of the late classical period (the end of the third century

C. E.) have also survived: the Rules of Ulpian (Regulae Ulpiani, also called Epitome Ulpiani or Tituli ex Corpore Ulpiani), and the “Opinions of Paul” (Sententiae Pauli). Though attributed to the third-century jurists Ulpian and Paulus respectively, these handbooks were composed after their lifetimes, in the early decades of the fourth century.

Another interesting legal compilation, also apparently of the fourth century, is the so-called Vatican Fragments (Fragmenta Vaticana), which contains excerpts from juristic commentaries as well as some imperial rescripts.⁵

In addition to the Digest, the emperor Justinian was responsible for compiling another important source for Roman private law of the second and third centuries C.E., the Codex Justinianus or Code of Justinian.⁶Whereas the Digest contains extracts from jurists' commentaries, the Code is a collection of legal enactments by Roman emperors from Hadrian (reigned 117—138) up to Justinian, under whose auspices the Code was published in 534. Beginning with the reign of Constantine (307—337), these imperial enactments are usually in the form of general laws, often edicts or letters addressed to an imperial official and intended to have general publication and application throughout the Empire. But the legislation of the emperors of the second and third centuries is usually in the form of rescripts (subscriptiones, or more generally, rescripta): replies given by the emperor to petitions from individuals, mostly private subjects, who had written to the emperor for information or assistance on particular points of law. Rescripts were probably not the work of the emperors themselves, but were composed by the imperial secretary a libellis (“for petitions”) and signed (subscribed) by the emperor. They were posted in a public place (the forum, or other meeting area) in the city where the emperor was residing at the time he answered the petition. The petitioner had to make sure that the emperor and his bureau a libellis actually received the petition — not an easy undertaking for ordinary subjects, especially in areas not regularly visited by the emperor — and also to wait for the reply to be posted and then copy down its contents before returning home to make use of the information or imperial ruling that the rescript contained.

Almost all of the approximately 2500 rescripts in the Code of Justinian date between 193 and 305; more than half are from the reign of Diocletian (282—305).

The recipients of imperial rescripts represent a much broader spectrum of the population of the Roman Empire. About a fifth of all the rescripts are addressed to women (a quarter for the reign of Diocletian) — a far greater representation of women than in any literary source of Greco- Roman antiquity. Many of the people who wrote to the emperors were from the provinces of the Empire rather than Rome; almost all the rescripts from Diocletian's reign emanate from the eastern chancellery, and so are addressed to recipients in Greece or Asia Minor or the Middle East. Unfortunately, the petitions (called libelli) to which the rescripts reply were not preserved, but their contents can often be inferred from the responses.⁷

Imperial rescripts are cited in this sourcebook to illustrate points of law known through the jurists, and to show which issues or questions about Roman law were of particular concern to ordinary women (and men) in the

Empire. Like the Digest, the Code of Justinian is divided into books (there are only twelve books of the Code, however), and titles and numbers within books. Citations from the Code of Justinian in this sourcebook appear as “Cod. Just.” plus the book number, the title number, and the number of the rescript under that title. Most rescripts are dated, either by date of subscribing by the emperor or date of posting, and I have also included these dates.

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Source: Grubbs J.E.. Women and the Law in the Roman Empire. Routledge,2002. — 374 p.. 2002

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A The sources of classical law

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