The Formation of the Corpus iuris civilis and the Writings of Irnerius: The Rise of Civil Common Law
Here and there, forgotten for centuries, separate or bound parchments bearing a text that reproduced (with uneven fidelity) the text of Justinian’s lost ancient originals were saved from destruction.
Toward the mid-eleventh century someone had the idea of rescuing them from their abandonment and putting them back into circulation. According to one imaginative report, something of the sort happened somewhere between Amalfi and Tuscany concerning a complete copy of the Digest. What is certain is that around the midtwelfth century this exemplar, known under the name of Pandectae, was in Pisa and that it was and continued to be extremely difficult to get a look at it. Aside from this one instance, Justinian’s compilation was nearly unknown. Fragments existed in Verona and Pavia. We know from later twelfth- and thirteenth-century sources, which give no details and present some uncertainties regarding some elements, that Iibri legates circulated in the late eleventh century in Tuscany, Bologna, and Lombardy.What these books were we can only surmise, and even then only by lending weight and precise meaning to words that were written at a time so remote from the facts they recount that they should perhaps not be taken literally.
All of the Institutes and at least the first nine books of the Code seem to have been the first to reappear and attract scholarly attention. When Ralph Niger mentions that Pepo was baiulus of the Codex and the Institutionesy he is in all probability repeating a tradition founded in fact, thus setting the date of the first reappearance of certain portions of the Roman laws. If the Epitome Codicis was still known in the first decades of the eleventh century, now Pepo had access to a copy of the complete Codexy a copy that undoubtedly contained flaws and errors but was nonetheless fairly close to the original model composed in the ancient imperial chancery.
It took a good many sheets of parchment to pass on the laws of Rome. Some of these were loose because that was the way they had been found; others, sewn together, made up a “codex” (that is, a book) of two or three hundred folios. One “codex” was insufficient to contain all the laws, which is another reason why the Hbri legates were in a state of disorder. Very few copies existed, few were intact and complete, and all were extremely precious. They cost a great deal. Furthermore, the work required to put them back into order was immense.
Irnerius was the first to have the courage to recompose and restore them. Unlike Pepo, then, he was not satisfied simply to own a copy of the Codex or the Institutiones or to respect the physical existence of those documents. With the encouragement of Countess Matilda, the powerful feudatory of Tuscany (who may have provided financial aid as well as verbal encouragement), Irnerius “renewed the books of the laws and, reconstructing the order in which they had been compiled by Emperor Justinian, with the possible addition of a few words here and there, he divided them up.”[55] Irnerius was not a jurist acting as a custodian for normative texts that he was lucky enough to have available and perhaps to own; he was a master of the liberal arts who made himself into a jurist in order to shatter the status of tradition, because tradition brought confusion and distortion.
Work advanced slowly, thanks to the objective difficulties inherent in the task and its sheer length, but also because Irnerius was often obliged to leave Bologna to visit Matilda’s court, to follow the emperor, Henry V, or to go to Rome to defend the antipope, Gregory VIII, in his struggle against Gelasius II. It seems from all the evidence that collecting the parchments and putting their contents into an order that reflected the original arrangement occupied Irnerius for the rest of his life. The entire work, including some portions that had been lost but had been rediscovered at the time, was once more recompiled, if not by Irnerius5S own hand, at least in his own day and in his circle.
First, many books of the Digest were added to the Institutes along with the first nine books of the Code from book one to the second title of book twenty-four (Dig.ι-24.2). This came to be called Digestum vetus. (An old hypothesis, which may have some merit, states that at the time the Digestum vetus included all of book twenty- five as well.) Next, the final books were added, which in later tradition settled down to comprising books thirty-nine to fifty, but in Irnerius5S time this portion may have begun in the middle of the last sentence of an earlier book, Dig.35.2.82, with the words Trespurtes (though it is not impossible that it began with the twenty-sixth book). These additions were called Digestum novum. Finally the intervening books were added, from book 24.3 to book 35.2.82, perhaps without the section that came to be known, from its first words, as tTres partes55 (Dig.35.2.82-Dig.38.17). This portion was known as the Infortiutum. It was later extended when the tTres partes55 section was removed (if indeed it had ever appeared there) from the Digestum novum and placed after Dig.35.2.82, where it nonetheless remained a coherent whole. At that point the Infortiutum took on its definitive form as Dig.24.3 to Dig.38.17. The last three books of the Code, known as the Tres Hbri (Cod.ιo to Cod.12) were also rediscovered, as were the Novels (Novellue Constitutiones), all 134 of which were collected together in a work considered complete and authentic, hence CaHedAuthentioum.All the texts of the Justinian compilation were recopied onto new parchment folios and bound together so as to form new volumes, or codices. In this way, reproduced and emended where it seemed possible to do so (with the “addition of a few words here and there,55 as Burchard’s chronicle tells us), they were distributed (Irnerius5S distinxit) in five great folio volumes, each one of which contained some two hundred parchment folios (or some four hundred pages). A tra- ditioπ was launched; under normal circumstances it continued to be respected until the much later printed editions of the fifteenth, sixteenth, and seventeenth centuries.
In this new and soon standard organization, books 1-24.2 of the Digest (the Digestum vetus) formed the first volume; books 24.3-38.17 of the Digest (that is, the Infortiutum) made up volume two; books 39.1-50.17 of the Digest (the Digestum novum) were volume three; volume four contained the first nine books of the Code∖ the fifth volume (also known as the Volumen or Volumenpurvum) contained the four books of the Institutes^ the last three books of the Code (that is, the Tres libri), and the Novels in the version of the Authenticum (hence known as Authenticue) distributed into nine collutiones.
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More on the topic The Formation of the Corpus iuris civilis and the Writings of Irnerius: The Rise of Civil Common Law:
- Bellomo Manlio. The Common Legal Past of Europe: 1000-1800. The Catholic University of America Press,1995. — 273 p., 1995
- Roman Law Terms with Letters I