In 518 there came to the throne an elderly soldier, Justin.

Born of a peasant family, he had risen from the ranks despite his com­plete lack of education. For his relatives, however, he provided what he lacked himself: younger members of the family, and in particular the nephew and adopted son whom we know as Justinian, received the best education that Constantinople could offer.

When Justin came to the throne Justinian was thirty-six, and by his conspicuous abilities he soon acquired great influence.

The Corpus luris Civilis. Justinian’s first project was the rela­tively modest one of doing again for his own time the work which, ninety years before, Theodosius II had done for his. In February 528 he appointed a commission of ten, including Tribonian, then head of the imperial chancery, to make a new collection of constitutions. They were to omit all that was obsolete and were to make such consolidations, deletions, and alterations as were necessary to remove contradictions. The work was quickly completed and the Code^{[12] [13]} was promulgated in April 529. It remained in force, as we shall see, only until 534 and has not survived.

Justinian then turned his attention to the juristic law.

It was apparently at this point that Justinian conceived the far more ambitious project of a compilation, the Digest or Pandects, which would both preserve the best of the classical literature and provide a statement of the law in force in his own time. This task was entrusted, on 15 December 530, to Tribonian, who by this time was, in modern terms, Minister of Justice, and who was to choose a commission to help him. He chose sixteen men—one great officer of state, eleven practitioners, and four professors, two from Constantinople and two from Beirut. They were to read and make excerpts from the old literature, and these excerpts were to be collected into fifty books, divided into titles (chapters) according to subject-matter. Moreover they were to abridge and alter as much as was necessary to ensure that the work contained no repetitions, no contradictions, and nothing that was obsolete.¹ At the same time, they were to record the provenance of each excerpt, giving the name of the author, the title of the work, and the number of the book. (This is called the ‘inscription’, e.g. ‘Ulpian, first book ad Sabinum’.')

Even to envisage such an undertaking was remarkable, and supports the view, for which there is some other evidence, that there had been a revival of classical learning in the law schools of Constantinople and Beirut. Tribonian was to be the central figure and his may well have been the inspiration.

The time allotted for the work was ten years, but it was completed within three. It was promulgated by Justinian on 16 December 533, and came into force fourteen days later. To many it has seemed astonishing that so vast a work should have been completed in so short a time, particularly since Justinian says the alterations made were ‘many and very great’. It has therefore been suggested that the compilers must have had recourse to pre-existing compilations used in the law schools. This involves, however, convicting Justinian of a lie when he speaks of the 2,000 books which have been read, a lie which would have been obvious to any lawyer. And the achievement is less astonishing than it seems at first sight. As we shall see, the compilers appear to have split up into three committees for the preparatory work, and there may well have been a still further division of labour within each committee.

Meanwhile Tribonian and two of the professors (Theophilus from Constantinople and Dorotheus from Beirut) had been entrusted also with the task of producing an official elementary textbook for students, the Institutes. This too was promulgated in December 533, and was even given legislative force. No more than the Digest, however, is it an original work. It is a patch­work of passages of classical institutional works, filled out, where a change of law or some other reason makes this necessary, with pieces of the compilers’ own composition. In this respect it differs from the Digest only in that the provenance of the indi­vidual passages is not indicated. This is often, however, dis­coverable. For a large part of the Institutes is borrowed from the Institutes of Gaius, and a fair number of other passages are reproduced in the Digest. This patchwork character accounts for the rather disjointed and occasionally contradictory ap­pearance of the text.

The Institutes are indebted to those of Gaius not only for a large part of their substance but also, to an even greater extent, for their arrangement, and especially for the division of the law into three main parts, concerning Persons, Things, and Actions. This division, which will be discussed later,¹ exercised a great influence on subsequent legal thinking.

By this time the enactment not only of the Fifty Decisions but also of a great many other reforming constitutions had made the Code of 529 obsolete, and Tribonian was accordingly commis­sioned, with Dorotheus and three of the practitioners from the Digest commission, to prepare a new edition. Once again the commissioners were given wide powers of alteration, rearrange­ment, and deletion. The work was published on 16 November 534, and came into force on 29 December of the same year.

The work of codification was now complete, but the flow of constitutions continued. Justinian had envisaged an official col­lection of these new constitutions (novellae constitutiones—hence their modern name, ‘Novels’) but the project was never carried out, and the collection which appears as the final part of the Corpus luris in modern editions is derived from three unofficial or semi-official collections. The Novels are for the most part concerned with public law or ecclesiastical affairs, but they include also a number of important reforms of the private law, particularly in matters of family law and succession.

Character of the Digest. The Digest is not only the largest but also by far the most important part of the Corpus luris, and something more must be said of its character. Justinian describes its com­pilation as ‘a most difficult, indeed an impossible undertaking’. This was written in a spirit of hyperbole but was in a sense the truth. For Justinian had two incompatible objectives, to preserve the best of the classical literature and yet to reform and set out the law of his own day. In seeking to achieve both he failed fully to achieve either, and the failure was only accentuated by the haste in which the work was done.

The authority of the Digest derived from Justinian alone, and recourse to any literature outside it was expressly forbidden. And yet each fragment states in full its provenance, and the whole abounds in the citation and discussion of the views of

¹ See below, pp.

Nor was the lawyer’s task made easier by the arrangement of the work. The order of books and ‘titles’, each ‘title’ being devoted to one topic, is that of the Edict. Unlike the order of the Institutes, this was only in its broadest divisions systematic, but it was no doubt familiar and adequate, especially as the ancients, classics as well as Byzantines, set less store than we do by scientific arrangement. But within each title the order of fragments appears to be arbitrary. There is the further hazard that fragments in one title may well have a bearing on the subject-matter of another, quite different, title, and there are no cross-references. The order of the fragments remained a mystery until 1818 when a young German, Bluhme, unravelled it. By a study of the ‘inscriptions’ of the fragments he showed that there are three main groups, or ‘masses’, of works, the extracts from each of which come regularly together in each title; and he showed further that, though the order of the masses varies, the order within each mass is usually the same. From this he inferred that the compilers were divided into three com­mittees, each responsible for making excerpts from one mass, and that the full commission met only to do the final work of editing the whole.

The spirit of the Digest is thus as remote as it well could be from that of a modern code, such as that of Napoleon. But it was the spirit of the age, an age which was in most spheres almost obsessively unoriginal. Justinian himself declares that ‘the man who amends what is imperfectly done deserves more praise than the original author’. Only in an age when this could be said could a work as contradictory in its purposes as the Digest have been undertaken. In seeking to preserve the great­ness of the past Justinian failed to produce a practical codifica­tion which his own subjects could use, and in seeking to present the law of his own day he distorted what he was trying to preserve.

And yet he was to succeed in a time and place and in a manner of which he could not have dreamed, and these very defects were to be one of the sources of this unforeseen success. He declared that he had given the best of laws not only for his own age but for the ages to come. Centuries later these words would be heard again, and the work of Justinian the legislator would become the common law of the continent of Europe. Later still, and in our own time, the historian of law would find in the work of Justinian the preserver a rich record of the greatest achievement of the Roman mind.

In the history of law Justinian marks the ending of the ancient world. In his reign the Roman law enjoyed a brief second summer before the onset of the winter of the next five hundred years. And the Roman law which emerged from that winter was a medieval law, a law of the book. Once the legislator’s hand had been laid upon it the character of the Roman law was changed: its authority now lay not in the balance of the free debate between the jurists but in the words of the book in which the debate was preserved. This result must follow on any codification; it was only the more marked because of the habits of mind of the Middle Ages.

Justinian’s importance lies in his having succeeded, at a moment when the ancient world was dissolving, in collecting together, in a form which could survive, the literature of the Roman law. And in the survival of this literature even his con­quests can be seen as playing a part. For his conquest of Italy made possible the promulgation there of his codification, and it was probably in Italy, and within half a century of Justinian’s death, that the manuscript was written to which we owe the survival of the Digest.¹ How it was preserved we do not know,

¹ This manuscript, which we know as the Florentine, has been in the Laurentian but we may remember that it was soon after Justinian came to the throne that in Italy, at Monte Cassino, St. Benedict founded his first monastery. In the dissolution of the ancient world the medieval world was taking shape.