II CHARACTER AND TENDENCIES OF LEGAL SCIENCE IN THE BUREAUCRATIC AGE

In this final period jurisprudence displays an abundance of new tendencies, in part conflicting tendencies and therefore the more difficult to analyse. The task must, nevertheless, be attempted.

(i)

One of the most characteristic and important phenomena of the period is juristic classicism,^{[448] [449]· the classicizing tendency.[450]}

i. Such a tendency was quite foreign to the jurisprudence of the Principate; the jurists were conservatives, but not classicizers. It never entered their minds to canonize the jurisprudence of an earlier period, to make it the standard and measure (μίτρον καί κανών, norma et regula) of their own activities. They were conscious of possessing a standard within themselves and of not needing to seek one from others. They were quietly self-dependent, and their admirable sureness of themselves is one of their essential charac­teristics. They had no thought of canonizing the jurisprudence of' the Republic; neither was canonization achieved by any one of themselves, not even by Julian; Papinian too, in the eyes of Paul and Ulpian, was open to criticism. The attachment of the classical writers to Q. Mucius or Sabinus is merely an attachment to a con­venient literary form. When they quote from older writers, they do so in order to put in a word of their own. Even the terse hoc probo appended by lavolenus to a quotation from Labeo asserts a claim to at least equal authority for his own view.

279 the standard and pleasure, norma et regula, and Papinian, Paul, and Ulpian figured as the ακμή, as the κορυφαίοι των νομικών.¹

2. Both in East and West the home of juristic classicism was naturally the law school. Possessing no authority of his own, the post-classical law teacher could attain to authority only by his knowledge and dissemination of classical jurisprudence. The clas­sicism of the western Roman school is evidenced as late as the fifth century by the Veronese MS. of Gaius and the Autun commentary on Gaius,² the classicism of Berytus by its programme of studies, which goes back to at least as early as the fifth century. As we have seen,³ the lectures of the first three years were devoted exclusively to classical works or extracts from them. In their fourth year the students were still occupied with classical jurispru­dence, reading Paul’s Responsa privately. Only in one’s fifth year did one begin the study of the imperial constitutions, in the Codices Gregorianus, Hermogenianus, and Theodosianus, again without the help of official lectures.⁴ It is a programme which accords exactly with the classicism of Savigny and the scheme of lectures which under his inspiration was laid down for the newly founded Univer­sity of Berlin. In those days Prussia was under the Code of 1794, which had displaced the previously valid Roman law. None the less, on Savigny’s advice, at the University of Berlin lectures were given only on the now invalidated Roman law and not on the Code ' actually in force. It is with complacency that Savigny records, in his famous Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissen­schaft,^s that ‘up to now the University of Berlin has not taught Prussian law’.

I am of opinion that in the present state of things they had better not be delivered, since for the needs of practice subsequent’ (i.e. private!) 'training suffices.’ This might be the utterance of one of the classicizing professors of Berytus on the imperial codifications.

3. Classicism admits of various forms. It is not identical with the historical spirit, though both classicist and historian concen­trate on the past. The historian⁶ seeks to recover past relations,

¹ D. (27. 1) 13. 2, perhaps post-classical.

³Below, p. 30X. ³ Above, p. 275.

⁴Official lectures would cite the collections of constitutions only occasionally, as

in the Schol. Sinaitiea: below, p. 325. _

³ Ed. 3 (1840), pp. 144-6; reprint (1892), pp. 88-9. H. Kantorowicz, Was ist uns Savigny ? (Berlin, 1912), 18, is one-sided and incorrect.

⁶ Cf. E. Troeltsch, ‘Der Historismus u. seine Probleme’ (Ges. Sehr, iii, 1922), especially pp. 102 ffi, 217, and elsewhere; Acton, A Lecture on the Study of History (1895), 56 ft, 58: ‘historicism and historical-mindedness’; W. Jäger, Tr. and Pr. of the Am. phil. ass. Ixvii (1936), 363 ff.

280 the bureaucratic period,

to see and depict the past as it once actually was, in its historical conditions and its relative imperfection. The classicist seeks a standard; from some historical phenomenon, which he claims to have been a culminating achievement, he strives to derive a canon or norm for the present day. His constant tendency is therefore to rejuvenate the classical model and adapt it to the present day: 'non ut quid derogetur antiquioribus, sed ut, si quid deesse eis videbatur, hoc repleatur.’¹

Accordingly the classicism of the second half of the third century and the first half of the fourth strove to adapt the texts of the classical juristic works to contemporary life. Its object was, by abridgement, by the insertion of introductions, paraphrases, justi­fications, and other matter, and by the production of epitomes and anthologies, to render the classical works more readily accessible and intelligible.

¹ C. (4.1) 12.6. ² Above, pp. 141 ff.

3 Mommsen, Sdtr. ii. 48: ‘Ulpiani regulae ea brevitate, perspicuitate, proprietate scripta sunt, quam adhuc secuti sumus omnes, assecutus est nemo!’ Cf. Schulz, Epit. Ulpiani, 12. ♦ Above, p. 180.

’ Above, p. 233.

But this process of adaptation and transformation did not con­tinue for ever. In the fourth century the second period of juristic classicism begins. The farther the classics receded into the past, the greater became the veneration with which they were regarded.

4.It is in this second period of juristic classicism that we find the first attempt to set up a closed canon of authoritative, standard juristic works, similar to the older list of literary ‘classics’ {iceKpi- p^voi),⁹ or to the canon of Holy Scripture defined by the Church.’ Such a canon of classical jurisprudence was set up by the ¹ We see the same phenomenon in the textual history of the New Testament.

³ ‘Scholasticae intention! tribuitur nosse etiam ilia, quae mandata silentio in desuetudinem abierunt.’

* Done only by Justinian: above, p. 164, and below, p. 299.

s Above, p. 221. ⁶ Const. Ornnem, s. 1.

’ Const. Imperaioriam, s. 3. ⁸ Above, p. 100. ⁹ Below, p. 330. constitution of Theodosius and Valentinian of 426, which since Hugo has been known as 'the Law of Citations’. Unfortunately this enactment has not reached us in its original formulation but only in that incorporated twelve years later, in 438, inthe Codex Theodosia- nus.¹ In all probability the original formulation² named none but the five juristic evangelists: Papinian, Paul, Ulpian, Modestinus, and Gaius. Only their writings were to possess auctoritas. In the event of a difference of opinions that of the majority was to be fol­lowed ; if the voting was equal, Papinian’s voice was to be decisive. But almost at once this canon was felt to be too restrictive. Accord­ing to the formulation of the Codex Theodosianus the writings of other jurists were also to enjoy auctoritas, those namely of the jur­ists cited by the five great men—the reference is not merely to pas­sages cited by them. The result was that the system of votes was deprived of any reasonable meaning,³ and the whole canon was in fact as good as abandoned. For example, the multiplicity of Ul- pian’s citations would reduce the number of uncanonized juristic works to vanishing point.⁴ Once more the academic interest, the intentio scholar urn, had conquered. That the works used in actual practice amounted to but a small selection is probable a priori and expressly evidenced.⁵ The Law of Citations in this revised form was in force up to the time of Justinian, by whom it was included in the Codex of 529.⁶ Rendered obsolete by the publication of the Digest it was excluded from the Codex of 534.

¹ C. Th. (r.4) 3. Biscardi, Studi Senesi liii (1939), was inaccessible. See Addenda.

¹ On this, Gradenwitz, Z xxxiv (1913), 274 ff., is decisive. I regard it as possible that Gaius also was not named in the first formulation, but only the four Severan jurists. If so, it would not follow that the reading and citation of Gaius was for­bidden, but only that he did not count in the voting. See below, n. 4.

^J Gradenwitz, Z xxxiv. 282, is right. On collatio codicum see Conrat, ‘Z. Kultur des r. R.’, Mèi. Fitting, i (1907), 31 ff. (offprint).

⁴ Marcian seems to have been cited by Ulpian and Paul, though only as the result of a textual corruption (above, p. 220). Whether Florentinus was cited by Paul, Ulpian, or Modestinus, is uncertain, but even if he was not one of the authorized jurists, one was naturally permitted to read and cite him: that was nowhere forbidden. Thus it is not surprising that the Schol. Sinaitica (13.35) cite him.. False inferences are drawn from this citation by Krüger, 371, and Pringsheim, ‘Die Entstehung des Digestenplanes ’, ACI, 1935, Roma, i. 463. Schedilo (* Sulle citazioni di giureconsulti class, nella legislazione di Giustiniano anteriore alla cost. Deo auctore ’, Rend. Lomb. Ixiii. 1930) misunderstands the Late of Citations.

⁵ Justinian, Const. Tanta, s. 17: ‘Homines etenim, qui antea lites agebant, licet multae leges fuerant positae, tarnen ex paucis lites perferebant vel propter inopiam librorum, quos comparare eis impossibile erat, vel propter ipsam inscientiam et voluntate iudicum.’ On the paucity of the books commented on in the law school see above, p. 275 f.; referring to this Justinian speaks of ‘penuria legum’ (Const. Omnem, s. 2).

⁶P. Krüger, Z xliii (1922), 563 ; De Francisci, Aegyptus, iii (1922), 68 ff. ; Bordante,

Bull, xxxii (1922), 280 = Scritti, iv. 132..

5.The most important fruit of the classicizing tendency was the codification of classical jurisprudence in Justinian’s Digest and Institutes. This imposing monument of ancient classicism might very properly bear the device: 'Tanta nobis antiquitatis habita est reverentia.’¹ It could not have been produced except by men im­bued with profound veneration and enthusiasm for classical juris­prudence and an unshakable conviction that in it was to be found the norm of any future jurisprudence.. This is a truth which only the prejudice of the Humanists could ignore. The inspiration un­doubtedly came from the seat of classicism, the law school,² but for its realization we have to thank that bibliophile³ and man of many-sided culture, Tribonian,⁴ arid surely also Justinian himself.® (a) The Digest and the Institutes contain excerpts only from classical works, that is works written under the Principate ;⁶ re­publican and post-classical works are alike excluded.⁷ The five short fragments taken from a work attributed to Q. Mucius are just a formal homage offered to the founder of Roman jurisprudence, in the true sense of the term.⁸

(&) The aim, which the Law of Citations failed to achieve, of setting up a canon of authoritative classical jurisprudence, was now realized. Taken together, the Digest and Institutes became thenceforward the lawyer’s bible of classical jurisprudence. Any­thing outside them was devoid of authority and banned.’

(c) The excerpted texts were adapted·.¹⁰ inequitable decisions were corrected, and there was much abbreviation, obsolete matter being simply cut out or replaced by modem law. The work of abbreviation was necessarily radical, but for the rest adapta­tion was sparing. It is becoming daily clearer that numberless interpolations hitherto attributed to the compilers are in fact of

¹ Const. Tanta, s. 10.

² Shown by Pringsheim, ACI, 1933, Roma, i. 460 ff.

² Const. Tanta, s. 16: ‘antiquae autem sapientiae librorum copiam maxima Tribonianus... praebuit, in quibus multi fuerant et ipsis eruditissimis hominibus incogniti. ’

* Kfibler, PW vi A. 2419; ACI, 1933, Roma, i (1935), 22 ff.

⁵ See Erman, Festschrift ft Koschaker, i. 158,163.

* Justinian, in Const. Deo auctore, s. 4, and Const. Tanta, s. 20, puts it thus: only jurists who had received the ius respondendi from the Emperors were to be extracted ; this would exclude the Republican jurists. See below, p. 288.

⁷ Const. Deo auctore, s, 4, correctly interpreted by H. Kriiger, Die HersteUung der Digesten (1922), 63.

* The single extract from Aelius Gallus was certainly obtained by the compilers at second hand; they can have had no exact knowledge of his period. They reckoned Alfenus, who was still living under Augustus, as a jurist of the Principate.

⁹ Const. Tanta, s. 19.

” Rich materials are given by Chiazzese, Conftonli, i. 131 ff.

pre-Justinian origin; the compilers found them already existing in their copies of the classical texts.¹ This is yet another case of reverentia antiquitatis.

(ti) Obsolete matter was not cut out root and branch, but only so far as it was likely to mislead the reader. For Justinian agreed with the academic view that in the education of the lawyer obso­lete law has its value; it is part of his training; if he knows nothing of it, he is uneducated (We know that this was and is possible. But it follows from the double character of the Digest, as both a book of authority and a text-book, that the law of Justinian’s day is not to be discovered by a straightforward reading of the Digest. One has to interpret its texts, and to understand them in the Byzantine sense. How to do this was taught in the law school, nor is it so difficult as many arm-chair lawyers, who have never used the Digest as a book of living law, believe.

(ii)

A novel and highly characteristic feature of the post-classical period is its tendency to convert all law into statute law: under an absolute monarchy all law tends to be thought of as royal com­mand.⁶ Thus the tendency is not an indication of a movement in

1 Incorrect: Bluhme, Z.f. geschichtl. RW. iv (1820), 373; Gradenwitz, Interpola­tionen, 18 ; H. Kruger, HersteUung der Digesten, 187 ; Riccobono, op. cit. p. 343, n. HH, 251. The decisive factor cannot have been tradition. It is not true that no other procedure was possible : the fragments could have been numbered, or only the names of the jurists have been given.

2 So often in the Basilica and in the later MSS. of the Vulgate Digest.

3 Admirably expressed by Riccobono, op. cit. 248: ‘ raccoglie il fiore della produ­zione del genio latino, comunque purgato e rinnovato. ’.

* Const. Tanta, s. 19.

s Riccobono, op. cit. 247 : ‘ la quintessenza di tutto il sapere giuridico dei Romani col proposito e al fine di fondere in esso lo spirito e la civiltà dei nuovi tempi. ’

⁶ So Mommsen, Sdir. ii. 372.

favour of reformatory legislation; it is merely a tendency to elevate,to the rank of statute law the law already existing as juristic doc­trine. Thereby further juristic controversy would be precluded, the uncertainty attending all juristic law would be got rid of, and stability of law would be produced. What had previously floated on the mobile waters of juristic doctrine would now be solidly based on statute: ‘quod antea vacillabat, in stabilitatem redigen­dum est.’¹ We will call this tendency the tendency to stabilization.

i. It was quite alien to earlier Roman jurisprudence. As we have shown,* the jurisprudence of both the Republic and the Principate avoided and impeded the fixing of the law by State enactment. The tendency of the jurists had been rather the con­trary, namely to prevent the law from being petrified and stabilized. They wished the law to remain in a state of flux, so as to be adapt­able and elastic. They did not undervalue certainty of the law, only they did not view this as the hard-and-fast certainty of statute; in their view true certainty implied elasticity.¹ Therefore, no cus­tomary law, no servitude to previous decisions (stare decisis), and above all as little statute law as possible. Their ideal was the malle­able lex annua of the Edict (before it was stereotyped by Hadrian).⁴ The proper purpose of leges, senatusconsulta, and imperial constitu­tions in their eyes was to introduce reforms, not to stabilize. Thus in classical times, as in republican, juristic law held the first place, both in volume and esteem; the scanty leges, senatusconsulta, and constitutions were in the background. But from the time of Diocle­tian there was a veritable revaluation. Statute law, as generating ius certum, became the ideal. The vacillations of juristic law now produced a feeling of revolt; let it be stabilized by being absorbed into statute. The beginnings of this tendency can be observed already in the second half of the Principate. Hadrian’s codifica­tion of the Edict had stabilization, not reform, for its object.⁵ Nor are purely stabilizing constitutions altogether lacking. But these were mere beginnings. From Diocletian onwards, however, the tide set decidedly in the direction of statute law, declaratory or stabilizing, not reformatory. The tendency was now nakedly re­vealed to throw the whole law into statutory form and thus to stabilize it. There can be no doubt from which of the groups of jurists this tendency proceeded; the classicizing tendency came from the law school, but the stabilizing from the jurists of the cen­tral bureaucracy. The ideal of every bureaucracy is a code of uni-

¹ Cf. Const. Tanta, s. 11. ¹ Above, pp. 24, 60 f., 128.

³ Schulz, 238 ft., 247. * Above, p. 61. ⁵ Above, p. 127.

' 287 form, officially sanctioned regulations, the strict application of which can be supervised by the central office.

2. The new tendency declared itself as early as Diocletian.¹ His imposing rescripts have for their main object the stabilization of the law, not its reform. No doubt in the provinces, since the Constituiio Antoniniana, there may have been a crying need for an authoritative solution of many legal questions. But the answer might have been left to the jurists, as it was under the Principate, when Cervidius Scaevola, for example, answered, as we know, numerous questions coming from the provinces. But now—herein lay the novelty—this function was now taken over by the central imperial chancery. The full revelation of the new tendency came with the earliest large collections of constitutions, the Codices Gregorianus and Herntogenianus,^{[451] [452] the former, which appears to date from 291, containing a collection of constitutions beginning with Hadrian, and the latter, apparently also from the third cen­tury, being a supplement to it. Their authors, Gregorius and Her- mogenianus, are to be sought in the imperial chancery, not in the law school of Berytus,[453] since the tendency revealed by their collec­tions is quite out of harmony with the tendency of the Berytean professors as described above.[454] Paul Krüger[455] regarded it as 'significant that both Codices contain a preponderance of constitu­tions which do not introduce new law, but apply undisputed exist­ing law and which thus do not properly belong to a collection of statutes’. He holds that the objects sought were 'the instruction of practitioners and the education of beginners’. This is a miscon­ception. The object was not legal education: we have seen6 that the law school held aloof from the interpretation of the constitu­tions as far as it could. Nor was it merely the instruction of practitioners. The real object was to stabilize the law, to convert it into royal commands by publishing the stabilizing constitutions in a handy collection. Thenceforward these Codices were to be the standard reference-book of the practitioner. If he found his ques­tion answered by them, he would have no need to trouble further with the ius incertum of jurisprudence, no need to turn up the juris­tic literature: no need and no duty. For imperial enactment took precedence* it absorbed the juristic law, cleared away all disputes, and brought stabilization.}

3. A comprehensive stabilization of juristic law was planned by Theodosius II. The Codex Theodosianus, besides collecting all con­stitutions still in force, and no others, was to dispose under each of its titles excerpts from the.classical literature.¹ But the plan failed. The Codex produced in 438^{[456] [457] was merely a collection of (amended) constitutions; the earliest of these are from the time of Constantine, so that the new Codex formed a supplement to the Gregorianus and Hermogenianus. Though it included constitutions no longer in force[458] (a concession to the law school),[459] [460] its main purpose was to stabilize the law by making the statutes more accessible. Dislike of the ius incertum of jurisprudence is clearly displayed in the law publishing the Codex·, it was to help to sup­press this ius incertum.3}

4. The same tendency is shown by the Edict of Theodoric.^[461]

5.Its most far-reaching result was its influence on Justinian and his staff: their Digest is a highly imposing and comprehensive stabilization of Roman juristic law. Tribonian, with all his venera­tion for the classics, belonged to the bureaucratic group of jurists and was swayed by their tendencies. In his eyes classical law was beyond doubt the great pattern and model, but imperial statute took precedence, and even classical jurisprudence received the con­secration that was its due by being stabilized and converted into royal command. That is why he defines the classical jurists as those who had received from the Emperors auctoritas to declare and interpret the law.^{[462] [463] He is alluding to the ius respondendi,3 the nature of which Augustan institution he naturally did not understand.[464] [465] [466] Still less did he know on which of the jurists the ius respondendi had been bestowed; in his belief these would be all}

289 those whose writings were still known.¹ A true son of his bureau­cratic age, he could not conceive of the authority of classical juris­prudence except as having been conceded by the emperors. Whence but from imperial concession, he argued, could the classics have derived the audoritas which they undoubtedly possessed ? In the constitution (Tanta) publishing the Digest he goes so far as to make his Emperor lay down that all the classical utterances collected in the Digest are to be considered as having been written by Justinian himself, or as having been written with his permission.² They have thus henceforward the force of imperial statute,³ since 'nostra maiestas quidquid dubium et incertum inueniebatur, emendabat et in competentem formam redigebat’.⁴ In competentem formam hits the nail on the head. A bureaucratic age recognizes the competens forma, the proper form of all law, only in statute, in royal com­mand. We have reached the opposite pole to the jurisprudence of Q. Mucius. It follows, of course, that the stability now achieved is to hold for all eternity;⁵ jurisprudence is therefore forbidden to disturb it by its interpretations and controversies.⁶ A plainer and more thorough-going expression of the tendency to stabiliza­tion could not be found. It is queer company for the classicistic tendency.

(iii)

A tendency towards simplicity is shown unmistakably by the jurists of the Republic: a few clear and simple forms—that was their aim and what in essentials they achieved.⁷ During the Prin- cipate this tendency persisted, but was menaced by conflicting tendencies. The sane conservatism of the men of the Republic was passing into a dangerous quietism.⁸ The resolution was lacking to uproot obsolete and dying institutions. Instead, new forms were offered as alternatives to the old; compromises which saved the old forms were adopted. Moreover, the courageous advance made under the Republic towards the formulation of general prin­ciples of law and towards its systematization died away under the

¹ Labeo, for example, certainly did not have this privilege.

² Const. Tanta, s. 10: ‘unaque omnibus auctoritate indulta, ut, quidquid ibi scriptum est, hoc nostrum apparent et ex nostra voluntate compositum ’; s. 20: ‘ quasi ex nobis promulgatas. ’

» Ibid.: ‘constitutionum vim et has leges’ (the pronouncements of the classical jurists) * obtinere censuimus. ’. ⁴ Ibid., pr.

’ Ibid., ss. 12, 23; Const. Omnem, ss. 2, rr.

⁶ Const. Deo auetore, s. 12; Const. Tanta, s. 21; Berger, QB Pol. 1945, 656 ff.

⁷ At greater length: Schulz, ch. v, ‘ Simplicity ’.

⁸ Above, p. 128. ■

4497-1 U

Principate.¹ The interest of the classical jurists in abstraction and systematization was very moderate, their main study being of casuistic problems: as we have seen,^{[467] [468] the kernel of classical legal literature as a whole is the literature of problems. Lastly, juristic literature became very extensive, and, since the classical writers rejected all historical methods of appreciation and arrangement, and on the contrary regarded the whole of jurisprudence since Labeo, and, indeed, since Q. Mucius, as a unity, without historical perspective,[469] the literature became practically unmanageable. At Ulpian’s death jurisprudence had become complex and difficult, especially for the new cives created by the Constitutio Antoniniana. The result was that from the end of the third century a tendency towards simplification of the law set in, which is no less charac­teristic of the period up to Justinian than the tendencies towards classicism and stabilization.}

1. Clearly the tendency towards simplification was retarded by the conflicting tendency towards classicism. The lead in promoting simplification was naturally taken by the central bureaucracy. In the third and fourth centuries the law school co-operated in it, but later withdrew from active participation. For the aim of the clas­sicizing savants of Berytus was not to be simple, but to rival the subtlety of the classical jurists, especially Papinian,^[470] whom not without reason they took as their patron saint.^[471] For them sub­tilitas was a virtue; it was a professor’s duty to be 'subtle'.^[472] It was against the fifth-century Berytean professors,^[473] not against the classical jurists, that Justinian’s complaints of the subtleties of antiqua sapientia were at times directed, and what we already know of them shows that they had in fact reverted to a somewhat hair­splitting and scholastic study of problemata? This impression is likely to be confirmed as our knowledge advances. In Justinian

2QI the simplifying tendency was present in its most extreme form,¹ but the classicizing tendency acted as a brake. Tribonian and his staff were perfectly qualified to write a simple law book in the style of the Codex Euridanus,^2, a hundred times better qualified than the Visigothic jurists. But the classicism of the law school proved too strong, and as a result Justinian’s work was a compilation.

2. Only the main outlines of the work of simplification can be sketched here..

(a) The first object was to reduce the bulk of the classical literature.³ It would have been feasible simply to adopt the 'restatements’ of Ulpian’s Ad Edictum and Ad Sabinumf but to this the simplifiers could not make up their minds. Consequently the classical writings were drastically abbreviated and condensed, doubtless by the law teachers; anthologies and epitomes were composed. This simplification was in the main carried out in the third and fourth centuries; we have already spoken of it.⁵ The attempt at a drastic reduction of the literature made by the Law of Citations was a failure.⁶ No doubt the practice of the courts and the law schools contented itself in fact with only a small number of classical works,⁷ but in the East more recondite works still had their readers. Theodosius Il’s complaints against the copia immensa librorum⁸ cannot have been levelled at books only to be found in the libraries. Again, the numerous manuscripts used by the compilers can hardly have been of so early a date as the third century. The works in question must therefore have been further studied and copied in the fourth and fifth centuries. In the West, on the other hand, classical literature fell during the fifth century farther and farther into oblivion. The most important, perhaps the only, representatives of classical jurisprudence were now Gaius’ Institutes, Paul’s Sentences, and Ulpian’s Epitome; Papinian had become just a magic name.⁹ The simplification of the lawyer’s work was also promoted by the collections of constitutions already

1 Inst. (3. 2) 3a: simplicitas legibus arnica. Inst. (2. 23) 7: ‘nobis in legibus magis simplicitas quam difficultas placet. * Cf. Riccobono, Z xliii (1922), 381. Chiazzese, Confronts, i. 235 ff., 460. The simplifying tendency is not archaistic: below, p. 343, n. HH.

2 Zeumer, Leges Visigothorum antiquiores (1894); MGH, Legum Sect, i, tom. 1. Our plan (above, p. 2) excludes treatment here. Schwerin, AHD 1 (1924), 27.

3 Mommsen, Schr. ii. 372 ff. ♦ Above, p. 198 and p. 212.

s Above, p. 142. ⁶ Above, p. 282. 1 Above, p. 282.

⁸ Nov. Theod. i. 1.

» As is well known, there is at the end of the I. Rom. Vis. a short meaningless sentence from Papinian’s Responsa (Collect, libr. ii. 157), the only piece from him. The idea was, under his name, to invoke classical jurisprudence and thereby indicate the connexion of the law book with it—Papinian’s name had become one to conjure with.

described. 'It is the task of our times’, says the introductory law of the Codex Theodosianus,¹ 'to clarify the statutes by a short abridgement.’ Hence, precisely as in the Codex Justinianus, the constitutions selected for the Codex Theodosianus were shortened.

(6) With the simplification of the presentment of the law simplification of the law itself went hand in hand. To this end a concentration of the classical legal institutions was carried out: many of them were assimilated and fused with each other, while others were abolished. The two forms of criminal proceedings, by quaestio and cognitio, were reduced to one, only the latter being left;² similarly, of the two forms of civil proceedings, that by formula and that by cognitio, only the cognitio was retained.³ This involved the unification of the ius civile and the ius honorarium. In order to produce a thorough-going simplification of the law it should now have been the business of legal science to restate the law in its unified form, but this task was beyond the intellectual capacity of the times. Hence, in spite of the basic alteration of the law, the terminology of the formulary system was adhered to ; it was considered sufficient to understand it in an altered sense.⁴ We may apply to the jurists of this period the words of Maitland:® 'the forms of action they had buried, but they still ruled them from their graves.’ Alterations of the classical texts were only occa­sional:⁶ sometimes the antithesis between ius civile and ius honora­rium was set aside,⁷ the classical mechanism of actio and exceptio destroyed,⁸ the classical distinctions between actio competit and actio danda est,⁹ between denegatio actionis and exceptio,¹⁰ between actio and interdictum¹¹ or between actio and in integrum restitutio¹³·

¹ Nov. Theod. I. i: ‘egimus negotium temporis nostri et.discussis tenebris con­pendio brevitatis lumen legibus dedimus. ’

²Mommsen, Straft. 221 ; Schulz, 93. ³ Ibid. 94, n. 1. * Ibid. 94.

’ Equity. Also the Forms of Action at Common Law (1909), 296.

⁶ See, especially, numerous articles by Riccobono: ‘La fusione del ius civile e del ius praetorium in unico ordinamento ’, Arch.f. Rechts- u. Wirtschaftsphilos. xvi. 503 ff. ; Dal diritto classico al diritto moderno (1915), 588 ff. ; T iii (1902), 333 ff. ; Z xliii (1922), 290 ff.; ‘Fasi e fattori’, Mèi. Ñîò³¿, ii (1926), 237 ff.; ‘La prassi nel periodo postclassico ’, ACI, 1933, Roma, i. 322 ff. Cf. Albertario, Introduzione, ³ (1935), 8i ; Chiazzese, Confronti, i. 327 ff.

⁷ A clear example in D. (45. 1) 36 : ‘ erit quidem subtilitate iuris obstrictus, sed doli exceptione uri potest. ’ Here subtilitate iuris is an interpolation for ipso (civili) iure. Compare also F.V. 83 with D. (7. 2) 3. 2.

⁸ Riccobono, Z xliii (1922), 296, with literature ; Beseler, Z xlv (1925), 190 ; Schulz, 94; Guameri-Citati, Contributi alla dottrina della mora (1923), no. 25, p. 72.

• P. Krüger, Z xvi (1895), ³ ff. ¹⁰ Guameri-Citati, l.c. no. 5, pp. 10 ff.

¹¹ Albertario, Riv. it. hi (1912), 13ff.; St. v. 450; Beseler, Beitr. iv. 87; Z xlvii (1927), 359 ; lii (1932), 293 ; Riccobono, Festschr. Koschaker, ii (1939), 368 ff.

¹² D. (15. 1) 32 pr., compared with the formulation in the Strasbourg fragment. Paul, Sent. ³. 7. 1: ‘Integri restitutio est redintegrandae rei vel causae actio.’

293 obliterated. But all this was done inconsequently and without plan. The great majority of interpolations of this class seem to have been first introduced into the texts by the compilers.¹ But the compilers had neither the capacity nor the desire to carry through a radical and systematic fusion of ius civile and ius honorarium in the texts. Thus, though legaium and fideicommissum were assimilated and ultimately fused,² their fusion was merely declared by the compilers; they did not. alter consequentially the classical texts selected for the Digest. Tutela impuberum and cura minorum were assimilated,³ as were testamentum and codicil.⁴ Con­sortium disappeared, leaving only consensual societas to survive.⁵ Of the forms of guarantee only fideiussio was left, modified, how­ever, by a reception of rules taken from sponsiofi There was fusion of the actio rei uxoriae and the actio ex stipulaiu¹ and of other institutions also. Lastly, some of the classical decisions were simplified as being too fine, too artificial and hair-splitting. Strictures against subtleties are specially characteristic of Jus­tinian ; some of them, however, are levelled at the subtleties of the Berytean school. The great majority of interpolations of this kind appear to originate from the compilers.⁸

It is not possible here to enter further into these efforts at simplification. As yet no survey of their development and extent has been made.

(iv)

Closely related to the tendency towards simplification is the tendency to supersede the juristic formalism created by the republican jurists and preserved in essentials by the classical.’ By creating sharply defined and unambiguous legal situations classical juristic formalism had itself contributed to simplification, but all comprehension of this method had disappeared; it now

¹ But see F.V. 266, with Riccobono, Z xliii (1922), 294, n. 1; Beseler, Z xlv (1925), 192; Ivii (1937), 46; Juristische Miniaturen (1929), 124; Albertario, St. iv. 10. See also Gaius, 4.155, where the interdict is described as actio; spurious: above, p. 292, n. n.

² Inst. (2. 20) 3; D. (30) 1. Cf. Riccobono, ‘Legati e fedecommessi ’, Mil. Cornil, ii (1926), 348 ff.; Ind. Interp. on D. (30) 1.

³ See, for the very copious literature: Bonfante, Corso, i. 491; Kunkel, s. 193, n. 5; Sargenti, Il dir. priv. nella legislazione di Costantino (1938), 149-75.

♦ Μ. David, St. z, heredis institutio ex re certa im klass. r. R. (1930), 56 ff.; Kunkel, s. 207; Μ. Scarlata Fazio, La successione codiciUare (1939), 199 ff.

s Gaius, 3.154, in the Veronese version, compared with the Egyptian (above, p. 165).

⁶ Flume, St. z. Akzessorietät der rom. Bürgschajtsstipulationen (1932).

⁷ C. (5.13) 1; Inst. (4. 6) 29. Bonfante, Corso, i. 350; Kunkel, s. 183; Tripiccione,

L’actio rei uxoriae e 1’actio ex stipulaiu nella restituzione della dote secondo il diritto di Giustiniano (1920). ⁸ See Note II, p. 343. Above, p. 132.

seemed mere technicality. The tendency to supersede it is un­mistakable, but we do not as yet possess a survey of its operation in detail.

i. The formal legal acts of the classical period (actional formal­ism)¹ were now almost entirely abandoned; new, up-to-date forms were created, so far as legal acts did not become completely formless. We have already mentioned the abandonment of the formal proceedings by quaestio and formula. Mancipatio, includ­ing its fiduciary² applications in mancipatio matrimonii causa (coemptio),³ adoption and emancipatio,³ and also in the testamentum Per aes et libram,⁶ in iure cessio,¹ and creh’o⁸—all these formal acts degenerated into what in fact was simply an agreement in writing.’ So, too, the classical forms iorinstitutio heredis and for the making of legata and fideicommissa seemed now to be mere technicalities and perished.¹⁰ The details of this interesting development are difficult to make out from our sources. Classicism prevented the old forms from being expunged from the texts ;^M through the servile con- servativism of the notaries they continued to encumber legal documents.¹² The result is that neither the juristic texts which are independent of Justinian nor the surviving documents are trust-

¹ Above, p. 24.

² Mancipatio still in C. Th. (8. 12) 4, 5, 7, and fiducia in C. Th. (15. 14) 9. It is questionable whether these acts were still conducted in classical form. That mancipatio was abolished by C. Th. (2. 29) 2. 2 is an error. On the decline of mancipatio: Kunkel, PW xiv. 1005; Collinet, i. 222; Archi, L'epitome Gai (1937), 442; Naber, ‘De mancipationis natura aliquando mutata’, Μνημόσυνα ΙΙαπποόλια (1934), 183-5; Mnemosyne, xlviii (1920), 169.

³ Coemptio is omitted, obviously because by then disused, in the Epit. Ulpiani (fourth century): Schulz, Epit. Ulp. p. 34, on 9.1; Kunkel, PW xiv. 2269.

* On the decline of adrogatio (adoptio per populum): Castelli, Scritti giur. (1923), 189 if. Decline of the classical form of adoptio: C. (8. 47) 11, with Bergmann, Beitr. z. rom. Adoptionsrecht (Lund, 1912), 7 ff.; Kunkel, s. 186.

^s Decline of the classical form: C. (8. 48) 5, 6. Kunkel, s. 186.

⁶ On the degeneration of the form of testation and its displacement by other forms: David, Z lii (1932), 314 ff.; Kunkel, s. 202.

’ Cessio in iure still appears in the Visigothic Breviary: Paul, Sent. 3. 6. 28 and 32. But in practice its place had been taken—since when we cannot say—by a formless cessio: Kunkel, s. 55. 4; Conrat, Der westgotische Paulus, 145.

⁸ C. Th. (8. 18) 8. 1; C. (6. 30) 17. Cf. Kunkel, s. 212.

⁹ For the extensive literature on the degeneration of stipulatio see Kunkel, s. 56.3.

¹⁰ C. (6. 23) 15; (6. 9) 9; (6.37) 21. Kunkel, ss. 204,221.5. Ciapessoni, St. Banfante,

iii. 678.

¹¹ Above, p. 281. Thus mancipatio, fiducia, and in iure cessio are still found in the Visigothic PauL

¹² Thus we read in a document as late as 553 (Marini, Papiri diplomatics, no. 86, P- ^T33)^: ‘ quae tradenda erant, tradidimus, quae mancipanda erant, mancipavimus. ’ In a document of about 444 (Marini, no. 73, p. 108) we find: fiduciae nexu obligaverat. See Marini, p. 304; Savigny, Gesch. d. r. R. im Mittelalter, ii. 233; Kohler, Pfandrecht­liche Forschungen (1882), 80 ff.; Leicht, RSDI v (1932), 19.

295 worthy evidence as to the actual state of the law. It was Justinian who first by special statutes and interpolations in all departments registered the total result of the development.

2. The interpretative formalism¹ of the classical period now like­wise met with hostility. About the nature of post-classical inter­pretation of legal rules, especially those of the Edict and imperial constitutions, we know as yet, it must be admitted, very little :^a the general maxims of the title De legibus (D. i. 3) do not carry us far. But we cannot mistake the pronounced voluntaristic tendency now discernible in the interpretation of acts in private law, in particular wills and codicils. It was sought, by means of liberal interpretation, to give effect systematically to voluntas as opposed to verba. Not merely what a declarant (e.g. a testator) intended (his actual intention) but also what he would have intended had he foreseen and taken account of other eventualities (his fictitious intention)³ was now to govern the interpretation of his declaration. From such unshackled voluntarism the classical jurists were still far off, but by means of endless interpolations made by both Justinian’s compilers and their post-classical predecessors their decisions were adapted to this later tendency. This process of adaptation, however, got no farther than individual decisions; there was never any discussion of the question of principle, namely how far it was justifiable to take account of voluntas as opposed to verba. Consequently our sources present us with a chaos of case law. Only after an examination at once systematic and dispassionate of the whole of the vast evidence will a clear conception of the effects of post-classical voluntarism be obtained.⁴

(v)

In this period jurisprudence once again was strongly influenced by Hellenism, so strongly, indeed, that one may almost speak of a second Hellenistic period.⁵ Obviously jurisprudence was now far less capable of resisting Greek influences than it had been in the days of Q. Mucius and the classical jurists. With Constantine Greek legal ideas began to be adopted,⁶ Greek terms (e.g. hypotheca)¹ to

¹ Above, p. 29.

³ Exactly as in classical times: above, p. 133.

³ On this see Schulz, Geddchinisschrift f. Seckel 73.

⁴ Literature above, p. 133.

³ First period: above, p. 38.

* Collinet, it. i (1912), 47 ff.; Schulz, 136, giving literature: Volterra, Dir. rom. e diritti orientali (1937), 241 S.; Sargenti, Il dir. priv. nella legislaz. di Costantino (1938).

⁷ Above, p. 202. On hyperocha see Manigk, PW ix. 293; mnlxfn)in our texts which do not use the words distinctio, distinguere, or differentia. There is a long post-classical distinctio in D. (48.19) 16 (above, p. 256), in which these words do not occur.

t Thus ‘servitutes ’ as a genus embracing personal as well as praedial servitudes: Longo, Bull, xi (1898), 281 ff.; Schulz, 44. This is doubtless a construction of the school of Berytus.

• Schulz, Z 1 (1930), 227, 237, 248.

* Schulz, 44 ff.

¹⁰Above, p. 62. ” Above, p. 130. ¹² Above, p. 94.

¹³ Pringsheim, Beryt u. Bologna, 220 ff., 244ff.; Genzmer, ACI, 1933, Bologna, i. 397 ß·

¹⁴ The other channel was medieval scholasticism: Genzmer, 399 ff.

(vi)

The Hellenizing tendency is closely related to the tendency to humanize the law? ‘Humanity’ is an idea of Greek origin, which, however, received a special Roman stamp in the circle of the younger Scipio and Panaetius: both the term and the concept Humanitas are original Roman creations. It was meant to express the sense of the value of human personality, placing man above all other creatures on earth. The unique value of his personality imposes on a man the duty both of cultivating his own personality and of respecting and developing that of other men. Thus Humanitas embraces not only social and intellectual culture but also graciousness, kindly action, regard for and fellowship with others, and abstention from an immoderate and ruthless assertion of one’s own rights. This is not the place to describe the influence of humanitas thus conceived on the development of the law under the Republic and Principate? But, always in connexion with Graeco-Roman philosophy, it was specially active in the post-classical period. Rigor iuris was systematically attacked, inhuman legal institutes and rules were to be set aside or at least moderated. Humanitas, benignitas, pietas, caritas, clementia— these are watchwords of the age even in the sphere of law?

By the side of the tendency to humanize the law there appeared from the time of Constantine a tendency to christianize it.⁴ The two tendencies travel a good part of the way peacefully together, but now and then they diverge and conflict. The christianizing tendency laboured to endow the Church with a legal constitution and to enact special laws against pagans, Jews,⁵ heretics, and

¹On what follows: Schulz, ch. x, ‘ Humanity *.

² In detail ibid.

³ Ibid. 210, giving literature. Much material is also given by Pringsheim, Z xlii (1921), 643 ff.

♦ Baviera, Mil. Girard, ³ (1912), 67-121, reviewing the older literature; Marchi, St. Senesi, xiii (1924), 61; Chiazzese, Confront!, i. 399 ff., 459 ff.; Albertario, Intro­duzione, ³ (1935), 86 ff.; Riccobono, Corso, ii (1933/4), cap. xi; Jonkers, ‘De 1’infiuence du Christianisme sur la legislation relatif k 1’esclavage dans 1’antiquitd ’, Mnemosyne, ser. 3, i (1934), 241; Roberti, Cristianesimo e dir. rom, containing essays by Roberti, Bussi, and Vismara (1935); numerous articles in AC I, 1933, Roma, ii (1935) and in ACII 1934, vols. ³ and ii (1935); Biondi, Giustiniano Primo, principe e legislatore cattolico (1936); Alvisatos, Die kircUiche Gesetzgebung Justinians I (Neue Studien zur Geschichte der Theologie u. Kirche, xvii (1913); Volterra, Dir. rom. e diritti orientali (1937), 268, with literature; Dupont, Les Constitutions de Constantin et le droit privi au dibut du 4. siide, 1937 (cf. Monier, RH xvi (1937), 489); Sargenti, Il dir. priv. nella legislas. di Costantino (1938), 182; Leifer, Z Iviii (1938), 185 ff.; Renard, Rev. des sciences phUos. et thiol, xxvii (1938), 53 ff.; Cochrane, Christianity and Classical Culture (1940), 198 ff. Jonkers, Invloed (1938) 213. See Addenda.

⁵ Juster, Les juijs dans Vempire rom. 19x4. Recently Solazzi, Bull, xliv (1937). schismatics. In criminal law it demanded severe punishment of religious and sexual wrongdoing.¹ In private law it made for the abandonment of rules felt to be specifically pagan (for example, the lex lidia, et Papia Poppaea, which conflicted with the ascetic ideal) ; it imposed regard for the weak and simple,² for women and slaves; in fact, everywhere it stood for caritas, benignitas, and dementia.

The complex of legal rules developed under the influence of these two tendencies is extensive and important. But one can­not always with any certainty attribute them to the one or the other tendency. Where a rule concords with both (as, for example, favor libertaiis or the abrogation of statutes impeding manumis­sion) we must be content to note the fact. Modem scholarship has concerned itself with these tendencies but seldom; when it has done so, it has frequently failed to employ the right methods. Consequently our literature has wavered between over- and under­estimating the influence of Christianity. The present tendency seems to be once more to overestimate it. It is assumed that every reference in the texts to caritas, benignitas, dementia, or humanitas must come from Christian influence. To do this is simply to ignore that these were also the watchwords of ancient humanitas ;³ even the brotherhood of man had been proclaimed long before Chris­. tianity could have exercised any influence on the law.⁴ Against such exaggerations we must hold fast to the following truths.

1. The humanizing tendency worked independently by the side of the christianizing; sometimes the two tendencies co-operate, sometimes they conflict. The idea of humanitas originated from the Stoa, but in the fourth and fifth centuries it was no longer felt to be specifically Stoic.

2. Ancient learning remained true to the pagan tradition in the fourth and fifth centuries, after the recognition of Christianity by

396 ff. ; ‘ Le unioni di Cristiani ed Ebrei nelle leggi del basso impero Atti Napoli, lix (1939); P. Browe, ‘Die Judengesetzgebung Justinians’, Analecta Gregoriana, viii (1:935), ¹⁰9 ff· ! Peter Charanis, Church and State in the Later Raman Empire, 1939.

¹ Mommsen, Strafr. 595 ff., 682 ff. ; Bury, Hist, of the Later Roman Empire, i (1923), 409 ff. ² Pringsheim, Z xlii (1921), 659; St. Bonfante, i. 581.

³ On pagan virtue see Leclercq in his excellent article ‘Bonte chretienne’ in Cabrol’s Dictionnaire d'Archeologie Chretienne, ii (1910), 1008-15. Further, Charles- worth, ‘The Virtues of a Roman Emperor’, Pr. Brit. Ac. xxiii (1937), 105, with a bibliography ; H. Lange, Z lii (1932), 1914, n. 2.

⁴ See an inscription of about a.d. 220 given by Maas-Oliver, Bull, of the Hist, of Medicine, vii (1939), 315 ff. : the physician should be the saviour of slaves, the poor, the rich, the highly placed ; he must help them like a brother,/or we are all brothers : wavres yap irlXoptv Kames. Marc. Aurei. 7. 22 : Love those who offend, for all men are kindred, and they know not what they do. Cf. Schulz, 219.

299 the State; at any rate it was not as a matter of principle stamped with a Christian character.¹ It is certainly significant that even in the fifth and sixth centuries there were no professors of theology in the universities at Rome and Constantinople.^{[474] [475] Things cannot have been otherwise in the law school, where we observe that there was no thought of purging the classical texts of polytheism, a work performed later by the compilers.[476] The law school was classicistic, but not pronouncedly Christian, and thus pre-Justinian interpola­tions, which combat and recast classical decisions on grounds of humanitas, caritas, dementia, and benignitas, should in general be attributed to the humanizing tendency.}

3. The outstanding champion of Christianization was not the law school, but the bureaucracy.

The details of this group of rules cannot be gone into here; but if one ignores them, one cannot do justice to the jurisprudence of the period. For it was just these rules that lay closest to the heart of the age, far closer than the razor-edged classical decisions.

(vü)

Our sketch of the general juristic tendencies of the age is concluded. It was a polyphonic period, and only an attentive ear can distinguish the individual voices. Neither the will nor the strength to act were lacking, as would be evident to all, if we but possessed the Codices Gregorianus and Hertnogenianus, the Theodo­sianus in their entirety, and some remains of the writings of the Berytean professors. But at any rate one literary work does survive complete, in which all the tendencies of the time reveal themselves: Justinian’s codification. However one may judge of these ten­dencies, this at least is certain, that without the transformation of Roman law and jurisprudence effected in the fourth, fifth, and sixth centuries the law school of Bologna would never have existed, neither would classical jurisprudence have survived the passing of the ancient world.