CODES AND AUTHORITY

A law code must carry authority to be effective. But “authority” in the ancient world is an elusive concept. To start with, the “code” must earn social accep­tance and be applied, in some sense, in daily life.

6 Constitutio Omnes 1.

7 Constitutio Tanta 1.

8 F Millar, “The Greek East and Roman law: the dossier of M Cn Licinius Rufus” (1999) 89 JRS 90 (= H Cotton and G Rogers (eds), Government, Society and Culture in the Roman Empire, Rome, The Greek World and the East II (2004) 435).

Lykourgos;^[174] such was the importance that he attached to social conditioning or training, that, it is said, he refused to have his laws written down.^{[175] [176] Like the Romans later, the Spartans were bound by unwritten custom, even more than by written law.}

The Athenians accorded similar veneration to the “laws” of Solon, whose archonship with special powers is traditionally dated to 594 BC; politicians under the democracy invoked his authority to justify their so-called revivals of his “ancestral constitution” and Cicero believed that provisions on funerals preserved in Roman archaic law were taken directly from Solon's legisla­tion.¹¹ What the Greek “constitutions” shared with the Twelve Tables was an iconic status; their provisions were so self-evidently right that appeal could be made to them indefinitely.

It might appear to follow from this that some state or formal community authority is required for a law code to be accepted as such, and that therefore attempts at imposing system on law, or different types of law, by Roman private individuals should not count, for our purposes, as “codification”. Under this criterion, Salvius Julianus' “codification” of the praetor's edict would count as a law code because he was commissioned to do the job by Hadrian, perhaps resulting from a visit by that emperor to Julianus' native Africa in AD 128. But was the edict, before Julian, a law code? Even before Julianus' project, the annual recensions of the edict were carried out by a succession of praetors, who adjudicated on behalf of the community. It was categorised as a distinct form of law, the ius honorarium, described by a later authority as “giving voice” to the ius civile, and it received a commentary from Antistius Labeo as early as the reign of Augustus, implying that the text was, in some sense, seen as fixed. But here theory may have conflicted with practice. An “edict”, in theory, had validity only for the duration of its author's office, usually one year. Although in practice, as Labeo recognised, few changes were made by new incumbents of the office, praetors' edicts lacked guaranteed stability. On the other hand, the praetorian edict before Julian did have one feature necessary for the successful law code, namely an accepted method of regular revision and renewal; after Julianus, the emperor was, in this respect, his own “praetor”.

Already, therefore, our concept of what a law code is may require modifi­cation, to allow for the “rolling” law code that was the praetor's edict before c AD 130.

The “Law of Citations”, which was made redundant by the Digest and discarded by Justinian, confirms what is also known from extant court records, that the opinions of jurists had the force of law in court proceedings and legal disputes. The combined weight of their authority plus that of Justinian as codifier establishes their position as sources of “law”, both for students and for litigants. Had the purpose of the Digest been solely education, we might agree that the Digest was not stricto sensu a law code. But, like the other constituent parts of the Corpus Iuris Civilis, the intention was that it be cited in real disputes, as jurists had always been. The difference was that those juristic works or parts of works excluded by the compilers of the Digest were no longer to count, and Justinian would be his own jurist in the future.

Should commentaries be read as indicators that their subject had achieved “law code” status? Quintus Mucius Scaevola's commentary on the ius civile was arguably the creation of both a system and a commentary. Written probably in the 80s BC, it arranged the civil law by genus and may have defined its scope in line with the Twelve Tables, but was not an “official” code. Yet it received commentaries, including a major work Ad Q Mucium by Pomponius in the second century. As we have seen, Labeo's commentary on the edict implied that there was something fixed to comment on, although that was not formally the case. In the second century AD, jurists at Rome began to write commentaries on the Publica Iudicia, which retrospectively ascribed to Augustus' ad hoc legislation on public offences, not least his statute regulating the procedures of the iudicia publica, the status of a codification of public (criminal) law offences and processes. This, as we shall see, caused stresses in the judicial system but also created an enduring framework for interpretation and the codification of public criminal law in Late Antiquity.^[178]

C.