EPILOGUE

‘lureconsulti, suae quisque patriae legum (vel etiam Romanarum aut Ponte- ficiarum) placitis obnoxii et addicti sincere iudicio non utuntur, sed tanquam e vinculis sermocmantur.’ Fr.

I. The completion in 534 of Justinian’s codification marks the close of Roman jurisprudence in the proper sense. Jurisprudence thereafter is Byzantine in the East, Romanistic in the West.¹ A long series of Novels were, indeed, enacted by Justinian and his successors in the East, but for centuries the character of jurispru­dence was determined by the Digest and Code. The astonishing similarity of the scholia of the Basilica and the Bolognese glosses strongly suggests that Bolognese jurisprudence was influenced by Byzantine. But there is no evidence of this.^[537] The truth is that both at Byzantium and Bologna the governing influence on jurisprudence was Justinian’s codification; the same similarity would be exhibited by any jurisprudence which elaborated Justinian's codification in accordance with his directives.^{[538] [539] [540] We cannot here give a detailed account of the new jurisprudence either of Byzantium or Bologna which was built on this founda­tion, though it is only by such an account that the contrast between jurisprudence before and after Justinian’s codification could be exposed in all its sharpness. It would be profitable also to compare the effects of Justinian’s codification on jurisprudence* with those of the fixing of the canon of the New Testament on theology.[541]}

II. The outstanding characteristic of the new jurisprudence is its rigid adherence to the codification (with the subsequent Novels). What had not been received into the codification was to be ignored by jurisprudence,^[542] and with insignificant exceptions^[543] was in fact ignored.

To the sources thus rigidly delimited the harmonizing exegesis expressly prescribed by Justinian* was now applied at Byzantium and Bologna alike. Contradictions between the various fragments, however widely separated they might be in dates of origin, were not to be admitted as existing; wherever consistency had not been achieved by the compilers it was to be achieved by every artifice, however forced, of 'dogmatic exegesis’. The results on jurispru­dence were disastrous. The historical meanings of the texts were obscured and distorted, their colours toned down to a uniform grey, their historical contours obliterated; the circumstances in which this or that decision had been given were ignored. Above all, the science was obscured by an ever-spreading forest of fine­spun distinctiones and solutiones contrariorum which, for the most part, lack any juristic value, since they are not the products of juristic reflection on juristic problems, but of sham and empty - cleverness and pseudo-philology. In consequence, jurisprudence took on an unrealistic, impractical, and frivolous character which had been entirely alien to pre-Justinian and especially classical ' jurisprudence. The pre-Justinian Codices had never been subjected to exegesis of such a kind. Imposing as is Justinian's codification, ' the jurisprudence which grew out of it is of a lower order. Little as one can overlook our debt to it, it served in countless instances merely to confuse, cripple, and disintegrate dogmatic jurisprudence.

¹ Hamack, 131. See St. Jerome’s dictum (cited by Hamack, 135): ‘ Quid necesse est in manus sumere quod ecclesia non recipit ? Omne, quod dicitur in libris canonicis, quaeritur, et plus legisse peccare est.’

³ Const. Tania, s. 15. Cf. Tertullian, De pudicitia, c. 19 (PSEL xx. 262): ‘Totius sacramenti interest nihil credere ab Johanne concessum, quod a Paulo sit denegatum: banc aequalitatem spiritus sancti qui observaverit, ab ipso deducetur in sensus eius.’ Hamack, 140 ff.

³ See Th. Sternberg, J. H. v. Kirckmann und seine Kritik der Rechiswissenschaft (1908), pp. 9 ff. E. Landsberg, Gesch. d. deutseh. RW 3 (1910), 739 ff.

aphorism will ever be true: 'one stroke of the legislator’s pen and whole libraries become waste-paper.’

All this is what makes the year 534 the decisive turning-point at which the historian of Roman legal science is entitled to lay down his pen.