Interpolations

The constitution promulgating the Digest stated that “Many things, and matters of the highest importance, have been changed for reasons of utility” (Tanta §10). This statement provides a good starting point for understanding both Justinian’s intentions and how the compilers worked in accordance with the spirit and mandate of this emperor.

Compilers acted accordingly. They made abundant adjustments and altera­tions (suppressions, additions, substitutions), traditionally called interpola­tions. That happened specifically in areas of the law that were subject to significant changes between the period of the classical jurists and Justinian. Many times, the compilers made systematic alterations to eliminate old institu­tions. For instance, they inserted traditio for mancipatio (old institution), or actio dotis (action for recovery of a dowry) for the classical actio rei uxoriae (action for recovery all that belongs to a wife). Where classical jurists had sponsio (old solemn promise), the compilers put fideiussio (new type of suretyship).

Frequently, compilers did not change the wording but did change the context. A famous example is the statement, “the emperor is not bound by statutes” (princeps legibus solutus est, D. 1.3.31). Ulpian had written the statement in the commentary to the lex Iulia et Pappia, to exempt the emperor from application of the limitations of these two statutes dealing with the rights of unmarried and childless people to inherit property.

We have certainty about alterations and omissions only where the same text has been transmitted in the Digest and in a different legal source, for instance in private collections of the fourth century (Fragmenta Vaticana, Collatio legum Mosaicarum et Romanarum). Sometimes the lack of consistency within an argument, and structural or grammatical irregularities and gaps, can be explained as simple pre-Justinianic or post-Justinianic abridgements or even as results of a defect of the manuscript.

Since the sixteenth century, researchers have made efforts to find these interpolations in order to recover the value of Roman juristic writings in their pristine, unaltered condition. In the countries in which Justinian law was directly applied, the search for interpolations was not extensive. At the beginning of the twentieth century, coinciding with the promulgation of the German Civil Code (BGB) and the Digest’s loss of practical relevance, researchers began to overestimate the number and importance of interpolations. There was a collective fascination with discovering new interpolations. This attitude was ironically called “interpolation hunting” (Interpolationenjagd). When a text was complex and not well understood, the natural inclination was to consider it nonclassical and interpolated, instead of trying to find more sophisticated solutions. After the Second World War, there was a well-justified reaction against the hunters of Justinian’s interpolations. Recently, however, there has been a tendency to underestimate their relevance and extent. A good balance is required. On the one hand, the excesses of the past must be avoided; on the other hand, textual critical considerations have to be taken seriously in research. Interpolations are there and must be detected to preserve the value of classical writings in their original form.