INTRODUCTION

The final period of Roman jurisprudence begins with Diocletian and ends with the completion of Justinian’s codification in 534. In accordance with our programme® we shall confine ourselves to legal science inside the framework of the Roman Empire, and shall therefore take no account of the Visigothic or the Burgundian legislation, except in so far as they throw light on the jurisprudence of the western Empire and particularly on that of Italy.

For our purpose it is not necessary to subdivide the period. The definite partition of the Empire after Theodosius’ death is not a dividing line; the legal unity of the Empire was preserved: even under Odoacer and Theodoric Italy remained part of the Empire.³ It is true that in the western Empire, owing to political conditions, the level of legal science sank ever lower in the course of the fifth century, whereas in the eastern Byzantine Empire it remained considerably higher and at the end of the fifth and the beginning of the sixth centuries shows a marked rise. But the contrast should not be exaggerated; the modem belief in the grand achievements of the Byzantine law schools is erroneous. -

(H)

We shall call the period from Diocletiam to Justinian the bureaucratic period of Roman jurisprudence. The description ‘post- classical’ is not only uninformative but also misleading, in that it treats the jurisprudence of this period as a mere epilogue to classical jurisprudence, whereas it has a significance and a value of its own, which are independent of what preceded as well as of what

¹ ‘We therefore must not recoil with childish aversion from the examination of the humbler animals. Every realm of nature is marvellous.... So we should venture on the study of every kind of animal without distaste; for each and all will reveal to us something natural and something beautiful.’ (Translation by W.

Ogle in Smith and Ross, The Works of Aristotle, 5.)

² Above, p. 2. 3 Above, p. 2. followed it.¹ In both general and legal history the decisive factor during this period is the complete victory of bureaucracy and the thorough-going application of bureaucratic methods of government. Mommsen’s verdict* on Diocletian’s reforms, 'everything, one may say, is new’, cannot be accepted; it would be truer to say 'hardly anything is new’.^{^[435]} ^{^[436] ^[437]} The bureaucratic system, in particular, had begun with Augustus and had been extended, now slowly, now rapidly, all through the Principate. Diocletian and Constantine did no more than complete an existing development. The political historian may pronounce that they merely broke through a brittle shell which till then had concealed the existence of a new order, but to the legal historian this shell, consisting of the legal forms, is the very core of his subject, and its final destruction is for him the beginning of a new period. The republican forms, though ultimately they had become empty forms, had remained unchanged for 300 years. At least externally Augustus’ ambition that his constitution should endure^{^[438]} had been realized. But with Diocletian and Constantine the republican forms passed away. Down came the facades and hoardings which Augustus had tenderly preserved and which had been clung to throughout the Principate.

The thorough-going application of the bureaucratic system led necessarily to a transformation of legal science. The innate tendency of every bureaucracy to convert the development of the law into the monopoly of a central office, to codify the law and to assure and supervise its strict application and enforcement, undoubtedly produced a complete change in the structure of Roman legal science. Yet this change was only a metamorphosis. The spirit of Roman jurisprudence did not die but migrated into another body.

If one limits one’s view of legal science to its expression in the law schools and in literature,³ one is completely baffled by the sudden and unexpected collapse of classical jurisprudence in the second half of the third century, immediately after Ulpian; one can merely note the withdrawal of God’s grace.⁶ But, while it is true that classical jurisprudence, that is jurisprudence expressing itself in the forms proper to the Principate, died with the Princi- pate, jurisprudence lived on. Certainly the best legal talent now entered the administration of the Christian Church¹ or the imperial bureaucracy, but as early as the Severi pure teachers of law had played but a lowly part, and the leading jurists, Papinian, Paul, and Ulpian, had been members of the central bureaucracy. Diocletian's rescripts are not on a lower level than Papinian’s or Paul’s responsa. The difference is that under the Severi the forms of the Principate were still preserved, so that consultations and books came from individual jurists, while from Diocletian onwards the bureaucratic system concentrated a monopoly of the direction of legal practice and development in a central office, and imposed anonymity. The actual draftsmen of the rescripts and statutes were to be unknown outside the office; everything must appear to come from the head of the government, in other words from the Emperor; he is legum dominus, iustitiae aequitatisque rector.²· For great, original work in jurisprudence during the bureaucratic age one must look not to the law school but to the legal members of the imperial chancery. The characteristic productions of the period are official and semi-official codifications, rescripts, and imperial statutes; for in a thorough-going bureaucracy only official and semiofficial literature counts. The works of mere law teachers are of small importance and serve only for scholastic instruction; but we must not forget that even in the eyes of Papinian and Ulpian the Institutes of Gaius, which loom so large to-day, were insignificant.

If one wishes to compare the achievements of the bureaucratic with those of the Severan jurisprudence, one must compare the works of Papinian and Ulpian with the imperial legislation and the great official and semi-official codes. These products of bureaucratic jurisprudence are anything but insignificant and, unless judged solely by their latinity, cannot be dismissed with the note 'unsatisfactory'. Roman legal science did not die with the Principate, but took on forms suitable to contemporary conditions; its adaptability shows its vitality. We do not, however, deny the growing intellectual fatigue of the times; but this was already observable in the second century.³

1 Well illustrated by the life of Gregorius Thaumaturgus, as early as the third century. He meant to go to Berytus to study Roman law (ad Originem, 5. 62), but became a bishop and, with his brother, the founder of the Pontic Church. Another illustration is Tertullian, if he is really identical with the jurist Tertullian: cf. K&bler, Gesch. 279; A. Beck, Rom. Recht bei Tertullian u. Cyprian (1930), 39.

2 C1L vi. 1180,1181; ILS 765. Remarkably dear is Mamertinus (under Diodetian), cap. 11 (Panegyrici Latini, x): ‘Vestra haec, imperator, vestra laus est. A vobis proficiscitur etiam quod per alios administratur.’

3 Above, p. 129.

(iii)

The period, our last, ends with the completion of Justinian’s great codification in 534. Others before us have observed the cleavage that occurs in the middle of Justinian’s reign. The general historian may not find it deep enough to mark the beginning of a new period, but in legal history it is a turning-point. Justinian continued to pour out novels, but the great body of the law was now petrified, and jurisprudence survived only in the form of scholastic interpretation of his imposing Corpus. Henceforward, as never before, the book was the sacred spring from which alone, as in Bologna, the jurisprudence of the Byzantine schools drew its inspiration.

The year 534 is for jurisprudence the beginning of the Middle Ages.¹

(iv)

The final period of Roman jurisprudence has up to our own day been treated by scholars without sympathy and therefore without understanding. It has been viewed almost exclusively with the eyes of the Humanists, that is to say from the standpoint of classical jurisprudence. This is why the fourth and fifth centuries have been seen as a period of decline and fall, as an age of degeneration, decadence, and depravation, which it was pleasanter to avoid in favour of the unsullied forms of the classical period. Modem Romanists have devoted themselves almost exclusively² to classical law, and, in the true humanistic style,³ have poured invective on the post-classical depravation of classical law and exclaimed against the bad Latin and crass stupidity of an age of unthinking epigoni. To the numerous works which Mommsen, in his latest creative period, devoted to these very fourth and fifth centuries no attention was at first paid.⁴ This attitude, creditable to Romanistic scholars as classicists, was discreditable to them as serious historians.⁵ It is time for our science to conform with the general move-

¹ Gwatkin, Cambridge Medieval History, i (1911), 1; Zilliacus, 72; A. Berger, Annuaire de I’Institut de Philologie et d'Hisloire Orientales et Slaves, vii (1939-44), 357.

² There are isolated exceptions. But Greek, Hellenistic, and oriental laws do not belong, at least directly, to Romanistic studies, even when Romanists concern themselves with them.

³ See, e.g., the declamation of Maphaeus Vegius (11458) in Savigny, Gesek d. r. R. im Mittelalter, vi (1850), 429 ff. The tone of A. Faber’s (11624) studies of interpolations is well known. Jac. Gothofredus’s (11652) monumental commentary on the Cod. Theod. is an exception.

⁴ Not even his new edition of the Cod. Theod. produced new studies. Similarly,

Max Conrat’s works on the Visigothic Gaius and Paul passed unnoticed at first: Kantorowicz, Z xxxiii (1912), 465. ⁵ Mommsen, Schr. v. 384. ment amongst ancient historians¹ and, shaking off the shackles of humanism, to throw itself into the study of late antiquity, understood in the spirit of Aristotle and Ranke.² But as things stand, for want of indispensable preliminary studies of numerous sociological and juristic problems, this final part of our work can be but a modest outline, lacking in many respects precision, completeness, and colour.

¹ See especially M. Gelzer, HZ cxxxv (1937), 173 ff.; Hans Lietzmann, ‘Das Problem der Spatantike ’, SB. Berlin, xxxi (1927), 345; R. Laqueur, PrMeme der Spdtaniike (1938), 17 ff. Palanque, Du Bas-Empire en gindral (Memorial Marouzeau • dis £t. Lai., 1943), 304. ¹ Above, p. 263, n. r.

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Source: Schulz F.. History of Roman legal science. Oxford University Press,1946. — 375 p.. 1946

INTRODUCTION

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