12 JUSTINIAN AND THE CORPUS IURIS

The collapse of the western empire had left the eastern empire rela­tively unscathed and indeed the second half of the fifth century saw a revival of legal learning in the law schools of Constantinople and Beirut.

In his legal work Justinian was fortunate in having a brilliant minister, Tribonian, to execute his plans. Whether his ideas were influenced by what the Visigothic king had done, it is not possible to say, for Justinian would never have admitted it. Whereas Alaric's aim was to give his Roman subjects a law suitable for sixth-century Gaul, Justinian con­sciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before.

One part of his project was modest enough: to bring the Theodosian Code up to date. The main agency of legal development had been impe­rial constitutions and there had been many ‘Novels' in the previous century. Justinian's Code arranges the constitutions in chronological order in titles and covers twelve books. In the course of the general over­haul of the law, many controversies, unresolved since the time of the classical jurists, came to light and were settled by his own constitutions.

The most important part of Justinian's compilation was quite unprec­edented. This is the Digest (Latin Digesta; Greek Pandectae), an anthology of extracts from the writings of the great jurists. The five jurists of the Law of Citations are given pride of place, over one-third of the Digest being taken from Ulpian and a sixth from Paul, but there are extracts from earlier jurists of repute, even the jurists of the late republic. The whole forms an immense legal mosaic, about one and a half times the size of the Bible, but it represents, Justinian says, only a twentieth of the material with which its compilers began. The extracts are arranged in titles, each title being devoted to a particular topic and the titles arranged in fifty books. Where a subject could not easlly be divided up, such as legacies, a single title might extend over three books. Normally, however, division was preferred, as with the contract of sale which is covered in eight titles: a general title and special titles dealing with particular aspects of sale. The order of the titles is the traditional order of the prae­torian edict, but the fragments within each title seem to be arranged quite haphazardly.

The compilers were instructed to attribute each fragment to its source by an appropriate inscription. In the nineteenth century, the German scholar Bluhme showed, from a study of these inscriptions, that extracts from particular works appear in three groups and that within each group the extracts normally appear in the same order, although the groups themselves were not arranged in the same order in every title.

The Digest was produced in three years and the compilers must have had their work cut out just abbreviating the material at their disposal and making the resulting extracts as coherent as possible. Although they gave the source of each extract, we cannot assume that what they attributed to the jurist is what he actually wrote. This is partly because the original discussion has been cut down, but also because the compilers were expressly instructed to eliminate all contradictions and to avoid repeti­tions. Much evidence of disagreement among the classical jurists was therefore excised.

The compilers were also authorised to make whatever substantive changes were necessary to ensure that the final work expressed the law of sixth-century Byzantium. It is the extent of such alterations which has been a main concern of Digest study in the twentieth century. The changes in the texts have been known since the sixteenth century as emblemata Triboniani and more recently as interpolations, whether they subtract from, add to, or just alter the original text.

The Code and the Digest are the main parts of Justinian's compila- tion, but they were too complex to put into the hands of students at the beginning of their studies, and Justinian ordered that they be supple­mented by a new Institutes, based on Gaius's Institutes of nearly four centuries earlier. Although an elementary text-book, it was given equal status with the Digest and Code. The Digest and Institutes became law on 31 December 533 and a revised edition of the Code a year later.

The materials out of which Justinian's compilation was forged were of differing origin, some, the contents of the Code, being derived from leg­islation and others, the juristic writings, enjoying only the authority derived from the author's reputation. Justinian made the whole work his own, converting it into statutory form. Defending the changes that had been made in his name, he observed that he who corrects what is not stated accurately deserves more praise than the original writer (Constitutio Deo auctore, 6). He prohibited any reference to the original material and tried to ban commentaries on the text on the ground that it was crystal clear as it stood.

Justinian continued to issue constitutions until his death in 565. These Novels, many of them written in Greek, were collected together pri­vately and added to the other three parts of what came to be called the Corpus iuris civilis, the body of the civil law, by contrast with the canon law of the Church. The whole collection marked the culmination of a millennium of legal development. Without Justinian's compilation we would know very little about the earlier law. Little classical law has sur­vived directly, the main example being Gaius's Institutes, the full text of which was discovered only in 1816.

The extraordinary fact about Justinian's work is that, despite the fanfare with which it was published, it attracted relatively little attention. Being written in Latin, it was unintelligible to many Greek-speaking Byzantine lawyers. One of the compilers of the Institutes, Theophilus, produced a Greek version of that work known as the Paraphrase. In the eighth century a shorter official collection in Greek appeared, called the Ecloga, which sought to modify Justinian's law in the direction of current Byzantine practice. About 900 Emperor Leo the Wise sponsored a large Greek restatement of Justinian's law, the Basilica, which wove the con­tents of Digest, Code, Institutes and Novels into a single whole. The texts were supplemented with scholia, notes mainly derived from the com­ments of the jurists of Justinian's own time and therefore sometimes of value in elucidating the original Latin text.

In 1453 the Byzantine empire, which had been gradually contracting in size, finally succumbed to Turkish attack, but Byzantine Roman law in Greek dress survived in the Balkans and in Russia, whose emperors liked to regard themselves as the successors of the Byzantine emperors.

FURTHER READING

Bibliographical references are grouped under the relevant chapter and section number. For the development of ancient Roman law in general, see H. F Jolowicz and B. Nicholas, Historical Introduction to the Study of Rmann Law, 3rd edn, Cambridge 1972; W Kunkel, trans. J. M. Kelly, An Introduction to Roman Legal and Constitutional History, Oxford 1966; A. A. Schiller, Roman Law: Mechanisms of Development, The Hague, Paris, New York 1978; B. Nicholas, An Introduction to Roman Law, 3rd edn, Oxford 1988. For the text and translation of all Roman statutes from the Twelve Tables, M. H. Crawford (ed.), Roman Statutes, 2 vols., London 1996. A translation of the Twelve Tables, Praetor’s Edict and other sources is in A. C. Johnson, P R. Coleman-Norton and F C. Bourne, Ancient Roman Statutes, Austin, Tex. 1961. For the later empire, Edward Gibbon, Decline and Fall of the Roman Empire, 1776-88, is still valuable, to be sup­plemented by A. H. M. Jones, The Later Roman Empire, 284-602, 3 vols., Oxford ^I9⁶4^.

2.1. P Stein, Regulae iuris: From Juristic Rules to Legal Maxims, Edinburgh 1966.

2.5. A. N. Sherwin-White, The Roman Citizenship, 2nd edn, Oxford 1973; J. Gonzalez, ‘The Lex Irnitana: a new Flavian municipal law’, Journal of Roman Studies, 76 (1986), 147.

2.6. B. Frier, The Rise of the Remum Jurists, Princeton 1985; A. A. Schiller, ‘Jurists’ Law’, An American Experience in Roman Law, Gottingen 1971, 148.

2.7. P Stein, ‘The development of the Institutional system’, in P Stein and A. Lewis (eds.), Studies in JusSlnian’s Imtitntes in Memory ef J A. C Thonuis, London 1983, 151; The.^67x0^ of faiui, with trans. by W M. Gordon and O. Robinson, London i988.

2.8. T Honore, Ulpian, Oxford 1982; P Stein, ‘Ulpian and the distinction between ius publicum and ius privatum’, Cellatie iuris nmani, etudes dediees a Hans Ankum, Amsterdam 1995.

2.10. E. Levy, West Rroel Vugor Low: The I.he: of Proporty, Philadelphia 1951; Westromisches Vulgarrecht II: Das Obligatienearecht, Weimar 1956.

2.11. The Theodosian Code and Novels, trans. with commentary by C. Pharr, Princeton, London 1952; T Honore, ‘The making of the Theodosian Code’, Z^{SS (R}< ⁱ⁰3 ^(l9⁸⁶⁾, ^I33.

Further reading 37

2.13. The standard edition of the Corpus iuris civilis is i: Digesta, ed. T Mommsen and P Krueger, 16th edn, Berlin 1954; ii: Codex, ed. P. Krueger, 11th edn, Berlin 1954; in: Novellae, ed. R. Schoell and G. Kroll, 6th edn, Berlin 1954. The Digest text is reprinted with English translation in The Digest of Juutinwn, ed. A. Watson, 4 vols., Philadelphia 1985; that of the Institutes with trans. by P Birks and G. McLeod, London 1987. For the compilation, T Honore, Tribonian, London, 1978; D. Osler, ‘The compilation of Justinian’s Digest’, fSS (RA) 102 (^I9⁸5⁾, ^I3⁰.