Justinian's codification

We have already seen that Justinian's codification of Roman law was not the only achievement of that remarkable reign; but it was by far the most durable success, making possible the Reception of Roman law in medieval Europe and (thereafter) in many other parts of the world.

For a good recent account, see Kaiser, W., 'Justinian and the Corpus Juris Civilis’, in Cambridge Companion, 119-48, and now Mantovani, D., 'More than Codes: Roman Ways of Organising and Giving Access to Legal Information', in OHRLS, 23-42.

2.5.1 The Codex vetus

In the Constitutio Deo auctore, the imperial decree which authorized the compilation of the Digest, Justinian explains the first stage of the codification:

[W]e have found the whole extent of our laws which has come down from the foundation of the city of Rome... to be so confused that it extends to an inordinate length and is beyond the comprehension of any human nature. It has been our primary endeavor to make a beginning with the most revered Emperors of earlier times, to free their canstitutiones (enactments) from faults and set them out in a clear fashion, so that they might be collected together in one Codex, and that they might afford to all mankind the ready protection of their own integrity, purged of all unnecessary repetition and most harmful disagreement. (C. Deo auctore, 1.)

This first stage consisted of a compilation of all extant imperial legislation. Justinian, by way of an imperial pronouncement (Constitutio Haec), created a commission of ten men to collect all imperial enactments still in force. It was an updating exercise, a revision particularly of the Thcodosian Code and the codes of Diocletian's reign. The compilation was carried out by a commission under John of Cappadocia, one of Justinian's leading ministers. It included Tribonian and Theophilus, professor at the Constantinople law school. The commission had wide powers to eliminate obsolete and confusing material. The work took little over a year and was published in AD 529. The code superseded all previous imperial legislation—the Theodosian Code and all others were thereby repealed. No copy of this code has survived, and its content is only known from an extant index page. The description vetus ('old') was appended later to distinguish the code from the New Code AD 534.

2.5.2 The Fifty Decisions

In AD 530, Justinian issued a series of decrees that abolished obsolete rules and resolved a number of controversial points of law found in juristic literature. These decrees were published (probably in the same year) in the form of a separate collection—the Fifty Decisions of which no copy has survived.

The publication of the Fifty Decisions and the Codex vetus would have done much to eliminate the confusion in the law that plagued the practitioners of the time. It is possible that this was the limit of Justinian's original scheme, and that it was Tribonian who persuaded him to embark on the much more daunting task of summarizing the literature of the jurists. After all, Tribonian was a distinguished scholar, the possessor of an outstanding library, and a man who in some ways resembled the great jurists of the past. On the other hand, everything that we know of Justinian suggests that he was a man of huge ambition who was unlikely to have been satisfied by a relatively modest tampering with the law. He was well aware that Theodosius II had planned, but failed to achieve, a compilation of classical juristic literature a century or so earlier. A desire to outdo his illustrious predecessor was no doubt a strong motivating factor for Justinian. Honore concludes that the credit for the Digest conception must be shared between Justinian and Tribonian. See Honore, A. M., Tribonian (1978), 141.

2.5.3 The Digest

The Digest (or Pandects') was the centrepiece of Justinian's work, a legal encyclo­paedia that is regarded as by far the most important source of Roman law. It has survived intact in a manuscript made not long after the Digest's compilation—the so-called Florentine text. The Digest was the culmination of the rebirth of legal learning that was evident in the law schools of the Eastern Empire in the fifth century.

2.5.3.1 The compilation of the Digest

The Constitutio Deo auctore, enacted in December AD 530, and the Constitutio Tanta (December 533) reveal much about the compilation of the Digest, or at least what Justinian chooses to tell us. Tribonian was put in charge and instructed to find suit­able assistants:

[WJe commanded you to select as colleagues in your task those whom you thought fit, both from the most eloquent professors and from the most able of the robed men of the highest lawcourt. These men have now been brought together, introduced into the palace... and we have entrusted to them the execution of the entire task, on the understanding that the whole enterprise will be carried out under your own most vigilant supervision. (C. Deo auctore, 3.)

The chosen commissioners comprised a mixture of leading academics, practi­tioners, and government ministers—a total of seventeen (including Tribonian). There were four professors from the law schools: Dorotheus and Anatolius from Beirut; Theophilus and Cratinus from Constantinople. What was the task of the commission?

We therefore command you to read and work upon the books dealing with Roman law, writ­ten by those learned men of old to whom the most revered Emperors gave authority to compose and interpret the laws, so that the whole substance may be extracted from them, all repetition and discrepancy being as far as possible removed, and out of them one single work may be compiled, which will suffice in place of them all.

This was a most ambitious task, especially the elimination of 'repetition and dis­crepancy', an aim which was not attained. There are many examples of repetition and inconsistencies to be found in the Digest (as will be seen later), despite the fol­lowing proud claim:

As for any contradiction occurring in this book, none such has found a place for itself, and none will be discovered by anyone who reflects acutely upon the modes of diversity. (C. Tanta, 15.)

One should applaud the ambition of the compilers, but the most acute reflection down the centuries has failed to reconcile some of the conflicting passages in the Digest.

A large number of juristic works from various periods were read and excerpted— as many as were available and thought worthy of use. Some of the works were sup­plied by Tribonian himself:

Of the ancient learning, that most excellent man Tribonian has supplied us with a very large quantity of books, many of which were unknown even to the most learned men themselves. All these were read through, and whatever was most valuable was extracted and found its way into our excellent composition. (C. Tanta, 17.)

We are informed that approximately 2,000 books were read and excerpted. This was an exaggeration: the evidence suggests between 1,500 and 1,600. An index of authors and works was issued with the Digest·, it indicates that excerpts were taken from the works of thirty-eight different jurists, but many more are quoted in turn by those writers. The compilation necessitated the repeal of the Law of Citations (see 2.4.1), since all jurists who were quoted in the Digest were to be regarded as of equal authority. However, the works of the jurists who were specifically named in the Law of Citations form the bulk of the Digest, especially Ulpian, Paul, and Gaius, who between them account for over half the excerpts.

The overall arrangement of the contents followed the traditional scheme to be found in the major classical commentaries.

2.5.3.2 Interpolations

Justinian intended the Digest not only to be a summary of the literature of the jurists, but also to provide the practitioners of his own time with a workable text. In trying to achieve the latter aim, Justinian's commission was given the power to amend juristic writing in some circumstances:

All we have done is to provide that if in their legal rulings there seemed to be anything super­fluous or imperfect or unsuitable, it should be amplified or curtailed to the requisite extent and be reduced to the most correct form. (C. Tanta, 10.)

That the power was used extensively cannot be doubted, despite the fact that the amendments, known as interpolations, are not obvious. The compilers attrib­uted excerpts to named jurists but did not acknowledge interpolations. So a jurist may be quoted as saying something that he did not write. Then interpolations can be detected in various ways. For example, comparison of surviving classical or Byzantine texts with those quoted in the Digest may reveal interpolations; so may the lack of coherence or logic in a quoted passage, although it is dangerous to assume that classical jurists were incapable of such lapses. Another fruitful way of detecting interpolations has been to compare the style, construction, and vocabu­lary of passages in the Digest with what is known about the use of Latin in the classical era, and about the style of a particular jurist. The Digest was compiled in Latin by commissioners whose first tongue was probably Greek (although Latin was the official language of the courts). And the Latin of the time was not identical to that of Paul and Ulpian. But there are dangers in the linguistic approach: it cannot be assumed that classical jurists never lapsed into sloppy, unidiomatic language. Interpolations can also be detected by the presence of legal terminology not known to have been used until late law.

Modern scholarship has pointed to the existence of numerous interpolations, but it is not always clear who was responsible for them. The assumption that they were necessarily made by Justinian's commission should be resisted. Some interpolations could have been made earlier, possibly by the academics of the law schools of the East. Justinian's commission may well have been using some texts that had already been interpolated. In the early twentieth century, the search for interpolations by Romanists became an obsession. Certainly, interpo­lations do matter if attention is focused solely on classical law, because then it is important to discover its true content (for which the Digest is scarcely a reliable indicator). But it would be short sighted to focus exclusively on classical law. Classical law is not Roman law, or at least not the whole of it. Interpolations should not be viewed in a derogatory sense, as if they indicated some impurity or debasement of the law, but rather as necessary amendments for the provision Of a working code. The heyday of interpolation criticism has now given way I a more balanced (and cautious) approach to the identification of interpola- ms. While it is universally accepted that interpolations exist in the Corpus ns Civilis, scholars now generally assume, given the scope of the mandate ven to the drafting commission and the speed with which the compilation

was completed, that the classical 'core' of most texts must have remained intact and that the majority of changes were purely cosmetic. On the current state of interpolation criticism in Romanist scholarship, see Johnston, D., 'Justinian's Digest: The Interpretation of Interpolation' (1989) 9 Oxford Journal LS, 149-66; Watson, A., 'Prolegomena to Establishing Pre-Justinianic Texts' (1994) 62 TR, 113-25, where the author argues, using the instructions given by Justinian to the compilers, to what extent the substance of the law set out in Justinian's Digest and Code were altered, and Lokin, J. H. A., 'The End of an Epoch: Epilegomena to a Century of Interpolation Criticism', in Collatio luris Romani I, 261-73. See also Robinson, Sources, 105-13.

2.5.3.3 Preventing distortion

Justinian's regard of the Digest as a model for the future can be seen from his attempts to ban any commentaries on the work:

No skilled lawyers are to presume in the future to supply commentaries thereon and confuse with their own verbosity the brevity of the aforesaid work, in the way that was done in for­mer times, when by the conflicting opinions of expositors the whole of the law was virtually thrown into confusion. (C. Deo auctore, 12.)

However, he allowed translations to be made, and explanatory notes on difficult passages. How were difficulties to be resolved?

But if... anything should appear doubtful, this is to be referred by judges to the very summit of the Empire and made clear by the imperial authority, to which alone it is granted both to create laws and to interpret them. (C. Tartta, 21.)

It is likely that the rules laid down by Justinian to prevent confusion applied to other parts of the codification, not just to the Digest. Despite his best efforts, it seems that commentaries were beginning to appear even before the end of his reign.

2.5.3.4 The speed of compilation

The Digest was completed in three years rather than the ten years originally envis­aged. Given that most of the commissioners probably did not work full-time on the Digest (because of their other activities), the time taken for its compilation does seem remarkably short. The compilers not only had to read and excerpt books but also had to amend the texts where necessary. It is quite conceivable that an earlier digest could have been compiled at one of the law schools before Justinian's acces­sion, perhaps by one or more of the professors who served on the commission (the Peters-theory of the Pre-Digest). Could that have been an unstated reason for their appointment? The work would then have been already mostly done. Such speculation is attractive but lacking in hard facts. No copies of an earlier digest are known to have survived. Would the commission have suppressed such a work and lied about their achievements? Hardly—it would have been difficult to maintain a conspiracy of falsehood for long. In any case, Tribonian may have been involved in some dubious practices, but he was hardly a burner of books; nor were the professors from the law schools. A more convincing explanation may be that the books that allegedly were read by the compilers were actually not read. The com­mission contained the finest legal brains of the Empire. These men would already be familiar with the texts that they were excerpting, particularly Tribonian and the academics on the commission. But the weakness in this explanation is that

we are specifically told by Justinian that many books were read which had been previously unknown to the commissioners, apart from Tribonian (see C. Tanta, 1 7, earlier). Honore considers—principally in Tribonian, ch. 5—that three years was quite feasible given the high degree of organization evident in Tribonian's commission, and the fact that the books read were on average only about 10,000 words in length.

Another plausible explanation is the effect of the Nika riots, AD 532, which nearly ended Justinian's reign (see 1.3.6.2). Traditionally, the two leading politi­cal factions in Constantinople, the Blues and the Greens, expressed their rivalry through chariot races at the Hippodrome, each party cheering on its representa­tives. Great discontent with Justinian’s government, especially because of the imposition of a stricter tax regime on the wealthy, led to the Blues and Greens for once uniting in rebellion against the Emperor. The riots probably acted as a cata­lyst for the speedy completion of the work. They demonstrated to Justinian the insecurity of his tenure of the imperial throne, and the need for him to achieve a notable success as quickly as possible: 'Justinian gave instructions for it to be completed as a matter of top priority. The publication of the final text would be a major event in itself, but it would also be an occasion for a substantial public­relations exercise' (Pugsley, Justinian's Digest and the Compilers, 2). The fact that some of the work was done rather sloppily, especially the final editing, tends to support this explanation. On the other hand, Justinian had already urged speed, well before the Nika riots, when instructing Tribonian to accomplish the task as quickly as possible. Ironically, one of the causes of the riots had been the alleged maladministration of justice due to Tribonian's devotion of his time to the work on the Digest. Honore regards the riots as having only a slight impact on the work of the commission (Tribonian, 56), but it is hard to accept that this near- fatal jolt to Justinian's reign had an insignificant effect on its progress. See also Pugsley, D., 'Twin Texts and the Compilers' Working methods,' 1997 (3) Orbis Juris Romani, 40-56, reprinted in Pugsley, D. (2000), Justinian's Digest and the Compilers, 143-60.

2.53.5 Arrangement of material

Justinian does not tell us everything about the compilation of the Digest. Modern scholarship has filled in much that is missing. In particular, the work of Bluhme, a German scholar of the early nineteenth century, has demonstrated that the arrangement of material within each title (i.e. major section) of the Digest is not as haphazard as would appear at first sight. The material divides broadly into three groups (or 'masses') of works, each group probably compiled by a subcommittee of Tribonian's commission. The three subcommittees were.-(a) the Sabinian, con­cerned with commentaries on the ius civile produced by Paul, Ulpian, and other classical jurists that were arranged according to the system introduced by Sabinus; (b) the Edictal, concerned with works on the ius honorarium and more specifically on the praetorian edict; and (c) the Papinian, concerned with problematic litera­ture, the genre in which Papinian excelled. In the editorial stage, the excerpts Within each title were arranged in the order Sabinian, Edictal, Papinian. Moreover, Bluhme identified a smaller group, the Appendix mass, consisting of miscellane­ous works that he claimed did not readily fit into the three main masses. Excerpts from the Appendix mass are normally found placed last within each title. Bluhme suggested that the works in the Appendix probably came to the notice of the com­mission late in the day, and that the excerpting was done by the Papinian commit­tee as it appears to have had the lightest workload. The outlines of Bluhme's theory have been widely accepted. The probability that the work was divided between three subcommittees helps to explain the speed of the compilation. However, the part of the theory pertaining to the Appendix has been criticized. It is rather unlikely that the commission discovered books late in the day that it had not known about previously.

The eleven practitioners on the commission were probably co-opted onto the subcommittees only when the need arose. T he other six commissioners were prob­ably divided into three groups of two and were assigned to a particular subcom­mittee. Tribonian had overall responsibility for the compilation, which appears to have been actively supervised by Justinian. Professor Honore regards the work of the commission as meticulously planned, the emphasis on careful delegation of key tasks (he likens it to a modern law commission). He had proposed that the com­mittees worked in parallel on the list of books assigned to each, the Sabinian and Edictal committees reading and excerpting seven books per week, the Papinian five. Each committee had two senior commissioners (a chairman and a junior member), and within each committee 'the excerpting was divided between the two commis­sioners, each assisted by a team of barristers when necessary' (Honore, Tribonian, 142). The excerpting took some eighteen months to complete, whereupon 'the assembled excerpts, classified by titles and committees, were united in the form of a first draft of the Digest¹ (Honore, Tribonian, 142). This first draft took about eight months to complete, followed by final editing, before enactment in December 533. Honore regards Tribonian's chairmanship of the Digest commission as: 'one of the most brilliant feats of organisation in the history of civil administration' (Tribonian, 186). Osler, D. J. doubts Professor Honore's assertion that each subcom­mittee divided the work of reading and excerpting equally between its two senior commissioners: see (1985) 102 ZSS (rA), 129-84, where the author argues that the numerical basis of Honore's theory on the work of the commissioners is with­out foundation. Moreover, Pugsley (Justinian's Digest and the Compilers) questions whether the degree of planning and organization was as pronounced as Honore claims, and suggests that the Papinian committee started late because it did not exist when work on the Digest commenced: it was established only when a trial run revealed that a third committee was required (17-39). See most recently Honore, 'Late Arrivals—T he Appendix in Justinian's Digest Reconsidered', in Mapping the Law, 497-512.

2.5.4 The Institutes

Justinian reorganized legal education, decreeing that students should receive formal tuition for the first three years, followed by two years of private study. The Digest was intended to provide the core of the new programme. Realizing that the Digest was likely to prove rather daunting for beginners, Justinian instructed Dorotheus and Theophilus (under the supervision of Tribonian) to prepare an introductory textbook:

So after the completion of the fifty books of the Digest or Pandects, in which all the ancient law is collected (a work we completed through that same exalted person Tribonian and other illustrious and capable men), we ordered the Institutes to be divided into these four books, and to provide the first elements of the whole science of law. In them there is a brief exposition of the law which used to be in force and then that which, obscured by disuse, has been clarified by Imperial reform. They have been compiled from all the books of Institutes written by the classical lawyers, and especially from the works of our Gaius, both his Institutes and his Daily Matters, and many other commentaries. (Pmoemium to the Institutes, §§ 4-6.)

They were to draw on the elementary works of the classical period, especially the Institutes of Gaius. T he compilers divided the material into four books, as Gaius had done, but divided the work into titles (unlike Gaius). T he Institutes were promul­gated on the same day as the Digest and received the force of law, an unusual dis­tinction for a student textbook. See Van Warmelo, P„ 'The Institutes of Justinian as Students’ Manual’, in Studies in Justinian's Institutes, 164-80.

2.5.5 The New Code and Novellae

The flurry of legislative activity that occurred after the enactment of the Codex vetus soon necessitated a revision of the earlier code. The work was carried out by Tribonian, aided by a small commission, and was promulgated in AD 534. The New Code superseded all previous codes. It was designed to incorporate imperial consti­tutions produced after the enactment of the first Code as well as to remove unnec­essary repetitions and obsolete matters. The New Code consisted of twelve books subdivided into titles covering specific topics. Individual imperial pronouncements are arranged in chronological order within these titles.

Justinian's reign lasted for over thirty years after the promulgation of the New Code. He continued to legislate frequently, introducing important reforms in the law relating to the family and inheritance (see, e.g. 8.3.4). These changes were effected by a series of individual decrees, the novellae constitutiones ('the new decrees'). The novellae are best regarded as constituting part of the codification, although this is not a view held universally.

Justinian's codification (sometimes referred to as the Corpus luris Civilis) was partly intended to reduce the law to manageable proportions, and to make it more easily available:

We saw it was necessary, therefore, that we should make manifest the same system of law to all men, so that they might perceive how greatly they have been relieved from a state of confusion and uncertainty.... In the future may they have laws that are straightforward as well as brief, and easily available to all, and also such that it is easy to possess the books containing them, so that men may not need to obtain with a great expenditure of wealth volumes containing a large quantity of redundant laws, but the means of procuring them for a trifling sum may be given to both rich and poor and great learning be available at a very small cost. (C. Tanta, 13.)

The reality was that parts of the codification were too complex. Even practitioners struggled with the Digest, so that it was scarcely being used in the courts at the time of Justinian's death.

Justinian did much more than just codify the law. His reforms of the substantive Jaw and of legal education were manifold and far-reaching. Hardly an area of the law was left untouched by him. Simply as a law reformer he stands supreme among Roman emperors, with the possible exception of Augustus.

ONLINE RESOURCES

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Visit the free online resources for revision sheets to aid exam preparation, example essay questions, and to test your knowledge by trying this chapter's multiple­choice questions.

Take your study further with the additional resources including:

• An interactive timeline

• Biographies of key figures

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• Annotated web links

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• Examples of textual analysis of Roman law texts

• Guidance to the literature and sources of Roman law

FURTHER READING

On Roman society and the state of the law in the time of the Twelve Tables, see Watson, A. (1975), Rome of the Twelve Tables: Persons and Property, Princeton: Princeton University Press.

On the Roman emperor and his judicial functions, see Millar, F. (1977), The Emperor in the Roman World (31BC-AD 337), London: Duckworth.

On the jurists of the Empire, see Syme, R., 'Fiction about Roman Jurists' (1980) 97 ZSS (rA), 78-104, in which the author refutes various inaccuracies about the lives of Roman jurists.

On the Theodosian Code, see Harries, J. and Wood, I. (1993), The Theodosian Code: Studies in tire imperial Law of Late Antiquity, London: Duckworth; Honore, A. M. (1998), Law in the Crisis of Empire, 379-455 AD, Oxford: Clarendon Press; and Matthews, J. F. (2000), Laying Down the Law: A Study of the Theodosian Code, New Haven/London: Yale University Press.

On Justinian's project, see Honore, T. (2010), lustinian's Digest: Character and Compilation, Oxford: Oxford University Press.