The Digest

After the publication of the first Code, Justinian attended to the goal of clarifying and systematizing the law derived from the works of the classical jurists (ius).

Following the ‘Fifty Decisions’, mentioned above, the Emperor issued the Constitutio Deo Auctore (15 December 530) whereby he entrusted Tribonianus (then Minister of Justice) with the responsibility of coordinating and overseeing this project. In accordance with the Emperor’s instructions, Tribonianus chose the members of the committee that was to support him: one senior imperial official, Constantinus; two professors from the law school of Constantinople, Theophilus and Cratinus; two professors from the law school of Beirut, Dorotheus and Anatolius; and eleven distinguished advocates. The commissioners were to study and abridge the works of the old jurists to whom the emperors had given the ius respondendi and whose works had been recognized or relied upon by later authorities. All the juristic works had to be considered (i.e. not only those of the five jurists mentioned in the Law of Citations) on their own merits, and no special weight was accorded to the opinions of any jurist because of his personal reputation or earlier influence. Like the compilers of the Code, the commissioners were granted wide discretionary powers: they were free to determine which juristic writings to incorporate; remove superfluous or obsolete institutions; eliminate contradictions; and shorten or alter the texts to adapt them to contemporary requirements taking into consideration current legal practice and changes in the law introduced by imperial legislation. The final work was to assume the form of an anthology of the writings of the classical jurists with exact references, and was to consist of fifty books subdivided into titles (these titles were to be placed in the same order as in the Code).

Although the material relied upon spanned hundreds of years of legal development, the compilation was to be a correct statement of the law at the time of its publication and the only authority in the future for jurisprudential works (and the embodied imperial laws).

On account of the zeal and dedication of Tribonianus and the unceasing interest of Justinian himself, the commission finished its work in only 3 years instead of the stipulated 1 years. The work, known as Digesta or Pandectae,^W3 was confirmed on 16 December 533 by the Constitutio Tanta (in Latin) or Dedoken (in Greek) and came into operation on 30 December 533. From that date, only the juristic texts embodied in the Digesta were legally binding; references to the original works were declared superfluous and the publication of commentaries on the Digest was prohibited.^{^[103]}^{^[104]} As Justinian proclaims in the introductory constitution, nearly 2,000 books (scrolls) containing 3,000,000 lines were digested and reduced to 150,000 lines while ‘many things and of highest importance' were altered in the process (there is some scepticism as to whether these remarks should be understood literally). The work integrated the writings of thirty-nine jurists that spanned a period from about 100 bc to ad 300 (the earliest writers excerpted were Quintus Mucius Scaevola and Aelius Gallus while the latest was Arcadius Charisius, who apparently lived in the late third or the first half of the fourth century ad). However, some four-fifths of the work consisted of extracts from the writings by the five great jurists from the late Principate period (Ulpianus, Paulus, Papinianus, Gaius and Modestinus) while the remaining thirty-four jurists contributed only one-fifth of the entire collection. This disparity may be explained by the fact that the works of the five classical jurists mentioned above were the most recent and widely used, and therefore the best preserved.

A question that has puzzled Romanist scholars is how the compilers of the Digest were able to complete their enormous project within such a remarkably short time.

According to a widely accepted theory originally proposed by Friedrich Bluhme in 1820,^{^[105]} the structure of the texts within the various titles suggests that the compilers had divided the relevant juristic works into three groups or ‘masses' and that each section was the subject of the work of a separate sub-committee. Thus, the entire committee did not read and abridge all the same works. One group of works consisted of the commentaries of Ulpianus, Paulus and Pomponius on the ius civile arranged according to the system devised by the classical jurist Masurius Sabinus in his workLibri tres iuris civilis (hence Bluhme refers to this section as the ‘Sabinian mass'). The second group, known as the ‘edictal mass', comprised the commentaries of Ulpianus and Paulus on the edictum perpetuum and other related texts. The third mass contained the juristic opinions (quaestiones, responsa, epistulae) of Paulus, Ulpianus, Papinianus and other jurists. Bluhme called this group the ‘Papinian mass' because of the special weight assigned to the responsa of Papinianus. Bluhme also distinguished a fourth, smaller group of texts that he referred to as the ‘post-Papinian' or ‘appendix mass' and this embodied materials from the works of less famous writers. After the different sub-committees completed their work on each group of juristic texts, their members convened to arrange and consolidate the selected fragments into a coherent whole.

When Justinian ordered the compilation of the Digest, he was concerned with preserving the substance of the classical jurisprudence and producing a body of law that would meet the needs of his own time. However, accomplishing both these objectives was an impossible task. In abridging, harmonising and updating the juristic works the compilers made many changes to the texts that sometimes distorted their original meaning and misrepresented the views of their authors. The changes (additions, suppressions, substitutions) to the classical texts initiated by the commissioners are known as interpolations (interpolationes or ‘emblemata Triboniani').

Since the sixteenth century, scholars have endeavoured to separate out these interpolations and discover exactly what the classical jurists actually wrote. In the late nineteenth and early twentieth centuries, many scholars in Germany and Italy elaborated techniques (based largely on a linguistic analysis of the texts) for the identification of the interpolations. However, the search for interpolations ultimately acquired a cult-like fervour that entailed great exaggeration over the extent of the changes introduced by Justinian's compilers. Nowadays, scholars are more restrained. In general, a text is likely to be regarded as interpolated if it differs from another version of the same text that has reached us via an earlier reliable source (such as, e.g., the Vatican Fragments or the Institutes of Gaius). Moreover, texts dealing with legal institutions that are known to have been obsolete in Justinian's time are presumably interpolated because the compilers had to adapt them to contemporary conditions.

The earliest surviving manuscript copy of the Digest dates from the sixth century (c. 550) and was probably one of the approximately eighty copies produced in Constantinople for use by various government departments. A note on this manuscript indicates that it was located in Italy during the tenth century and then preserved in Pisa since the middle of the twelfth century (hence its alternative name Littera Pisana). In 1406, the Florentines captured Pisa and the document was transferred to Florence where it has since been stored (bearing the name of Littera Florentina or Codex Florentines).^{^[106]} All other surviving manuscripts of the Digest date from the eleventh century or later, the period that featured the revival of Roman legal studies in Western Europe. Parts of the Digest have also been conveyed to us through the Basilica, a Byzantine law code issued in the tenth century by Emperor Leo the Wise. In the late nineteenth century the German scholars T. Mommsen and P. Kruger used the Codex Florentinus to produce a work that is now regarded as the standard edition of the Digest.title="">^{^[107]}

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Digest

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