The Digest or Pandects

After the publication of the first Code Justinian turned his attention to the goal of systematising that part of the law derived from the works of the classical jurists (ius).

In the course of their work on the Codex the compilers encountered many questions on points of law upon which the classical authorities differed and which could not be settled under the Law of Citations. A condensation and simplification of the whole body of juridical literature was urgently needed and, as a preparatory step, Justinian issued the series of enactments known as 'Fifty Decisions' (quinquaginta decisiones), mentioned above. Following on from the Fifty Decisions, on 15 December 530 AD Justinian issued the Constitutio Deo Auctore by which he entrusted Tribonian with the task of setting up a commission to carry out the work of collecting, reviewing and presenting in an abridged form the whole mass of Roman law contained in the writings of the classical jurists. Tribonian formed a sixteen-member body consisting of Constantinus, a high imperial official, Theophilus and Cratinus, professors at the law school of Constantinople, Dorotheus and Anatolius, professors at the law school of Beirut, and eleven leading advocates. Like the compilers of the Codex, the members of Tribonian's commission were given wide discretionary powers. It rested with them to determine which juristic writings were to be included and which were to be omitted as superfluous, imperfect or obsolete; they could shorten the relevant texts, eliminate contradictions and correct and bring the matter up to date taking into consideration current legal practice and changes in the law brought about by imperial legislation. All the juristic works were 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 to be given to opinions of any jurist because of his personal reputation or earlier influence.^{^[1272]}[1273] Although the material relied upon stretched back over hundreds of years of legal development, the compilation, which was to be in the form of an anthology of the writings of the classical jurists with exact references, 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 imperial laws included in them).

Although the commission was given up to ten years to finish its work, remarkably, the compilation was completed in only three years.

This was largely due to the dedication of Tribonian and the great interest which Justinian himself took in the project as well as the fact that the members of the commission, being well-versed in the classical authorities, were able to identify the most important fragments within a relatively short period of time. The work was published under the name Digesta or Pandectae^' on 16 December 533 by means of the Constitutio Tanta (in Latin) or Dedoken (in Greek) and came into force on 30 December 533. From that date only juristic writings included in it were regarded as legally binding; references to the original works were now deemed superfluous and the publication of commentaries of a critical nature upon the Digest was prohibited. In the introductory constitution it is stated that the commissioners read nearly 2000 books containing 3,000,000 lines and that these were reduced to 150,000 lines; it is added, moreover, that 'many things and of highest importance' were changed in the process.^{^[1274]} The Digest is divided into 50 books which (with the exception of books 30, 31 and 32) are subdivided into titles (tituliy, each title is in turn subdivided into separate fragments (fragmenta), sections containing the text relevant to the topic indicated in the superscription of the title, the quoted jurist's name and the title and section of the work from which the quote was taken. Most of these fragments were further divided by later editors into paragraphs.^{^[1275]} The Digest contains extracts from the works of thirty-nine jurists (mainly jurists to whom the emperors had given the ius publice respondendi)-, the earliest of these were Quintus Mucius Scaevola, Alfenus and Aelius Gallus, who lived in the later republican period. The vast majority of the fragments are derived from the writings of jurists of the classical era (100 AD-250 AD), especially Ulpian, whose opinions make up approximately one-third of the entire Digest, Paul, Papinian, Pomponius, Julianus and Gaius.^{^[1276]} The extensive use of some of the latter jurists' writings is not unrelated to the fact that these writings were the most recent and most widely used and therefore the best preserved.

Considering the enormity of the task and the time in which it was accomplished, questions have arisen as to the method followed by the compilers of the Digest in carrying out their work.

How was it possible that they themselves actually read through the entire body of juristic writings, selected materials, abridged and made changes to the texts in such a short period of time? An answer to this question was given by the German legal historian Friedrich Bluhme in the early nineteenth century and his theory is still accepted by most scholars today.^{^[1277]} According to Bluhme, the way in which the fragments are grouped and ordered under each title suggests that the various juristic writings were divided into three sections (or 'masses', as Bluhme calls them), and that each section was the subject of the work of a separate sub-committee. One group of fragments, referred to by Bluhme as the 'Sabinian mass', consists of extracts from the commentaries of Ulpian, Paul and others on the ius civile arranged according to the system devised originally by the classical jurist Sabinus in his work Libri tres iuris civilis. The second group, which is known as the 'edictal mass', is made up of commentaries of classical authors on the edictum perpetuum (ad edictum) and other closely related texts. This group of works is concerned mainly with the ius honorarium as distinct from the rest of the ius civile, which is considered in the Sabinian mass. The third group, which Bluhme calls the 'Papinian mass', contains juristic opinions (quaestiones, responsa, epistulae) of Paul, Ulpian and Papinian, as well as extracts from similar works of other jurists. Bluhme also distinguished a smaller fourth category, referred to as the 'post-Papinian' or 'appendix mass', consisting of fragments from works of various kinds not included in the first three groups. After the different sub-committees completed their work on each group of juristic materials their members met to piece together and consolidate the selected fragments into a coherent whole.^{^[1278]}

In ordering the preparation of the Digest Justinian was concerned with preserving the substance of classical Roman law and, at the same time, with formulating a workable body of law adapted to the conditions and needs of his own time.

Achieving both these objectives, however, was an almost impossible undertaking. In abridging, harmonising and bringing up to date the various juristic writings the compilers of the Digest made various changes (additions, suppressions, substitutions) in the texts which sometimes distorted their original meaning and misrepresented the intentions of the classical authors. These changes later became known as 'interpolations' {interpolationes or 'emblemata Triboniani'). It is also very likely that the texts had to some extent already been changed in the period that preceded the Justinianic codification. This may have been due to errors during the copying of the original manuscripts, to modifications made during the re-editing of the works by post-classical compilers and also to the insertion of marginal or interlinear notes into the texts.^{^[1279]} This has been known, of course, for many centuries and, from the beginning of the twentieth century, numerous studies have been conducted aimed at identifying the 'interpolations' and at discovering what the classical jurists actually wrote (largely through a linguistic analysis of the texts). However, the emphasis placed by some scholars on the need to restore the juristic texts to their original, classical form has led to much exaggeration as to the nature of the work done by the compilers of the Digest and the extent to which they altered the texts. At present a much more careful approach to the matter is followed, as scholars came to realise that it would have been hardly possible for the compilers to have effected all the changes attributed to them in the short time in which they completed their work. In general, it is accepted that the texts relied upon by the compilers were largely the same as they were in classical times; at the same time it is recognised that, as the texts had been re-written and had been handed down in more than one tier or edition, the compilers may have incorporated changes that would have inevitably been made to the original works in the intervening three hundred years.

Moreover, there is no doubt that a number of modifications were made by the compilers themselves under the influences of the day and in their attempt to eliminate contradictions and to bring the matter up to date.^{^[1280]} A text is likely to be regarded as altered where it appears to deviate from the same text as it has come down to us via another reliable source (such as the Vatican Fragments or the Institutes of Gaius). Moreover, texts dealing with legal concepts which are known to have been obsolete in Justinian's times may be presumed to have been interpolated as they had to be brought up to date.^{^[1281]}

The earliest surviving copy of the Digest dates from the sixth century (c. 550 AD) and was probably one of the approximately eighty copies produced in Constantinople for use by various government departments. A note on the relevant manuscript suggests that it was in Italy in the ninth or tenth century and it is known to have been in Pisa in the late eleventh century. In 1406, when Pisa was captured by the Florentines, it was taken to Florence where it has been kept ever since (hence it has become known as Littera Fiorentina or Codex Florentinus).^{^[1282]}° This manuscript provided the basis for most of the later editions of the Digest.^{^[1283]} Several other manuscript copies of the Digest date from the Middle Ages and, more specifically, from the period associated with the revival of Roman legal studies in the West (11th - 14th centuries).^{^[1284]} Parts of the Digest have also come down to us in Greek through the Basilica, a Byzantine compilation published in the tenth century during the reign of Emperor Leo the Wise.^{^[1285]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The Digest or Pandects

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