The Digest or Pandects

After the completion of the first Code, Justinian directed his attention to the goal of systematising the part of the law based on the works by the classical jurists (ius).

After the Fifty Decisions, Justinian issued the Constitutio Deo Auctore on 15 December 530 whereby he instructed Tribonian (then minister of justice) to institute a commission of 16 members. The objective was to collect, review and present in an abridged form the entire mass of Roman law contained in the writings of the classical jurists. Tribonian selected 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 11 distinguished advocates. The commissioners were to scrutinize and assemble extracts from the works of the old jurists who were conferred the ius respondendi by the emperor, and those juristic works that were recognized or relied upon by later authorities.^[598] Next, the selected materials had to be harmonized and systematized within the limits of a single comprehensive work that comprised 50 books subdivided into titles.^[599] Like the compilers of the first Code, the commissioners were granted wide discretionary powers: they were free to determine which juristic writings to incorporate; remove superfluous or obsolete institutions; resolve contra­dictions; and shorten or alter the texts to adapt them to contemporary requirements.

It was anticipated that the work would require at least 10 years for completion, yet the commission worked with amazing speed and produced the collection in only 3 years. The work, known as Digesta or Pandectae^[601] 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 this work were legally binding; references to the original works were declared superfluous and the publication of commentaries on the Digest was prohibited.^[602] As Justinian states in the introductory constitution, nearly 2,000 books 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.^[603] The work integrated the writings of 39 jurists that spanned a period from about 100 bc to ad 300.^[604] 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),^[605] while the remaining 34 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.

The Digest consists of 50 books and each is sub-divided into titles (tituli),^[606] fragments (called leges) and, where necessary, sections or paragraphs, the first of which is called the principium (or proemium).

An enduring question that has puzzled Romanist scholars is how the compilers of the Digest successfully completed an enormous work within such a remarkably short time. Friedrich Bluhme, a German legal historian, presented an answer to this question in the early nineteenth century and his theory (known as “Massentheorie”) is still accepted by most scholars today.^[609] Bluhme asserts that the structure of the texts within the various titles suggests that the extracted juristic writings were divided into three sections or parts (‘masses’), and that each section was the subject of the work of a separate sub-committee. Bluhme refers to the first section as the ‘Sabinian mass’ and this consisted mainly of extracts from the commentaries of Ulpianus, Paulus and Pomponius on the ius civile. Its arrangement conformed with the system devised originally by the classical jurist Masurius Sabinus in his work Libri tres iuris civilis. The second section, known as the ‘edictal mass’, concen­trated on the commentaries of Ulpianus and Paulus on the edictum perpetuum (ad edictum) and other closely related texts. The third section displayed a far more casuistic nature than the other two and contained juristic opinions (quaestiones, responsa, epistulae) of Paulus, Ulpianus, Papinianus and other jurists. Bluhme designated this part the ‘Papinian mass’ because of the special weight assigned to the responsa of Papinianus.

size=2 color=black face="Times New Roman">When Justinian ordered the preparation of the Digest, he was concerned with preserving the substance of the classical juristic law and producing a body of law that would fulfil the needs of his own time. However, accomplishing both these objectives was an impossible enterprise. In reviewing and arranging the juridical literature, the commissioners discovered that many problems had been highly controversial among the past legal experts and remained so for centuries. Moreover, many rules and institutions were palpably antiquated and no longer functional or incompatible with contemporary legislation or with altered conceptions of equity (particularly in view of the fact that meanwhile Christian ethics had become prevalent). Such obsolete material had to be either eliminated or adapted to contemporary requirements. The changes (additions, suppressions, substitutions) to the classical texts initiated by the commissioners are known since the sixteenth century as interpolations (interpolationes or ‘emblemata Triboniani’). These alter­ations did not always attain their purpose and unavoidably obscured the meaning of the original works, and misrepresented the intentions of their authors.^[611] As a result, much of the law contained in the Digest was neither the authentic law of the classical period nor an accurate statement of the law in Justinian’s own day. Rather, it existed as a layered amalgam that ignored many of the post-classical changes.^[612] The problem was further exacerbated by Justinian ordering a ban on any commen­tary addressing his codification.

As early as the sixteenth century, a perception of Roman law as a historical phenomenon evolved from the influence of the Humanist movement.

The Digest was preserved for posterity in various manuscript copies that mainly derive from the eleventh century and later—the period that featured the revival of Roman law in Western Europe. The oldest manuscript dates from the sixth century (c. 550) and was probably one of the approximately 80 copies produced in Constantinople for use by various government departments. A note on this manu­script indicates that it was in Italy in the tenth century and it is known to have been kept in Pisa since the middle of the twelfth century (hence its alternative name Littera Pisana). In 1406, Pisa was captured by the Florentines and the document was transferred to Florence where it has since been stored (bearing the name of Littera Florentina or Codex Florentinus). The medieval manuscripts are almost all copies of the Codex Florentines?⁶ Parts of the Digest have also been conveyed to us in the Greek language through the Basilica, a Byzantine law code issued in the tenth century by Emperor Leo the Wise.^{[614] [615]}

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