The Law of Citations
With the aim of regulating the use of classical precedents in court, an imperial constitution was issued in November 426 by Western Roman Emperor Valentinian III (or, rather, by his regent mother, Galla Placidia).
The constitution, however, was operative in both parts of the empire. This imperial constitution made the work of five jurists primary authorities: Papinian, Paul, Ulpian, Modestinus, and Gaius. The Law of Citations was an attempt toreduce the difficulties judges faced in dealing with the large bulk of classical legal literature, by creating a canon of authoritative legal works of classical jurisprudence.
It is widely believed that the constitution issued in 426 was subjected to a revision in 438 on the occasion of the promulgation of the Theodosian Code (C.Th. 1.4.3). Probably the original constitution only recognized and confirmed the primary authority of the writings of the five great aforementioned jurists. In all likelihood, the reason for distinguishing these five lawyers was not only their reputation but also the wide availability of good manuscripts of their work. In case of differences of opinions among them, the view of the majority was to be followed; in case of equal voting, the opinion of Papinian was to be decisive.
The revised version of the Law of Citations, published in 438, confirmed not just the authority of the works of the five primary jurists but also the authority of those legal works quoted by the five principal jurists, such as the works of Scaevola, Sabinus, Julian, and Marcellus. These legal works, however, because of their antiquity, needed to be presented anew with a collation of manuscripts. This new version of the Law of Citations continued applying the same rules of preference. When conflicting opinions were cited, the majority opinion prevailed. If numbers were equal, Papinian’s opinion prevailed.
If Papinian was silent, the judge had to make his own judgment. This expansion of the original rule generated uncertainty among judges because of the vast number of quotations and the difficulties of confirming the authenticity of the manuscripts.The Law of Citations reflects the decadence of Roman jurisprudence in the Late Empire. On the one hand, it based legal conclusions not on the quality of the associated legal arguments but on the personal authority of the jurist; on the other hand, by reducing judges’ room to form independent judgments, it prevented the evolution of legal theory.
Further reading
Berger, Adolf. Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953; reprint, 1980.
Bleicken, Jochem. Lex Publica. Gesetz und Recht in der romischen Republik. Berlin and New York: Walter De Gruyter, 1978.
Brennan, Corey T. The Praetorship in the Roman Republic. Oxford and New York: Oxford University Press, 2000.
Buraselis, Kostas. Theia dorea. Das gottlich-kaiserliche Geschenk. Studien zur Politik der Severer und zur Constitutio Antoniniana. Vienna: Osterreichische Akademie der Wissenschaften, 2007.
Coma Fort, Jose Maria. Codex Theodosianus. Historia de un texto. Madrid: Dykinson, 2014.
Crawford, Michael H. Roman Statutes. 2 vols. London: Institute of Classical Studies, 1996.
Domingo, Rafael, ed. Textos de Derecho romano. 2nd ed. Cizur Menor: Thomson Reuters Aranzadi, 2002.
Harries, Jill, and Ian Wood, eds. The Theodosian Code: Studies in the Imperial Law of Late Antiquity. 2nd ed. London: Bristol Classical Press, 2010.
Honore, Tony. Emperors and Lawyers. 2nd ed. Oxford: Clarendon Press, 1994.
Humbert, Michel, ed. Le dodici tavole. Dai decemviri agli umanisti. Pavia: IUSS Press, 2005.
Ibbetson, David. “Sources of Law from the Republic to the Dominate.” In The Cambridge Companion to Roman Law, edited by David Johnston, 25-55. Cambridge and New York: Cambridge University Press, 2015.
Johnson, Allan Chester, Paul Robinson Coleman-Norton, Frank Card Bourne, and Clyde Pharr, ed. Ancient Roman Statutes. Austin: University of Texas Press, 1961.
Jolowicz, Herbert Felix, and Barry Nicholas. Historical Introduction to the Study of Roman Law. 3rd ed. Cambridge: Cambridge University Press, 1972.
Kaser, Max. Das romische Privatrecht. 2 vols. 2nded. Munich: Beck Verlag, 1971 and 1975.
Kelly, J. M. “The Growth-Pattern of the Praetor’s Edict.” Irish Jurist 1 (1966): 341-355.
Kunkel, Wolfgang. An Introduction to Roman Legal and Constitutional History. 2nd ed. Translated by J. M. Kelly. Oxford: Clarendon Press, 1973.
Lenel, Otto. Das Edictum Perpetuum. Ein Versuch zu seiner Wiederherstellung. 3rd ed. Leipzig: Tauchnitz, 1927; reprint Aalen, 1956.
Matthews, John. Laying Down the Law. A Study of the Theodosian Code. New Haven, CT: Yale University Press, 2000.
Pharr, Clyde. The Theodosian Code and Novels and the Sirmondian Constitutions: A Translation with Commentary, Glossary, and Bibliography. Princeton, NJ: Princeton University Press, 1952.
Rotondi, Giovanni. Leges publicae Populi Romani. Milan: Società Editrice Italiana, 1912.
Rudorff, Adolf Friedrich. De iuris dictione edictum. Edicti perpetui quae reliqua sunt. Edited by Rafael Domingo. Pamplona: Eunsa, 1997.
Schiavone, Aldo. The Invention of the Law in the West. Translated by Jeremy Carden and Anthony Shugaar. London and Cambridge, MA: The Belknap Press of Harvard University Press, 2012.
Schiller, Arthur. “Senatus Consulta in the Principate.” Tulane Law Review 33 (1959): 491-508.
Sirks, Boudewijn. The Theodosian Code. A Study. Friedrichtsdorf: Editions Tortuga, 2007.
Tuori, Kaius. “The ius respondendi and the Freedom of Roman Jurisprudence.” Revue internationale des droits de l'Antiquite 51 (2004): 295-337.
Volterra, Edoardo. “Senatus Consulta.” Novissino Digesto Italiano 16 (1961): 1047-1178; new edition by Pierangelo Buongiorno, et al. Stuttgart: Franz Steiner Verlag, 2017.
Watson, Alan. Law Making in the Later Roman Republic. Oxford: Clarendon Press, 1974.
Watson, Alan. Rome of the Twelve Tables: Persons and Property. Princeton, NJ: Princeton University Press, 1975.
Westbrook, Raymond. “The Nature and Origin of the Twelve Tables.” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 105 (1988): 74-121.
Wieacker, Franz. Romische Rechtgeschichte. Quellenkunde, Rechtsbildung, Jurisprudenz und Rechtsliteratur I. Munich: Beck Verlag, 1988.
Wolff, Hans Julius. Roman Law: An Historical Introduction. Norman: University of Oklahoma Press, 1951.
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