THE REDISCOVERY OF THE DIGEST

In the later eleventh century the level of legal culture began to rise and there is evidence of a new interest in Justinian's law; notaries in their doc­uments and advocates in their pleadings now refer accurately to techni­cal Roman legal institutions.

The recovery of the entire Corpus iuris civilis was a slow process, extending over much of the twelfth century. The Digest became avail­able in three parts, known as Vetuc, Infortiatum and Novum. The division bears little relation to the original structure, Vetuc being Books 1 to 24.2, Infortiatum Books 24.3 to 38 and Noeum Books 39 to 50. The origin of the division, and in particular the designation Intortiatum for the middle section, is unknown and was a mystery to the twelfth-century doctors themselves. It probably reflects the order in which the parts of the Digest became generally available. Eventually the complete Digest could be added to the Institutes and to the first nine books of the Code. Later the Tret libri (the last three books of Justinian's Code) were discovered but were kept separate rather than integrated into the rest of the Code; and a better version of the Novels than the Epitome Juliani, known as the Authenticum, became available.

The churchmen were perhaps even more eager than secular lawyers to exploit the newly discovered texts to justify the new ideas that church­men were proposing. Ninety-three extracts from the Digest, ninety of them from the Digestum aetus, appear in a canonist collection known as Collectio Britannica, an Italian work from about 1080, now known only in a single manuscript in the British Library. The immediate source of these Digest texts is not known but the compilers may well have found them in archives in Rome or perhaps in the great Benedictine monas­tery of Monte Cassino. The French canonist Ivo of Chartres is known, for example, to have been working on his own collections in Rome in the 1090s. The Collectio Britannica itself became the source of local canonist collections made north of the Alps.

It is difficult to overrate the significance of the rediscovery of the Digest. Knowledge of the outlines of Roman law could readily be obtained from the Roman law of the Visigoths and from Justinian's Institutes and Code. As F W Maitland observed, however,

The Digest was the only book in which medieval students could obtain a knowl­edge of Roman law at its best. The Institutes are a slight text book. The Code is made up of detached ordinances. The Novels are not merely detached ordi­nances but are penned in a pompous, verbose style, likely to do as much harm as good... but for the Digest Roman law could never have reconquered the world... Men would never have become enthusiastic students of other books... the man who first teaches the Digest is the man who first teaches what the modern world has meant by Roman law...

The major secular law school in the eleventh century was that of Pavia, the capital of the Lombard kingdom. The jurists of Pavia were primarily concerned with Lombard law, as contained in the Liber Papiensis, a collection of the edicts of the Lombard kings before the Frankish conquest and of Frankish capitularies. In their exposition of this text, the jurists of Pavia were the first jurists to use the method of the gloss alongside the text. On matters of substance they formed two groups, the antiqui and the moderni. The former adhered to the traditional understanding of the Lombard texts, whereas the latter were character­ised by their readiness to refer to Roman law as a general law to supple­ment and interpret the Lombard law. The modernist contribution is summed up in the Expositio to the Liber Papiensis, which appeared about 1070. It refers to the sources that had been available in Italy for some time, that is, Institutes, Code and Epitome Juliani, but it also contains nine extracts from the Digest.

The jurists of Pavia did not give particular attention to the Digest, because Roman law was not their prime concern. Their concern was the law of the Lombard kingdom and their aim was to ensure that judges and advocates in the Lombard courts were properly prepared. They rec­ognised the value of Justinian's texts in inculcating a sense of legal rea­soning but they did not study those texts for their own sake. They were interested less in the juristic arguments of the Digest than with what could be gleaned from the Roman sources about the nature and purpose of law in general. The Expositio shows that jurists were no longer satisfied simply with making summaries of texts. They now wanted to interpret them in depth. Where adherence to the letter of a text would lead to injustice, the Expositio stressed that its rationale, the ratio legis, must be identified and the text understood in the light of that ratio.

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