The Theodosian Code

A considerable degree of uncertainty still prevailed in legal practice as to which constitutions and opinions were authoritative, despite the existence of the Gregorian and Hermogenian Codes and various collections of juristic material.

In ad 321322 Emperor Constantine enacted a number of statutes designed to provide guidance to judicial authorities on the use of the classical literature. Nearly a century later (ad 426), the so-called ‘Law of Citations’ issued by Theodosius II and Valentinian III aspired to establish a veritable hierarchy for the opinions of celebrated jurists. On that basis, it installed a body of juristic opinion alongside the existing collections of imperial constitutions. However, this law apparently proved insufficient or otherwise was possibly devised merely as a provisional measure. This prompted the same emperors in ad 429 to appoint a commission of distinguished lawyers and officials to rectify the situation. First, they had to compile a collection of all the imperial constitutions produced since the time of Constantine that were still in force. The next task was to combine this new collection with the Gregorian and Hermogenian Codes and classical juristic texts to create a code that would constitute a harmonious and comprehensive statement of the law. However, the execution of this project seems to have encountered insurmountable difficulties. Finally, in ad 435 a second commission was appointed to assemble all the extant constitutions issued since the reign of Constantine into a single compendium. The principal rationale for this new project appears to have been the government’s desire to enable the legal practice to access the imperial legislation, which existed in a disorganised state.^{^[583]} The commission completed their assignment within a period of 3 years.

The new collection was published in ad 438 under the name Codex Theodosianus and acquired the force of law first in the East and, shortly afterwards, in the West.^{^[584]} It was declared that the new code would be valid “in all cases and in all courts and shall leave no place for any new constitution that is outside itself, except those constitutions which will be promulgated after the publication of this code.”title="">^{^[585]}The Theodosian Code was essentially an extension and continuation of the Gregorian and Hermogenian Codes that were used as its models and still engaged by the courts. Moreover, the new code did not affect the application of the Law of Citations that prescribed the weight of authority accorded to the works of classical jurists.

The Theodosian Code embodied over 3,000 constitutions from the time of Constantine (c. ad 312) to ad 438. The material was arranged in 16 books, each of which was divided into titles relating to specific topics. The germane parts of all the constitutions addressing a particular subject were inserted under the appropriate title in chronological order. While the code also comprised constitutions that were already abrogated by the time of compilation, it was easy to apply the rule of statutory construction whereby earlier legislation was repealed by later, inconsistent legislation, thus rendering it a simple matter to determine which constitutions represented valid law. The first five books focus on private law; books 6-8 address matters of constitutional and administrative law; criminal law is the subject of book 9; books 10-11 contain the law relating to public revenue; books 12-14 stipulate the rules governing municipalities and corporations; book 15 includes provisions pertaining to public works and games; and book 16 elaborates provisions on ecclesiastical matters. As the above description evinces, the majority of the constitutions embodied in the code are concerned with matters of public law.

The Theodosian Code has been transmitted virtually in its entirety with only some minor lacunae. Modern reconstructions are based partly on later collections, particularly the Lex Romana Visigothorum and the Code of Justinian, and partly on two manuscripts, one dating from the fifth century ad and the other from the sixth century AD.^{^[586]}

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Theodosian Code

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