Corpus Juris Civilis
1. Justinian and the Corpus Juris
The Corpus Juris Civilis may be regarded as the most influential document for European legal culture. For it was essentially through the Corpus Juris Civilis that the Roman law of antiquity moulded the law in Europe (and subsequently also of many legal systems outside of Europe) (reception).
The Corpus Juris Civilis originated in Constantinople, the capital of the East Roman Empire, in the 6th century AD, the western part of the Empire having been under Germanic control since AD 476. It was part of the Emperor Justinian’s (AD 527–565) comprehensive programme of restoration: the old imperium Romanum was supposed to be splendidly resurrected as a Christian Empire. This goal was pursued through military campaigns by which parts of the former Western Empire were recovered, at least temporarily; through the construction of spectacular buildings, particularly in Constantinople and Ravenna; through an ecclesiastical policy inspired by the idea of caesaropapism; and through a comprehensive act of legislation which came to be known (since Dionysius Gothofredus’ edition of 1583) as the Corpus Juris Civilis. It was prepared under the guidance of Justinian’s minister of justice, Tribonian, who was able to draw on the scholarly tradition that had been resuscitated in the law schools of Beirut and Constantinople, and who could call upon the assistance of a number of professors from these law schools (Dorotheus, Theophilus).
The Justinianic Corpus Juris consisted of three parts, the Institutes, the Digest and the Codex, which were all invested with the force of law. Of the three, the Codex appears to be the most conventional part. It is a collection of imperial legislation (constitutiones principis; hence also imperial constitutions). Such collections (among them the Codex Theodosianus of AD 438–439) had already appeared in the pre-Justinianic period, and they formed an important foundation for the work of Tribonian and his commission. This (first) Codex Justinianus was produced in AD 528 and 529. It does not constitute a code in the modern sense of the word, not least because it contains not only rules of a general or basic nature but also a plethora of rescripts, ie decisions of the imperial chancellery on specific cases that had been submitted to it.
The main part of the Corpus Juris Civilis is the Digest (from digerere = to arrange, to gather together; the corresponding Greek term is Pandects, from πάν δέχεσθαι = to encompass everything). This was a massive collection of excerpts (‘fragments’) from the literature of classical Roman law. In fact, the Digest is the main source of our knowledge of classical Roman law (as well as of its origins in the Roman Republic; for, on the one hand, the Digest also contains several fragments from the ‘pre-classical’ period and, on the other hand, the Republican jurists are often quoted by their classical successors), since the writings of the classical jurists were soon no longer available after its promulgation. The commission appointed and chaired by Tribonian screened almost 2,000 books, containing a total of more than three million lines. About a third of the fragments included in the Digest come from the late classical jurist Domitius Ulpianus, who from AD 202 directed the imperial chancellery a libellis for a number of years (and was therefore responsible for replies to private petitions) and who, in AD 222, was appointed as praefectus praetorio—the highest imperial office in civil administration and in the administration of justice. The order of the Digest follows the praetorian edict, ie a document which had been developed by a long line of magistrates during the Republican era and which had been of central importance for classical legal procedure. The Digest is arranged in 50 books, the vast majority of which are subdivided into titles, within which, in turn, the individual fragments are lined up. Each fragment is prefixed with an inscriptio, which indicates both author and source. Following the emphasis placed on it by Roman jurisprudence, private law (including civil procedure) occupies by far the largest part of the Digest, namely books 2–46. The enactment of the Digest as a piece of legislation appears strange to modern lawyers, because it contains fragments from legal literature: collections of decisions, commentaries on the edict, treatises on civil law or on individual areas of it, anthologies of opinions or disputations, monographs—a rather ragbag conglomerate of many different types of text.
For a considerable time, Roman law scholars have attempted to find out how such an extensive and complex work could be completed in a period of only three years (AD 530–533). Today, Friedrich Bluhme’s ‘theory of masses’ (Massentheorie) is generally accepted. It is based on the observation that the fragments within the titles of the Digest are arranged in a particular way. The core of the first group is composed of commentaries by the late classical authors Ulpian and Paul on the early classical jurist Massurius Sabinus’ treatise on the ius civile (the ‘Sabinian mass’); it is followed by excerpts from commentaries on the edict by high and late classical jurists (the ‘edictal mass’), from the responsa and collected quaestiones of Papinian, Paul and Ulpian (the ‘Papinian mass’) and occasionally also from a mixture of other writings (the ‘appendix mass’). Bluhme infers from this that the Digest Commission was divided into three sub-committees, each of which was responsible for a particular ‘mass’ of classical writings; the works in the appendix mass were apparently only consulted at a later stage. Further details of the working methods of the ‘compilers’ (from compilare = to exploit) remain unclear. Were they able to draw on a private forerunner of the Digest (predigesto) or on other significant earlier works from the educational activities of the East Roman schools? Hypotheses of this type are viewed just as sceptically today as Tony Honoré’s ambitious effort to reconstruct the allocation of work to individual editors and editorial teams, on the basis of comprehensive analyses of style of the prosopographic data available and of the application of quantitative methods.
4. The problem of interpolations
The Digest was completed by the end of AD 533. However, the fragments contained in it date from a time long past: the era of classical Roman law corresponded approximately with the Principate. The great late classical jurists Papinian and Ulpian died in AD 212 and 223 (the one was executed at the order of Caracalla, the other was murdered before the eyes of Alexander Severus); and the turmoil to which the Roman Empire was exposed after the death of the last of the Severan Emperors (the aforementioned Alexander Severus, AD 222–235) meant the end of classical jurisprudence. The material ‘exploited’ for the Digest was therefore at least 300 years old. In the meantime, society and the general conditions of life had changed fundamentally. It seems astonishing that the Christian Emperor Justinian ordered the ius vetus of heathen Rome to be gathered together, elevated it to a sanctissimum templum iustitae and invested it with the force of law. But that was typical of Justinian’s classicism. Yet, some adjustment was necessary. Tribonian’s mandate (Constitutio Deo auctore = C. 1,17) therefore also included the abolition of obsolete legal rules and legal institutions, the removal of contradictions and, wherever that was necessary for these purposes, the alteration of the classical texts. These are the famous (or notorious) interpolations. It is beyond question that the Digest does contain interpolated texts. Doubtful and hotly debated in many particular instances is the extent to which this is the case. For long periods of European legal history—namely as long as Roman law (which meant the law of the Corpus Juris Civilis) constituted the foundation for a ius commune that was relevant not only in the universities but also for legal practice—the problem was not of much significance. The protagonists of legal humanism in the 16th and early 17th centuries were the first to take an interest in unadulterated classical law, and it is therefore no surprise that they started the search for interpolations (Jacobus Cuiacius, Antonius Faber). The topic moved to the centre of attention, once again, when the Roman legal texts began to be scrutinized, as a result of the impending codification of private law in Germany, ‘without the overwhelming concern of how these texts might be applied in practice’ (Ernst Landsberg). This initiated a large-scale search for changes, under the auspices both of style and content, which the compilers had made to the classical jurists’ texts, in order to isolate the classical from the Justinianic law (Fridolin Eisele, Otto Gradenwitz). By 1909 the interpolationist research had reached such dimensions that the editors of the Romanist section of the Savigny Zeitschrift felt compelled to call for the compilation of an Index interpolationum which, after many years of preparation, Ernst Levy and Ernst Rabel finally accomplished in a three-volume work (1929–35). Whole volumes of the Savigny Zeitschrift were dominated, during that period, by endless revelations of allegedly unclassical expressions and phrases. Today, primarily under the influence of Max Kaser, a much more conservative attitude prevails, marked by greater confidence in the trustworthiness of the texts as they have been transmitted to us. At the same time, however, it has come to be accepted that there may be pre-Justinianic revisions of the texts of the classical jurists (Textstufenforschung: Fritz Schultz and Franz Wieacker).
The content of the first part of the Corpus Juris Civilis, the Institutes, was just as unusual for a code as that of the Digest. The Institutes were an official introductory textbook on Roman private law and civil procedure. Theophilus and Dorotheus (professors in Constantinople and Beirut respectively) were responsible for editing it, again under the direction of Tribonian. The Institutes were promulgated at the end of AD 533, some weeks before the Digest. It had been possible to complete the Institutes in a comparatively short period of time because Theophilus and Dorotheus were able to draw upon a textbook which was particularly widely used in the post-classical period and with which they were intimately familiar from their own teaching experience: the Institutes of the provincial jurist Gaius (called Gaius noster by Justinian) which dated from the middle of the second century AD. The specific advantages of Gaius’ Institutes, preserved in Justinian’s, lie in their clear language and the equally clear exposition of the essential elements of the law, but above all in the sustained attempt to provide a systematic analysis: ‘The original and unique contribution of the work is its system’ (Franz Wieacker) (Pandektensystem). At its highest level, this system, which has left its mark on almost every modern codification of private law, divides the law into three categories: personae, res and actiones, ie effectively, the ‘who’, ‘what’ and ‘how’ of the law. Res refers to the ‘patrimony’ and includes the law of property, succession and obligations. The last of the four books of Justinian’s Institutes saw the most substantial refashioning of Gaius’ material. This was necessary because of the complete transformation of the civil procedure since the classical period. To this day our legal systems are also marked by the subdivision of obligations into delictual and contractual ones (summa divisio) as well as by the recognition that there are also obligations which are neither delictual nor contractual (designated ex variis causarum figuris in a redrafted version of Gaius’ Institutes, ‘quasi-contractual’ and ‘quasi-delictual’ obligations in Justinian’s text). Apart from Gaius, the draftsmen of Justinian’s Institutes also drew on other introductory literature, extracts from the commentaries of the jurists whose work was used for the Digest, and the Justinianic reform constitutions from the years after AD 528.
6. Codex, once again
As a result of these reform constitutions and a collection of official decisions on contested legal questions (Quinquaginta Decisiones, 530), a revision of the (First) Codex, completed in 529, became necessary. It led to the final (Second) Codex which came into effect at the end of AD 534. Since then, it has formed the third part of the Justinianic legislative project. Altogether, it contains more than 4,600 constitutions, most of them from the period of the Severan Emperors and of Diocletian. Over 400 date from Justinian’s reign.
The Code’s entry into force did not mark the end of Justinian’s reform legislation. Rather, the Emperor continued his reforms ‘with just about frightening restlessness’ (Franz Wieacker). In the process inter alia important parts of private law (primarily family law and succession) were reordered. These novellae leges (Novels) were mostly drafted in Greek, the new official language in Constantinople. The planned official collection was never completed; instead only some private collections have been preserved, in particular the Epitome Juliani (an abridged edition of 124 Novels from AD 535–555 in Latin), the Authenticum (a collection of 134 Novels, also in Latin; in the Middle Ages, it was incorrectly believed to be the original text) and the Greek collection of Novels (it got to the West only after the fall of Byzantium/Constantinople and originally contained 168 Novels, some of which were by Justinian’s successors). In the Middle Ages, a collection of Langobardic (Lombardic) feudal law known as the Libri Feudorum was accepted into the Corpus Juris Civilis; moreover, the Codex was supplemented by three statutes of the Emperors Frederick I and II (among them the famous Authentica Habita, by means of which the Emperor granted special protection to the professors and students in Bologna).
8. Educational reform and prohibition on commentaries
Together with the Digest, Justinian promulgated a comprehensive reform programme concerning the study of law in December 533. Since, from then on, only the three parts of the Justinianic body of law were to be applied and adhered to—all older law had, as the Consitutito Tanta (= C. 1, 17, 2) put it, ‘to fall silent’ and therefore lost its binding force—they also had to take the place of the pre-Justinianic legal literature in the curriculum: study of Justinian’s Institutes (instead of Gaius’ Institutes) as well as of the first four books of the Digest in the first year, of further parts of the Digest in the next three years, and of the Codex in the fifth. Apart from that, Justinian decreed that in the future no legal scholar was to add commentaries to the Digest ‘so as to ruin, through his prolixity, the brevity of our code’. He only permitted translations into Greek, cross-references and short tables of contents. Were the professors at the publicly authorized law schools exempt from this prohibition on commentaries? Or did the prohibition apply only to the writing of commentaries into the text of the law books itself? Whatever the answer may be, the first commentaries, in fact, began to appear already during Justinian’s reign.
9. Textual transmission
The Eastern Empire (Byzantium), after a period of renewed vulgarization, witnessed a renaissance of the Justinianic body of law in a repeatedly revised and ever more epitomized form as well as in the Greek language (ius Graeco-Romanum: Basilica, Hexabiblos). In the West, essentially only the Institutes, the Codex and the Novels were still known. With the rediscovery and intellectual appropriation of the Digest in the late 11th century, starting in Bologna, the history of western legal science began (ius commune; reception). The only manuscript surviving from late antiquity—possibly even from Justinian’s lifetime—first reached Pisa and was kept in Florence from 1406 (thus: littera Florentina). A copy of it, which is referred to as the Codex Secundus (it has not been preserved), was available in Bologna from around 1080; however, this copy also contained corrections and additions on the basis of another manuscript which was independent of the Florentina and is also no longer in existence. The Codex Secundus became the basis of medieval legal teaching and of all the manuscripts disseminated from Bologna. These were known collectively as littera Bononiensis or Vulgate text of the Digest, and they exhibit medieval alterations. Since the 16th century, the editions of the Digest are mainly based on the Florentina. That is also true of Theodor Mommsen’s authoritative modern edition.
Of particular importance for assessing the extent to which Justinian’s legislation reflects classical Roman law is the only work from the classical Roman law library of which large parts have been preserved in their original form: the Institutes of Gaius. The text was discovered in 1816 by Barthold Georg Niebuhr in the Chapter Library of Verona; it was hidden underneath another text for which the parchment had been reused (palimpsest) and has subsequently largely been made legible again.
Fritz Schulz, Einführung in das Studium der Digesten (1916); Leopold Wenger, Die Quellen des römischen Rechts (1953) §§ 78–86, 91; Tony Honoré, Tribonian (1978); Max Kaser, Römische Rechtsquellen and angewandte Juristenmethode (1986); Eltjo JH Schrage, Utrumque Ius: Eine Einführung in das Studium der Quellen des mitteralterlichen gelehrten Rechts (1992) 15–33; Franz Wieacker, Römische Rechtsgeschichte, vol I (1988) §§ 6–8, vol II (2006) §§ 79–85; Wolfgang Kunkel and Martin Schermaier, Römische Rechtsgeschichte (13th edn, 2001) § 11; Michael Mass (ed), The Cambridge Companion to the Age of Justinian (2005); Tony Honoré, Justinian’s Digest (2010).