The Codification of Roman Law

Faculty of Law, University of Auckland, Auckland, New Zealand


5.1 Introduction

In the later imperial era, a great problem that confronted the administration of justice was the vast and diffuse nature of the legal materials that constituted the fabric of law. The Roman imperial government was always inefficient in collecting and harmonising the enactments of emperors, the opinions of the jurists and the other legal sources recognized by the courts. The relevant records embodied material that was inconsistent with current legal practice or outdated. Further, they existed as a disordered mass scattered in archives of the central and provincial administration, as well as in the libraries of law schools and jurists. Under these conditions, it was difficult to ascertain the current state of the law. Even the central administrators and judicial magistrates had only a very imperfect knowledge of the law and precedents that were engaged as the basis of their decisions. The legal history of the late Empire is marked by the successive efforts of the imperial government to remedy this situation. The high-handed methods adopted to achieve legal certainty are characteristic of both the autocratic form of government and the totally dependent attitude and unquestioning subservience to authority that prevailed among the judges and jurists in this period.

5.1.1 Early Codifications

During the Principate age, imperial edicts (edicta) were posted in the principal towns of the empire and remained in view for a short period (probably a month). In all likelihood, the decrees (decreta) were not officially published but could be ascertained from the record of the case issued to the successful litigant. The rescripts (rescripta) were also recited in court and preserved in the court record, while the mandates (mandata) were communicated to and retained by the officials to whom they were issued. The enactments of the emperors were thus accessible to lawyers and the general public when they were issued, but no permanent central record of imperial legislation was retained. On the other hand, private lawyers from as early as the second century ad started to compile collections of imperial constitutions. For example, we know of a collection of 13 rescripts of Septimius Severus published in ad 200, and a collection of decrees produced by the jurist Paulus in the closing years of the Principate.1

During the reign of Diocletian, the lack of any official collection of imperial constitutions was partly remedied by the publication of two private or ‘semi-official’ collections of law: the Codex Gregorianus and the Codex Hermogenianus. The former collection, published towards the end of the third century ad (probably in ad 291), contained imperial constitutions (mostly rescripts) from Hadrian (ad 117–130) up to and including Diocletian.2 These materials were arranged by subject matter in books and titles according to the traditional scheme observed by the classical jurists in their Digesta, and chronologically within each title. Around the same time (probably in ad 295), Hermogenianus3 published a supplementary collection of constitutions that were issued during the reign of Diocletian. His book was subdivided into only titles, while the constitutions it contained were arranged in chronological order. The Hermogenian Code was re-edited several times and new constitutions were added; but both this code and the preceding Gregorian Code remained as unofficial collections. On the other hand, some evidence divulges that the production of these codes was approved or authorized by Diocletian’s government. This is corroborated by the fact that their authors enjoyed regular access to the archives of the imperial chancery, which suggests that they held senior positions in the imperial administration and performed their work under official supervision. The extraordinary authority that the Gregorian and Hermogenian Codes acquired after their publication is a more significant fact that distinguishes them from all private collections of legislation. The courts recognized these codes as authoritative and exhaustive records of all imperial legislation existing up to the date of their publication. Moreover, the codes were included among the principal texts of legal education and served as models for the first official law code produced in the fifth century ad on the orders of Emperor Theodosius II. As neither of the above-mentioned codes survived, information on their content is based on extracts incorporated in subsequent compilations of law such as the Fragmenta Vaticana, the Collatio and, especially, the Code of Justinian.4

5.2 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 321–322 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.5 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.6 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.”7 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.8

5.3 The Germanic Codes of Roman Law

We have observed that the early fifth century ad featured the gradual detachment of Western Europe from the control of imperial officials and its capture by the power of various Germanic kings. The latter did not attempt to impose their own laws and customs upon the Romans residing in their territories, nor did they adopt Roman law for their own subjects. Thus, as the Roman Empire in the West disintegrated the once universal system of Roman law was replaced by a plurality of legal systems. The Roman part of the population continued to be governed by Roman law (leges romanae), while the newly settled Germanic peoples observed their own laws and customs (leges barbarorum). This entailed a revival of the ancient principle of the ‘personality of the laws’ that had fallen in abeyance after the enactment of the constitutio Antoniniana in ad 212: within every community, some groups would claim as their right the application of one of several existing bodies of legal rules. For the Romans in these western communities, the old forms, legal rules and statutes were still in force. The magistrates were now responsible to Germanic chiefs and administered legal justice in a familiar manner. However, the courts in this period encountered serious difficulties with the administration of justice that derived from the uncertainty regarding the content and authority of imperial and juristic law, and the general decline of legal culture in the West. To rectify this problem, some Germanic kings considered it necessary to order the compilation of legal codes containing the personal Roman law that applied to their Roman subjects. The most important codes were the Lex Romana Visigothorum, the Lex Romana Burgundionum and the Edictum Theoderici. Although much of the law embodied in these collections is a crude reflection of the classical system, they possess great importance for legal historians: besides depicting the state of the law and society at the dawn of the Middle Ages, they preserved several Roman legal texts that cannot be located in any of the extant Roman sources.

In ad 506, the King of the Visigoths Alaric II promulgated the Lex Romana Visigothorum—hence, it is also known as the Breviary of Alaric (Breviarium Alarici). It contains extracts from the Gregorian, Hermogenian and Theodosian Codes; a number of post-Theodosian constitutions; an abbreviated version of Gaius’ Institutes (Epitome Gai); sections of the Sententiae by Paulus; and a short responsum of Papinianus as a conclusion. Some of the texts are accompanied by interpretations (in the form of paraphrases or explanatory notes) aimed at facilitating their understanding and application.9 As the code was devised to replace all other sources of law, it was proclaimed that imperial constitutions and juristic opinions not included in it had no binding force in the courts of law.10 The Lex Romana Visigothorum remained in force in Spain until the seventh century11; in Southern France, its application prevailed (even though no longer as an official code) until the twelfth century.12

The Lex Romana Burgundionum was composed during the reign of King Gundobad of the Burgundians and was promulgated by his son Sigismund in ad 517 for use by the Roman inhabitants of his kingdom. It is based on the Gregorian, Hermogenian and Theodosian Codes; a shortened version of the Institutes of Gaius; and the Sententiae of Paulus. Unlike the Visigothic Code mentioned above, it does not contain any extracts from the original Roman sources. Instead, the materials are incorporated into a set of newly formulated rules that are systematically arranged and distributed over 47 titles.13 The Lex Romana Burgundionum never possessed the importance or the popularity of the Visigothic Code, and apparently became obsolete soon after the Burgundian kingdom was conquered by the Franks in the middle of the sixth century.14

In the late fifth century, King Theodoric II (ad 453–466), ruler of the Visigothic kingdom of Southern France, enacted the Edictum Theoderici that was applicable to both Romans and Visigoths.15 It has 154 titles and contains materials distilled from the Sententiae of Paulus; the Gregorian, Hermogenian and Theodosian Codes; and post-Theodosian legislation.16

5.4 The Codification of Justinian

5.4.1 Introductory

As we have already observed, Justinian’s desire to achieve unity in law prompted his far-reaching legislative programme that was designed to transform the legal world of his realm. The imperial government had already endeavoured in the fifth century to create some order in the mass of laws claiming validity in the empire. However, the Theodosian Code as the first official codification of the law was from the outset incomplete as it ignored the important part of Roman law based on the writings of the classical jurists. Furthermore, many new imperial constitutions were issued after the enactment of that code and several constitutions it embodied became obsolete. On the other hand, the Law of Citations (ad 426) may have provided a partial solution to the problem caused by the unwieldy mass of classical legal literature. It enhanced the chances for uniformity and predictability in judicial decision-making. Yet from the viewpoint of scientific arrangement and thoroughness, it was obviously inadequate. This situation urgently dictated the formulation of a comprehensive and authoritative statement on the entire Roman law that had legally binding force, clarified the changes induced by the post-Theodosian legislation and removed the uncertainty surrounding the content and authority of juristic works. One of Justinian’s first tasks after his ascension was the production of such a statement that would replace all former statements of law in juridical literature and legislation. At the same time, he resolved to improve the quality of legal instruction by introducing an educational system based on dependable legal sources that would present the law clearly, thoroughly and systematically. A key figure in this undertaking was Justinian’s legal adviser, Tribonianus, a man of exceptional talents who successively occupied the most illustrious offices in the imperial administration.17 Significant contributions also emanated from Theophilus, professor (antecessor) at the law school of Constantinople, and Dorotheus and Anatolius, who taught at the law school of Beirut. As noted previously, their new insight into the operation of the classical law enabled the jurists from these two schools to enhance the standards of legal scholarship and supply the methods that made the projected legal reform possible.

5.4.2 The First Code

On 13 February ad 528, Justinian, by means of the Constitutio Haec, entrusted a ten-member commission chaired by the quaestor sacri palatii with the task of consolidating all the valid imperial constitutions into a single code. The commission consisted of seven senior state officials that embraced Tribonian, who was then magister officiorum; two distinguished advocates; and Theophilus, a professor at the law school of Constantinople. The commissioners were instructed to draft a collection of imperial enactments by drawing on the Gregorian, Hermogenian and Theodosian Codes, and on the constitutions issued between ad 438 and 529. They were empowered to delete outdated or superfluous elements from the texts, eliminate contradictions and repetitions, and effect any necessary amendments to update the material. The constitutions were to be arranged systematically according to the subject matter and listed in chronological order under appropriate titles. The new collection was published on 7 April 529 under the name Codex Iustinianus and came into force on 16 April 529 (by virtue of the Constitutio Summa rei publicae). It replaced all earlier codes, and any omitted imperial enactments could not be quoted in the courts of law (with a few exceptions). As imperial constitutions were copiously issued after 529, this first code was soon outdated and replaced in 534 by a revised edition. The only surviving material from Justinian’s original code (designated Codex vetus, the old Code) is an index discovered on a fragment of papyrus in Egypt during the early nineteenth century.18

5.4.3 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). During their work on the Code, the compilers encountered many questions on points of law that had invoked different opinions from the classical authorities and these could not be settled under the Law of Citations. A condensation and simplification of the entire juridical literature was urgently required and, as a preparatory step, Justinian arranged the publication of a collection of 50 constitutions (the so-called quinquaginta decisiones) on 17 November 530. In this collection, he endeavoured to provide solutions to controversies that had arisen among the classical jurists and to abrogate obsolete legal concepts and institutions.19

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.20 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.21 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. The collection was to exist as a correct statement of the law at the time of its publication and the only authority in the future for jurisprudential works (and the embodied imperial laws).22

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,23 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.24 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.25 The work integrated the writings of 39 jurists that spanned a period from about 100 bc to ad 300.26 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),27 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),28 fragments (called leges) and, where necessary, sections or paragraphs, the first of which is called the principium (or proemium). In accordance with Justinian’s instructions, the titles were placed, as far as possible, in the same order as in the Codex vetus and the edictum perpetuum.29 The beginning of each fragment enumerates the name of the jurist quoted, together with the title and section of the book from which the excerpt was taken. Four numbers are thus required to identify a citation in the Digest: book, title, fragment and section (or three, if the fragment is short, or if a reference alludes to the first paragraph).30

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.31 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

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