The first codifications

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 harmonizing 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 The relevant records embodied material that was inconsistent with current legal practice or outdated.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.

Under the Principate, imperial edicts (edicta) were posted in the principal towns of the empire and remained on display 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 thirteen 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) by one Gregorius, contained imperial constitutions (mostly rescripts) from Hadrian (AD 117–30) up to and including Diocletian. 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), Hermogenianus2 published a supplementary collection of constitutions that were issued during the reign of Diocletian. His book was simply subdivided into 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 indicates 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.3

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. As noted previously, in AD 321–22 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.4 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 disorganized state.5 The commission completed their assignment within a period of three 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 sixteen 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

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 surrender to the power of various Germanic kings. The latter did not attempt to impose their own laws and customs on 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 into abeyance after the enactment of the constitutio Antoniniana (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 though they still administered legal justice in a familiar manner. However, the courts in this period encountered serious difficulties with the administration of justice, which 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 German 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 century;11 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 forty-seven 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 AD.14

In the late fifth century AD, King Theodoric II (AD 453–66), ruler of the Visigothic kingdom of Southern France, enacted the Edictum Theoderici that was applicable to both Romans and Visigoths.15 It has one hundred and fifty-four titles and contains materials distilled from the Sententiae of Paulus, the Gregorian, Hermogenian and Theodosian Codes and post-Theodosian legislation.16