, John Marenbon1 and Charles J. ReidJr.1
Social Philosophy and Policy Foundation, Bowling Green, OH, USA
Section 10.1 of this chapter was written by Thomas M. Banchich; Sections 10.2–4 by John Marenbon; and Section 10.5 by Charles J. Reid, Jr. All translations are by the authors unless otherwise indicated.
10.1 The Digest of the Emperor Justinian
The Digest (or Pandects), 1promulgated at Constantinople on December 16, 533, by the Roman emperor Justinian (527–565, born ca. 482), is perhaps the most influential text in the history of Western legal thought. Together with Justinian’s Code (promulgated on April 7, 529, with a second edition in 534), and his Institutes (533), it constituted what in the sixteenth century came to be known in Western Europe as the Corpus of Civil Law (Corpus Iuris Civilis). Justinian’s Novels (or New Constitutions)—imperial pronouncements from 535, supplemented by post-Justinianic directives from as late as 575—together with the Digest and Code are our principal sources for the philosophical underpinnings of Justinian’s conceptualization of his legislative activity; for the philosophy of law that animated Tribonian, architect of the actual codification; and for the philosophy of law implicit in the finished text of the Digest itself.
An appreciation of the first of these interrelated concerns requires the setting of Justinian’s legislation within the framework of his reign. For about a decade before he became sole emperor in 527, Justinian was able to contemplate with reasonable certainty the prospect of his eventual rule, to identify what to him seemed to be the major challenges he would face, and to formulate responses to those challenges, all with a self-assurance based on the financial and military strength of the empire that would be his and on the conviction that the empire of Rome was an integral part of a Christian cosmic order (Browning 1971, 87–9). Once emperor, Justinian not only knew what the moment required, but knew that what was required was, in fact, possible (Honoré 1978, 20). Furthermore, Justinian believed that the impetus for his military and diplomatic policies, his push to define and impose an empire-wide Christian orthodoxy, and his activity with respect to law all derived equally from the Christian God (Dig., Const. Deo Auctore 2; Const. Tanta; Const. Dedôken, Prologue).2 In all three instances, Justinian viewed himself as God’s agent.
But if such was the case, was the will of the emperor, linked as it was to God’s will, to be presented as superior to existing law and as the font of future legislation? Was the emperor—God’s legislator—to be above the law? Justinian’s answer was to maintain that his legislative capacity rested not only on God’s favor but also on Roman legal tradition itself, and that the former trumped any trace of dissent in the latter. Indeed, whatever authority resided in the writings of classical Roman jurists was now the result of imperial fiat, part of the raison d’être of the Digest itself being the arrogation of its contents to the will of Justinian. This had obvious implications, too, for the interpretation of law, future disagreements about which the emperor would resolve. Codex Justinianus I.14.12 (as quoted in Dvornik 1966, vol. 2: 720–1) of October 30, 529, is the earliest espousal of this position; Novels 105.2.4 is the pointed declaration of its logical correlate that God has dispensed the sovereign—or, in the prolix verbiage of the constitution, “the fortune of the sovereign”—to men as “law animate.”3 The emperor’s legislative function was of necessity ongoing, for, while justice might be unchanging, laws, which were only approximations of justice, had to have their application in the realm of becoming, of change both contingent on historical processes and, indeed, inherent in nature itself.
Now things divine are entirely perfect, but the character of human law is to hasten onward, and there is nothing in it which can abide forever, since nature is eager to produce new forms. We therefore do not cease to expect that matters will henceforth arise that are not secured in legal bonds. Consequently, if any such case arises, let a remedy be sought from the Augustus, since in truth God has set the imperial function over human affairs, so that it should be able, whenever a new contingency arises, to correct and settle it and to subject it to suitable procedures and regulations. (Const. Tanta 18)
New imperial constitutions would be the vehicles for such changes. The Digest—“a handsome work, consecrating as it were a fitting and most holy temple of justice” (Const. Deo Auctore 5)—was to be sacrosanct. There were to be penalties for any alteration of its text, a prohibition extended even to the use of ligatures and sigla. Though allowance was made for literal translation from Latin to Greek, commentaries were forbidden (Const. Deo Auctore 12– 13; Const. Tanta 21–2/Dedôken 21–2). Once created, the Digest was to remain “a single beautiful form” (Const. Dedôken, Prologue: “mian … kallous idean”), its multiple copies identical, its mandated number of fifty books reflective of perfection, its propaedeutic the Institutes (Const. Omnem).
Tribonian (d. ca. 542)—Justinian’s “minister for legislation and propaganda” (Honoré 1978, 69) and who, as a devotee of the cultured Gaius and Ulpian, considered these classical jurists to be repositories of legal wisdom—determined much of the selection and form of the Digest’s content. In the process, he ensured the status of the law as an object of intellectual reflection, in consequence of which one could become learned, rather than simply trained, in law. The authority of Tribonian and his associates derived from Justinian’s command, just as the command of former emperors had empowered earlier jurists to compose and interpret laws (Const. Deo Auctore 4 and 6). Part of Tribonian’s charge was to formulate a canon of juristic authorities. Material in their texts which was “incorrectly written” (non recte scriptum) was to be emended and the emended text treated as though it was what had originally been written (Const. Deo Auctore 7). Though the stated motive was the removal of contradiction and ambiguity, evidence from the Novels suggests that Tribonian’s editorial decisions were sometimes calculated to benefit his sovereign, and the degree to which this is so betrays a conception of law as a means of historical legitimization of a rule that, in reality, was based on wealth, privilege, and power (Maas 1986, 17–28). Tribonian’s intellectualism may also lie behind a concern, most evident in the Digest and Novels, for the relationship between legislation as a reflection of eternal verities and the practical application of law in the mutable realm of becoming (Lanata 1984, 165–245; Maas 1986, 28–31).
Finally, the Digest, as text, gave to those who consulted and still consult it some intimations of its own about the meaning of law. Its Latin, in sixth-century Constantinople no less than today, afforded striking testimony of a conception of the formulation of law not so much as visionary progress, which leaves the past in its wake, as a backward-looking process: law is conservative. Furthermore, as reflected in the then-striking attention to chirography within each volume and between each copy, law is internally consistent. Yet this expectation created a problem; for, despite Justinian’s injunction that there was to be “no antinomy […], but […] total concord, total consistency, with no one raising any opposition” (Const. Deo Auctore 8), real or simply perceived inconsistencies in the Digest remained. Most famously, there seemed to be two different views of the relationship between nature and law—that of Ulpian, for whom “natural law” (ius naturale) was “common to all animals” but “law of nations” (ius gentium) “only to human beings among themselves” (Dig. I.1.1), and that of Gaius, for whom ius gentium was “that law which natural reason [naturalis ratio] has established among all human beings [and is] among all observed in equal measure” (Dig. I.1.9). Likewise, though Justinian may have been convinced of his position with regard to law, the Digest preserved the notion of a consensual relationship between ruler and ruled (Dig. I.4.1). If one extrapolated from the Digest and accepted the principle that law should not admit of contradiction, some explanation was in order. One might, upon reflection, appeal to God’s legislator; however, with the end in Western Europe of an imperium centered in Constantinople, the identification of that figure came to involve philosophical problems of its own. On the other hand, if contradiction within the Digest was illusory, one might expose underlying concord through study and argumentation, a process upon which a broad range of interpretative approaches—for example, philological or historical—could be brought to bear. Whatever the reactions, whatever their results, they sprang partly from the contemplation of the Digest as text.
But all this was in the future. When, in 533, Justinian promulgated the Digest, he saw mirrored in its pages a Roman imperium situated more securely than ever in a divine cosmos and for which he, as sovereign, legislated as God’s agent.
10.2 The Varieties of Medieval Law
During the early Middle Ages, especially the twelfth century, the study of law developed, changed, and grew so rapidly that some writers have spoken, with only slight exaggeration, of a “legal revolution.” Legal historians have often been keen to find links between this rapid development of law and the philosophy and theology of the time; Peter Abelard (1079–1142), in particular, is frequently mentioned. Yet this attention to the early medieval philosophers has been focused on their role as influences and sources, or even as examples of a “mentality,” that underlay the legal developments (Boureau 1992). The main aim here, by contrast, is to set these philosophical developments into the context of legal developments by looking at the different varieties of law in the period.4
When, from the fifth century onward, Germanic tribes took control of large parts of the Western Roman Empire and settled there, they brought with them their own customary laws, largely concerned with avoiding feuds by prescribing monetary compensations for injuries. At first, the application of these laws was personal: The Goths or Franks, for example, were subject to Gothic or Frankish law, but the Gallo-Roman inhabitants of an area would be judged according to Roman law. Indeed, the Burgundian and Visigothic kings in Gaul issued collections of Roman law, based on earlier Roman materials, such as the Lex Romana Visigothorum (“Breviary of Alaric”) of 506, for their Roman subjects (Stein 1999, 30–2). By the end of the ninth century (in many places far earlier), law had become territorial, rather than personal: usually a version of customary law, more or less influenced by its contact with Roman law. Roman law continued to apply to Rome itself and Ravenna.
Customary law tended to be unwritten and local. But some rulers in the earliest medieval centuries had the laws of their people set down in writing: For example, the edict of Euric, king of the Visigoths (ca. 475), influenced by Roman models; the Lex Salica (ca. 500) and Charlemagne’s revision of it nearly 300 years later; and the Lex Barbara Visigothorum of the mid-seventh century. These codes were by no means systems of law. They were mainly concerned to list in minute detail the different monetary penalties for various sorts of harm done to different types of person. Between the late-ninth century and the late-twelfth century, little codification of customary laws took place in most of Europe. It was not until the later-twelfth century that, influenced by the developments in Roman law and canon law (see Sections 10.3 and 10.4 below), rulers began to see themselves, as they had not during the preceding centuries, as lawgivers. Codes of law for many countries and cities of Europe were subsequently issued in the thirteenth century; the first, large-scale example was Frederick II’s codification of the laws of Sicily, the Liber Augustalis of 1231 (Wolf 1973; 1983).
Lombardy and England are, in different ways, exceptions to the general pattern. In the eleventh century there was a law school at Pavia, dedicated to glossing, often with reference to Roman law, the Lombard and Frankish capitularies contained in the eleventh century Book of Pavia (Liber Papiensis) (Weimar 1973, 165; Stein 1999, 45). England had a continuous tradition of written law, stretching back at least to the reign of Alfred (871–901). In 1066, upon conquering England, the Normans thus found a system of law vastly more sophisticated than their own. The conquerors’ laws did not displace those of the Anglo-Saxons; rather, the two systems meshed (Lyon 1980, 180–99). The early Anglo-Norman kings were not great legislators, but during the reign of the Angevin Henry II (1154–1189), English customary law underwent a remarkable development, directed by the king and his advisers. As well as introducing new laws, in order to deal with unjust seizure of property and with succession, Henry instituted a system of regular visiting royal justices and introduced the system of returnable writs, which enabled any freeman to have access to the king’s courts. He is also credited with establishing the jury system. In 1179, he ordered that defendants in cases involving property rights might opt for trial by jury rather than trial by battle. By the end of Henry’s reign there existed the beginnings of English common law, deriving from customary law but subjected to central, royal authority (Pollock and Maitland 1923, 136–68; Stenton 1964, 22–87; Milsom 1981, 11–36).
Alongside the relicts of vulgar Roman law, customary law, and royal law, there was also feudal law. In the years after 900, in the absence of central power after the break-up of the Carolingian Empire, there grew up a system of land-holding that, centuries later, was called “feudalism.” It was characteristic of France, but also applied to parts of Italy, Spain, and Germany (and, though differently, to post-conquest England). Under feudalism, knights would hold land and certain powers as “fiefs” of a lord and be his “vassals.” A vassal had to do military service for his lord, attend his court, and pay him money in emergencies. A vassal’s descendant inherited the fief only on payment of a considerable sum to the lord. This pattern of relationships was repeated at a higher level, between the great lords and the king, but (outside England) in a merely symbolic manner. Kings had little real control over the lords. Feudalism had its own laws, and these were codified (drawing on the Lombard legal tradition) in the Libri Feudorum (Books of Fiefs). The Libri Feudorum reached their vulgate form around 1250, but the original version was produced around 1150 in Milan (Weimar 1973, 166–7).