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 The relevant records embodied material that was inconsistent with current legal practice or outdated.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.
Till Rome had entered far into her career of conquest, her law was perhaps no more noteworthy than early German customs, till then it was but a body of semi-religious rules known only to the church.

These rules being hidden in the mysteries of their worship which only the Patricians governed, the Oracles, the Auguries or the Havuspices applied a different principle to every case, and no precedents were established. But the discontent of the Plebians was the main cause of the downfall of their sacerdotal power. Very early in their history, they demanded a codification of the law, and the Twelve Tables[1] was the result of their first efforts.

From this time onwards, the development and preservation of Roman law were well understood. As Rome grew in power subduing nation after nation, she had to evolve some system to govern these conquered states in their relations with her. The aim of this assignment is to observe the development of Roman law with respect to its codification.

Early Codifications
Praetor Peregrinus[2] promulgated his Edict which was to be his rule and guide. This Edict, being followed and revised in each succeeding time, gave to the world a great body of equitable and legal principles, and into which the jus civile[3] was merged with the jus gentium[4].

Then came the Stoic Philosophy with its Law of Nature, giving to Roman jurisprudence wide and liberal proportions. This Greek school believed that to live according to nature was to rise above the disorderly habits of' the time, and to return to this state of nature was the aim of these moralists. In front of the disciples of this school there figured Rome's great philosophical lawyers, the jurisconsults[5].

This alliance lasted through many centuries and the long diffusion of this doctrine among the members of this profession had a wonderful effect upon the art which they practiced. The law received great theoretical development through the discussions of' these jurists; and their collections and editions of the Edicts and Pandects[6] of the Praetors, and also their commentaries on the existing rules became of much importance. Under the empire they gained great power by their interpretations, and the emperors in the post-critical period of their history was often guided by the advice of these skilled lawyers.

Then commenced the preparation and preservation of Roman law for modern use. The praetors and the jurists had laid a sound foundation upon which a gigantic mass of rules had been based. Decrees were piled upon decrees, laws upon laws, constitutions upon constitutions, each succeeding monarch adding new material to this mammoth structure.

At the beginning of the fifth century, theoretically the Romans continued to regard as the sources of law, the ancient decrees of the people, the senatus-consulta[7], the edicts of the magistrates, and the imperial constitutions. But in practice only the writings of the classic jurists and the constitutions of the kings were in use.

However, the works of the jurists became rarer and rarer, and in consequence the unlearned judges of that time being unable to investigate the principles upon which their conclusions had been formed were content to follow the dicta of these great minds. And since the most sagacious law writers differ on many points, the administration of justice became vague, arbitrary, and uncertain.

Constantine first felt the necessity of determining by special ordinance which writings of the old jurists should be given legal authority. A simple but more comprehensive rule was subsequently promulgated, 426 A.D., by Theodosius II., for the Eastern Empire, but it soon afterward was accepted as law in the West under Valentinian III. In case of disagreement, a majority was to govern when equally divided Papinian was to be preferred, but if he was silent, the judge decided for himself.

This ordinance proved of little avail, for instead of a fundamental examination of' the various principles involved, the judge's duty was now in a great measure confined to a mere computation of votes. From Augustus to Hadrian, the modest Caesars had been content to promulgate their Edicts in the character of a Roman magistrate, and in the decrees of the Senate, the epistles and orations of the Prince were respectfully inserted.[8]

For four centuries, from Hadrian to Justinian, public and private jurisprudence was molded by the will of the sovereign, and but few institutions were allowed to stand on their former footing.

The ancient Caesars had been granted by the people and the Senate a personal exemption from the penalty of particular statutes. This humble privilege was at length transformed into the prerogative of a tyrant, and the Emperor was supposed to be raised above all human restraints; his conscience and reason being the sacred measure of his conduct. . But even with the most vicious rulers, in questions of private jurisprudence, personal considerations seldom affected the law.

The seat of justice was filled by the wisdom and integrity of Papinian and Ulpian.

Such was the character of the law and thus it developed, but finally, the number of decrees, constitutions, rescripts, and epistles of the Sovereign continually increasing, the rules of obedience became each day more and more obscure and doubtful. Then began the great task of reducing this incongruous mass to a system of jurisprudence, with its rules of action, clearly defined and outlined.

The practice of' collecting the constitutions of the Emperors seems to have been commenced by private lawyers, such was at all events, the character of the earliest collections. Such was the character of the Codes of Gregorianus and of Hermogenianus which later became the models for the imperial codes of Theodosius and Justinian. They had no legislative authority but afterwards received statutory recognition from Theodosius and Valentinian.

The Code of Gregorianus probably contained the constitutions from Hadrian to Constantine, while that of Hermogenianus, which supplanted the other contained principally those of Diocletian and Maximian. Both of these, however, are now extinct. Then came the Code of Theodosius which is still extant, and which consecrated the laws of the Christian Princes from Constantine to his own reign.

In 429 A.D. he appointed nine commissioners to draft a code based upon those which had preceded. It was to cover the entire field of jurisprudence, public and private, civil and criminal, military and ecclesiastical, fiscal and monicipal. It was digested into sixteen books, and was finished about 435 A.D.

Three years later it received the imperial sanction and became the sole source of law for the East and West. From the time of Severus Alexander to Justinian, all the literary industry was employed in collecting the writings of the old jurists and compiling a code therefrom. But only three unofficial collections are known, one was the Vaticana Fragmenta which appears to be the remains of a large compilation made between the time of Herrnogenianus and Theodosius. It contains fragments of the writings from the period of the imperial constitutions.

Also there are some manuscripts called Oriental Collections that have just lately been discovered. They were written after the Theodocian Code, and before that of Justinian and they make use of all the preceding works and of the writings of the jurists.

Legal Developments
The practice and development of Roman law in the post-classical era was particularly influenced by the Roman empire’s conversion to Christianity, by Eastern influence, barbarian invasions and the work of the law schools.

Christianity

The conversion to Christianity had some impact on the content and character of the law. A complex ecclesiastical law was developed in an attempt to define the relationship between Church and State. The status of clergy and church functionaries had to be clarified. New offences were created that were intended to protect ecclesiastical property and those working in the service of the Church. Further, parts of civil law were affected by the conversion, especially the law of persons.

For example- causeless divorce was subjected to strict sanctions. But the introduction of Christianity did not lead to the abolition of divorce or slavery, although the legal position of slaves was improved under Justinian.

Eastern Influence
The gradual shift eastwards of the fulcrum of the Roman empire had important consequences for legal development. Constantine and his successors were sympathetic to Eastern customs and ideas, with the result that Roman law acquired a Byzantine hue in the late empire. The law of persons was considerably influenced by Greek practices. For example- the custom whereby the bridegroom made a substantial gift to his bride on marriage was given recognition by the late imperial legislation. The converse practice by which the husband was given dowry by the wife or her family was also affected by Greek custom: legislation reduced his rights in the dowry.

The significance of custom as an indirect source of law in the late empire was reflected in Justinian’s codification:
Julian, Digest, book 84: “Age-encrusted custom is not undeservedly cherished as having almost statutory force…For give that statutes themselves are binding upon us for no other reason than that they have been accepted by the judgment of the populace, certainly it is fitting that what the populace has approved without any writing shall be binding upon everyone.”

Barbarian Codes

The collapse of the Western Empire resulted in large parts of it coming under the control of the victorious barbarian kings, some of whom issued codes of law for the conquered territories. These codes were intended primarily for Roman citizens.

The most important example was the lex Romana Visigothorum, promulgated in 506 AD by the Visigoth chief, Alaric II. It consisted of a mixture of legislation (mainly from the Theodosian Code) and abridged extracts from the classical jurists, especially Gaius and Paul- a debased form of Roman law, but of enduring influence. It remained in use in parts of the former Western Empire until the early medieval period.

The lex Romana Burgundiorum(early 6th century) was intended for Roman citizens living in the area that now broadly constitutes eastern France. It was a collection of legal rules, systematically arranged into titles and based on mainly classical sources. The Edictum Theodorici dates from roughly the same period and was most probably the work of the Ostrogoth chief, Theodoric. Unlike the other codes mentioned above, the Edictum Theodorici applied to barbarians as well as Romans, and was primarily intended to aid the interpretation of existing law.

Vulgarisation is the term which has sometimes been used to describe the influence of Christianity, eastern custom, and the barbarian codes on Roman law in the post-classical era- not especially illuminating term since it is capable of different meanings.[9] Further, vulgarization can be interpreted as the way in which the practice of Roman law allegedly became crude and unscientific in the later empire.

Law Schools
The temptation to portray the whole of the post-classical era as one decline and intellectual fatigue must be resisted. In the East, there was a substantial revival of legal learning in the fifth century, under the Theodosius II especially, the work principally of the law schools at Beirut and Constantinople.

There were other schools- Rome Alexandria, Athens- but Beirut and Constantinople achieved by far the greatest eminence. The basic method of instruction was by lectures, involving detailed consideration of classical texts. This concerted return to the original texts heralded a renaissance in the science of law and fostered the intellectual climate necessary for Justinian’s great works of the sixth century.

Justinian’s Codification

About a century after the Theodocian legislation, there was great need of a revision, for the previous codes, edicts of the praetors and works of the jurists formed an unintelligible mass. So Justinian through a commission under the direction of Tribonin to whom most of the credit is due, began this gigantic task.

Justinian's works may be divided into five parts:

• First appeared his Fifty Decisions (529 - 532 A.D.), to clear up all points not yet settled.
• Second is his Institutions, November 21, 532 A.D.;
• The third is his Digest of Excerpts from the writings of the jurists, appearing December 16, 533 A.D.
• The fourth is his revised edition of the code in which he included his own Legislation down to November 16, 534 A.D.

In all parts of Europe, Justinian's Code exerted its influence sooner or later. Before the rise of Bologna, it was more from the Romano Barbarian than from Justinian's Code that Central and Western Europe derived their acquaintance with Roman Law.

Justinian made reception of Roman Law possible in medieval Europe and other parts of the world. The codification process began in 528 AD, just a few months after Justinian succeeded to the Imperial throne. Justinian had been the effective ruler of the Eastern Empire during much of his predecessor’s short reign, and it is likely that he planned the codification before becoming the Emperor. The confused state of law concerned him since

Theodosian Code was not designed to be a comprehensive restatement of law and the decline in legal science precipitated by the law of citations, combined with the existence of a host of new imperial legislation made it difficult to ascertain law on any given matter. His chief minister for much of the codification was Tribonian, the holder of several important offices, including that of consul and quaestor, and a man of great learning who was familiar with the works of the classical jurists. The main stages of codification comprised:

• Codex vetus
• The Fifty Decisions
• The Digest
• The Institutes
• The New Code, and
• The Novellae[10]

It is worth stressing that Codex vetus and Fifty Decisions do not form part of the eventual Corpus Juris Civilis. They were preparatory in purpose.[11]

The Codex vetus

This stage consisted of a compilation of all extant imperial legislation. Justinian, by way of an imperial pronouncement (Constitutio Haec), created a commission of ten men to collect all the imperial enactments still in force. It was a revision of the Theodosian Code particularly and the codes of Diocletian’s reign. The compilation was carried out by a commission under John of Cappadocia, one of Justinian’s leading ministers.

The commission had wide powers to delete and eliminate obsolete and confusing material. The work took a little over a year and was published in 529 AD. The code superseded all previous imperial legislation- the Theodosian Code and all others were thereby repealed. The drafting of New Code was necessitated by the growing mass of imperial legislation produced by Justinian after the enactment of the first code.

The Fifty Decisions
In 530 AD, Justinian issued a series of decrees that abolished obsolete rules and resolved a number of controversial points of law found in juristic literature. These decrees were published in the form of a separate collection of which no copy survived.

The publication of the Fifty Decisions and the Codex vetus would have done much to eliminate the confusion in the law that plagued the practitioners of the time. Theodosius II had planned but failed to compile classical juristic literature earlier which was a motivating factor for Justinian. The credit for Digest conception must be shared between Justinian and Tribonian. (A. M. Honore, Tribonian, 141 (1978))

The Digest
The Digest was the centerpiece of Justinian’s work, a legal encyclopedia that is regarded as by far the most important source of Roman law. It has survived intact in a manuscript made not long after Digest’s compilation- the so-called Florentine text.

The Digest was the culmination of the rebirth of legal learning that was evident in the law schools of Eastern Europe in the fifth century. It consists of an anthology of juristic literature, mainly of the late classical period, updated for contemporary use by Justinian’s compilers. It has provided a fecund source of the material. A treasure house of riches for use in subsequent ages.

Justinian intended the Digest to be a model for his empire, but he failed in his aim since it was too large, complex and ill-arranged for it to succeed. But it did contain a huge mass of material that was found to be valuable in later ages. Justinian had in this way achieved a great deal, though not the way in which he intended to.

The Constitutio Deo auctore, enacted to 530 AD and the Constitutio Tanta reveal much about its compilation. The chosen commissioners comprised a mixture of leading academics, practitioners, and government ministers- a total of 17 (including Tribonian). There were four professors from the law schools- Dorotheous and Anatolius from Beirut, Theophilus, and Cratinus from Constantinople.

The task of the commission was very ambitious, especially the elimination of repetition and discrepancy, an aim which was not attained. There are many examples of discrepancies found in the Digest. One should applaud the ambition of the compilers, but the most acute reflection down the centuries has failed to reconcile some of the confliction passages in the Digest.

A large number of juristic works from various periods were read and excerpted- as many as were available and thought worthy of use. The compilation necessitated the repeal of the Law of Citations, since all jurists quoted in Digest, was to be regarded as of equal authority. However, the works of jurists who were specifically named in Law of Citations form the bulk of the Digest (D. Pugsley, Justinian’s Digest and the Compilers, 100-142 (2000)), especially Ulpian, Paul, and Gaius.[12]

Interpolations
Justinian intended the Digest not only to be a summary of the literature of the jurists but also to provide the practitioners of his own time with a workable text. In trying to achieve the latter aim, Justinian’s commission was given the power to amend juristic writing in some circumstances.

That the power was used extensively cannot be doubted, despite the fact that there were amendments, known as interpolations, are not obvious. The compilers attributed excerpts to named jurists but did not acknowledge interpolations. So a jurist may be quoted as saying something he did not write.

Their interpolations can be detected in various ways. For instance, comparison of surviving classical or Byzantine texts with those quoted in the Digest may reveal interpolations; so may the lack of coherence or logic in quoted passage, although it is dangerous to assume that classical jurists were incapable of such lapses.

Another fruitful way of detecting interpolations has been to compare style, construction, and vocabulary of passages in the Digest with what is known about the use of Latin in the classical era, and about the style of a particular jurist. The Digest was compiled in Latin by commissioners whose first tongue was probably Greek. Interpolations can also be detected by the presence of legal terminology not known to have been used until late law.

Modern scholarship has pointed to the existence of numerous interpolations, but it is not always clear who was responsible for them. In the early, 20th century, the search for interpolations by Romanists became an obsession. Certainly, interpolations do matter if attention is focused solely on classical law because then it is important to discover its true content. But it would be short-sightedness to solely focus on classical law since it is not Roman Law or at least whole of it. Interpolations should not be reviewed as some impurity or debasement of law, but rather as necessary amendments for the provision of a working code. The heyday of interpolation criticism has given way to a more balanced approach to the identification of interpolations.[13]

The Institutes
Justinian reorganized legal education, decreeing that students should never receive formal tuition for the first three years, followed by two years of private study. The Digest was intended to provide the core of the new programme. Realizing that the Digest was likely to prove rather daunting for beginners, Justinian instructed Dorotheus and Theophilus, to prepare an introductory textbook under the supervision of Tribonian.

They were to draw on the elementary works of the classical period, especially the Instituted of Gaius, The compilers divided the material into four books, as Gaius had done, but divided the work into titles. The institutes were promulgated on the same day as the Digest and received the force of law, an unusual distinction for a student textbook. (P Van Warmelo, The Institutes of Justinian as Student’s Manual, 164-180).

The New Code and Novellae

The flurry of legislative activity that occurred after the enactment of the Codex vetus soon necessitated a revision of the earlier code. The work was carried out by Tribonian, aided by a small commission, and was promulgated in 534 AD. The New Code superseded all previous codes.

It was designed to incorporate imperial constitutions produced after the enactment of the first code as well as to remove unnecessary repetitions and obsolete matters. The New Code consisted of 12 books subdivided into titles covering specific topics. Individual imperial pronouncements are arranged in chronological order within these titles.

Justinian’s reign lasted for over 30 years after the promulgation of the New Code. He continued to legislate frequently, introducing important reforms in the law related to family and inheritance.

These changes were effected by a series of individual decrees, the novella constitutiones (the new decrees). The novallae are best regarded as constituting part of the codification, although this is not a view held universally. Justinian’s codification[14] was partly intended to reduce the law to manageable proportions and to make it more easily available.

Conclusion
The invasion of the Lombards, their disturbances for two hundred years, and the barrier they formed between Italy and the rest of Europe, militated against the spread of Justinian's Laws to the North, but as the savagery of the Lombards toned down, Roman Law began to be recognized and even taught at Pavia, their capital. In the ninth century, there is evidence of some of Justinian's works circulating in the hands of the clergy in various parts of Europe.

It was not however, until the very end of the eleventh or twelfth century that at Bologna and under Inerius who appears to have been a professional jurist and teacher, the study of law began to attract pupils from Southern Europe.

The only parts of Justinian collection which had hitherto made any progress were the Institutes, Code and Novels. The Institutes had reconnected themselves from their elementary character; the Code because of its opening title on the Trinity, and then secondly on the Holy Church; and the Novels for their abundant legislation on church matters was highly prized. When the Digest with its clear diction and decisive reasoning came into the hands of Inerius, it was like a revelation. With these five volumes and the teaching which accompanied them, Roman jurisprudence began a new career.

References:

• W. Kaiser, Justinian and the Corpus Juris Civilis
• P Van Warmelo, The Institutes of Justinian as Student’s Manual
• Mousourakis, Legal History

End-Notes:

1. The Twelve Tables (Law of the Twelve Tables) was a set of laws created in ancient Rome in 451 and 450 BCE. They were the beginning of a new approach to laws where they would be passed by the government and written down so that all citizens might be treated equally before them. Although not perhaps a fully codified system, it was a first step that would allow the protection of the rights of all citizens and permit wrongs to be redressed through precisely-worded written laws known to everybody.
2. A magistrate entitled to hold imperium (a form of authority held by a citizen to control a military or governmental entity).
3. Civil Law.
4. International Law
5. An expert on law
6. A compendium in 50 books of the Roman civil law made by order of Justinian in the 6th century
7. A decree of the ancient Roman senate
8. Hadrian seems to have been the first to have assumed without disguise full legislative power
9. In its most derogatory sense, vulgarization refers to the debasement of Roman law that the barbarian codes particularly can be said to represent. Or, vulgarization can be taken in a more technical sense to refer to the overt departure from the classical norms of legal development. The term can also encompass the inevitable divergence between the law practised in the remote parts of the Empire and that applied in and around Rome and Constantinople.
10. Mousourakis, Legal History, 179-191.
11. W. Kaiser, Justinian and the Corpus Juris Civilis, 119-148.
12. The Constitution ad senatum of 22 July 530 AD.
13. D. Johnson, Justinian’s Digest: the Interpretation