CORPUS IURIS CIVILIS. — From the time of the Glossators it has been customary to designate by this expression the various parts of Justinian’s legislation, which is thus distinguished from the Corpus iuris canonici.
Justinian’s legislation is collected in the following four works: the Digesta or Pandectae, the Institutiones, the Codex (repetitae praelectionis), and the Novellae (constitutiones). The task of collecting leges and iura, that is, the constitutions of the emperors and the texts of Roman jurisprudence, was the outstanding achievement of Justinian I (v.), Emperor of the East from 527 to 565. A century earlier, the person of Theodosius II (v.) had been unequal to the same task.
The circumstances were extraordinarily favorable, but Justinian knew how to take brilliant advantage of them. The law schools, especially those of Beirut and Constantinople in the 5th century and at the beginning of the 6th, were in decline; beside the Emperor, as quaestor sacri palatii, stood a man of the highest worth, Tribonian; yet neither the revival of the schools, nor the possibility of drawing on the exceptional talents of a most learned scholar, nor the increasingly urgent need for legislation better suited to changed social conditions, would have sufficed had Justinian not willed, through arms, ecclesiastical policy, and legislation, to restore the unity of the Empire.
The plan for the legislative work was probably not yet fully elaborated when, by the constitution Haec quae necessario of 13 February 528, the Emperor appointed a commission (presided over by John, then quaestor sacri palatii, and including Tribonian and Theophilus) charged with extracting from the three pre-existing codes (Gregorian, Hermogenian, Theodosian) and from later constitutions a new code, published on 7 April 529 by the constitution Summa rei publicae. This code remained in force for only four years and has not come down to us. A fragment of this Codex, preserved in a recently discovered papyrus (Pap. Ox. no. 1814), contains, among other constitutions from titles 11–16 of the first book, precisely the constitution known as the law of citations; this has rightly led de Francisci and Bonfante to think that Justinian, upon ascending the throne, had not yet departed from the program that inspired Theodosius’ constitution. The grand design matured later and prompted the constitution Deo auctore of 15 December 530, which ordered the compilation of the Digest.
OUTLINE:
I. Digesta or Pandectae
II. Institutiones
III. Codex repetitae praelectionis
IV. Novellae
V. Manuscripts and editions
VI. General synthetic observations.I. *Digesta* or *Pandectae*. — These are the compilation of jurisprudence, made by a commission, of which were members, under the presidency of Tribonian, four professors (Theophilus and Cratinus of Constantinople, Dorotheus and Anatolius of Beirut) and also Constantine, *comes sacrarum largitionum*, and eleven advocates of the forum of Constantinople. They consist of fragments extracted from the works of the principal Roman jurists, arranged in 50 books of unequal length, each of which (with the exception of three: XXX, XXXI, XXXII, which expound the matter of legacies and fideicommissa) is again divided into titles, headed by a rubric. Within the titles, the fragments of the jurists follow one another apparently without systematic order: each fragment has its own *inscriptio* containing the name of the jurist and the indication of the original work and the relevant book; for ease of reference, the school later divided the longer fragments into *principium* and paragraphs. A laborious and vast undertaking, it was completed with extraordinary speed: published with the constitution *Tanta* on December 16, 533, it entered into force on December 30 of the same year.
The order of the material broadly coincides with that of the *edictum perpetuum* of Salvian Julian. A German scholar, Bluhme, observed over a century ago, when he was just twenty-three, that in all the titles of the Digest the fragments follow a predetermined order that can be traced back to the existence of four distinct series of works. Not all series are represented in each title, nor is the order in which the fragments are arranged consistent, but each title distinctly presents the series that contributed to its formation. Bluhme called these series “masses,” and gave each the name corresponding to the type of legal work that predominates within it: he called the “Sabinian mass” that which consists almost entirely of works relating to *ius civile*, from the name of the great jurist who first elaborated *ius civile* into a true system; the “edictal mass,” that of which the fundamental part consists of commentaries on the edict; the “Papinian mass,” that in which the works of casuistry predominate, among which those of Papinian hold a primary place; finally, he called the last mass “appendix,” consisting mostly of less accessible or more antiquated works, because these works would have reached the compilers’ hands at a later stage, after work had already begun.
Much is debated whether the compilers of the Digest themselves extracted, for the first time and always, the various fragments from the original works of jurisprudence, or whether they made use of preexisting compilations.
Probably the works which Justinian in the constitution *Omnem* recalls as *partes* of the *leges* studied in the post-classical schools, with the names *prima pars legum* (τα πρῶτα), *pars de iudiciis*, *pars de rebus*, *quattuor libri singulares*, without indication of author, were private compilations. To what extent, however, the work of Justinian’s commission was facilitated by post-classical compilations cannot yet be determined today. The constitution of 426, which limited to five the number of jurists whose works the judge had to consult in applying the law, not only directed the attention of practitioners to these works but also induced them to make parts of these works the basis of scholastic teaching. It is possible, therefore, that under these circumstances a private compilation was drawn from all or the most notable of the five works after they had become legislative texts.
Certainly, the following observations cannot fail to impress: 1) the very large proportion (about 11/15) that, in the five jurists of the Theodosian constitution, is found in Justinian’s *Digesta*; 2) the manner in which the remaining part (about 4/15) is distributed: this is almost entirely occupied by extracts from the works of seven other jurists (Cervidius Scaevola, Pomponius, Julian, Marcian, Javolenus, Arrianus, and Marcellus), who, when added to those drawn from the works of the five jurists of the Theodosian constitution, form about 11/12 of the *Digesta*; 3) the quality of the works most extensively excerpted from the other jurists not included among the five: namely, systematic works (*libri ad Sabinum*, *libri ad edictum*, *digesta*), elementary works (*libri institutionum* and *regulae*), casuistic works (*responsa*, *quaestiones*), or even special treatises on particularly important subjects (*libri ad legem Iuliam et Papiam*, *fideicommissorum*, *de iudiciis publicis*, *de appellationibus*, etc.). All these works were certainly more accessible to the postclassical editors of the edict and had, in the works of the five, a substantial and formal connection, inasmuch as they contained the same subject matter and bore the same titles; 4) the insignificant excerpting from many works, whether belonging to the five jurists of the Theodosian constitution or to others; this insignificant excerpting seems to exclude the direct reading of these works by the legislative commission; 5) the manner in which this commission was composed: of sixteen members (excluding Tribonian), eleven were chosen from among the advocates of the Prefecture of the East; two were magistrates (in Cratinus, this quality was predominant over that of professor); the four professors therefore amounted to only three. A commission, in its overwhelming majority, highly unsuited to the excerpting of an immense body of material that, devalued by the Theodosian constitution, could no longer be in the hands of practitioners; 6) the enormous brevity of the time in which the compilation of the *Digesta* was completed—three years. And while this work was still in progress, Tribonian, together with two of the three professors (Theophilus and Dorotheus), began and brought to completion the *Institutiones*; 7) the transgression of the Emperor’s order not to use anything except the works of imperial jurists, those endowed with the *ius respondendi* (there are 535 fragments of Gaius, who never had the *ius respondendi*); this is noteworthy in connection with the fact that Gaius was one of the five jurists of the Theodosian constitution; 8) the distribution of the material contained in the *Digesta* into three distinct masses, reflecting the parallel distribution of the material that formed the subject of pre-Justinian scholastic teaching.
II. «INSTITUTIONES». — While work on the compilation of the Digest was still in progress, the Emperor commissioned Tribonian, Theophilus, and Dorotheus to prepare a short scholastic treatise to replace Gaius’s Institutes. In both system and division into four books, the compilers followed Gaius’s model, but in obedience to imperial instructions they also drew upon other classical *Institutiones* (by Florentinus, Marcian, Ulpian), upon the Gaius paraphrase known as the *Res cottidianae* or *Aurea*, and even upon the Digest itself, which was then nearly complete. They added, drawn from the Code published in 529 or from the constitutions issued in the last few years, notice of the innovations introduced by Justinian, and often prefixed indications regarding the internal development of the law and its evolution.
The four books are divided into titles, each bearing a rubric indicating the subject matter treated in that title; but, unlike what had been done for the *Codex* and was being done for the *Digest*, the individual passages in each title are cited without indication of their sources and form a continuous exposition in which it is the Emperor himself who speaks. Published on 21 November 533 by the constitution *Imperatoriam maiestatem*, they entered into force on 30 December of the same year together with the *Digest*.
III. «CODEX REPETITAE PRAELECTIONIS». — This is the new edition of the compilation of imperial constitutions, necessitated by the official collection of the *iuris*. The preparation of the *Digest* had been preceded by a group of constitutions intended to resolve as many controversial questions: whether they were issued to point out to the compilers of the *iuris* a certain solution, or to provide guidance for practitioners who consulted the *iuris* in conformity with the Theodosian codification—as seems more probable—is debated. It appears that under the name *Quinquaginta decisiones* these were collected in a volume at the same time as the compilation of the *Digest* was ordered.
Moreover, many other constitutions were issued in the years 531 and 532 to resolve new questions that arose during the course of the compilation; these are what Justinian himself calls the constitutions *ad commodum propositi operis pertinentes*.
This made a new edition of the *Codex* necessary, to insert the new constitutions and eliminate anything in the first edition that might contradict them. The new edition was entrusted to Tribonian, to
False belief: the prevailing opinion today is that it was prepared in Italy precisely in the 11th century. The Novels are not presented optimally as in the previous collection: the Latin ones are given in the original text, the Greek ones in a Latin translation not always faithful. Better than all is a collection containing all the Novels, Latin and Greek, in the original language, not earlier than 575: it comprises 168 Novels, of which 158 by Justinian; the others by his successors, especially Justin II and Tiberius II. While the various parts of the Justinianic compilation, the Institutes, the Digest, the Code, although they entered into force at different times (30 Dec. 533, the first two; 29 Dec. 534, the third), are considered in their organic whole as a single code issued on the same day, the Novels derogate from the norms sanctioned in the compilation and, between Novel and Novel, the more recent derogates from the older.
V. Manuscripts and editions
The oldest and most authoritative manuscript of the Digest is the one now preserved in the Medicean-Lauretan Library in Florence and of which a phototypic reproduction has been made. It is known by the name of Florentina or littera Florentina, because in 1406 it was taken by the Florentines as spoils of war in the conflict against Pisa, where it had been since the 12th century. It belongs to the 6th or at the latest to the 7th century: thus slightly later than the Justinianic compilation. Other manuscripts, of quite recent origin (from the 11th century onwards), go under the name of littera Bononiensis or Vulgata: they are due to the revival of the study of Roman law at the University of Bologna and derive from an exemplar that must have been copied from the Florentina, but with corrections drawn from another manuscript, also ancient: hence the reading of the Florentina manuscript can be appropriately corrected if the Vulgata manuscripts agree on another reading.Of the Institutes there are manuscripts that do not go back beyond the 9th century: one of the most important is preserved in the library of Turin.
Of the Codex repetitae praelectionis an extremely ancient manuscript coeval with the littera Florentina of the Digest has almost entirely perished: only a small part has survived (the so-called Codex rescriptus Veronensis). Other manuscripts are in Pistoia, Cassino, Paris, etc.
Each of the various collections of Novels has a rich manuscript tradition: the most famous manuscript is held by the library of St. Mark in Venice.
Older editions were issued in 5 volumes, following the division made by the glossators. The first contained the *Digestum vetus* (D. 1–14, 2); the second, the *Digestum inforitiatum* (D. 24, 3; 38); the third, the *Digestum novum* (D. 39–50); the fourth, the first nine books of the *Codex*; the fifth, finally, the last three books of the *Codex*, the *Institutiones*, the vulgate version (*Authenticum*) of the *Novellae* divided into nine collections; it also included two books of feudal law which, together with certain imperial laws, formed the tenth collection. Among these, the glossed editions occupy a distinguished place.
In the 13th century the great Accursius gathered the glosses scattered through various manuscripts, extracted the best of them, added some of his own, and produced the *Glossa ordinaria*. The glossed editions of the *Corpus iuris civilis* contain precisely this *Glossa ordinaria*.
The first critical edition of the individual sources, carried out after collation of multiple manuscripts and with rigorous discernment, was that of the Dutchman Gregor Aelandszoon (1529–31); the first edition bearing the title *Corpus iuris civilis* was made by Dionysius Gothofredus in 1583; a notable advance was represented by that of Gabaure and Spangenberg (1776–97), which collected the results of two centuries of work by the Dutch school. At the end of the last century belong the magisterial edition of the *Digesta* edited by Mommsen in two volumes (1868–70), executed on the newly re-examined Florentine manuscript, and the equally praiseworthy edition of the *Codex* by P. Krüger (1877), as well as the scholarly edition of the entire *Corpus iuris civilis*, for which Mommsen first, and P. Krüger later, edited the *Digesta* (1581 ed., 1928), P. Krüger the *Institutiones* and the *Codex* (1608 ed., 1929), and Schöll and Kroll the *Novellae* (1588 ed., 1928). A fine critical edition of the *Digesta* in handy format is the Italian one, completed and published in Milan in 1931.
**Corpus iuris civilis** – Justinian handing the Codex to Tribonian. Fresco on a drawing by Raphael (c. 1509). Vatican, Room of the Signature.
Dorotheus and Tribonian completed it in less than a year. Published on 16 November 534 by the constitution *Cordi*, it entered into force on 29 December of the same year.
The *Codex* is divided into 12 books: Book I contains the regulation of relations between State and Church, the treatment of the sources of law and the duties (*officia*) of the various magistracies; Books II–VII concern private law set forth according to the edictal order; Book IX, criminal law; Books X–XII, administrative and financial law. The books are divided into titles, each with its rubric; within the individual titles the constitutions are arranged chronologically, each with an *inscriptio* containing the emperor’s name and the indication of the addressee, and with a *subscriptio* bearing the date; the longer ones, like the fragments of the *Digesta*, were in the schools divided into *principium* and paragraphs.
IV. “Novellae” (constitutions). — These are the new constitutions issued after the compilation of the iura and the leges had been completed, from 535 to 565. Published partly in Latin and partly in Greek, they are especially numerous in the years from 535 to 546, when Tribonian died, and they include constitutions that are sometimes very extensive and largely innovative, especially those concerning marriage and legitimate succession.
The plan, repeatedly announced by Justinian, to make an official collection of the Novellae, was never carried out; only private collections survive. The oldest of these (c. 555) appears to be the Epitome Iuliani, so called from the name of its compiler, a certain Julian, perhaps a professor at Constantinople; it contains a Latin summary of 122 Novellae. A more extensive collection, containing 134 Novellae (the constitutions up to 556), is that which goes under the name of the Authenticum: a curious name applied to this collection because, erroneously, in the 11th century the Bolognese school had
VI. GENERAL SYNTHETIC OBSERVATIONS
The Justinianean compilation does not contain all pure Roman law. Not a few texts had already been altered in the post-Dioecletian age; very many were altered by the Justinianean compilers, who, moreover, very often must have had the opportunity to use glosses from the post-Dioecletian age existing in great numbers around the classical texts and not yet absorbed into the texts themselves. That the passages of Roman jurisprudence and the texts of imperial constitutions included in the Justinianean compilation were freely changed by the compilers to adapt them to new circumstances is evident from explicit declarations by Justinian himself. Above all in the constitution (§ 10) the Emperor recalls having given the commissioners the widest possible power in this regard: «... si quid in legibus eorum vel supervacuum vel imperfectum vel minus idoneum visum est, vel adiectionem vel deminutionem necessariam accipiat et rectissimis tradatur regulis... multa et maxima sunt, quae propter utilitatem rerum transformata sunt».Thus in the Digestae, in the Institutiones, in the Codex there are many interpolations (v.), or, as was once said, many Tribonian emblems.
In the post-Dioecletian age Roman law gradually came under the ever wider and more powerful influence of many new factors, which introduced new norms and new institutions into the system, eliminated Roman norms and institutions.
New principles and concepts, which were superimposed upon Roman principles and concepts, emerge immediately in the legislation of Constantine: namely, of the Emperor «novator turbatorque priscarum legum et moris antiqui recepti», as Ammianus rightly defines him.
The Justinianean compilation, which came after about two and a half centuries, had to reflect the evolution of Roman law, no longer rectilinear, from the age of Constantine onwards, as an internal continuous evolution might have been, but disorganized, disjointed and complex, since from the beginning of the 4th century to nearly the middle of the 6th it had proceeded under the impetus of new external factors, which were new formidable forces brought into play. To reflect them, substantial and imposing interpolations were necessary.
These factors can be reduced to the following:
1) Christianity. The influence of Christianity on Justinian’s Roman law, although denied, or at least too sparingly admitted, by some isolated writings, is immense.
2) The new political, social, and economic constitution of the Empire, which after Diocletian had its center of gravity in the East, represents, in a certain sense, the continuation of the ancient Republic, but the Constantinian Empire is the beginning of a new era. This new constitution embodies, in Roman guise, a profound upheaval in which Romanitas is drowned in Hellenistic and Oriental spirit: absolute monarchy is integrated with an order openly at variance with the Roman orders.
3) Provincial laws. When the constitution of Antoninus Caracalla extended Roman citizenship, or nearly so, to all the inhabitants of the Empire and consequently imposed Roman law upon them, Greek civilization and with it Greek law had already spread widely in the Roman East as far as the Tigris and Euphrates and the ranges of the Nile. Essentially the same law prevailed in Athens and Damascus, in Antioch and Hermopolis or in Egyptian Thebes. Just as, despite ancient dialectal varieties, the common language of the Greeks served for commerce and culture throughout the East, so, with secondary local differences composed and forgotten, the general law of the Greeks regulated the relations of private life over that vast expanse of lands and seas. Imperial legislation from Caracalla to Diocletian struggled tenaciously for the application of Roman law in the provinces; but Constantine’s legislation opened new paths and times, and a tumult of new norms burst into the Roman legal system.
4) The empiricism of decline. In the Romano-Hellenic age, as in every age of legal decline, mere empirical considerations brought about serious changes in the field of law. It is these empirical considerations, sometimes exhaling the new ethical currents of Christianity, that led to the rescission of onerous contracts when, though concluded with observance of all the norms prescribed by the legal order, their practical execution revealed too grave an imbalance between performance and counter-performance.
5) The spirit and doctrinal preparation of the jurists of Greek the East. Toward the end of the 4th century, numerous centers of study developed in the eastern provinces of the Empire: in Alexandria, Antioch, Caesarea, Constantinople, Beirut. This last city, already celebrated in 239 as the school of law (παιδευτήριον τῶν νόμων), was later considered the mother of law (μετὰ τῶν νόμων), and its teachers were extolled as heroes (ἠρωτῶν) and masters of the world (διδάσκαλοι τῆς οἰκονομίας): some, such as Cyril, Patricius, Donninus, Demosthenes, Eudoxius, Leontius, were remembered for centuries in the Byzantine doctrinal tradition. But these masters, to whom had fallen the task of interpreting Roman law, brought to the interpretation of this law—necessarily not divorced from the illustration of its practical application—a new spirit and a new method.
The new norms were established in Roman law: a) through imperial legislation, from Constantine onwards; b) through court practice (usus iudiciorum), and through notarial and private practice, i.e. that long-standing custom (longa consuetudo), to which Justinian himself alludes in the constitution Deo auctore (§ 10): usus iudiciorum and longa consuetudo, whereby Roman norms and institutions, through disuse or decay, or Greek norms and institutions, through their constant application, came to prevail; c) through scholastic teaching.
Roman architecture in the Justinianic compilation is dominant: the fundamental element remains the Roman national law; but this law is also profoundly transformed.
In any case, it was the East that saved the fate of Roman law. After the sudden silence of classical jurisprudence in the second half of the 3rd century, the poverty of studies was a general phenomenon in the West and the East: Claudius Mamertinus, Ammianus Marcellinus, Theodosius II and Valentinian III bear direct and certain witness to II. But in the East the schools soon flourished again and paved the way for Justinian’s great legislative work.
Men of theory more than of practice, rich in doctrine and patience, the Byzantine masters, while concentrating their greatest study on the works of the five jurists mentioned in the Theodosian constitution, also ranged a little further afield, spurred on by their philosophical education and their dialectical zeal; they endeavoured to combine old and new elements, i.e. Roman, Hellenistic and Christian, into a necessarily heterogeneous system, but one that made it clear that a doctrinal elaboration was at work within it and asserted itself in new conceptions, new general ideas, new classifications.
The Justinianic work also had as its basis the fervent labour of these masters of the 5th–6th centuries; but, despite many updates, it necessarily turned out to be a work of compilation rather than legislation: fortunate, if one looks at it from other angles; poor, if one considers it from the legislative point of view, since it was, to a considerable extent, already outdated by the time it was born; to a considerable extent, more history than doctrine.
To seek the law in force at the time of Justinian, one must not infrequently look beyond the *Digestae*: one must discover it in the emperor’s personal constitutions within the *Codex* and above all in the *Novellae*.
Yet the Roman spirit, so powerfully and mystically felt by Justinian—who came from that Illyria which in the 3rd century had produced the only men capable of facing the great crisis (Aurelian, Probus, Diocletian)—