CORPUS JURIS CIVILIS. - Since the age 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 collections: Digesta or Pandectae, Institutiones, Codex repetitiae praelectionis, Novellae (constitutiones). The task of collecting leges and iura, that is, the constitutions of the emperors and the texts of Roman jurisprudence, was the distinguished 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 favourable, but Justinian knew how to take genius advantage of them. The schools of law flourished anew, principally those of Berytus and Constantinople in the 5th century and at the beginning of the 6th; at the Emperor's side, as quaestor sacri palatii, stood a man of the highest worth, Tribonian; but neither the renewed flourishing of the schools, nor the possibility of disposing of the exceptional abilities of a most learned scholar, nor the ever more urgent need itself for a legislative work better suited to changed social conditions, would have availed, had Justinian not willed to rebuild the unity of the Empire by arms, by ecclesiastical policy, by legislation.
The plan of the legislative work was probably not yet elaborated in complete form 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 of which Tribonian and Theophilus were members) with the task of drawing 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 reipublicae, which remained in force barely 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 of titles 11-16 of the first book, precisely the constitution called the law of citations; which has rightly led de Francisci and Bonfante to think that Justinian, as soon as he ascended the throne, did not yet depart from the programme that inspired the Theodosian constitution. The great design matured later, and gave rise to the constitution Deo auctore of 15 December 530, which ordered the compilation of the Digest.
I. «DIGESTA» or «PANDECTAE»
They are the compilation of jurisprudence, made by a commission whose members were, under the presidency of Tribonian, four professors (Theophilus and Gratinus of Constantinople, Dorotheus and Anatolius of Berytus) and furthermore Constantine, comes sacrarum largitionum, and eleven advocates of the bar of Constantinople. They consist of fragments extracted from the works of the principal Roman jurists, arranged in 50 books of unequal size, each of which (with the exception of three: XXX, XXXI, XXXII, which set out the subject 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 a systematic order: each fragment has its inscriptio containing the name of the jurist and the indication of the original work and of the relevant book: for convenience of reference, scholarship later divided the longer fragments into principium and paragraphs. An arduous work and of broad design, it was brought to completion with extraordinary speed: published by the constitution Tanta, on 16 December 533, it entered into force on 30 December following.
The order of the subject matter coincides, at least in its broad lines, with that of the edictum perpetuum of Salvius Julianus. A German scholar, Bluhme, established more than a century ago, when he was barely twenty-three, that in all the titles of the Digest the fragments follow one another in a pre-established order that can be traced back to the existence of four different series of works. Not all the series are represented in each title, nor is the order in which the fragments are arranged in it constant, but each title presents distinctly the series that contributed to forming it. Bluhme called these series "masses", and gave each the name corresponding to the type of legal work that prevails in it: "Sabinian mass" he called that constituted almost entirely of works relating to the ius civile, after the name of the great jurist who first elaborated the ius civile into a true system; "edictal mass", that of which the commentaries on the edict are a fundamental part; "Papinian mass", that in which works of casuistry predominate, among which those of Papinian hold a first place; finally, "appendix" he called a last mass, constituted for the most part of less accessible or more antiquated works, because these works would have come into the hands of the compilers at a later time, when the work was already begun.
There is much dispute whether the compilers of the Digest themselves extracted, first and always, the various fragments from the original works of jurisprudence, or whether they availed themselves of pre-existing compilations.
Probably the works which Justinian in the constitution Omnem recalls as partes of the leges, which were studied in the post-classical schools under the names of first pars legum (τὰ πρῶτα), pars de iudiciis, pars de rebus, quatuor libri singulares, without indication of author, were private compilations. To what extent, moreover, the work of the Justinianic commission was facilitated by post-classical compilations, it is not even today possible to say. The constitution of 426, which limited to five the number of jurists to whose works the judge had to refer in the application of the law, must not only have directed the attention of practitioners towards these works, but must have induced the making of part of these works the basis of school teaching. It may be, therefore, that in such a state of affairs, from all or from the more notable works of the five, after they had become legislative text, a private compilation was derived.
Certainly, the following observations cannot fail to impress: 1) the very large part (ca. 11/15) that the five jurists of the Theodosian constitution have in the Justinianic Digesta; 2) the manner in which the remaining part (ca. 4/15) is distributed: this is almost entirely occupied by extracts from works of seven other jurists (Cervidius Scaevola, Pomponius, Julian, Marcian, Javolenus, Africanus, Marcellus) which, summed with those drawn from the works of the five jurists of the Theodosian constitution, form ca. 11/12 of the Digest; 3) the quality of the works most largely excerpted of the other jurists not included among the five: that is, systematic works (books ad Sabinum, books ad edictum, digesta); or elementary ones (books of institutiones and of regulae), or of casuistry (responsa, quaestiones), or also special ones on particularly important matters (books ad legem Iuliam et Papiam, fideicommissorum, de iudiciis publicis, de appellationibus, etc.): works all of which were certainly more at the disposal of the interpreters of the post-classical age, and which had in the forms of the five a substantial and formal connection at once, inasmuch as they contained the same subject matter and bore the same title; 4) the insignificant excerpting of many works, whether belonging to the five jurists of the Theodosian constitution or to others; an insignificant excerpting, which seems to exclude the reading direct reading of these works by the legislative commission; 5) the manner in which this commission was composed: of sixteen persons (excluding Tribonian), eleven were chosen from among the advocates of the praetorian prefecture of the East; two were magistrates (in Cratinus this quality predominated over the other of professor); the four professors therefore amounted to only three. A commission supremely unsuited, in its great majority, to the sifting of an immense body of material which, devalued by the Theodosian constitution, should no longer have been in the hands of practitioners; 6) the enormous brevity of the time in which the compilation of the Digest was completed, three years. Indeed, while work on this compilation was still at its height, Tribonian with two of the three professors (Theophilus and Dorotheus) began and brought to completion the Institutiones; 7) the transgression of the order given by the Emperor not to use any but imperial jurists, furnished with the ius respondendi (there exist 535 fragments of Gaius, who never had the ius respondendi), placed in relation to the circumstance that Gaius was one of the five jurists of the Theodosian constitution; 8) the distribution of the material contained in the Digest into three distinct masses, reflecting the parallel distribution of the material that formed the object of pre-Justinianic school teaching.
II. «INSTITUTIONES»
While the compilation of the Digest was still being attended to, the Emperor charged Tribonian, Theophilus and Dorotheus with preparing an elementary school treatise to replace the Institutes of Gaius. In the system and in the division into four books the compilers followed the Gaian model, but they also drew, in obedience to the imperial instructions, on other classical Institutiones (those of Florentinus, Marcianus, Ulpian), on the Gaian paraphrase known under the name of res cottidianae or aurea, and on the Digesta themselves, by then already almost completed. They added to these, deriving it from the Code published in 520 or from the constitutions issued in the last years, notice of the innovations introduced by Justinian, and they often prefixed indications concerning the inner state of the law and its development.
The four books are divided into titles, each bearing a rubric in which the material treated in each title is indicated; but, unlike what had happened for the Codex and was done for the Digesta, within the title the individual passages are reported without indication of the sources from which they derive, and constitute a continuous exposition in which it is the Emperor himself who speaks. Published on 21 Nov. 533 with the constitution Imperatoriam maiestatem, they entered into force on the following 30 Dec. together with the Digesta.
III. «CODEX REPETITAE PRAELECTIONIS»
This is the new edition of the compilation of imperial constitutions rendered necessary after the official collection of the iura. The preparation of the Digesta 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 iura a certain solution, or to give a norm to practitioners who drew on the iura in conformity with the Theodosian codification, as seems more probable, is disputed. It seems that under the name of quinquaginta decisiones they were collected in a volume at the same time as the compilation of the Digesta was being ordered.
Moreover, many other constitutions were issued in the years 531 and 532 to resolve new questions that arose in the course of the compilation, and these are what are called, using Justinian's own words, the constitutions ad commodum propositi operis pertinentes.
This made a new edition of the Code necessary, in order to insert the new constitutions and eliminate everything in the first edition that could contradict them. The new edition was entrusted to Tribonian, to Dorotheus and three advocates. In less than a year it too was completed. Published on 16 Nov. 534 with the constitution Cordi, it entered into force on the following 29 Dec.
The Code is divided into 12 books: the first contains the regulation of relations between State and Church, the treatment of the sources of law and of the officia of the various magistracies; books II-VII concern private law set out 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 own rubric; within the individual titles the constitutions are arranged chronologically, each with an inscriptio, containing the name of the emperor and the indication of the addressee, and with a subscriptio bearing the date; the longer ones, like the fragments of the Digesta, were divided in the school into principium and paragraphs.
IV. «NOVELLAE» (constitutiones)
These are the new constitutions issued after the collection of the iura and the leges had been brought to completion, from 535 to 565. Published partly in Latin and partly in Greek, they are especially numerous in the years from 535 to 546, in which Tribonian died, and they are sometimes very extensive constitutions, for the most part innovative, especially those concerning marriage and intestate succession.
The intention, manifested several times by Justinian, of making an official collection of the Novels was never carried out: only private collections of them exist. Of these the oldest (around 555) seems to be the Epitome Iuliani, so called from the name of its compiler, a certain Julian, perhaps a professor at Constantinople; it contains the Latin summary of 122 Novels. A fuller collection containing 134 Novels (the constitutions up to 556) is the one that goes under the name of Authenticum: a curious name applied to this collection because, wrongly, in the 11th century the Bolognese school had believed it false: the opinion now dominant is that it was prepared in Italy precisely in the 11th century. The Novels are not epitomized in it as in the preceding collection: the Latin ones are reported 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 are by Justinian; the others by his successors, especially Justin II and Tiberius II. While the various parts of the Justinianic compilation, Institutiones, Digesta, Codex, 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 one Novel and another, the more recent derogates from the older.
V. MANUSCRIPTS AND EDITIONS
The oldest and most authoritative manuscript of the Digesta is the one now preserved in the Medicean-Laurentian Library in Florence, of which a phototypic reproduction has been made. It is known under the name of Florentina or littera Florentina, because in 1406 it was taken by the Florentines as booty in the war against Pisa, where it had been since the 12th century. It belongs to the 6th or at the latest the 7th century: later, therefore, by only a little than the Justinianic compilation. Other manuscripts, of much more recent origin (of the 11th century and following), go under the name of littera Bononiensis or Vulgata: they are due to the revival of the study of Roman law in the University of Bologna and go back to an exemplar that must have been transcribed from the Florentina, but with corrections drawn from another manuscript, itself also ancient: therefore the reading of the manuscript of the Florentina can be suitably corrected if the manuscripts of the Vulgata agree on another reading.
Of the Institutiones 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 a very ancient manuscript contemporary with the littera Florentina of the Digests was almost entirely lost: only a small part (Codex rescriptus of Verona) has been saved. Other manuscripts are at Pistoia, at Cassino, at Paris, etc.
A rich manuscript tradition has each of the various collections of Novellae: the most celebrated manuscript is owned by the library of St. Mark in Venice.
The old editions were made in 5 vols., following the division made by the glossators. The first contained the Digestum vetus (ll. I-XXIV, 2); the second, the Digestum infortiatum (ll. XXIV, 3; XXXVIII); the third, the Digestum novum (ll. XXXIX-L); the fourth, the first nine books of the Codex; the fifth, finally, the last three books of the Codex, the Institutiones, the vulgar version (Authenticum) of the Novellae divided into nine collections; furthermore two books of feudal law which, together with certain laws of the Empire, formed the tenth collection. Among these, the glossed editions occupy a distinguished place.
In the 13th century the great Accursius gathered the glosses scattered in the various manuscripts, extracted the best from them, added some of his own, and out of this came the "glossa ordinaria". The glossed editions of the C. i. contain precisely the "glossa ordinaria".
The first critical edition of the individual sources, carried out after the collation of several manuscripts and with severe acumen, is that of the Dutchman Gregorius Aloander (1329-31); the first edition with the title C. i. c. was made by Dionysius Gothofredus in 1583; a notable progress represents that of Gabauer and Spangenberg (1776-97), where the results of two centuries of work of the Dutch school are gathered. To the end of the last century belong the masterly edition of the Digesta edited by Mommsen in two volumes (1868-70), carried out on the Florentine manuscript newly collated, and that, also so valuable, of the Codex edited by P. Krüger (1877), as well as the school edition of the whole C. i. c., for which Mommsen first, and P. Krüger afterwards, edited the Digesta (15th ed., 1928), P. Krüger the Institutiones and the Codex (10th ed. 1929), Schöll and Kroll the Novellae (5th ed. 1928). A fine critical edition of the Digesta, in a handy format, is the Italian one, finished being published in Milan in 1931.
VI. GENERAL SUMMARY OBSERVATIONS
The Justinianic compilation does not contain the whole of pure Roman law. Not a few texts had already been undergoing alteration in the post-Diocletianic age; very many were altered by the Justinianic compilers, who, moreover, must very often have had the possibility of using glosses of the post-Diocletianic age existing in great number around the classical texts and not yet absorbed into those texts themselves. That the passages of Roman jurisprudence and the texts of imperial constitutions received into the Justinianic compilation were freely changed by the compilers in order to adapt them to new circumstances is clear from explicit declarations of Justinian himself. Especially in the constitution Tanta (§ 10) the Emperor recalls that he gave the commissioners the widest latitude 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 Digesta, in the Institutiones, in the Codex there are many interpolations (v.), or, as it was once customary to say, many emblemata Triboniani.
In the post-Diocletianic age Roman law increasingly feels the influence, ever broader and more powerful, of many new factors, which insert new norms and new institutions into the system and eliminate Roman norms and Roman institutions.
New principles and concepts, which are superimposed upon the Roman principles and concepts, already burst forth immediately in the legislation of Constantine: that is, of the Emperor "novator turbatorque priscarum legum et moris antiqui recepti", as Ammianus likes to define him.
The Justinianic compilation, which arrived after about two and a half centuries, was bound to mirror the evolution of Roman law — no longer rectilinear, beginning from the age of Constantine, as a continuous internal evolution might have been, but disorganized and disjointed and complex, since from the beginning of the 4th century to almost the middle of the 6th it had proceeded under the impulse of new external factors, which were new formidable forces that had come into play. To mirror it, imposing substantive interpolations were required.
These factors can be reduced to the following:
1) Christianity. The influence of Christianity on Justinianic Roman law, although denied, or at least too scantily admitted, by some isolated writer, is immense. 2) The new political, social, economic constitution of the Empire, which after Diocletian has its center of gravity in the East. If the principate is in a certain sense the continuation of the ancient Republic, the Constantinian Empire is the beginning of a new era. The new constitution represents in Roman dress a profound upheaval, in which Romanitas is almost drowned in the Hellenistic and Oriental spirit: the absolute monarchy is integrated with an order in open contrast with Roman orders. 3) Provincial laws. When the constitution of Antoninus Caracalla extended Roman citizenship to all, or nearly all, the inhabitants of the Empire and consequently imposed Roman law upon them, in the Roman East as far as the Tigris and the Euphrates and the cataracts of the Nile, Hellenic civilization had spread widely and with it Greek law: substantially the same prevailed in Athens and Damascus, in Antioch and Hermopolis or in Egyptian Thebes. Just as, once the ancient dialectal varieties ceased, the common language of the Hellenes served commerce and culture throughout the East, so, once the secondary local differences were composed or forgotten, the general law of the Hellenes regulated the relations of private life throughout that vast expanse of lands and seas. Imperial legislation from Caracalla to Diocletian struggles tenaciously for the application of Roman law in the provinces; but the legislation of Constantine opens new ways and new times, and a tumult of new norms bursts into the Roman legal system. 4) The empiricism of decadence. In the Roman-Hellenic epoch, as in every epoch of legal decadence, mere empirical considerations bring about grave changes in the field of law. It is these empirical considerations, sometimes conspiring with the new Christian ethical currents, that cause transactions for valuable consideration to be rescinded when, although concluded with the observance of all the norms that the legal order prescribes, in practical execution they reveal too grave an imbalance between performance and counter-performance. 5) The spirit and the doctrinal preparation of the jurists of the Greek 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, Berytus. This city, already celebrated in 230 as the school of law (συνδεικτῆριον τῶν νόμων), is later considered the mother of law (μῆτηρ τῶν νόμων) and its masters are exalted as heroes (ἔρασες) and teachers of the world (διδάσκειν τῆς οὐκουμένης): some, such as Cyril, Patricius, Domninus, 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, bring to the interpretation of this law, not necessarily divorced from the illustration of its practical application, a new spirit and a new method.
The new norms became fixed in Roman law: a) through imperial legislation, from Constantine onward; b) through the practice of the forum (unus iudiciorum), and through notarial and private practice, that is, that longa consuetudo to which Justinian himself alludes in the constitution Deo auctore (§ 10): unus iudiciorum and longa consuetudo, through which Roman norms and institutions, by non-application, fell into decay, and Greek norms and institutions, through the constant frequency of their application, succeeded in prevailing; c) through scholastic teaching.
The Roman architecture in the Justinianic compilation is dominant: the fundamental element remains always the Roman national law; but this law is also profoundly transformed.
It was, in any case, the East that saved the destinies 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 of both West and East: Claudius Mamertinus, Ammianus Marcellinus, Theodosius II and Valentinian III bear direct and sure witness to it. But in the East the schools soon flourished again and prepared the way for the great legislative work of Justinian.
Men of theory rather than of practice, rich in doctrine and in patience, the Byzantine masters, while concentrating their greatest study on the works of the five jurists mentioned in the Theodosian constitution, also ranged somewhat outside them, enticed by their own philosophical education and their dialectical ardor; they attempted to compose the old and new elements, that is, Roman, Hellenistic and Christian, into a necessarily heterogeneous system, but one such as to make one feel that a doctrinal elaboration was nonetheless within it and asserted itself in the new conceptions, in the new general ideas, in the new classifications.
The Justinianic work also had as its basis the fervent labor of these masters of the 5th-6th centuries; but, despite the many updatings, it was necessarily bound to turn out a work of compilation rather than of legislation: fortunate, if one looks at it from other aspects; very poor, if one looks at it from the legislative aspect, since it was born, in notable part, already outstripped by the times; in notable part, more history than doctrine.
To seek the law in force in the age of Justinian one must not rarely look outside the Digesta: to discover it in the personal constitutions of the legislator within the Codex and especially in the Novellae.
But the Roman spirit, so powerfully and mystically felt by Justinian, who came from that Illyricum which in the 3rd century had produced the only men capable of facing the great crisis (Aurelian, Probus, Diocletian), was of benefit to the salvation of the legal tradition that the schools of the East, while adapting and deforming it, had preserved, and which would otherwise have been disastrously lost.
Justinian, through his work, in which the historical material seems not infrequently to stifle the legislative material, preserved a precious part of the most brilliant treasure of Latin wisdom, from which the legal education of human thought has drawn in every time and place, and cast his great legislation as a gigantic bridge between ancient civilization and modern civilization. Had the Emperor allowed the Greek-Eastern practice that later inspired the Isaurian Ecloga to prevail, his work in the West would have lost all influence with the fall of Byzantine domination: instead he constructed a work that, through the Bolognese renaissance, was able to rise to become in the Middle Ages the common law of a great part of Europe. - See pl. XXXI.
Bibliography4 works
Emilio Albertario