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Roman Law
9/25/2007
Outline
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I. THE MAKING OF THE CORPUS JURIS CIVILIS
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II. SOURCES OUTSIDE OF JUSTINIAN
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527—Justinian becomes emperor
529—the “first” Code
529–534—the “fifty decisions”
530–533—the Digest
533—Institutes
534—Codex Iustinianus
after 565: the Novels—168 of them
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1.
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Justinian’s instructions to the compilers:
4. We command you to read and
work upon the books dealing with Roman law, written by those learned men of
old to whom the most revered Emperors gave authority to compose and
interpret the laws, so that the whole substance may be extracted from them,
all repetition and discrepancy being as far as possible removed, and out of
them one single work may be compiled, which will suffice in place of them
all ....
7. ...
If you find anything in the old books that is not well expressed,
or anything superfluous or wanting in finish, you should get rid of unnecessary
prolixity, make up what is deficient, and present the whole in proportion
and in the most elegant form possible. What is more, if you find anything
not correctly expressed in the old laws or constitutions which the ancient
writers quoted in their books, you should also take care to rectify it and
put it into proper form, so that what is chosen by you and set down there
may be deemed genuine and the best version and be treated as if it were what
was originally written....10. Again, if any laws included in the old books
have now fallen into disuse, we
by no means allow you to set them down....
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2.
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Arrangement of Material: Bluhme’s Massentheorie
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3.
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Problems with the Digest as a
historical source:
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a.
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Not systematic
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b.
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Loss of context
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c.
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Interpolations. Example:
[Julian] says that if a usufruct has been left by legacy to a slave who is
owned in common and separately left to Titius, if the usufruct is lost by
one of the common owners it does not go to Titius but ought to go to the
other common owner, as he alone was conjoined in the grant: neither Marcellus nor Mauricianus
approves this opinion; Papinian in Book 17 of his Problems also departs
from it. Neratius’ view is given in book one of his Opinions. But I think [Julian’s]
opinion is correct, for as long as one of the common owners uses it, it can
be sid that the usufruct subsists. (Ulp.D.7.2.1.2. and FV 75.3)
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d.
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Relationship to real cases, real practice
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e.
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Relationship law and society
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1.
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Legal writings (Gaius; Paul, Sententiae;
Epitome of Ulpian; Vatican Fragments)
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2.
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“Codes”: collections of imperial constitutions (Theodosian 438; Gregorianus and Hermogenianus)
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3.
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Literary Sources (Livy, Tacitus, etc.)
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4.
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Documentary evidence (Pompeii and Herculaneum tablets;
inscriptions, e.g. lex Irnitana;
papyri)
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