The Second Life of Roman Law

Justinian himself declares that ‘the man who amends what is imperfectly done deserves more praise than the original author’. Only in an age when this could be said could a work as contradictory in its purposes as the Digest have been undertaken. In seeking to preserve the greatness of the past Justinian failed to produce a practical codification which his own subjects could use, and in seeking to present the law of his own day he distorted what he was trying to preserve.

(Zimmermann, 1996) And yet he was to succeed in a time and place and in a manner of which he could not have dreamed, and these very defects were to be one of the sources of this unforeseen success. He declared that he had given the best of laws not only for his own age but for the ages to come. Centuries later these words would be heard again, and the work of Justinian the legislator would become the common law of the continent of Europe. Later still, and in our own time, the historian of law would find in the work of Justinian the preserver a rich record of the greatest achievement of the Roman mind.

In the history of law Justinian marks the ending of the ancient world. In his reign the Roman law enjoyed a brief second summer before the onset of the winter of the next five hundred years. And the Roman law which emerged from that winter was a medieval law, a law of the book. Once the legislator’s hand had been laid upon it the character of the Roman law was changed: its authority now lay not in the balance of the free debate between the jurists but in the words of the book in which the debate was preserved. This result must follow on any codification; it was only the more marked because of the habits of mind of the Middle Ages.

(Borkowski, 1997) Justinian’s importance lies in his having succeeded, at a moment when the ancient world was dissolving, in collecting together, in a form which could survive, the literature of the Roman law. And in the survival of this literature even his conquests can be seen as playing a part. For his conquest of Italy made possible the promulgation there of his codification, and it was probably in Italy, and within half a century of Justinian’s death, that the manuscript was written to which we owe the survival of the Digest.

How it was preserved we do not know, but we may remember that it was soon after Justinian came to the throne that in Italy, at Monte Cassino, St. Benedict founded his first monastery. In the dissolution of the ancient world the medieval world was taking shape. In the Eastern Empire the history of Roman law continued unbroken until the fall of Constantinople to the Turks in 1453, but it was a history of decline, and Byzantine law in its last form is a very remote descendant of the classical law.

Justinian, with the codifier’s habitual belief in the perfection of his work and in the possibility of preventing the growth of fresh controversies, had forbidden all commentaries. He made exceptions, however, for literal translations into Greek and for indices and paratitla. The latter are usually taken to be brief summaries and references to parallel passages. If this is so, the exceptions were, even in Justinian’s lifetime, liberally construed and the ban was later altogether ignored. This was inevitable.

The language of the Eastern Empire was Greek, and even the Institutes must to many have been inaccessible. (An expanded Greek paraphrase, attributed to Theophilus, survives. ) But the Digest presented the additional difficulties that it was vast, complex, and ill-arranged, and that it embodied institutions and concepts which were not in practice understood or applied. The need for summaries and commentaries was compelling. This Greek literature is best seen in the Basilica (‘Imperial Law’) promulgated by the Emperor Leo the Wise (886-911).

This was compiled from earlier materials, and consists of drastically abridged and simplified Greek versions of the Digest, Code, and Novels, put together to form a single work. To these was later added an extensive apparatus of marginal comments or scholia, written mainly in the sixth or seventh centuries. In works such as this a form of Roman law survived until 1453, and indeed longer. For a manual in six books (the Hexabiblos), compiled in about 1345 by Harmenopoulos, a judge at Salonica, remained, in theory at least, the basis of the law of Greece until the coming into force of the Civil Code in 1946.