Vulgar law

The great formative period of Roman law fell in the last one hundred and fifty years B. C. Growth thereafter was less rapid, and was largely completed in the work of Julian, who both by his consolidation of the Edict and by his writings summed up the developments of the preceding centuries. The work of the great jurists who followed him was one of elaboration and exposition. Accordingly, the period from Julian to the middle of the third century or, more widely, the period of the Principate, is commonly called the classical period of Roman law.

(Schulz, 1951) It is from the classical period in the narrower sense that more than nine-tenths of the surviving juristic literature comes, and it is about this period therefore that we might expect to be most fully informed. This expectation, however, is disappointed because the literature is, with one exception, of uncertain reliability. The exception is the Institutes of Gaius. The Post-Classical Period The day of the independent jurist ended in the upheavals of the middle of the third century. Something of the old quality could still be found in the rescripts issued from Diocletian’s chancery, but the decline had already set in.

It was hastened by the growth of what is called the ‘vulgar law’. (Buckland, 1963) By the constitutio Antoniniana (c. A. D. 212) the peregrine population of the Empire was accorded Roman citizenship and was therefore required to conduct its affairs according to a system of law of which it knew little or nothing. In the result, the law which was in fact applied in the provinces was a mixture of debased Roman law and local practice, varying from area to area but far removed from the refinement and elaboration of the classical law.

Something of this vulgar law can be seen in the codes promulgated for their Roman subjects by the Germanic rulers in the West after the downfall of the Western Empire. Of these the most important is the lex Romana Visigothorum, promulgated in 506 by Alaric II, King of the Visigoths (and sometimes therefore called the Breviary of Alaric). It consists of some imperial constitutions, an abridgement of Gaius’ Institutes, a selection from a post-classical and much edited anthology of the writings of Paul (the Sententiae or Opinions), and one responsum of Papinian, all, except the abridgement of Gaius, accompanied by a commentary or paraphrase.

The result is but a thin, distorted echo of the Roman law. The metropolitan lawyers of the East, trained in the law schools of Beirut and Constantinople, maintained a greater continuity with the classical law, but even they were unable to manipulate the vast mass of juristic literature. Doubts arose as to the authenticity and authority of different works, and these doubts eventually called forth the famous Law of Citations of A. D. 426. This singled out as authoritative the writings of Papinian, Paul, Ulpian, Modestinus, and Gaius.

(Buckland, 1963) In 518 there came to the throne an elderly soldier, Justin. Born of a peasant family, he had risen from the ranks despite his complete lack of education. For his relatives, however, he provided what he lacked himself: younger members of the family, and in particular the nephew and adopted son whom we know as Justinian, received the best education that Constantinople could offer. When Justin came to the throne Justinian was thirty-six, and by his conspicuous abilities he soon acquired great influence.

Already in his adoptive father’s reign he must have formed his ambition of restoring the greatness of the Roman Empire. For on his accession in 527 he lost no time in embarking on his great projects. His short-lived military conquests have already been mentioned. His great church of the Holy Wisdom in Constantinople still stands as a reminder of his interest in religion. What concerns us here is his codification, which was later to be called the Corpus Iuris Civilis.

Justinian’s first project was the relatively modest one of doing again for his own time the work which, ninety years before, Theodosius II had done for his. In February 528 he appointed a commission of ten, including Tribonian, then head of the imperial chancery, to make a new collection of constitutions. They were to omit all that was obsolete and were to make such consolidations, deletions, and alterations as were necessary to remove contradictions. The work was quickly completed and the Code was promulgated in April 529.

It remained in force, as we shall see, only until 534 and has not survived. Justinian then turned his attention to the juristic law. Theodosius himself had intended to make a collection of juristic writings but had abandoned the project. Justinian seems at first to have envisaged only the settling of outstanding controversies and the formal abolition of obsolete institutions. The constitutions by which these reforms were enacted are referred to as the Fifty Decisions, but as such they have not come down to us, though many must be contained in the second Code.