The Mediaeval Mind (Volume 2 of 2) / A History of the Development of Thought and Emotion in the Middle Ages

by Henry Osborn Taylor

Thus we note the sources and constructive principles of the Roman law. We observe that while certain of the former might be called “statutory,” the chief means and method of development was the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the consummate genius of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice which were rooted in a philosophic consideration of human life; matchless also in its carrying through of such principles into the body of the law and the decision of every case.

II

The Roman law was the creation of the genius of Rome and also the product of the complex civilization of which Rome was the kinetic centre. As the Roman power crumbled, Teutonic invaders established kingdoms within territories formerly subject to Rome and to her law—a law, however, which commonly had been modified to suit the peoples of the provinces. Those territories retained their population of provincials. The invaders, Burgundians, Visigoths, and Franks, planting themselves in the different parts of Gaul, brought their own law, under which they continued to live, but which they did not force upon the provincial population. On the contrary, Burgundian and Visigothic kings promulgated codes of Roman law for the latter. And these represent the forms in which the Roman law first passed over into modes of acceptance and application no longer fully Roman, but partly Teutonic and incipiently mediaeval. They exemplify, moreover, the fact, so many aspects of which have been already noticed, of transitional and partly barbarized communities drawing from a greater past according to their simpler needs.

One may say that these codes carried on processes of decline from the full creative genius of Roman jurisprudence, which had irrevocably set in under the Empire in the fourth and fifth centuries. The decline lay in a weakening of the intellectual power devoted to the law and its development. The living growth of the praetorian edict had long since come to an end; and now a waning jurisprudential intelligence first ceased to advance the development of law, and then failed to save from desuetude the achieved jurisprudence of the past. So the jurisprudential and juridical elements (jus) fell away from the law, and the imperial constitutions (leges) remained the sole legal vehicle and means of amendment. The need of codification was felt, and that preserving and eliminating process was entered upon.

Roman codification never became a reformulation. The Roman Codex was a collection of existing constitutions. A certain jurist (“Gregorianus”) made an orderly and comprehensive collection of such as early as the close of Diocletian’s reign; it was supplemented by the work of another jurist (“Hermogenianus”) in the time of Constantine. Each compilation was the work of a private person, who, without authority to restate, could but compile the imperial constitutions. The same method was adopted by the later codifications, which were made and promulgated under imperial decree. There were two which were to be of supreme importance for the legal future of western Europe, the Theodosian Code and the legislation of Justinian. The former was promulgated in 438 by Theodosius II. and Valentinianus. The emperors formally announce that “in imitation (ad similitudinem) of the Code of Gregorianus and Hermogenianus we have decreed that all the Constitutions should be collected” which have been promulgated by Constantine and his successors, including ourselves.[356] So the Theodosian Code contains many laws of the emperors who decreed it.[357] It was thus a compilation of imperial constitutions already in existence, or decreed from year to year while the codification was in process (429-438). Every constitution is given in the words of its original announcement, and with the name of the emperor. Evidently this code was not a revision of the law.

The codification of Justinian began with the promulgation of the Codex in 529. That was intended to be a compilation of the constitutions contained in the previous codes and still in force, as well as those which had been decreed since the time of Theodosius. The compilers received authority to omit, abbreviate, and supplement. The Codex was revised and promulgated anew in 534. The constitutions which were decreed during the remainder of Justinian’s long reign were collected after his death and published as Novellae. So far there was nothing radically novel. But, under Justinian, life and art seemed to have revived in the East; and Tribonian, with the others who assisted in these labours, had larger views of legal reform and jurisprudential conservation than the men who worked for Theodosius. Justinian and his coadjutors had also serious plans for improving the teaching of the law, in the furtherance of which the famous little book of Institutes was composed after the model, and to some extent in the words, of the Institutes of Gaius. It was published in 533.

The great labour, however, which Justinian and his lawyers were as by Providence inspired to achieve was the encyclopaedic codification of the jurisprudential law. Part of the emperor’s high-sounding command runs thus:

“We therefore command you to read and sift out from the books pertaining to the jus Romanum composed by the ancient learned jurists (antiqui prudentes) to whom the most sacred emperors granted authority to indite and interpret the laws, so that the material may all be taken from these writers, and incongruity avoided—for others have written books which have been neither used nor recognized. When by the favour of the Deity this material shall have been collected, it should be reared with toil most beautiful, and consecrated as the own and most holy temple of justice, and the whole law (totum jus) should be arranged in fifty books under specific titles.”[358]

The language of the ancient jurists was to be preserved even critically, that is to say, the compilers were directed to emend apparent errors and restore what seemed “verum et optimum et quasi ab initio scriptum.” It was not the least of the providential mercies connected with the compilation of this great body of jurisprudential law, that Justinian and his commission did not abandon the phrasing of the old jurisconsults, and restate their opinions in such language as we have a sample of in the constitution from which the above extract is taken. This jurisprudential part of Justinian’s Codification was named the Digest or Pandects.[359]