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PROLEGOMENA TO ESTABLISHING PRE-JUSTINIANIC TEXTS
by
ALAN WATSON
(Athens, Georgia)
For many years a central issue in Roman law studies has been the extent to
which the substance of the law set out in Justinian's Code and Digest collected
together from earlier materials has been interpolated. In this paper I seek to give
an answer based primarily, but not exclusively, on the instructions given by
Justinian to his compilers.
Most of us who teach Roman law have derived our basic knowledge of the purposes of Justinian's legislation from the teachings of our professors and the reading of standard textbooks. Seldom does it appear necessary to read the constitutions establishing the teams to produce this legislation or the prefaces
promulgating the legislation'. Even less frequently do we look at these constitutions and prefaces together. We always have more pressing things to do. As a
consequence, much that is inexact has been written - by me as well as by others
- about Justinian's purposes, and the powers given to his compilers.
All of us who have written about classical Roman law have in effect expressed
opinions on the substantive accuracy of pre-Justinianic texts contained in the
Digest or Code. The problem is that, without an understanding of the intentions
behind the two Codes, Fifty Decisions, Digest and Institutes, and of the powers
given to the compilers, we have no basis for our opinions on the substantive accuracy of the pre-Justinianian texts in the compilation.
It cannot be my purpose to examine or discuss the views expressed by modern
scholars on the subject - an impossible task 2 . Rather, I want to examine Justinian's constitutions and prefaces just mentioned to discover his purposes and the
powers given to his compilers, and to argue from that to the earlier texts. If what
I write has been said before, and overlooked by me, then at least brevity here will
ensure that not much time will have been wasted by any possible reader.
On 10 July 518, Justin, the Thracian peasant turned soldier, now comes excubitorum (i.e., commander of one of the palace regiments), was pronounced
emperor in the hippodrome at Constantinople. He was then probably about
sixty-eight years old. He immediately made his nephew Justinian a patrician and
comes domesticorum. From that time Justinian was obviously a man of great
political influence at the palace. On 1 April, 527, the mortally ill Justin proclaimed Justinian co-emperor, and Justinian became sole emperor on 1 August
1. Even a book with so appropriate a title as 'Justinian's Attitude to the Classical'
does not investigate the instructions: K.-H. Schindler, Justinians Haltung zur Klassik,
Cologne 1966.
2. But see, most recently, J.H.A. Lokin, Decisioasa Terminus Technicus, Subseciva
Groningana 5 (1992), p. 21ff.
ALAN WATSON
of that year, on Justin's death. On 13 February, 528, Justinian sent to the senate
his order to compose a new Codex.
The word codex has the ordinary sense of 'book', but in this context has a
specific meaning, a collection of imperial rescripts. There were three earlier
codices, the unofficial codices Gregorianusand Hermogenianus,both of around
the end of the third century, and the official codex Theodosianus of the emperor
Theodosius II, published in 438. It is because of them that Justinian talks of the
composition of a 'new Code'.
The order begins:
Haec, quae necessario corrigenda esse multis retro principibus visa sunt, interea tamen
nullus eorum hoc ad effectum ducere ausus est, in praesenti rebus donare communibus
auxilio dei omnipotentis censuimus et prolixitatem litium amputare, multitudine quidem constitutionum, quae tribus codicibus Gregoriano et Hermogeniano atque Theodosiano continebantur, illarum etiam, quae post eosdem codices a Theodosio divinae
recordationis aliisque post eum retro principibus, a nostra etiam clementia positae
sunt, resecanda, uno autem codice sub felici nostri nominis vocabulo componendo,
in quem colligi tam memoratorum trium codicum quam novellas post eos positas constitutiones oportet.
These things which necessarily were seen by many earlier emperors to require correction, but none of them between times dared to bring to effect, we have determined at
the present time to complete for the common good, with the aid of all powerful God,
and to cut out the prolixity of litigation; cutting back on the multitude of constitutions
which were contained in the three Codes, Gregorianus, Hermogenianus and Theodosianus,as well as on those constitutions that after these Codes were issued by Theodosius, of holy memory, and other later emperors, and also by Our Grace; composing
one Code under Our Auspicious Name in which constitutions ought to be collected not
only from the three aforementioned Codes, but also from new constitutions after
them.
At the very beginning of his reign, Justinian is tackling the major problem facing the lawyers of the day, that of knowing the law contained in imperial
rescripts. So long as jurists of the stature of Julian, Ulpian, Paul and Papinian
were writing numerous books, the problem was relatively minor. All four jurists
just mentioned were top imperial civil servants with access to the rescripts in the
chancellery and they could insert the substance of them into their books. But the
practice of producing law books died out around 235, about the time of
the murder of the emperor, Alexander Severus. The Digest contains excerpts
from only two jurists writing after that date, the Iuris Epitomae of a certain
Hermogenianus 3 , and three libri singularesof Arcadius Charisius. The problem
of knowing the law contained in the rescripts became acute in the succeeding
generations.
The legal pronouncements of the emperors were of different types, and so was
the degree of publicity given to each. Edicta were posted at the emperor's residence for a short time, and he might order that they be displayed, also for a short
3. This Hermogenianus may be the compiler of the codex Hermogenianus,and may
also be the praetorian prefect of that name under Maximian in 304. Cf. D. Liebs, Hermogenians Juris Epitomae, G6ttingen 1964, p. 23ff.
ESTABLISHING PRE-JUSTINIANIC TEXTS
time, in a particular province or provinces. Decreta, statements of the law issued
to an individual with a problem, would be known at once by that party, and they
would be registered in the court office. Epistulae, replies to officials or public
bodies who had asked for advice, would be sent to them, but no other publication
was forthcoming unless the emperor requested it. Presumably, a copy was kept
in the chancellery. Subscriptiones,the emperor's replies written at the bottom of
petitions, were set up publicly for a few days only, and the petitioner and the
chancellery would each receive a copy. Apart even from the difficulty of access
to the chancellery, there is no evidence of an index system according to the subject matter of the rescripts. Thus, for all types of imperial legal pronouncements
knowledge was hard to obtain. A further aspect of the problem is that a reply
might be limited to a particular case, person or province, or be of general application. Nothing on the face of the reply indicated the scope of application 4 .
In the following section § 1, Justinian lists the team he has selected to compile
the Code. Then § 2 reads:
Quibus specialiter permisimus resecatis tam supervacuis, quantum ad legum soliditatem pertinet, praefationibus quam similibus et contrariis, praeterquam si iuris antiqua
divisione adiuventur, illis etiam, quae in desuetudinem abierunt, certas et brevi sermone conscriptas ex isdem tribus codicibus, novellis etiam constitutionibus leges componere et congruis subdere titulis, adicientes quidem et detrahentes, immo et mutantes
verba earum, ubi hoc rei commoditas exigebat, colligentes vero in unam sanctionem,
quae in variis constitutionibus dispersa sunt, et sensum earum clariorem efficientes,
ita tamen, ut ordo temporum earundem constitutionum non solum ex adiectis diebus
et consulibus, sed etiam ex ipsa compositione earum clarescat, primis quidem in primo
loco, posterioribus vero in secundo ponendis et, si quae earum sine die et consule in
veteribus codicibus vel in his, in quibus novellae constitutiones receptae sunt, inveniantur, ita his ponendis nullaque dubietate super generali earum robore ex hoc
orienda, sicut et illas vim generalis constitutionis obtinere palam est, quae ad certas
personas rescriptae vel per pragmaticam ab initio datae eidem novo codici propter
utilitatem sanctionis inditae fuerint.
We specifically permit to them the cutting out of prefaces that are unnecessary to the
substance of the law as well as of repetitions and contradictions unless they are helped
by the old division of the law; of those, too, which have become obsolete; to compose
from the same three Codes and new constitutions certain laws written in a brief form,
to bring them under fitting titles, adding indeed and subtracting, even, further, changing their wording when the usefulness of the matter demanded that, even collecting
in one law matters scattered in various constitutions, making their meaning clearer;
provided, however, that the chronological order of these same constitutions appears
not only by including dates and consuls but also by their arrangement, with the first
being put in the first place, those subsequent in the second place, and, if any are found
without the date and consul in the old Codes or in these collections of new constitutions, to place them in such way that no doubt can arise as to their general binding
force, just as it is plain that those receive the force of a general constitution which were
addressed to individuals or originally to a community but which are included in the
new Code because of their usefulness 5 .
4. For more detail see A. Watson, Sources of Law, Legal Change, and Ambiguity,
Philadelphia 1984, p. 15f, and the works cited.
5. The final section, § 3, adds nothing for present purposes.
ALAN WATSON
The instructions are clear and precise - witness the repetition of references to
'the three old Codes and later constitutions'. What really matters to us in the
present context is precisely the power that is not given, namely to innovate and
change the law found in existing constitutions. Wording may be altered, repetitions and contradictions are to be erased, obsolete law is to be deleted, several
constitutions may be made into one, but nothing allows the introduction of new
law 6 . Even when several constitutions are turned into one, some parts may seem
to say something other than was in the original, but that will be because of deletion, and because of the incorporation of materials from other constitutions.
The obvious conclusion is that Justinian's first Code was not meant to reform
the substantive law. That conclusion is made certain by four other considerations. First, it is not the job of compilers, as such, to change the substantive law.
Second, no such reform had been envisaged for the Theodosian Code or for
Theodosius' earlier, more ambitious, plan that failed. Third, the preface to the
completed code, De Justiniano codice confirmando, which was published on
7 April, 529, repeats in detail the instructions to the compilers, and once again
there is no sign of any power to introduce new substantive law in the constitutions. Fourth, and above all, there is the existence of the Quinquaginta Decisiones, the Fifty Decisions, intended by Justinian to resolve outstanding disputes
among the classical lawyers. The plan for them was conceived as a separate enterprise and, indeed, only later. Yet the existence of the disputes was obvious, and
compilers of a Code whose purpose was law reform ought in it to have resolved
these disputes. This, indeed, would have obviated the need for Justinian's second
Code, the codex repetitaepraelectionis. The Fifty Decisions are, in fact, the
vehicle chosen for Justinian's reform of the substantive law.
From the discussion so far, it follows that this first Code contained all the
changes in private law from the end of the classical period that were still relevant.
(I use 'private law' in a sense customary among civilians to indicate all topics
dealt with in Justinian's Instituteswith the exception of actions and criminal law;
that is, the contents of about three and a half books out of four). When the classical jurists stopped writing books, the only changes in law were those made by
imperial constitutions (in the widest sense). Since, as is well-known and as we
shall now see, the compilation of the Digest was not contemplated for a considerable time after the promulgation of the Code, the Code would also contain those
numerous rescripts that gave a reply but did not innovate. Thus, much classical
law would be set out in the Code.
There is ample evidence that when the first Code was promulgated there was
no plan for a collection of approved juristic texts. To begin with, a papyrus from
Oxyrynchos 7 contains an extract from the title rubrics of the first Code and also
the inscriptions of the constitutions, and it shows that the Valentinian Law of
Citations of 426 or 438 was still in force. This gave authoritative ranking to five
8
classical jurists: Ulpian, Paul, Papinian, Modestinus and Gaius . The Law of
6. The contrary, wrong, view, 'alterations could be made in the constitutions to bring
them up-to-date', will be found in A. Watson, Roman Law and ComparativeLaw, Athens,
Ga. 1991, p. 84.
7.
P. Oxy. 1814.
8. For details see A. Watson, The Law of Citationsand Classical Texts in the Post-
ESTABLISHING PRE-JUSTINIANIC TEXTS
Citations is omitted from the second Code: naturally enough, since it would be
superseded by the publication of the Digest. But the Law of Citations could not
have been contained in the first Code as a transitional provision, because § 3 of
De Justiniano codice confirmando insists that its provisions are to be in force
forever: Hunc igiturin aeternum valiturum iudiciotui culminis intimareprospeximus, 'Therefore we have seen to it that this code which will be valid for eternity
comes to your high knowledge ... '. Again, this same § 3 forbids the citation of
the constitutions from the writings of jurists in a form other than that of the
Code: nulli concedimus ex libris veteris iuris interpretatorumalias habentes recitare, 'We permit no one to quote from the books of the interpreters of the old
law these constitutions in a different form'. The old jurists were, thus, still
authoritative, though when they quoted an imperial constitution the only valid
and official form was that in the Code. Finally, here, the strongest evidence is
in C. 1,14,12,5:
Explosis itaque huiusmodi ridiculosis ambiguitatibus tam conditor quam interpres
legum solus imperator iuste existimabitur: nihil hac lege derogante veteris iuris conditoribus, quia et eis hoc maiestas imperialis permisit.
After exploding these ridiculous doubts, the emperor alone will properly be judged as
much the interpreter of the law as he is the founder. This law derogates in no way from
the interpreters of the old law because the imperial majesty permitted this to them also.
C. 1,14,12, of 27 October 529, declared that the judgment of the emperor in
a particular case settled the law for the future (though earlier the force of the emperor's decision had been disputed by the jurists). Then, at the end comes our
passage. The opinions of the classical jurists are still to carry weight because emperors allowed that. That is to say, the authority of jurists as founders of the law
is based on the earlier consent to that effect of emperors, not because their writings are to be excerpted and published as law by Justinian. Thus, six months after
the promulgation of the first Code the collection of juristic opinions was not
contemplated 9 .
Still, though the Code solved the most immediately pressing problem - how
were lawyers to find imperial rescripts, and determine which were authoritative
- its very existence would highlight two other problems: the multiplicity of relevant juristic writings despite the Valentinian Law of Citations, and the classical
disputes which never had been settled by subsequent rescripts.
These two problems would in time be resolved: of the multiplicity of juristic
writings by the Digest; of the surviving classical disputes by the Fifty Decisions
and subsequent rescripts. There is a difficulty about the relationship between the
Fifty Decisions and the Digest, a difficulty that I believe cannot be resolved.
There are two real possibilities. One is that the Fifty Decisions were issued as a
preliminary to the Digest, to establish which classical view was to be accepted.
Classical Period, Tijdschrift voor Rechtsgeschiedenis 34 (1966), p. 402 ff, now in Legal
Origins and Legal Change, London 1991, p. 225ff.
9. For these and other arguments see above all F. Pringsheim, Die Entstehungszeitdes
Digestenplanes und die Rechtschulen, Gesammelte Abhandlungen 2, Heidelberg 1961,
p. 41ff.
ALAN WATSON
This is a view which previously I favored. The other is that the rescripts which
form the collection were issued simply to clarify the law, without being linked
with any plan to codify the juristic writings. This now seems to me possibly more
likely. Though not all of the Decisions can now be recognized, they or many of
them were incorporated into the second Code. They were, accordingly, not
treated simply as telling the compilers of the Digest which classical juristic view
to accept. Fortunately, in the present context there is no need to resolve the
difficulty. What matters for us is that on either possibility the purpose of the
Fifty Decisions was the same: to reform the substantive law. The Fifty Decisions
was Justinian's vehicle for the reform of substantive law (plus, of course, his
earlier and later constitutions).
We have little direct textual evidence for the Fifty Decisions, but § 1 of the
preface to the second Code, De emendatione codicis Justinianiet secunda eius
editione, tells us what we need to know. In the principium Justinian talks of the
making of the first Code, then in § 1:
Postea vero, cum vetus ius considerandum recepimus, tam quinquaginta decisiones
fecimus quarn alias ad commodum propositi operis pertinentes plurimas constitutiones promulgavimus, quibus maximus antiquarum rerum articulus emendatus et
coartatus est omneque ius antiquum supervacua prolixitate liberum atque enucleatum
in nostris institutionibus et digestis reddidimus.
But afterwards, when we had undertaken to take into account the old law, we issued
Fifty Decisions and also promulgated very many relevant constitutions for the benefit
of the proposed work, by which the majority of previous rules were amended and
shortened, and we delivered up all the old law, free from unnecessary prolixity and
also condensed, in our Institutes and Digest.
'For the benefit of the proposed work' does suggest that he did have a proposed Digest in mind when the Fifty Decisions were made, but, of course, this
passage was written after the promulgation of the Digest. However that may be,
two matters should attract our attention. The first is Justinian's pride in his reform of the substantive law. As with his other achievements, he is not hiding his
light under a bushel. This makes even more apparent the fact that he did not give
the compilers of the Code powers to introduce new law. The second matter to
note is at the very end of the text: the reforms in the Fifty Decisions and in the
later constitutions enabled him to deliver up the Digest and Institutes in a form
shorter than would otherwise have been the case. More importantly, what the
Digest and Institutes contained was 'all the old law': nothing is said about them
containing any new law.
Justinian issued the order, De conceptioneDigestorum, on the composition of
the Digest, which is usually known as Deo auctore, on 15 December 530. He
orders the collection and publication of juristic writings, but again nowhere gives
the compilers authority to change the substance. When he comes to detailed instructions, he says at § 6:
Sed neque ex multitudine auctorum quod melius et aequius est iudicatote, cum possit
unius forsitan et deterioris sententia et multos et maiores in aliqua parte superare. et
ideo ea, quae antea in notis Aemilii Papiniani ex Ulpiano et Paulo nec non Marciano
ESTABLISHING PRE-JUSTINIANIC TEXTS
adscripta sunt, quae antea nullam vim optinebant propter honorem splendidissimi
Papiniani, non statim respuere, sed, si quid ex his ad repletionem summi ingenii
Papiniani laborum vel interpretationem necessarium esse perspexeritis, et hoc ponere
legis vicem optinens non moremini: ut omnes qui relati fuerint in hunc codicem
prudentissimi viri habeant auctoritatem tam, quasi et eorum studia ex principalibus
constitutionibus profecta et a nostro divino fuerant ore profusa. omnia enim merito
nostra facimus, quia ex nobis omnis eis impertietur auctoritas. nam qui non suptiliter
factum emendat, laudabilior est eo qui primus invenit.
Out of a large number of authors, you must not make a judgment that the work of
one is better and more equitable, since it may happen that the opinion of one writer,
perhaps of inferior merit, is better at some point than those of many other authors,
even superior ones. You ought not to reject out of hand, therefore, opinions recorded
in the notes to Aemilius Papinian taken from Ulpian, Paul, and Marcian, which once
had no weight on account of the honor given to the most renowned Papinian; but if
you perceive that anything taken from them is necessary to supplement or interpret
the works of Papinian, that man of supreme ability, you must not hesitate to set this
down too as having the force of law, so that all the most gifted authors whose work
is contained in this book may have as much authority as if their studies were derived
from imperial constitutions and had been uttered by our own inspired mouth; for we
ascribe everything to ourselves, since it is from us that all their authority is derived;
and one who amends something that is not done accurately deserves more praise than
the original author.
The passages excerpted from the jurists are to have force as if they were imperial constitutions. Justinian ascribes them to himself, because they derive their
authority from him. Closely tied to that proposition are the final clauses of the
last sentence: 'and one who amends something that is not done accurately
deserves more praise than the original author'. This relates above all to selecting
the best passages from each author, rather than choosing one jurist to be
supreme. There is no permission here to insert new law. Section 7 begins:
Sed et hoc studiosum vobis esse volumus, ut, si quid in veteribus non bene positum
libris inveniatis vel aliquod superfluum vel minus perfectum, supervacua longitudine
semota et quod imperfectum est repleatis et omne opus moderatum et quam pulcherrimum ostendatis. hoc etiam nihilo minus observando, ut, si aliquid in veteribus legibus
vel constitutionibus, quas antiqui in suis libris posuerunt, non recte scriptum inveniatis, et hoc reformetis et ordini moderato tradatis: ut hoc videatur esse verum et optimum et quasi ab initio scriptum, quod a vobis electum et ibi positum fuerit, et nemo
ex comparatione veteris voluminis quasi vitiosam scripturam arguere audeat.
There is something else of which we wish you to take special account: 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; and let no one dare to assert that your version is faulty by comparison with
the old text.
ALAN WATSON
This does grant a power which may include changing the substance of particular juristic texts, but only in a very special case. When a jurist quotes a law or
constitution, and the wording of it is inaccurate, the correct wording of the law
or constitution is to be restored. 'Correct' here means, of course, that preferred
by the compilers. Section 9 has:
Sed et similitudinem (secundum quod dictum est) ab huiusmodi consummatione volumus exulare: et ea, quae sacratissimis constitutionibus quas in codicem nostrum
redegimus cauta sunt, iterum poni ex vetere iure non concedimus, cum divalium constitutionum sanctio sufficit ad eorum auctoritatem: nisi forte vel propter divisionem
vel propter repletionem vel propter pleniorem indaginem hoc contigerit: et hoc tamen
perraro, ne ex continuatione huiusmodi lapsus oriatur aliquid in tali prato spinosum.
Repetition, too, as already said, we wish to exclude from a composition such as this.
Seeing that the sanction of imperial constitutions is enough to give them their own
authority, we do not wish those things which have been provided by the most sacred
constitutions inserted in our Codex to be set out again from the old law unless perhaps
this should happen by way of logical distinction or supplementation or in an effort
toward greater completeness; but even then this must be done very rarely, lest, by extension of this sort of failing, some thorny growth may arise in such meadow.
Not only is there to be no repetition in the body of the work, but the Digest
is not to repeat what is already in the Code (with rare exceptions which are specified). But the only post-classical law which would exist would derive from imperial constitutions which were set out in the Code' 0 . Hence, not only were the
compilers of the Digest not given the power to alter the substance of classical law,
they were indirectly forbidden to do so. Indeed, as I claimed earlier in this paper,
classical law that had been set out in constitutions that did not innovate would
be in the Code, and hence excluded from the Digest. Moreover, C. Tanta, confirming the Digest, § 14, expressly claims that Justinian did not allow rules laid
down by imperial constitutions to appear in the Digest.
At this stage, the objection may be raised that there are, in fact, interpolations
of substantive law in the Digest, that this is well-know, and has been recognized
for a very long time' 1 . I agree. But I want to suggest that all of the interpolations
of substance fall into one of two classes.
The first of these classes is that covered by the exceptional permission in Deo
auctore § 9 that has been quoted: where a constitution altered the substantive law
in such a way that the best available juristic text which was needed in the Digest
now required a qualification. The locus classicus is D. 18,1,2,1 (Ulpian, on Sabinus, book 1):
Sine pretio nulla venditio est: non autem pretii numeratio, sed conventio perficit sine
scriptis habitam emptionem.
There is no sale without a price. But it is not the payment of the price but the agreement
that concludes the sale made without writing.
10. This is to ignore any pre-Justinianic alteration of the juristic texts, but see n. 23.
11. The classic text is the Antitribonianusof Franqois Hotman (1524-1590) that was
apparently written in 1567, but not published until later.
ESTABLISHING PRE-JUSTINIANIC TEXTS
It was Justinian who introduced a qualification about writing. C. 4,21,17, of
1 June, 528, provided with regard to certain kinds of contract, including sale,
that if the parties agreed that the contract was to be put into writing, then the
contract was of no effect until the writing was complete, that is, reduced to its
final form and confirmed by the subscription of the parties, and, where it was
being drawn up by a notary, completed by him and released to the parties. Previously, a sale (unless it was otherwise conditional) was concluded simply at the
moment of agreement. For the Digest it was very desirable that at the outset of
the treatment of sale there should be a general statement on the centrality of
agreement for the formation of the contract. The best text was that from
Ulpian's first book on Sabinus. But Justinian had added an important qualification to the law, which needed to be mentioned, hence it was inserted into Ulpian's
text. To his 'But it is not the payment of the price but the agreement that concludes the sale' was added 'sine scriptishabitam'. For this first class of interpolation of substantive law in the Digest there will always be evidence in the Code.
The second class of substantive interpolation in the Digest occurs when, of two
or more classical legal institutions related by function, one disappeared or was
abolished in post-classical times or by Justinian, and texts dealing with that one
were used to fill gaps in the institutions that remain. The locus classicus relates
to transfer of ownership. When in 531 Justinian abolished the distinction between res mancipi and res nec mancipi, mancipatio disappeared. But many important discussions of the classical jurists had related to res mancipi, and often
these involved a transfer of ownership whether that was the primary focus of attention or appeared incidentally. In such circumstances, when the compilers
wished to retain the discussions, they changed the references to mancipatio to
traditio. Many such texts involve slaves who, as 'thinking property', were involved with the law in ways that other property was not, and hence no substitute
texts could be found for them. One text is enough to make the point:
D. 17,1,22,9 (Paulus libro trigensimo secundo ad edictum):
Fugitivus meus cum apud furem esset, pecuniam adquisiit et ex ea servos paravit
eosque Titius per traditionem a venditore accepit. Mela ait mandati actione me consecuturum, ut restituat mihi Titius, quia servus meus mandasse Titio videbatur, ut per
traditionem acciperet, si modo rogatu servi hoc fecerit: quod si sine voluntate ejus venditor Titio tradiderit, tunc posse me ex empto agere, ut mihi eos venditor traderet, venditoremque per condictionem a Titio repetiturum, si servos tradiderit Titio quos non
debuerit, cum debere se existimaret.
(Paul, on the Edict, book 32):
My runaway slave, when he was in the hands of a thief, acquired money, and procured
slaves with it, and Titius received them by delivery from the seller. Mela says that by
the action on mandate I would obtain that Titius restore them to me because my slave
seemed to have given Titius a mandate to take by delivery, provided he had done this
at the request of the slave. But if the seller had delivered to Titius without his request
then I would bring the action on sale that the seller deliver them to me, and the seller
would recover from Titius by a condictio, if he had delivered slaves to Titius which
he did not owe, when he thought he owed them.
ALAN WATSON
'Pertraditionem', 'by delivery', occurs twice in the text and tradere,to deliver,
also occurs twice, and these are necessarily replacements for references to mancipatio. The means used to effect the transfer of ownership are not an issue in
the text. The real issues relate to the activities of runaway slaves. These were still
relevant for Justinian, the discussion was wanted, and no substitute could be
found in a text that dealt with other property.
Similar interpolations occur, for instance, because of the disappearance of
fiducia and the survival of pignus as forms of real security. When a discussion
that had concerned fiducia was still wanted because there was not one equally
satisfactory on pignus, it would be excerpted by the compilers, and references to
fiducia would be altered to indicate pignus.
It is important to notice that for this second class of interpolations of substance there would always have been a classical forerunner. These are transplants
within a system. Most of such interpolations, at least when they are of substantive importance, will be obvious on the face of the text.
These are the only two classes of substantive alteration in the Digest that can
be proved. Given Justinian's instructions to his compilers, one cannot argue that
because these interpolations exist, other interpolations of the substantive law
also must exist. Indeed, given these same instructions to the compilers, it should
be a very strong presumption that such other interpolations of substance do not
exist. It must be emphasized that evidence of alteration of form is scarcely evidence of alteration of substance. The compilers were expressly given authority
to change the form of texts. A basic conclusion must be that in very large measure
the Digest contains only classical law; and that, for the most part, such alterations of substance as there are, are easily spotted.
Other arguments may be adduced to indicate that there was very little substantive alteration in the Digest. The first is the scrupulosity of attributing each text
to a particular jurist and work. Such, indeed, were the express instructions to the
compilers. There would be little point to this if the compilers were free to inject
new law into the texts. But, there is much more to the issue of scrupulosity, namely catenae, chains of texts, where a small fragment is inserted into a larger whole
from a different work. Catenae are numerous and a good example is found in
D. 9,2,5, 6, 7 concerning the lex Aquilia. The main treatment at the beginning
of the title is taken from Ulpian's eighteenth book on the Edict: from it come
texts 1, 3, 5, 7, 9, 11, 13, 15, and so on. The intervening texts, 2, 4, 6, 8, etc.,
from other jurists, are inserted to give important information that was not in
Ulpian's book. But our main concern is with text 6. At D. 9,2,5,3 Ulpian discusses liability when a teacher inflicted injury in punishing a student, and he
gives an action on the lex Aquilia when a shoemaker put out a boy's eye when
he struck him with a last. Then comes our text.
6 (Paulus libro vicensimo secundo ad edictum):
praeceptoris enim nimia saevitia culpae adsignatur.
(Paul, on the Edict, book 22):
for excessive brutality in a teacher is counted as negligence.
ESTABLISHING PRE-JUSTINIANIC TEXTS
And this is followed by:
7pr. (Ulpianus libro octavo decimo ad edictum):
Qua actione patrem consecuturum ait, quod minus ex operis filii sui propter vitiatum
oculum sit habiturus, et impendia, quae pro eius curatione fecerit.
(Ulpian, on the Edict, book 18):
In this action he said the father would obtain his prospective loss of profit from the
son's work through his eye being destroyed, and the medical expenses he incurred.
The intervening fragment of Paul is not even a sentence. It comes from Paul's
discussion of the same problem, in which he made a point not found in Ulpian.
The surprise is that the observation is not simply put in the middle of what is now
h.t. 5.3 and h.t. 7, as if it had been written by Ulpian. The surprise is diminished
only if one believes - as I do - that the compilers were much concerned not to
attribute to a jurist a statement of law that he did not make.
A second argument against interpolation in the Digest of substance of law may
be drawn from the contradictory texts that in fact exist. For many scholars, such
contradictions indicate interpolations by the compilers: they altered the substance of some texts but carelessly missed others, is the argument. But long ago,
W.W. Buckland made the point that (at least some) contradictions were the result
of a development within classical law itself: 'the fact that a development is not
known to earlier classical lawyers is no evidence that it was not known to
Marcian'12. Again, one example from contradictory texts will be enough for the
present argument. Some Digest texts give to or against the general procurator the
actio negotiorum gestorum, others the actio mandati. Some modern scholars
hold that the actio negotiorum gestorum was the action of classical law, and that
references to the actio mandatiare Justinianian. But this is the story of the texts:
in the early empire, Celsus 13 and Pomponius t 4 allow the actio negotiorum gestorum, the texts of Africanus allow a choice of the actio negotiorum gestorum or
the actio mandati15 , and the later Papinian 16 and Ulpian 17 award the actio mandati. Now to me it just seems impossible to argue that this pattern is due to careless interpolation. Not only would one have to claim that the compilers successfully altered the later classical texts but failed to change those that were earlier
in time, but also one would have to claim that for the jurist in the middle, Africanus, the compilers inserted the newly relevant actio mandati, but failed to excise
the now obsolete (in this context) actio negotiorum gestorum'8 . Of course, for
failing to leave out the classical texts that gave superseded law we must still accuse
12. Marcian, Studi in onore di Salvatore Riccobono, 1, Palermo 1932, p. 275ff at
p. 281.
13.
D. 17,1,50pr.
14.
D. 27,3,3; 34,3,8,6.
15.
D. 15,3,17pr.; 21,1,51,1.
16.
17.
18.
Oxford
D. 17,1,55; h.t. 56,4; 34,3,23; 41,2,49,2.
D. 17,1,6,1,6; 6,2,14; 15,3,3,2.
For the argument in full see A. Watson, Contract of Mandate in Roman Law,
1961, p. 36ff.
ALAN WATSON
the compilers of negligence. But my point is that their carelessness is much easier
to understand if they were not actively seeking to replace classical law with their
own innovations. For some institutions, in the context of my second class of interpolations of substantive law, the compilers will have altered the substance of
earlier classical texts to make it accord with the substance of later classical law;
and by so doing they will have obscured the earlier development. But the texts
will, nonetheless, give classical law.
A third argument against substantive interpolation and to show that the Digest
was not intended to reform the law is drawn from the texts that describe the law
as harsh. Only one such text is needed. Ulpian states at D. 40,9,12,1: Quod quidem perquam durum est, sed ita lex scriptaest; 'This is, indeed, very harsh, but
it is the express provision of the law'. In the context which we need not consider
here Ulpian makes no plea for reform. It is thus an astonishing statement by one
who was assessor to the praefectuspraetoriounder Severus and Caracalla, and
praefectuspraetoriounder Severus Alexander 19 , and thus in a perfect position
to reform the law. It is even more extraordinary that the statement is repeated
three centuries later in a work of legislation. It can only be explained on the basis
that the compilers of the Digest were emphatically not reforming the law, but giving it as it was. And if they were not reforming they would not be changing the
substance of the law 20 .
The second Code was issued on 16 November, 534, with a preface, De emendatione codicis Justinianiet secunda eius editione, usually cited as C. Cordi. The
need for it, as we are told in §§ 1 and 2 was precisely the promulgation of the
Fifty Decisionsand other constitutions of Justinian, which were outside of the
first Code. These had to be incorporated in a revised edition. The editors had
been instructed in § 3 to make corrections, to excise constitutions which were
superfluous or annulled by later ones - the Valentinian Law of Citations would
be among these - and to excise contradictions and repetitions. The editors were
not asked, or given power, to re-examine pre-Justinianic constitutions that were
not included in the first Code.
From the instructions to the compilers of the first Code, the relationship of the
Codes to one another, and the instructions to the editors of the revised Code, we
may be able to take another approach to questions of alterations of substance
in pre-Justinianic rescripts. Again, one example, the famous crux of laesio enormis, will suffice. The revised Code contains, at C. 4,44,2 and C. 4,44,8, two
rescripts attributed to Diocletian, from the years 285 and 293 respectively. These
allow a seller of land for a price less than one half of its true value to rescind the
sale. It has long been recognized that at least the form of both rescripts has been
much altered, but we are concerned with the substance. This doctrine of laesio
enormis was not known in classical law. The Diocletianic rescripts are not recorded in the Theodosian Code. More than that, they are contradicted by three
19. W. Kunkel, Herkunft undsoziale Stellung der romischen Juristen, 2nd edit. Graz
1967, p.245f.
20. D. 40,9,12,1, 2, 6; h.t. 14 indicate the extent to which the law required reform.
A phrase is missing from the translation of D. 40,9,12,2 in The Digest of Justinian edit.
by T. Mommsen, P. Krueger and A. Watson (Philadelphia 1985). It should read: 'But even
.f the woman has bought or otherwise acquired a slave after divorce, she will equally not
- able to manumit him according to the wording, as Sextus Caecilius also remarks'.
ESTABLISHING PRE-JUSTINIANIC TEXTS
rescripts in that collection: C.Th. 3,1,1 (319); h.t. 4 (383); h.t. 7 (396). These
three rescripts which do not know laesio enormis are thus not much later than
the contrary two, supposedly of Diocletian. Hence, the debate that has raged
since at least the time of Christianus Thomasius (1655-1728) as to whether the
reform in the rescripts is truly due to Diocletian or is an invention of Justinian
who, for some reason, concealed his handiwork by changing the substance of
Diocletian's rescripts 21 .
My propositions are first that the two rescripts on laesio enormis are in the
second Code and are pre-Justinianic, therefore they were in the first Code. As
rescripts selected for the first Code, they would not be interpolated in substance
then. Nor would they be for the second Code, because any intermediate change
in the law would have been by a constitution of Justinian. It is that which would
have been included, and the rescripts of Diocletian would have been dropped.
The historical development which can be deduced from the instructions to the
compilers is, thus, as follows. Laesio enormis was unknown to classical law. It
was an invention of Diocletian, whose rescripts were preserved in the Codex
Gregorianus. Diocletian's reform was not a success, just as his famous Price
Edict of 301 failed. Subsequent emperors restated the classical law. Since their
rescripts were later than Diocletian, they were excerpted, and not his, in the
Theodosian Code. Justinian's compilers preferred the substantive law of Diocletian that they found in the Codex Gregorianusand included that in the first
Code, rejecting the rescripts in C.Th. 3,1,1 and 3,1,7, while amending C.Th.
3,1,4 (which becomes C. 4,44,15) to make it agree with the Diocletianic law 22,23 .
21. For the debate see most recently A.J.B. Sirks, Diocletian'sOptionfor the Buyer
in Case of Rescission of a Sale, Tijdschrift voor Rechtsgeschiedenis 60 (1992), p. 39ff.
22. That C. 4,44,15 is interpolated in substance does not contradict my arguments in
this paper. The position is akin to that discussed for some Digest texts in my second exceptional class of interpolations. The substantive law in C. 4,44,15 is to be found in preJustinianic rescripts, though not in those of the emperors Gratian, Valentinian and Theodosius, to whom it is attributed.
23. I have not dealt in this paper specifically with the Institutes. My general view is
that the draftsmen had in front of them only earlier elementary writings, and they did not
consult other works but relied on their memory. When, therefore, there is a conflict between the Digest or the Code on the one hand, and the Institutes on the other, the fault
lies with the draftsmen of the Institutes.
Nor have I here discussed the question of substantive changes in the juristic texts before
the time of Justinian. I have argued elsewhere that the Valentinian Law of Citations provides evidence against the idea of much alteration: The Law of Citations and Classical
Texts in the Post-Classical Period, (above n. 8).