Timetable of Legal History logoThe Holy Roman Emperor, Theodosius II's 429 A.D. attempt to consolidate and codify Roman law ultimately failed but in the preparatory work to that great project, he did come up with a seemingly slapstick solution to tide the empire over until Justinian could complete the task just over 100 years later, in about 533.

Theodosius II (401-459; his image on coin below)) recognized that there was a plethora of Roman law jurists, both alive and some long dead, but which carried, all, some weight in the courts. The judges would often find that one authority contradicted another.

Theodosius' solution has often been ridiculed, but for a hundred years, it held the fort of Roman law together, until the Institiutes solved the problem.

The Law of Citations was Theodosius' contribution to the chaos.

Published from Ravenna in 426, the Law of Citations established a formal pecking order among the jurists.

Rather than let the judge decide which legal opinion made the most sense in regards to the case at hand, the Law of Citations deferred to the Roman love of order in law.

It named five jurists: Ulpianus, Gaius, Paulus, Modestinus and Papinianus and these were the authorities that were to carry weight in the courts of the Holy Roman Empire.

Theodosius II coinThen, the Byzantine directive set out, if there was any controversy between these authors, the court was to be persuaded by the majority opinion as between the authors. If the jurists were equally divided, precedence was to be given to the stated opinion of Papinianus. If the jurists were evenly split and Papinianus had not written on the issue in dispute, then and only then was the judge free to use his judgment.

The Law went as follows:

"If divergent (writings) be adduced, that party shall prevail who has the greatest number of authorities on his side. If the number on each side be the same, that one shall prevail which has the support of Papinian. But whilst he, most excellent of them all, is to be preferred to any other single authority, he must yield to any two. Where opinions are equal, and none entitled to preference, we leave it to the discretion of the judge which he shall adopt."

In any event, the Law of Citations established for all time the importance of juristic writings or doctrine, not only within Roman law, but later within civil law; something which never caught on in the common law, where doctrine continues fuel law school, but carry little or no weight in court.

To the time of Theodosius II, the influence of doctrine or legal writings had been growing in Roman law and the courts of the Empire. But his predecessor, the Emperor Constantine (272-337) must have felt the onslaught of doctrine that, by the time of Justinian, threatened to implode the entire Roman law system. Constantine had actually ordered that any writing of Paul and Ulpianus that ran contrary to Papinian were not to be heeded.

REFERENCES

  • Baynes, T., Encyclopaedia Britannica: A Dictionary of Arts, Sciences, and General Literature (New York: H. G. Allen, 1888).
  • Buckland, W. and McNair, A., Roman Law and Common Law (Cambridge: University Press, 1965), pages 14-15.