By the Sixth Century, Roman law was in jeopardy of collapse due to its sheer size and multitude of texts and increasing divergences. The Preamble of the Institutes spoke of the law being “in disarray.”
Speaking of the problem facing Justinian (pictured), D. J. Osler wrote of the situation:
“... the pristine majesty of the law had been overwhelmed by a vast mass of juristic writings which served only to obscure the law. The mania for juristic writing was a kind of cancer....”
This problem, Justinian delegated to two able jurists, Tribonian and John of Cappadocia.
The work which became known as Justinian’s Institutes, actually but one part of the Corpus Iuris Civilis, four different books:
- The Codex, prepared under the chairmanship of the jurist John of Cappadocia, consolidated all pronouncements of previous Holy Roman emperors. The first edition, no copy of which survived, was published on April 7, 529. The Second Edition came out in 534.
- The Novels were issued last and became part of the Corpus but it was comprised of enactments which were subsequent to the Institutes, or amendments thereto.
- The Digests or Pandects, was an encyclopedia of existing writings of jurists on 50 legal topics. This encyclopedia was put together mostly by Tribonian but always under Emperor Justinian’sinterested eye. There was a plethora of texts to select from and the exercise was not without some controversy as many jurists found that their written opinions did not make the final selection. The Digests was published on December 16, 533.
- The Institutes were the meat and potatoes, literally the “basic principles” of the Corpus, and where the actual rules of law were to be found. It was first published on November 21, 533.
The Institutes has been the basis of Roman and civil jurisdictions which includes almost the entirety of Europe.
Professor Holland of Oxford University said of the Institutes that:
“It is of the law as it stood just then that the Institutes present us with the picture in miniature. And it is a picture that has never been withdrawn, though the precise state of things which it represents rapidly passed away.
Birks and McLeod suggest that the Institutes “has some claim to be the most important law book ever written. It could hardly be omitted from any list of the world’s dozen or so most influential books.”
The Institutes are comprised of 901 articles covering the following “books” (topics):
- Justice and the law
- The law of nature
- Free men and slaves
- Marriage
- Adoption, Guardianship and the Emancipation of Minors
- Trusts, Wills, Succession (Estates) and Intestacies
- Property Rights including Servitudes, Usufruct, Usucapion (Adverse Possession), Gifts,
- Obligations (Contracts) and Delicts (Torts)
- Partnerships and Mandates
- Over-Eager Litigants
- A brief appendix on “Criminal Trials”
The beauty of Justinian’s Institutes lies in its logic and simplicity. Here are some sample articles, taken from the Birks-McLeod 1987 translation:
“Imperial majesty should not only be graced with arms but also armed with laws so that good government may prevail in time of war and peace alike. The head of the Roman state can then stand victorious not only over enemies in war but also over trouble-makers, driving out their wickedness through the paths of the law....
“Justice is an unswerving and perpetual determination to acknowledge all men’s rights.
“Leaning in the law entails ... mastery of the difference between justice and injustice.
“The commandments of the law are these: live honourably, harm nobody; give everyone his due.
"The main classification in the law of persons is this: all men are either free or slaves. Slavery ... makes a man the property of another, contrary to the law of nature.
“The offspring of slave women are born slaves. Equally he is born free if his mother is free and his father a slave.... It is enough for the women to be free at the time of birth though a slave at conception.
“A freedman is someone who has been manumitted from lawful slavery. Manumission is the grant of freedom.
“A Roman law marriage is a marriage between Roman citizens.... Males must have reached puberty. Females must be sexually mature.
“The Julian Act on the Suppression of Adultery ... puts to the sword not only those who treat with contempt the marriage of others but also those who dare to indulge their unspeakable lust with males.
“A separate act visits ... the terrible crime of parricide. It provides that anyone who dares openly or secretly to hasten the end of an ascendant or son, ... or anyone who intentionally procures such a death, ... he is not put to the sword, nor to the fire ... but is sewn into a sack with a dog, a cock, a snake and a monkey and, sealed in with those bestial intimates, he is thrown, as the nature of the place allows, into a nearby sea or river. In this way ... the sky is taken away from him before he dies and the earth is denied him when he is dead.”
And thus was Roman law not only saved from drowning in treatises and opinions gut at the same time, it was refitted and re-launched to a level of adoption unparalleled except, arguably, by the later international scope of the English common law.
REFERENCES:
- Birks, P. and McLeod, G., Justinian’s Institutes (London: Gerald Duckworth & Co., 1987), page 7.
- Osler, D. J., Budaeus and Roman Law 13 Ius Commune 195 (1985)
- Holland, Thomas, The Institutes of Justinian (Oxford: Clarendon Press, 1881), pages x-xi.
- Justinian coin shown is in the British Museum, London. The image of Justinian is extracted from “Mosaic of Justinian and Retinue” at the Basilique San Vitale, Ravenna, Italy.