(4) From Diocletian (died 313) to Justinian (died 565)

The seat of an absolute monarchy was now shifted from Rome to Constantinople, and the Empire was divided into East and West. Constructive jurisprudence was a thing of the past, and the sources of law were merged in the will of the prince. The edicts of the prætorian prefect were given the same effect as the imperial constitutions, which were concerned principally with public law. Private law was vast and diversified, but it had long since ceased to have any stimulating growth. The jus civile, expanded by the ancient jurists in the interpretation, of the Twelve Tables, the honorary law of the magistrates, the public legislative acts of the early empire, the mass of imperial constitutions, and the writings of the classic jurisconsults, composed a heterogeneous jumble of legal materials from which a systematic jurisprudence was destined to arise. An attempt was made in the early fifth century to effect a workable system, and the law of citations was adopted by which the relative authority of the classic jurists was posthumously fixed by statute. Numerical weight of authority was done away with, and the great galaxy were the recognized authorities, although other jurists might be cited if approved by any of the five. Collections of imperial constitutions were made at an interval of fifty years, and published under the names of the Gregorian and Theodosian Codes respectively; the latter was republished in the "Breviary of Alaric". Something at least, had been done for the simplification of a difficult legal situation. The Eastern and Western emperors thenceforward agreed to mutually communicate their legislative designs for simultaneous publication in both empires, and these future projects were to be known as novellœ constitutiones.

Upon Justinian's accession there were in force two principal sources of law: the imperial constitutions and the classical jurisprudence operating under the law of citations (Staedtler). To Justinian's practical mind, the state of the law was still chaotic; the empire was poor, and it was a hardship for lawyers to possess themselves of the necessary Manuscripts. The very bulk of the law produced a situation analogous to that which exists in common-law jurisdictions to-day, and which always ushers in more or less abortive efforts towards codification. Justinian undertook to make these immense materials more accessible and more responsive to the practical needs of his empire. That, in the opinion of some, he wronged posterity by destroying the original sources, is entirely beside the mark. He has been lauded as a great lawgiver when measured by the needs of his time and situation; and, on the other hand, he has been as heartily abused and reviled for an unscientific iconoclast. The first task of the commission appointed by Justinian was to edit the imperial constitutions as a code, published under the title, "Codex Justiniani". After this the emperor directed the compilation of a complete repository of the law made up of fragments of the classical writings strung together without any too scientific arrangement. This work is the great treasury of juridical lore, and was the most valuable part of Justinian's compilation. It was called the "Digest" or "Pandects". Occasionally Tribonian, who, with two other jurists, was intrusted with the task, complacently or ignorantly modified the text. The emperor forbade commentaries and abbreviations.

Upon the completion of the Pandects, Justinian, always intelligently interested in legal education, ordered an abridgment of the Digest for the purposes of instruction; these are the Institutes of Justinian. The Institutes of Gaius (see above, under 3) furnished a ready model; indeed, the Institutes of Gaius and those of Justinian are even to-day the most essential first books of the law. The first draft of the Code was not in complete harmony with the Digest and the Institutes, and a revision of it became necessary; this was promulgated as the "Codex Repetitæ Prælectionis". The second edition of the code was intended to be final, and upon its publication Justinian announced that any new imperial legislation would take the form of detached constitutions to be known as "novels" (novellœ, i. e. "new"); of these he issued a large number, but two only (the 118th and 127th) have great importance for modern law.

The Justinian compilation is sometimes elegantly termed the Imperial Code; it is, however, more accurate to refer to it as the "Corpus Juris Civilis". It is the whole body of the civil law comprising the four books of the Institutes, the fifty books of the Digest, the twelve books of the Code, and the Novels. Early editions divide the Pandects into three parts, the Digestum vetus, the Infortiatum, and the Digestum novum. The labours of Justinian have come down to us in the form of texts of the so-called glossators during the Middle Ages. The glossators worked from earlier manuscripts and harmonized conflicting texts into a generally accepted lectio vulgata ("vulgate", or "common reading"). We have one text known as the "Florentine Pandects" which dates from the seventh century, one hundred years after Justinian. It is, however, in all probability, only one of the texts from which the glossators worked, and, when the errors of copyists are considered, its antiquity should not entitle it to overrule the vulgate. This Florentine text is the subject of legend, and the revival of the study of Roman law has been attributed to its discovery. Savigny and others have demonstrated that the revival was well under way before the discovery of this codex. The publication of a photographic reproduction of the Florentine Pandects was begun at Rome in 1902, and seven of the ten parts are already at hand.

In what had been the Western Empire, Justinian no longer held sway at the date of the promulgation of his laws; the subject race were, however, permitted by their barbarian conquerors to retain the pre-Justinian law as their personal law. The conquerors themselves caused to be made the several compilations known as the "Roman Barbarian Codes" (see LEX). Justinian did, however, effect the reconquest of Italy, and held it long enough to promulgate his laws. When the Ostrogoths again became masters they left the legislation of Justinian undisturbed, and it flourished in a less corrupted form than in the Eastern Empire, which was its logical field. The Roman law of Justinian superseded the barbarian codes and, with the revival, was taught in the medieval schools and thus spread all over Europe.

B. Subsequent Influence

In the Eastern Empire subsequent changes are of interest to the historian rather than to the jurist. There was a lull of nearly three centuries after the death of Justinian, until Leo the Philosopher revised the legislation and published what is known as the "Basilica". While Byzantine materials throw many side lights upon the Roman legal system, they are relatively unimportant, though they were of service to the Humanists. The Eastern law schools only (Constantinople and Berytus) were subject to Justinian at the time of his constitution on legal education, yet he speaks of Rome as a royal city and prohibits the teaching of law elsewhere than in these three cities (Ortolan). Professors of law had been active in all of his reforms: Tribonian was a professor of law and an able, but venal, jurist, whose career had much resemblance with that of Bacon. Theophilus was also a professor of law who, like Tribonian, had taken part in the work of Justinian, and he composed a paraphrase of the Institutes in Greek. A number of commentaries in Greek were produced and an abridgment of the Novels. The greater part of the Byzantine writings were from secondary sources and are abridgments, condensations, manuals, etc. Among others were the "Enchiridium" of Isaurian law, the "Prochiron" of Basil, and the revision entitled "Epanagoge"; and the revised Basilica from A. D. 906 to A. D. 911. In the composition of these collections it is highly probable that the sources were secondary and that the originals of Justinian were not directly consulted. The Basilica through its scholia or annotations grew so bulky that a synopsis of it was made, and this continued in high repute until the fall of the empire, in 1453, when the Greek legal authorities were supplanted by the Mohammedan Koran. Enough of personal law was suffered to the vanquished by the conqueror to constitute the historic element and principal basis of Greek civil law (Ortolan, Morey). Greek fugitives also carried over with them into Italy and elsewhere the relics of their law, and many manuscripts are still extant: of these the Humanist Cujas possessed a valuable library. Thus, the Greek texts, while of little value to the glossators, were yet a potent factor in the second renaissance of Roman law in the sixteenth century. This was of service to the historical and philological school, the inspirations and traditions of which are still active in modern scholarship, particularly that of Germany, where, as Montreuil wrote fifty years ago, the French school is refound in the labours of Reitz, Ruhneken, Biener, Witte, Heimbach, and Zacharia.

The most flourishing school of law following the first revival of Roman law was that of Bologna, towards the end of the eleventh century. Its founder was Irnerius, and he was the first of the glossators. Placentinus and Vacarius were others of the glossators. Vacarius was a Lombard, and he it was who carried the texts of Justinian to England and founded a law school at Oxford, about the middle of the twelfth century. The glossators known as the four doctors all belonged to Bologna; and that school acquired a reputation in civil law equal to that of Paris in theology and canon law. So attractive was the Roman law that the clergy had to be restrained from its study, and the study of canon law stimulated by a decretal in 1220 (Morey). The early Church had been governed by councils, synods, etc. Collections had been made in the fifth and sixth centuries, but it was only in the ninth century that a real collection of ecclesiastical legal documents was made. There began to be collections of decrees of the popes, and the revival of Roman law at Bologna in the twelfth century gave impetus to a systematic canon law. About 1130 Gratian, a Benedictine monk, made the compilation which developed into the "Corpus Juris Canonici". The external similarity of this compilation to the "Corpus Juris Civilis" is thus given by Duck: "The Roman pontiffs effected that in the Church which Justinian effected in the Roman Empire. They caused Gratian's Decree to be published in imitation of the Pandects; the Decretals in imitation of the Code; the Clementine Constitutions and the Extravagantes in imitation of the Novels; and to complete the work Paul IV ordered Launcellot to prepare Institutes which were published at Rome under Gregory XIII, and added to the Corpus Juris Canonici." (In qualification of this, see CORPUS JURIS CANONICI.)

To return to the Roman law, the school of the glossators (of whom Accursius in the middle of the thirteenth century was the last) was succeeded by the school of which Bartolus of Sasso Ferrato and Alciat were representatives. From 1340 the Bartolists flourished for two hundred and fifty years, to be succeeded in turn by the Humanist school, of which Cujas was the chief ornament. Until the sixteenth century Roman law was most cultivated in Italy; its glory then passed to France, and, in the eighteenth and nineteenth centuries, though there were conspicuous Dutch jurists of great ability in the application of the law, it may fairly be said to belong to Germany during that period. France, Italy, Belgium, and even England, however, are awakening in the dawn of the twentieth century.

The survival of Roman-law principles was in great measure due to the principle of personality. The Roman-Greek law ha not been entirely supplanted by the Koran in the Moslem states, such as Egypt and Syria (Amos). In modern Egypt there has been a reaffirmation of many Roman principles in the Civil Code proposed by the international commission which "harmonized the rules of Arabic jurisprudence which were not repugnant to European legislation, with the chief provisions of the Code Napoleon". An interesting Syrian text has been edited by Bruns (Syrisch-Romisches Rechtsbuch aus dem 15. Jahrhundert). This principle of personality permitted by the kings of the Visigoths, Ostrogoths, and Burgundians sufficed to keep alive the Roman law in the West. Except as to the municipalities, the Roman political system had been destroyed. The concession of personal law to Roman subjects and the influence of the clergy, who always preferred to claim the civil law, was a barrier "between Roman civilization and barbarism" (Morey). In the military tenures of feudalism, it has been attempted to trace the idea of two distinct ownerships, the dominium eminens and the dominium vulgare, to the Roman contract of emphyteusis. A collection of feudal law known as the "Consuetudines Feudorum" is contained as a kind of appendix in most editions of the "Corpus". In the Amsterdam edition of 1681, is the note after the second book: "Hic est finis Feudorum in editione vulgata" (End of the feudal constitutions in the vulgate edition). The third book is missing; fragments of the fourth are given, as well as parts of a fifth book, reconstructed by Cujas. In feudalism the institutions of Roman law and Germanic customs became merged; the impress of the former upon the latter was not simply one of terminology; with the terminology was much of interpretation and illuminating principle. It would be rash to assert that feudalism owed more to Roman public law than to theories and analogies drawn from the private law of Rome. Charlemagne favoured the civil-law ideas which savoured of imperialism, and adopted Roman methods of administration. The German emperors also found in Roman legal institutions a plausible support for their claim to the imperial power. The predominant influence in the survival of Roman private law in all the countries of central and southern Europe was that of the clergy. In all national codes there is present a large quantity of customary law; yet, in concept and in classification, all of the civil codes are Roman through and through, and this is as true of the German civil code (and, in part, of the Japanese code) as of those other national codes which trace their immediate parentage to the Code Napoléon and their remote ancestry to the Twelve Tables.

England, from a purely external point of view, is less indebted to the Roman system, but the jurist trained in both systems is at no pains to discover analogies and runs upon evidence of the common law's indebtedness at every step. Anglo-Saxon legal institutions have been jealously and persistently represented as in no wise beholden to Rome. This is to be accounted for in part by a peculiarity in the manner of administration of the common law. With its narrow tradition and its abject rule of stare decisis, it has offered until recently, at least, an unattractive field for historical jurisprudence. The courts and lawyers of the common law have always been intensely practical and have accepted their system, not only as purely indigenous, but also, in the words of the Blackstonian tradition, as "the perfection of reason". For four centuries after Cæsar's conquest Roman law held sway in Britain; her soil was trodden by the great Papinian himself, and possibly by others of the immortal five (Morey). There must indeed have remained in Britain a substantial deposit of Roman law, and it is not to be affirmed that this was completely destroyed by subsequent invasions or by the conquest. The earliest English treatises are for the most part transcriptions of Roman law: such was the book of Bracton (Güterboch). The Roman law was historically in the early English law of persons, of property, of contracts, and of procedure, although not always with equal obviousness. While it had little in common with the law of real property, we are fairly justified in maintaining that Roman law has always continued a substantial ingredient in English law, from the Roman occupation down to the time when we can cite specific decisions in which Roman law principles were engrafted in the chancery law of England. In respect to admiralty, chancery, and ecclesiastical law there has never been, nor could there well be, any disposition to withhold acknowledgment to Rome. The practice is quite common of referring to the chancellor as the prætor. This indebtedness, so begrudgingly acknowledged by many early English jurists in a mistaken sense of national pride, is now frankly admitted by all who lay claim to a knowledge of both Civil and Common law.



A complete bibliography of Roman Law is precluded by the space allotted to this article. A list (by no means exhaustive) of the more modern authoritative civilians, whose works are found on the shelves of a good American collection gives some idea of the wealth of this literature: —
AMOS; ARNDDTS; ACCARIAS; BARON; BERNARD; BONFANTE; BÖCKING; BRINI; BRINZ; BRUNS; CLARK; COLQUHOUN; CONRAT (COHN); CORNIL; COSTA; COULANGES; CUQ: DE MANGEAT; DERNBERG; DEURER; DU CAURROY; DIRKSEN; ESMARCH; ESMEIN; FADDA; FERRINI; FLACK; FITTING; FRESQUET; GIRARD; GLUCK; GÜTERBOCH; HÄNEL; HALLIFAX; HAUBOLD; HEIMBACH; HERZOG; HUNTER; HUSCHKE; IHNE; IHRING; JACQUELIN; JOBBÉ-DUVAL; JORS; LENEL; MACKELDEY; MACKENZIE; MAREZOLL; MARQUART; MOLITOR; MOMMSEN; MÜHLENBRUCK; MONTREUIL; ORTOLAN; PHILLIMORE; POSTE; PUCHTA; ROBY; SANDARS; SAVIGNY; SCHEURL; SCHMIDT; SCHULTING; STAEDTLER; VOIGT; WACHTER; WALKER; WALTER; WARNKÖNIG; WINDSCHIED; VANGEROW; VERING; ZACHARIA.
The writer of this article acknowledges special indebtedness in its preparation to STAEDTLER, Cours de Droit Romain (Louvain and Paris, 1902); and to Manuscript notes on lectures by PROF. STAEDTLER.
HEINECCIUS, Elementa Juris Civilis (Göttingen, 1787); MÜHLENBRUCH, Doctrina Pandectarum (Halle, 1839); SOHM, Inst. of Rom. Law, tr. LEDLIE (Oxford, 1901); MOREY, Outlines of Rom. Law (New York, 1893); CHAMIER, Manual of Rom. Law (London, 1893); HOWE, Studies in the Civil Law (Boston, 1896); MOYLE, Inst. of Just. (Oxford, 1883); VON SAVIGNY, Geschichte des römischen Rechts im Mittelalter (Heidelberg, 1822); ORTOLAN, Hist. of Rom. Law, tr. CUTLER (London 1896); AMOS, Hist. and Principles of Rom. Law (London, 1883).
Important fac-simile reproductions of original texts are the photographic copies of the Manuscript of the Florentine Pandects (Rome, 1902) and of the Manuscript of GAIUS, Institutes (Leipzig, 1909). Among the approved texts are the following:
(a) Pre-Justinian; GAIUS, tr. by MEARS (London, 1883), by POSTE (Oxford, 1875), and by TOMPKINS AND LEMON (London, 1869); Jus Civile Antejustinianeum (Berlin, 1815); Flores Juris Romani Antejustinianei (Paris, 1839); Corpus Juris Antejustinianei (Bonn, 1841); Fontes Juris Romani Antigui (Leipzig, 1893).
(b) The Justinian texts: The Institutes in English by MOYLE, SANDARS, COOPER, etc., The Digest, of which two vols. in English, by PROF. MONRO, of Cambridge, have appeared (his untimely death leaves the completion to another); The Digest has been tr. into German, French, and Spanish; Corpus Juris Civilis, of which the standard Latin text is the German ed. (Berlin, 1904-08) (Institutes by KRUEGER, Digest by MOMMSEN, Code by KRUEGER, and Novels by SCHOELL but completed after the latter's death, by KROLL). Recently Italian scholars, under the leadership of BONFANTE, have produced a similar critical text the first part of which appeared in 1908.
(c) Roman Barbarian texts: Edictum Theorodici, or Lex Romana Ostrogothorum and Lex Romana Burgundionum are given in BLUHME, Monumenta (Hanover, 1875); Lex Romana Wisigothorum, or Breviary of Alaric has been edited by HÄNEL (Leipzig, 1849) and more recently in Spain.
(d) Byzantine texts: Paraphrasis Theophili (Amsterdam, 1860); BASILICA, ed. HEIMBACH (Leipzig, 1833-1870); HAUBOLD, Manuale Basilicorum (Leipzig, 1819).

JOSEPH I. KELLY.