The legislative work of Justinian and Tribonian.

            Justinian became universally famous because of his legislative work, remarkable for its sweeping character. It was his opinion that an emperor “must be not only glorified with arms, but also armed with laws, so that alike the time of war and the time of peace may be rightly guided; he must be the strong protector of law as well as the triumpher over vanquished enemies.”[41] Furthermore, he believed, it was God who bestowed upon the emperors the right to create and interpret laws, and an emperor must be a lawgiver, with his rights sanctified from above. But, quite naturally, in addition to all these theoretical foundations, the Emperor was guided also by practical considerations, for he realized fully that Roman law of his time was in a very chaotic state.

            Back in the days of the pagan Roman Empire, when the legislative power was entirely in the hands of the emperor, the sole form of legislation was the issuing of imperial constitutions, called laws or statute laws (leges). In contrast with these, all laws created by earlier legislation and developed by the jurists of the classical period were called jus vetus or jus antiquum. From the middle of the third century A.D., jurisprudence declined very rapidly. Juridical publications were limited to pure compilations, which aimed to assist judges unable to study the entire juridical literature by providing them with collections of extracts from imperial constitutions and the works of universally famous old jurists. But these collections were of a private nature and had no official sanction whatever, so that in real practice a judge had to look into all the imperial constitutions and into all of the classical literature, a task quite beyond the powers of any one man. There was no one central organ for the publication of the imperial constitutions. Increasing in quantity annually, scattered in various archives, they could not be used easily in practice, especially since new edicts very often repealed or changed old ones. All this explains the acute need for a single collection of imperial edicts accessible to those who had to use it. Much had been done in this direction before Justinian. In his own legislative work he was greatly aided by the earlier Codex Gregorianus, Codex Hermogenianus, and Codex Theodosianus. In order to facilitate the use of classical literature (the jus vetus), a decree was issued during the reign of Theodosius II and his western contemporary, Valentinian III, which granted paramount authority only to the works of the five most famous jurists. The remaining juridical writers could be disregarded. Of course, this was only a formal solution of the problem, especially since in the works of the five chosen jurists it was not at all easy to find suitable decisions for a given case, because the jurists often contradicted one another and also because the decisions of the classical jurists were often too much out of date to be practical for the changed living conditions. Official revision of the entire legal system and a summing up of its development through many centuries was greatly needed.

            The earlier codes contained only the imperial constitutions issued during a certain period and did not touch upon juridical literature. Justinian undertook the enormous task of compiling a code of imperial constitutions up to his own time as well as revising the old juridical writings. His main assistant in this task and the soul of the entire undertaking was Tribonian.

            The work progressed with astonishing rapidity. In February, 528, the Emperor gathered a commission of ten experts, including Tribonian, “the Emperor’s right hand in his great legal enterprise, and perhaps partly their inspirer,” and Theophilus, professor of law at Constantinople.[42]  The problem of the commission was to revise the three older codes, to eliminate from them all the obsolete material, and to systematize the constitutions which had appeared since the publication of the Theodosian code. The results of all these labors were to be gathered in one collection. As early as April, 529, the Justinian code (Codex Justinianus) was published. It was divided into ten books, containing the constitutions from the reign of the Emperor Hadrian to the time of Justinian; it became the sole authoritative code of laws in the Empire, thus repealing the three older codes. Although the compilation of Justinian’s code was greatly aided by the older codes, the attempt to revise the jus vetus was an original undertaking of the Emperor. In the year 530 Tribonian was instructed to gather a commission which would revise the works of all the classical jurists, make excerpts from them, reject all obsolete materials, eliminate all contradictions, and, finally, arrange all the materials collected in some definite order. For the purpose of doing this the commission had to read and study about two thousand books, containing over three million lines. This enormous work, which in Justinian’s own words, “before his command none ever expected or deemed to be at all possible for human endeavor”[43] and “which freed all jus vetus of superfluous redundance,”[44] was completed in three years. The new code, published in the year 533, was subdivided into fifty books and was called the “Digest” (Digestum), or the “Pandects” (Pandectae), It found immediate application in the legal practices of the Empire.[45]

            Though this Digest of Justinian is of very great importance, the haste with which it was compiled necessarily caused the work to be defective in certain respects. It contained many repetitions, contradictions, and some quite obsolete decisions. In addition to this, the full power given to the commission in the matter of abbreviating texts, interpreting them, and combining several texts into one, produced a certain arbitrariness in the final results, which sometimes even mutilated the ancient texts. There was a decided lack of unity in this work. This fault is responsible for the fact that the learned jurists of the nineteenth century, who had high regard for Roman classical law, judged Justinian’s Digest very harshly. Still, the Digest, in spite of all its shortcomings, was of great practical value. It also preserved for posterity a wealth of material extracted from the classical Roman juridical writings which have not been preserved.

            During the time of the compiling of the Digest, Tribonian and his two learned coadjutors, Theophilus, professor in Constantinople, and Dorotheus, professor at Beirut (in Syria), were charged with the solution of another problem. According to Justinian, not all “were able to bear the burden of all this mass of knowledge,” i.e., the Code and the Digest. The young men, for instance, “who, standing in the vestibules of law, are longing to enter the secrets thereof,”[46] could not attempt to master all the contents of the two large works, and it was necessary to make up a usable practical manual for them. Such a handbook of civil law, intended primarily for the use of students, was issued in the year 533. It was divided into four books and was called the “Institutions” (Institutiones), or the “Institutes.” According to Justinian, these were supposed to conduct “all muddy sources of the jus vetus into one clear lake.”[47] The imperial decree which sanctioned the Institutions was addressed to “youth eager to know the laws” (cupidae legum juventuti).[48]

            During the time that the Digest and the Institutions were being compiled, current legislation did not come to a standstill. Many new decrees were issued and a number of matters needed revision. In short, the Code, in its edition of the year 529, seemed out of date in many parts, and a new revision was undertaken and completed in the year 534. In November the second edition of the revised and enlarged Code, arranged in twelve books, was published under the title Codex repetitae praelectionis. This edition nullified the earlier edition of 529 and contained the decrees of the period beginning with Hadrian and ending with the year 534. This work concluded the compilation of the Corpus. The first edition of the Code has not been preserved.

            The decrees issued after the year 534 were called “Novels” (Novellas leges). While the Code, the Digest, and the Institutions were written in Latin, a great majority of the Novels were drawn up in Greek. This fact was an important concession to the demands of living reality from an emperor steeped in Roman tradition. In one Novel, Justinian wrote, “We have written this decree not in the native language, but in the spoken Greek, in order that it may become known to all through the ease of comprehension.”[49] In spite of Justinian’s intention to collect all the Novels in one body, he did not succeed, though some private compilations of Novels were made during his reign. The Novels are considered the last part of Justinian’s legislative work and serve as one of the main sources on the internal history of his epoch.

            Justinian felt that the four indicated parts, namely, the Code, the Digest, the Institutions, and the Novels, should form one Corpus of law, but during his reign they were not combined into such a collection. Only much later, in the Middle Ages, beginning with the twelfth century, during the revival of the study of Roman law in Europe, all of Justinian’s legislative works became known as the Corpus juris civilis, i.e., the “Corpus of Civil Law.” Today they are still known by this name.

            The bulkiness of Justinian’s legislative work and the fact that it was written in Latin, little understood by the majority of the population, were responsible for the immediate appearance of a number of Greek commentaries and summaries of certain parts of the Code as well as some more or less literal translations (paraphrases) of the Institutions and the Digest with explanatory notes. These small legal collections in Greek, called forth by the needs of the time and by practical considerations, contained numerous mistakes and oversights with regard to their original Latin text; even so they thrust the original into the background and almost completely supplanted it.[50]

            In conformity with the new legislative works the teaching of legal studies was also reformed. New programs of study were introduced. The course was announced to be of five years’ duration. The main subject for study during the first year was the Institutions; for the second, third, and fourth years, the Digest; and finally, in the fifth year, the Code. In connection with the new program Justinian wrote, “When all legal secrets are disclosed, nothing will be hidden from the students, and after reading through all the works put together for us by Tribonian and others, they will turn out distinguished pleaders and servants of justice, the ablest of men and successful in all times and places.”[51] In addressing the professors Justinian wrote, “Begin now under the governance of God to deliver to the students legal learning and to open up the way found by us, so that they, following this way, may become excellent ministers of justice and of the state, and the greatest possible honor may attend you for all ages to come.”[52] In his address to the students the Emperor wrote, “Receive with all diligence and with eager attention these laws of ours and show yourselves so well versed in them that the fair hope may animate you of being able, when the whole course of your legal study is completed, to govern our Empire in such regions as may be attributed to your care.”[53] The teaching itself was reduced to a simple mastery of the materials taught and to the interpretations based on these materials. Verifying or reinterpreting the text by citing original works of the classical jurists was not permitted. The students were allowed only to make literal translations and to compose brief paraphrases and extracts.

            In spite of all the natural shortcomings in the execution and the numerous defects in method, the stupendous legislative work of the sixth century has been of unceasing and universal importance. Justinian’s code preserved the Roman law, which gave the basic principles for the laws regulating most of modern society. “The will of Justinian performed one of the most fruitful deeds for the progress of mankind,” said Diehl.[54] In the twelfth century, when the study of Roman law, or, as this phenomenon is usually called, the reception of Roman law, began in western Europe, Justinian’s code of civil law became the real law for many places. “Roman law,” said Professor I. A. Pokrovsky, “awoke to new life and for a second time united the world. All legal developments in western Europe, even those of the present day, continue under the influence of Roman law … The most valuable contents of Roman legislation were introduced into paragraphs and chapters of contemporary codes and functioned under the name of these codes.”[55]

            An interesting shift of viewpoint in the study of the legislative work of Justinian has occurred recently. Up to now this work, with the exception of the Novels, has been considered primarily as an aid for a closer acquaintance with Roman law, that is, as of auxiliary, not primary, significance. The Code was not studied for itself and never served as a subject for “independent” investigation. From this viewpoint it was objected that Justinian, or rather Tribonian, distorted classical law by either abbreviating or enlarging the text of the original. At present, however, emphasis is placed on whether or not Justinian’s work met the needs of his time and to what extent it did so. The changes in the classical text are properly ascribed not to the arbitrariness of the compiler but to a desire to adapt Roman law to living conditions in the Eastern Empire in the sixth century. The success of the Code in accomplishing this purpose must be studied with reference to the general social conditions of the time. Both Hellenism and Christianity must have influenced the work of the compilers, and the living customs of the East must have been reflected in the revisions of the ancient Roman law. Some scholars accordingly speak of the eastern character of the legislative work of Justinian. The problem of contemporary historical-juridical science, then, is to determine and evaluate Byzantine influences in Justinian’s Code, Digest, and Institutions.[56] The Novels of Justinian, as products of current legislation, naturally reflected the conditions and needs of contemporary life.

            In Justinian’s time three law schools were flourishing, one in Constantinople, one in Rome, and one in Beirut. All other schools were suppressed lest they serve as bases for paganism. In 551 the city of Beirut (Berytus) was destroyed by a terrific earthquake followed by a tidal wave and fire. The school of Beirut was transferred to Sidon but had no further importance.[57]

In Russia under the Tsar Fedor Alekseievich (1676-1682) a project was organized to translate Justinian’s Corpus Juris into Russian. A German scholar published a contemporary report on the subject and called the project “a deed worthy of Hercules” (hoc opus Hercule dignum), but unfortunately it was not carried out.