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113 Prolegomena to Establishing Pre 113 PROLEGOMENA TO ESTABLISHING PRE-JUSTINIANIC TEXTS by ALANWATSON (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 pur- poses of Justinian's legislation from the teachings of our professors and the read- ing of standard textbooks. Seldom does it appear necessary to read the consti- tutions establishing the teams to produce this legislation or the prefaces promulgating the legislation 1. Even less frequently do we look at these constitu- tions 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 ac- curacy 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 task2. Rather, I want to examine Justi- nian'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 excu- bitorum (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 pro- claimed 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, Decisio as aTerminus Technicus,Subseciva Groningana 5 (1992), p. 21ff.. 114 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 Gregorianus and 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 necessariocorrigenda esse multis retro principibus visasunt, interea tamen nullus eorum hoc ad effectum ducere ausus est, in praesenti rebus donare communibus auxilio dei omnipotentiscensuimus et prolixitatem litium amputare, multitudine qui- dem constitutionum,quae tribus codicibusGregoriano et Hermogenianoatque Theo- dosiano continebantur, illarum etiam, quae post eosdem codicesa 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 colligitam memoratorum trium codicumquam novellaspost eos positas con- stitutiones oportet. These things which necessarilywere seen by many earlier emperors to require correc- tion, but none of them between times dared to bring to effect, we have determined at the present time to completefor the common good, with the aid of all powerful God, and to cut out the prolixityof litigation; cutting back on the multitude of constitutions which were contained in the three Codes, Gregorianus, Hermogenianus and Theo- dosianus, as well as on those constitutions that after these Codes were issued by Theo- dosius, of holy memory, and other later emperors, and also by Our Grace; composing one Code under Our AuspiciousName in which constitutionsought to be collectednot 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 fac- ing 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 Hermogenianus3, and three libri singulares of 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 resi- dence for a short time, and he might order that they be displayed, also for a short 3. This Hermogenianusmay be the compiler of the codex Hermogenianus, and may also be the praetorian prefect of that name under Maximianin 304. Cf. D. Liebs, Hermoge- nians Iuris Epitomae, Göttingen 1964, p. 23ff. .
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