CHAPTER TWO

THE CORPUS IURIS CIVILIS IN THE EARLY MIDDLE AGES

Justinian’s project of codifying Roman law began in 528, shortly after his accession to the throne. The original idea was to replace earlier compilations such as the Codex Theodosianus from 438 with a new one that would include more recent constitutions while eliminating con- tradictions and obsolete rules. The commission of ten jurists appointed to carry out this task must have worked quickly, because the emperor was able to enact his Novus Codex Justinianus into law in April 529. Evidently pleased with his role as a legislator, Justinian constituted a second law commission in December 530. Led by the jurist Tri- bonian, who had participated in the compilation of the Novus Codex Justinianus, this commission was charged with collecting and orga- nizing the work of earlier jurisconsults, the most important of whom had been active before 250 AD. The work of this commission was still going on when Justinian additionally directed it to prepare an introduction to the law appropriate for students just beginning their studies. This work, the Institutiones or Institutes, was issued in November 533, a month before the Digesta or Pandectae in fifty books was itself brought to completion. Tribonian and his associates then revised the Code, incorporating legislation issued since 529 and making it con- sistent with the Institutes and Digest. This second edition of the Code (the Codex repetitae praelectionis), issued in November 534, is what is now known as the Codex Justinianus. Distinct from Justinian’s codification are the collections of his later legislation known as the Novels. Unlike the Institutes, the Code, and the Digest, these were private collections. The version that circulated in early medieval Europe was the Epitome Juliani, a Latin version of 124 laws from 535 to 555 compiled by a Julian who taught law in Constantinople.1 The Epitome Juliani won, as we shall see, a consid- erable circulation in early medieval Europe, although it would be supplanted during the twelfth century by a somewhat larger collection

1 Gustav Haenel, Iuliani Epitome latina Novellarum Iustiniani (Lipsiae, 1873). 36 chapter two of 134 novels, also in Latin, known as the Authenticum. The fifteenth century would bring west two other, Greek collections but these, as well as the Authenticum, lie outside the scope of this study. It was only after the Middle Ages that the Justinianic law books—the Institutes, Code, Digest, and Novels—came to be known as the Corpus Iuris Civilis, a term we adopt here for ease in discussion. Justinian’s legislation was not formally applied to Italy until the Pragmatic Sanction of 554, nearly twenty years after the original reconquest, although some historians think that it may have begun to circulate there possibly as early as 540.2 We know, too, that the texts themselves arrived in Italy because the majority of the surviv- ing sixth-century evidence has links to Italy. The Codices Latini Antiquiores, E. A. Lowe’s authoritative catalog of pre-ninth-century Latin books, lists twelve sixth-century books and book fragments of the various works of the Justinianic codification, plus another described as saec. VI–VII from the turn of the sixth to seventh centuries. Of these, six are of the Digest, four of the Code (including one of the first edi- tions of the Code), and one of the Institutes. [See Table 4] If fragments recovered in Egypt are excluded from Lowe’s list, the remaining six manuscripts all appear to have spent time in Italy; except for the Pommersfelden fragment of the Digest (CLA 1351), they are still there today. The three palimpsests (CLA 495, 513, 1167) were all rewritten in Italy in the early Middle Ages. The Florentina (CLA 293), similarly, was in Italy at an early date, although it appar- ently was not copied there.3 The Pommersfelden fragment of five leaves from a papyrus Digest, finally, comes to us as part of a col- lection of materials that apparently originated in Ravenna.4 It is also worth noting that the Digest is the best-represented work of the four within the Corpus, a fact that should caution us against assuming that because the Digest was difficult it must have been rare.

2 Cortese, Diritto nella storia medievale, pp. 109–12. 3 The case for an Italian origin of the Florentina was argued by Guglielmo Cavallo and Francesco Magistrale, “Libri e scritture del diritto nell’età di Giustiniano,” Index, 15 (1987): 97–110, at pp. 105–6, but Wolfgang Kaiser’s demonstration that eight correctors worked on the manuscript, as well as four readers who offered emendations, suggests that it originated in an administrative center larger than any that can read- ily be imagined for Byzantine Italy. See Kaiser, “Schreiber und Korrektoren des Codex Florentinus,” ZSS RA, 118 (2001): 133–219. 4 J.-O. Tjäder, “Ein Verhandlungsprotokol aus dem J. 433 n. Chr.,” Scriptorium, 12 (1958): 3–43.