§ 6. be regarded as one uniform code with statutory force. It contains twelve books, each book being divided into titles, each title into leges, each lex into paragraphs as above. A quotation would thus run: L. II § 1 C. (=Codicis) depositi (4, 34) *. The term 'constitutio' (c) is sometimes applied specifically to the leges of the Code, so that the above quotation would run: c. 11, § 1 depositi (4, 34), (the C. being omitted). Though published by Justinian at different times, these three parts of the Corpus juris, viz. the Institutes, Digest, and Code, were intended by him to constitute, in the aggregate, one single code of law with equal statutory force in all its parts. This is the Corpus juris in the form in which it was issued by Justinian. In its modern form, however, the Corpus juris differs from the Corpus juris of Justinian in that it contains a fourth part, viz. the Novels. (4) The Novels. The Novels are laws enacted by Justinian and some later em- Corpus juris civilis. Editio stereotypa. Institutiones, recensuit II. THE PRE-JUSTINIAN SOURCES OF LAW are as follows:- form. (3) The early Roman statutes and other sources of law in their * English writers quote briefly as follows: Cod. 4. 34. II. I. original form, together with documents and incidental information § 6. in non-juristic writers. The following editions are the most important : (1) Corpus juris Romani antejustiniani consilio professorum Bonnensium. Bonnae, 1835 ff. (2) Jurisprudentiae antejustinianae quae supersunt, ed. Huschke, ed. 5. Lipsiae, 1886. (3) Collectio librorum juris antejustiniani in usum scholarum, ediderunt P. Krüger, Th. Mommsen, Guil. Studemund. Tom. I. Gai Institutiones, ed. 2, Berolini, 1884. Tom. II. Ulpiani liber singularis regularum. Pauli libri quinque sententiarum. Fragmenta minora. Berol., 1878. (4) Corpus legum ab imperatoribus Romanis ante Justinianum latarum, quae extra constitutionum codices supersunt, ed. Hänel. Lips., 1857. (5) Fontes juris Romani antiqui ed. Bruns., ed. 5. cura Th. Mommseni. Friburgi in Brisgavia, 1887. APPENDIX. The Manuscripts of the Corpus Juris. We are now accustomed to think of the Corpus juris as constituting a single uniform book. Such, however, was not originally the case. Justinian (as we have seen, p. 8 ff.) published the Institutes, Digest, and Code separately as three independent books, though it was his intention that they should represent a uniform body of law. The novels, of course, were separate and later publications. These facts will explain the form in which the MSS. of the Corpus juris have been handed down to us, each one of which contains but part of the Corpus juris as we now know it. 1. The Digest. The Digest has been preserved to us in a famous and most excellent MS. which was known, first as the Pisan, and subsequently as the Florentine MS. During the Middle Ages it was treasured in the city of Pisa, till the Florentines, in the year 1406, conquered that city and removed the precious MS. to Florence. It was written in the beginning of the seventh century by Greek scribes, and corrected with the greatest § 6 App. care, a second original being used for the purpose of emending the text. As far as Western Europe is concerned, it is on this MS. that the history of the Digest, and with it (for the Digest contains the pith of the Corpus juris) the history of Roman law in general, is, in the main, based. It also forms the basis of the numerous 'vulgate' MSS., i. e. MSS. which contain the text of the Digest as adopted by the glossators or teachers of Roman law at Bologna in the twelfth and thirteenth centuries. The vulgates however, unlike the Florentine, never contain more than a portion of the Digest. According to the plan of study laid down by Justinian for the schools of law, only Books 1-23, 26, 28, and 30 of the Digest were to be the subject-matter of the professorial lectures during the first three years of the course. This will explain why the copy of the Florentine MS., which was at first chiefly in use throughout Italy, stopped short at Book 23, or rather Book 24, tit. 2, the first two titles of this book being very closely connected with Book 23. This was called 'Digestum' simply. Books 24, 25, 27, 29, 31-36, however, were to be privately studied in the fourth year. Hence a few, but only very few, of the Italian MSS. are copies of the Florentine from Book 24, tit. 3, to Book 36. [The last fourteen books formed no part of the regular curriculum at all, but were reserved for private study at a later period.] The Bolognese text was fixed by reference to an incomplete MS. of this second part of the Digest which broke off in the middle of Book 35, tit. 2, lex 82 (ad leg. Falcidiam) before the words 'tres partes.' It was not till the complete Florentine MS. had again become known that the defective MS. of the second part of the Digest could be supplemented and (for the sake of symmetry) brought up to the end of Book 38. Hence this part was given the name of 'Digestum infortiatum' (=fortiatum, 'strengthened'), and was subdivided into the infortiatum proper (up to 'tres partes') and the so-called 'tres partes' (from 'tres partes' to the end of Book 38). The re-discovery of the Florentine MS. also made it possible to make up the third part of the Digest (Book 39 to the end) which came to be known as the 'Digestum novum.' In contradistinction to the Digestum novum, the name of 'Digestum vetus' was applied to that portion of the Digest which had been known long before (Books 1-24, tit. 2). See v. Scheurl, ZS. für RG., vol. 12, p. 143 ff.; Karlowa, Röm. RG., vol. I (1885), p. 1027 (note). Thus the vulgate MSS. of the Digest consist of three 'volumina,' the Digestum vetus (Books 1-24. 2), infortiatum, with the tres partes (Books 24. 3—38), and novum (Books 39-50). These MSS. have little value as they are in all three parts but copies of the Florentine, the mistakes of which they invariably reproduce. [Towards the end of the Digest, for example, the Florentine has two pages placed in the wrong order; all the MSS. referred to have the same mistake.] What critical value they possess is due to the fact that, as far at least as Book 33, they contain, in several places, as compared with the Florentine MS., certain emendations, additions and alterations which must have been suggested by a second original at a time when the Digest copies in use only went as far as 'tres partes.' The text given by Mommsen in his great edition of the Digest (Digesta Justiniani Augusti, 2 voll.: 1870) is based on his own critical researches which are laid before us in the same work. He is entitled to the full credit of having elucidated all the above-mentioned facts concerning the MSS. of the Digest. 2. The Institutes. There were very numerous copies of the Institutes, and they were much more widely read, even in the early middle ages, than the more voluminous Digest. The most valuable MSS. for our purposes are those of Bamberg and Turin, both of the ninth and tenth centuries. The latter (which is unfortunately incomplete) contains an important gloss (the 'Turin gloss on the Institutes') which was written in the time of Justinian. 3. The Code. The Code has been handed down to us in a comparatively incomplete form. This is probably due to its not being prescribed as the subject of professorial lectures at all, being left to private industry in the fifth year of study. A Veronese palimpsest (of the same date as the Florentine MS.) was at one time complete, but is now full of lacunae. The remaining MSS. are all based on epitomes of the first nine books of the code, the last three books being omitted as dealing merely with the public law of the Byzantine Empire. These epitomes, with a few supplements, we possess in MSS. of Pistoja, Paris and Darmstadt, of the tenth (or eleventh), eleventh, and twelfth centuries respectively. They were gradually completed again by successive writers, beginning with the close of the eleventh century. Towards the end of the twelfth century MSS. of the last three books were written, but the first nine were always regarded as the code proper, and the 'tres libri,' as they were called, have been handed down to us in a separate form. The Greek constitutions, which were left out in all the Western MSS. ('Graeca non leguntur'), were added much later in the prints of the humanist epoch (the sixteenth century) from Byzantine sources both of ecclesiastical and secular law. In the same prints an attempt was made to restore, as far as possible, the inscriptions and subscriptions of the imperial decrees which had been very much neglected in the MSS. 4. The Novels. The first knowledge which the West obtained of the Novels is derived from the so-called Epitome Juliani, being a collection of extracts from 125 novels of Justinian by Julianus, professor of law in Constantinople, § 6 App. § 6 App. A.D. 556. At a later period, the glossators found another collection of 134 complete novels, of which some were in original Latin, the majority however in a Latin version (the 'versio vulgata') made from the Greek original. It is probable that this collection is identical with the official one which Justinian ordered to be drawn up for Italy in the year 554 A.D. [Zachariae v. Lingenthal, Sitzungsberichte der Berliner Akademie, 1882.] The glossators called this collection (in contradistinction to the Epitome Juliani) the Authenticum, or Liber Authenticorum (i. e. the 'authentic collection'), and divided the ninety-seven novels which they considered to be of use, into nine collationes and ninety-eight titles. Excerpts from the latter were inserted in the respective passages of the code, and were called 'authenticae.' In addition to these Western collections there is also a Greek collection of 168 novels-not all by Justinian howeverevery one of which is composed in Greek. Having thus briefly reviewed the state of the MSS., we are now in a position to understand why, in the earliest editions, the glossators divided the whole Corpus juris into five volumes, with the addition of the glossae. The first three volumes comprised the Digest (vol. I, Digestum vetus; vol. 2, Digestum infortiatum; vol. 3, Digestum novum), the fourth contained the first nine books of the Code, the fifth (called 'volumen parvum,' or 'volumen' simply), the last three books of the Code, the Authenticum and the Institutes. The division with which we are now familiar is into four parts in the following order: Institutes, Digest, Code, Novels. This division was first adopted by Gothofredus in his complete edition of 1583 (without the glossae). He was also the first to give the entire collection the name by which it is now universally known, viz. the Corpus juris civilis. It is only from the time of Gothofredus onward that the Corpus juris appears in the now familiar shape of one complete book. §7. Fundamental Conceptions. I. The Conception of Law and the Legal System1. Law, in the abstract, is the sum of moral rules which grant to persons, living in a community, a certain power over the outside world. Law, in other words, determines, defines, and distributes the relations of power within the limits of human society and in accordance with that ideal of justice, which resides, in the first instance, in the community of a people, and, through it, in the 1 Cp. A. Merkel, Juristische Encyklopädie (1885), p. 5 ff. |