Roughly when were Gaius’ institutes written?
161 CE
Roughly when were Justinian’s institutes?
533 CE
What were the time periods of Gaius and Justinian called?
- Gaius: Early empire= principate= classical
- Justinian= Late empire= dominate= post-classical
Who holds the power in the different Roman periods?
- Republic: no king or emperor, instead power was shared among elected magistrate, popular assemblies and the senate
- Early empire: emperor is supreme, but not totally dominant
- Late empire: total autocracy, emperor is ‘master’ of his subjects
Why was the classical period named as such?
This was a time period where juristic creativity is viewed as being at its peak, jurists took on the role of elaboration and consolidation
* 90% quotations from the digest come from this time period
* classical jurist literature focussed on case analysis, reasoning, conceptual clarity rather than abstract theory
* Gaius is an example of a classical jurist
What does Thomas say about classical jurisprudence?
During the classical period jurisprudence reached its peak- often high imperial officials, law became more systematic, conceptual and refined, characterised by ‘elegantia’= clarity, precision and practical reasoning
2 reasons Du Plessis gives for the decline in juristic creativity towards to later empire
Decline in juristic creativity due to a rise in imperialism:
1. could be a result of political instability
2. could also be a result of a rise in christianity
What is the corpus iuris civilis
- Justinian’s codification of the law- intended to make it more accessible
- Before his reign as emperor, the Theodosian code was in use, this was not comprehensive and made it difficult to ascertain the law on any given matter
- he wanted to restore the intellectual unity and authority of roman law making it the sole source of law in his empire, the foundation of legal education and a replacement for all earlier legal literature
Nicholas’ critique of Justinian’s corpus iruis civilis
‘In seeking to preserve the greatness of the past Justinian failed to produce a practical codification which his own subjects could use, and in seeking to present the law of his own day he distorted what he was trying to preserve’
What were the 5 stages of Justinian’s codification (in order)
- codex vetus
- the fifty decisions
- the digest
- the institutes
- new code and novellae
What is the fifty decisions?
- J issued a series of decrees to abolish obsolete rules and resolve controversial points in the law
- “the fifty decisions and the codex vetus would have done much to eliminate the confusion in the law that plagued the practitioners at the time”–> Du Plessis
What is the codex vetus?
- First stage of Justinian’s codification
- J commissioned 10 men to collect all enactments still in force–> they had wide powers to eliminate obsolete and confusing material
It superseded all previous legislation and repealed the Theodosian (and all other) codes
What was the Digest?
- The Digest was the centrepiece of J’s work, it was a legal encyclopaedia that is regarded as the most important source of roman law- he intended for it to be a model for his empire, but it was too complex, too large, and too ill-arranged to succeed, but it was invaluable in the later ages
- The Digest was created by a group of leading academics, practitioners and govt ministers, they were tasked with codifying and removing discrepancies and repetition from the law (they failed to remove repetition and discrepancy)–> evidence suggests that they read and excerpted 1500-1600 books
What factor limited the digest?
They made ‘interpolations’- amendments to the writings of jurists, this was problematic because they did not indicate these interpolations, so jurists may be incorrectly quoted
What sped up the making of the digest?
The two leading political factions at the time in Constantonople (Blues and Greens) joined together to riot against the Emperor–> this may have sped up the process of forming the digest- he needed a notable success very quickly
What were Justinian’s institutes?
- J instruction Dorotheus and Theophilus to construct a textbook for law students
- These were to draw on the classical works e.g. institutes of Gaius
- They divided the content into 4 books like Gaius but divided the work into titles
- These also received the force of law (unusual for a student textbook
- Reformed legal education- students should receive formal legal education for three years followed by two years of private study, because the Digest was likely to be daunting
What do Birks and Mcleod say about the significance of Justinian’s institutes?
- “For generations of lawyers Justinian’s Institutes has been the primary vehicle of that learning… it remains essential reading for any lawyer who takes his subject seriously.”
- The Institutes offer a conceptual map of the law, organised around persons, things, and actions. This scheme provides a coherent overview rather than detailed rules and proved crucial for legal education
- Influence on modern English law: common-law
What were the New code and Novellae?
Justinian
- Tribonian carried out revisions of the legislative activity that had occurred following the Codex Vetus
- The New Code superseded all previous codes and was divided into 12 books with different titles
- Justinian’s reign lasted 30+ years after the New Code and he continued to legislate and reform frequently
What does Birks say about the divisions of Roman law?
- he criticises divisions which are based on history, procedure, or remedies
- Misleading divisions generate doctrinal errors by grouping together things that are conceptually distinct or separating things that are conceptually alike
- Good divisions are based on causative events- explaining why rights and obligations arise e.g. obligations should be divided into consent, wrongs and unjust enrichment–> these categories reflect the legal basis of liability
What is ius non scriptum
- Unwritten law, e.g. customs
- These have long usage and are regarded as binding in themselves
- Early roman law relied on custom rooted in ancestral practice–> jurists treated this as law even though it was unwritten
- In classical and post-classical periods there was tension between custom and statute- custom could operate where no statute existed but it could not override statute
- Justinian recognised custom only to the extent that it was accepted by juristic authority
Ius scriptum
All the written forms of law
Justinian’s codification: Corpus Iuris
G. 1.2: the law consists of:
* statutes
* plebiscites
* senatorial decrees
* imperial constitutions
* edicts
* jurist opinions
