CODEX JUSTINIANE´US
CODEX JUSTINIANE´US The motives by which the Emperor
Justinian was induced to codify the enactments of himself and earlier
emperors were the scarcity of copies of the Code of Theodosius, and the
consequent divergence between the law there laid down and that actually
applied in the courts: “Homines etenim, qui antea lites agebant, licet
multae leges fuerant positae, tamen ex paucis lites praeferebant,
vel propter inopiam librorum, quos
comparare eis impossibile erat, vel propter inscientiam, et
voluntate judicum magis quam legitima auctoritate lites
dirimebantur” (Cod. 1, 17, 2, 17). Accordingly, in
February, A.D. 528, he appointed a commission of codification of ten
persons, among them being Theophilus, professor at law at Constantinople,
and Tribonian, who played so important a part in the legislative work of the
next few years, and who perhaps suggested to his master his whole scheme of
legal reform. Their instructions were to compile a single code out of those
of Gregorianus, Hermogenianus, and Theodosius II., and the imperial
constitutions issued since the enactment of the last, whether by Justinian
himself or his predecessors: they were authorised to omit all that was
unnecessary or superfluous (e. g. preambles), to reconcile such enactments
as were inconsistent with one another, and, where convenience required, to
combine several into
[p. 1.467]one, or to make any
alterations in individual constitutions which they should deem necessary.
The separate laws, whether technically
edicta,
rescripta, or
decreta, were to be
arranged in chronological order under generic titles; and each, so far as
was possible, identified by date and the name of the prince to whom it owed
its enactment. The work was completed in April, A.D. 529, and was published
under the name Codex Justinianeus, with force of law from the 16th of that
month. The older codices and constitutions were at the same time deprived of
all validity, and it was even forbidden to appeal to any
leges cited in the writings of the jurists if they had been
incorporated, even in a modified form, in the new Code.
In the interval of four years and a half between this date and the completion
of the Institutes (November, A.D. 533), Justinian had issued a large number
of new constitutions of his own, including the “quinquaginta
decisiones” made as preliminary to the execution of the Digest.
This seemed to him to necessitate a revision of the Code. Accordingly in the
next year he appointed a new commission, consisting of Tribonian (as
president), Dorotheus, professor at Berytus, and three others, for this
purpose. Within a few months (Nov. A.D. 534) the original Code and the
constitutions issued after its enactment were deprived of all authority and
withdrawn from circulation, their place being taken by the “Codex
repetitae praelectionis,” or Code which has come down to us. In
this Justinian's own constitutions were incorporated, as well as many others
which the earlier code had not contained: some which had stood in the latter
were now omitted, and there were numerous alterations and interpolations,
Tribonian sparing no pains to make the revision as complete as possible. The
“Codex repetitae praelectionis” consists of twelve Books,
each of which is divided into Titles and Rubrics: the single constitutions
are arranged under their several titles in the order of time and with the
names of the emperors by whom they were respectively made, and their dates.
The enactments in this Code do not go further back than those of Hadrian, and
those of his immediate successors are few in number. The arrangement
corresponds tolerably closely with that of the Digest, the seven parts into
which the fifty books of the latter are distributed answering to Code Books
i.-ix.: but the matter of the last three Books of the Code is hardly treated
of in the Digest. Some of the constitutions which were in the original Code,
and which are referred to in the Institutes, are omitted in the “Codex
repetitae praelectionis,” e.g. Inst. 2.20, 27, 4.6, 24; others
which have been lost in the course of time have been restored by Charondas,
Cujacius, and Contius from the Greek version of them. (Böcking,
Institutionen ; Puchta,
Institutionen,
§§ 139, 140; Hugo,
Lehrbuch der Digesten und des
Constitutionscodex, Lehrbuch der Geschichte des römischen
Rechts; Walter, ib. § 448.)
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