Book Reviews, Classical History, Jared, Law
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The Digest of Justinian (Translated by Charles Henry Monro)

[Admin’s Note: This is a guest post by Jared, who only recently realised it’s “servandus,” not “servadus.”]

The Corpus Juris Civilis was a monumental achievement. Justinian I of the Eastern Roman or Byzantine Empire set out to collect and condense the disparate laws that had evolved in Rome, and then set them down in a coherent, authoritative text. He didn’t literally do it himself—he was the project’s executive (having imperium, at that), with the low-level work being delegated to an army of lawyers and legal scholars and clerks or what have you. The result was actually three texts: the Codex Justinianus, the Institutiones, and the Digesta, or the Digest. The Digest is, I believe, the largest—essentially an encyclopedia of Roman law, organized by topic and consisting of edited excerpts from renowned archaic jurists: Gaius, Ulpian, Julianus, Paulus, and so on.

(N.b. this translation, by Charles Henry Monro, is rather incomplete, covering a meagre six of the total fifty books of the Digest.  I know little about Monro, other than that he was an English jurist of the Victorian era whose (highly-regarded) work largely consisted of translations.  He made an effort to translate the Digest in its entirety, but died before he was able to finish. This volume from 1904 was the only one released during his life—another was released in 1909, a year after his death.  A superior, complete version for the modern reader is likely the multi-volume translation by Alan Watson, an edition of which I understand our Maximum Leader, Charles, has recently purchased.)

As the Digest is encyclopedic, it does not necessarily make for easy, linear reading.  It was endowed with the full force of codified law, so it is necessarily excruciatingly detailed, seeking to be relatively exhaustive on any number of boring, commonly-seen disputes over inheritance or credit or usufruct or what have you. However it is often surprisingly pleasant to read the Digest in long stretches, particularly when one encounters discussions on the nature of the law, or on the nature of the law as it applies to some particular topic.  One is then typically treated to something that usefully builds intuition about law more generally. The goal for the reader is to suss out general principles of the law as was laid down by the Romans.

The Digest is, simply, fascinating. Perhaps the first thing that strikes the reader is the amazing degree of sophistication that existed in Roman law—most of the time one feels as if he is in the company of modern-day jurists, discussing matters logically, from first principles, and with careful precision. It quickly becomes apparent to the reader’s mind that Rome’s law was very impressive indeed.

It was also remarkably comprehensive. The Digest discusses at some level, somewhere, almost any issue imaginable. But the Romans were mature enough to know that a truly exhaustive codification of the law was impossible, and did not claim to have constructed such. There are a number of passages in the Digest that touch on this issue itself. From Julianus: “It is impossible for every point to be expressly comprehended in statutes or senatorial decrees; still if . . . the meaning of the enactment is clear, the presiding magistrate ought to extend the rule to analogous cases to the one expressed and lay down the law accordingly.” From Celsus: “Rules of law are not founded on possibilities which may chance to come to pass on some one occasion, since law ought to be framed to meet cases which occur frequently and easily, rather than such as very seldom happen.” From Pomponius: “Laws ought to be laid down, as Theophrastus said, in respect of things which happen for the most part, not which happen against reasonable expectation.” And from Paulus, seemingly paraphrasing the former: “What occurs once or twice, as Theophrastus says, lawgivers pass by.”

It is thus fascinating that, as exhaustive as the Digest is, it is not merely a large collection of spurious legal theorizing, nor one-off decisions on bizarre cases that praetors were to later refer to. But instead, the Digest consists of discussions on legal matters that popped up again and again in Roman society.  It is an evolved body of law; a collection of decisions based on both experience and reason that stood the test of time in ancient Rome. Indeed, since there is likely nothing in modern law that went completely untouched by the Romans, the Corpus Juris Civilis seems to have constituted the foundation for much of civil law as it is now known. And the method of the Digest is a sort of primitive version of the common law, insomuch that it consists of collecting the decisions of esteemed jurists on previous cases and using them to establish precedent. (It makes for an interesting point that civil law must be continuously and deliberately re-codified—seen as early as the period immediately following Justinian’s death, when the Novellae Constitutiones were added to the Corpus to plug some loose holes—whereas this process is somewhat automated in the common law.  The comparison between civil and common law is one of the more interesting themes floating around my legal-neophyte head these days.)

Henry Sumner Maine pointed out in Ancient Law (highly recommended prior to reading the Digest) that law in ancient or primitive societies tends to revolve around the family or some form of extended family as its atomic unit.  Roman society was no different, though it was perhaps the most advanced form of such law possible. Roman law is dominated by the concept of potestas—essentially who has authority over or obligation to whom within a self-contained group, with the patriarch or paterfamilias constituting a sort of mini-monarch in the atomic family unit (indeed, one can productively imagine Roman society as a collection of many small, organic, non-territorial monarchies all under the imperium of the Emperor—imperium itself was viewed as a particular kind of potestas). Much of the Digest is spent discussing what is lawful under this or that condition of patria potestas, and while the minute details can often be tedious, the legal fiction itself is fascinating, and the ubiquitous nature of it here helps bring the concept to life.

The Digest actually contains quite a bit of law regarding private contracts, or pacts as the Romans called them, the namesake of the famous Latin phrase pacta sunt servanda (usually translated to “promises must be kept”). Contract between individuals is a hallmark of later, more modern private law, but is, as Ulpian says, “founded on Nature,” that is the jus gentium or Natural Law of men.  I typically find natural law to be the most interesting and satisfying mode of legal analysis; it was more-or-less first discovered by the Greeks, and I believe it was not until the later middle ages (Aquinas) and Renaissance (Grotius) that it experienced much of its flourishing (and later, per Maine, much of its misinterpretation).  But even here, the Romans had adopted it, derived much of their legal foundations from it, and had fleshed out a good bit of its nature.  Fraud or fraus appears most notably as a violation of the jus gentium, though it could be dissected into different legal concepts for different precise instances of it—dolus malus, for example, referred to a pact “made with malicious intent, intending to entrap the other party by aiming at one thing and pretending that he aims at something else,” and was distinguished somewhat from fraus, although the latter strictly subsumed the former.

Consideration of the jus gentium and contracts naturally leads to more sophisticated legal constructions, for example agents (procurators), corporations, the idea of private arbitration, and so on. The Romans touched them all, and much of the contents of the Digest in these areas is recognizable today. Perhaps most striking is Paulus on principal-agent problems: “a principal ought not to be put in a worse position by an act of his procurator of which he has no knowledge,” which could perhaps be read almost verbatim from any modern law dealing with Power of Attorney. One can’t help chuckle at arbitration as it is discussed in the Digest — not because the Romans had an absurd view on it, but because they indeed had a splendidly modern view, in particular as to how they believed it could be used in the future. Per Paulus: “Arbitration is framed on the model of judicial trials, and its object is to put an end to litigation.” Indeed, as true and repeated today as it was almost two-thousand years ago, and yet for some reason or other alternative dispute resolution has yet to put an end to litigation.  Corporate law in Rome, on the other hand, was somewhat akin to what one would find in Cuba or North Korea, with corporation formation controlled utterly by the Emperor and senate, and restricted to only a select few areas (typically professional guilds).In any case.

There is much, much, much more in the Digest, but these examples of its content are some of the ones that most stood out to me. The Digest as a whole is a remarkable work; incredibly comprehensive, and the product of many brilliant, careful, and dispassionate minds.  Maine called the Roman legal system “the one intellectual achievement of that civilization,” and whether or not it is true that it was the only intellectual achievement, what an achievement it was.

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