527 | Constantinople

Judicial Review

Edward Gibbon dissects Roman law.

When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest.

Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his imperial choice selected the most learned civilians of the East to labor with their sovereign in the work of reformation. The theory of professors was assisted by the practice of advocates and the experience of magistrates; and the whole undertaking was animated by the spirit of Tribonian. This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age.

Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity; in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislature of past times. Instead of a statue cast in a simple mold by the hand of an artist, the works of Justinian represent a tessellated pavement of antique and costly, but too often incoherent, fragments. In the first year of his reign, he directed the faithful Tribonian and nine learned associates to revise the ordinances of his predecessors, as they were contained, since the time of Hadrian, in the Gregorian, Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve books, or tables, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors. The new Code of Justinian was honored with his name and confirmed by his royal signature; authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterward the African provinces; and the law of the empire was proclaimed on solemn festivals at the doors of churches.

A Man’s Head, by Hans Sebald Beham, 1542. Rijksmuseum.

A more arduous operation was still behind: to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the Digest, or Pandects, in three years, will deserve praise or censure according to the merit of the execution. From the library of Tribonian, they chose forty, the most eminent civilians of former times; two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded that three million lines or sentences were reduced, in this abstract, to the moderate number of 150,000. The edition of this great work was delayed a month after that of the Institutes; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labors, he ratified, by his legislative power, the speculations of these private citizens: their commentaries on the Twelve Tables, the Perpetual Edict, the laws of the people, and the decrees of the Senate, succeeded to the authority of the text; and the text was abandoned as a useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes were declared to be the legitimate system of civil jurisprudence; they alone were admitted into the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus.

It is the first care of a reformer to prevent any future reformation. To maintain the text of the Pandects, the Institutes, and the Code, the use of ciphers and abbreviations was rigorously proscribed; and as Justinian recollected that the Perpetual Edict had been buried under the weight of commentators, he denounced the punishment of forgery against the rash civilians who should presume to interpret or pervert the will of their sovereign. But the emperor was unable to fix his own inconstancy; and while he boasted of renewing the exchange of Diomede, of transmuting brass into gold, he discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the Code, before he condemned the imperfect attempt by a new and more accurate edition of the same work, which he enriched with two hundred of his own laws and fifty decisions of the darkest and most intricate points of jurisprudence. Every year, or according to Procopius, each day, of his long reign was marked by some legal innovation. Many of his acts were rescinded by himself, many were rejected by his successors, many have been obliterated by time; but the number of 16 edicts and 168 novels has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant, and for the most part trifling, alterations can be only explained by the venal spirit of a prince who sold without shame his judgments and his laws.

Contributor

Edward Gibbon

From The History of the Decline and Fall of the Roman Empire. Gibbon began his studies at Oxford University at age fifteen; a year later he was expelled due to a temporary conversion to Catholicism. His six volumes on late Roman history were published between 1776 and 1788. At the end of his lengthy discussion of Justinian’s legal reforms, he concludes that “Justinian united the evils of liberty and servitude” and that “the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master.”