in the Theodosian Code of and in the unofficial codices Gregorianus andHermogenianus. Moreover, since around, as already mentioned, the only new law was created by imperial rulings. The first surprise is with the Digest. At some stage, also as already mentioned, after the publication of theCode, Justinian or his advisors believed a collection of imperial rulings was not enough, and had to be supplemented by a compendium of abridged juristic texts. Despite the common view, again as already mentioned, the compilers were not told to modernize the texts and they did not do so, with two minor exceptions. The exceptions were () where a constitution altered the law and a qualification to an existing juristic text was needed: () if classical law had two institutions on a subject and one was abolished, texts on it might be used for the other43. The common view so obviously wrong, yet so long and so firmly held, can only be explained on the basis of a belief that no one would make a codification of law in a way that is so obviously flawed. Indeed, Justinian did nor think his purpose for the Digest could be misunderstood. He set out clearly what he was doing at the very outset of the body of that compilation. Thus, the heading to book one title one reads: There is no suggestion that the old law is modernized. To the contrary! Some of the consequences of the bizarre methodology will emerge shortly. But here we should notice a different bizarrerie. The compilers were told not to repeat anything that was set out elsewhere, i.e. in theCode. Most of the rulings of the emperors would not innovate but repeat existing law. Hence much that is recorded in the Code would result from writings of preceding Roman jurists. The result is that the 43 For this and what follows see Watson, ‘Prolegomena’; Lokin ‘Epilegomena’ Our lord the most holy emperor Justinian’s Digests or Pandects of the law in a nutshell collected out of all the ancient law, book one.
RkJQdWJsaXNoZXIy MjYyNDk=