The collections of constitutions from the third to the fifth centuries

In the principate the rescripts important for the development of law had been published because the jurists mentioned them in their collections of responsa. After the death of the last classical jurist, Modestinus, in the middle of the third century, this method of publication came to an end. When Diocletian had restored peace and order to the empire in about 300 and the imperial chancery could function again reasonably well, a new way of publishing the rescripts was required. This need was satisfied by the compilation of the Codex Gregorianus and the Codex Hermogenianus. These collections resemble the earlier collections of opinions in that they were not prepared officially on behalf of the state; they are private collections. It is possible, however, that the compilers, Gregorius and Hermogenian, were senior officials who had easy access to the archives of the imperial chancery. The fact that these works are referred to by the term codex and not by the previously used term liber is connected with the form of publication: after the year 300 literary works were no longer published as scrolls but appeared in modern book form. Neither of the two above-mentioned collections has survived; part of the

contents is known because very many texts from these collections were incorporated in later collections such as the Vatican Fragments and the Collatio and particularly in the Code of Justinian. The Gregorian Code must have been the more comprehensive of the two; it contained constitutions from Hadrian up to and including Diocletian. These were divided into books and titles according to the subject matter. The order of the subject matter was the same as that observed by the classical jurists in their Digesta. The Gregorian Code was probably published in 291. The Codex Hermogenianus contained mainly constitutions from the year 293/ 294; this much smaller collection was not subdivided into books and titles but only into titles devoted to certain topics; the constitutions in it were in chronological order. The Hermogenian Code was probably published in 295.

In spite of the existence of these two collections and of the above-mentioned Vatican Fragments and the Collatio there was still a great deal of uncertainty in the practice of law, about which opinions and rescripts could be recognised as being authoritative.

First, the texts were sometimes contradictory, and second, it was often difficult for the judges to check whether a specific text was authentic. In an attempt to put an end to this situation of uncertainty Constantine formulated some laws: in 321 he decreed that the critical remarks (notae) that Paul and Ulpian had made in connection with the responsa collection of Papinian were no longer to be used. A year later, however, he declared that the other works of Paul, and particularly his Sententiae, had the force of law (C.Th. 1.4.1 and 1.4.2 respectively). In the end these measures turned out to be insufficient and in 426 the East-Roman emperor Theodosius II and the West-Roman emperor Valentinian III together formulated a new law on the subject (C.Th. 1.4.3); this so-called Law of Citations stipulated that from then onwards the works of the late classical jurists Papinian, Paul, Ulpian and Modestinus and those of Gaius had the force of law and that only these could be cited in a lawsuit. If these jurists had expressed different opinions on a particular topic then the opinion of the majority prevailed; if numbers were equal, then the view of Papinian had to be followed and only if Papinian had expressed no view on the subject was the judge free to make a choice himself.

The reason why it was the works of these five jurists that could be cited was probably that a number of good manuscripts of these

THE DOMINATE (284–565)

authors were readily available; the works of the four late classical jurists were available because they were the most recent and the work of Gaius was available because his work enjoyed great popularity in the dominate.

Very soon, however, it appeared that this Law of Citations was not a definitive solution either; as a result the same emperors, Theodosius II and Valentinian III, charged a committee specially appointed in 429 first to make a collection of all leges generates from the time of Constantine and thus produce a supplement to the Codex Gregorianus and the Codex Hermogenianus and thereafter, from these three collections of constitutions and from the writings of the classical jurists, to compile a Code which contained no contradictions and no repetitions. The execution of this plan, however, encountered insurmountable problems and finally in 435 another committee was set up for the purpose of collecting the constitutions, starting with those issued in the reign of Constantine. These texts had to be shortened and altered where necessary. After three years, in 438, the work was complete and the collection was published under the name Codex Theodosiantts. On 1 January 439 the Theodosian Code became law, meaning that from then on only the constitutions in that Code could be cited in a lawsuit. In practice, however, the Gregorian Code and the Hermogenian Code continued to be used.

As far as the works of the classical jurists were concerned, the Law of Citations remained in force.

The Theodosian Code is divided into sixteen books which are subdivided into titles according to the subject matter. The constitutions (numbering more than 3000) appear in these titles in chronological order. In these constitutions the emphasis is not on private law (whereas it was in the responsa and rescripts) but on public law; the Theodosian Code is therefore very important for our knowledge of constitutional and administrative law in the dominate. Most of the Theodosian Code has been preserved; in this case too the content is known only because constitutions from the Theodosian Code were included in later collections, particularly in the Lex Romana Visigotborum and in the Code of Justinian. In addition there are two manuscripts, one dating from the fifth and the other from the sixth century, which contain books six to eight and nine to sixteen respectively. Various versions of the Theodosian Code have been published since the sixteenth century;

at present the version that is normally used is the one edited by Mommsen at the beginning of this century.⁸