ABSTRACT
The stately fabric of Roman law as we know it is the product of Justinian’s codification, and before that date the structure was somewhat ramshackle. The law was uncertain on a number of points, the authorities being divided, but above all it was obscure, being derived from a vast array of scattered sources. The sources of law, as recognized by the courts, fell into two main groups, the works of the classical jurisconsults, who wrote from the reign of Augustus down to the Severan period, and imperial constitutions. The work of the jurists was immensely voluminous: those which Justinian’s commissioners read and excerpted amounted to three million lines, or twenty times the length of the Digest. Many of them were moreover very rare, existing only in a few law libraries. Yet all were authoritative, and a learned barrister could baffle the judge by producing an opinion from a manual unknown and inaccessible to the judge. For the unlearned judges of the fourth and fifth centuries this proved so embarrassing that in 426 Valentinian III issued the famous law of citations, whereby he gave primary authority to five leading jurisconsults, Papinian, Paulus, Ulpian, Modestinus and Gaius, and enacted that where they differed the majority should carry the day, and if there was a tie Papinian was to have the casting vote. This was a crude rule but it had at least the merit that a diligent lawyer could say what the law was on most dis puted issues. The opinions of jurists had to yield to subsequent imperial constitutions. The term ‘constitution’ covered a wide range of pronouncements. There were in the first place decreta or actual judgments made by the emperor on a specific case which was tried before him. Then there were rescripts, which fell into two classes. Some were answers made to the enquiries (relationes, consultationes) of judges who, being uncertain of the law in a case which they were trying, asked for an imperial ruling on the issue. Others were answers to private citizens, who, before initiating litigation, asked the emperor how the law stood in their case; this practice was very common in the third and early fourth centuries, and hundreds of such rescripts are preserved in the Justinian Code. Both decreta and rescripts, however, later fell out of favour as a source of law. Too often the judgment or opinion of the imperial court or chancery in particular cases was warped by the undue influence of powerful litigants or petitioners. In 398 rescripts were denied authority and in 426 the same rule was applied to decreta. Justinian, however, arguing that it was absurd to query the judgment of the emperor, the sole font of law, restored the authority of both as sources of law.
