On this day:
529 – First draft of the Corpus Juris Civilis (a fundamental work in jurisprudence) is issued by Eastern Roman Emperor Justinian I.
The Corpus Juris (or Iuris) Civilis (“Body of Civil Law”) is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also sometimes referred to as the Code of Justinian, although this name belongs more properly to the part titled Codex Justinianus.
The work as planned had three parts: the Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; the Digest or Pandects (the Latin title contains both Digesta and Pandectae) is an encyclopedia composed of mostly brief extracts from the writings of Roman jurists; and the Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. All three parts, even the textbook, were given force of law. They were intended to be, together, the sole source of law; reference to any other source, including the original texts from which the Code and the Digest had been taken, was forbidden. Nonetheless, Justinian found himself having to enact further laws and today these are counted as a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws).
The work was directed by Tribonian, an official in Justinian’s court. His team was authorized to edit what they included. How far they made amendments is not recorded and, in the main, cannot be known because most of the originals have not survived. The text was composed and distributed almost entirely in Latin, which was still the official language of the government of the Byzantine Empire in 529–534, whereas the prevalent language of merchants, farmers, seamen, and other citizens was Greek. By the early 7th century, the official government language had become Greek during the lengthy reign of Heraclius (610–641).
How far the Corpus Juris Civilis or any of its parts was effective, whether in the east or (with reconquest) in the west, is unknown. However, it was not in general use during the Early Middle Ages. After the Early Middle Ages, interest in it revived. It was “received” or imitated as private law and its public law content was quarried for arguments by both secular and ecclesiastical authorities. This revived Roman law, in turn, became the foundation of law in all civil law jurisdictions. The provisions of the Corpus Juris Civilis also influenced the canon law of the Roman Catholic Church: it was said that ecclesia vivit lege romana — the church lives by Roman law. Its influence on common law legal systems has been much smaller, although some basic concepts from the Corpus have survived through Norman law – such as the contrast, especially in the Institutes, between “law” (statute) and custom. The Corpus continues to have a major influence on public international law. Its four parts thus constitute the foundation documents of the Western legal tradition.
The Four Parts
Main article: Codex Justinianus
The “Codex” was the first part to be finished, on 7 April 529. It contained in Latin most of the existing imperial constitutiones (imperial pronouncements having force of law), back to the time of Hadrian. It used both the Codex Theodosianus and the fourth-century collections embodied in the Codex Gregorianus and Codex Hermogenianus, which provided the model for division into books that were themselves divided into titles. These works had developed authoritative standing. This first edition is now lost; a second edition was issued in 534 and is the text that has survived. At least the second edition contained some of Justinian’s own legislation, including some legislation in Greek. It is not known whether he intended there to be further editions, although he did envisage translation of Latin enactments into Greek.
Legislation about religion
Numerous provisions served to secure the status of Christianity as the state religion of the empire, uniting Church and state, and making anyone who was not connected to the Christian church a non-citizen.
Laws against heresy
The very first law in the Codex requires all persons under the jurisdiction of the Empire to hold the Christian faith. This was primarily aimed against heresies such as Nestorianism. This text later became the springboard for discussions of international law, especially the question of just what persons are under the jurisdiction of a given state or legal system.
Laws against paganism
Other laws, while not aimed at pagan belief as such, forbid particular pagan practices. For example, it is provided that all persons present at a pagan sacrifice may be indicted as if for murder.
Main article: Digest (Roman law)
The Digesta or Pandectae, completed in 533, is a collection of juristic writings, mostly dating back to the second and third centuries. Fragments were taken out of various legal treatises and opinions and inserted in the Digest. In their original context, the statements of the law contained in these fragments were just private opinions of legal scholars – although some juristic writings had been privileged by Theodosius II’s Law of Citations in 426. The Digest, however, was given complete force of law.
Main article: Institutes of Justinian
As the Digest neared completion, Tribonian and two professors, Theophilus and Dorotheus, made a student textbook, called the Institutions or Elements. As there were four elements, the manual consists of four books. The Institutiones are largely based on the Institutiones of Gaius. Two thirds of the Institutiones of Justinian consists of literal quotes from Gaius. The new Institutiones were used as a manual for jurists in training from 21 November 533 and were given the authority of law on 30 December 533 along with the Digest.
Main article: Novellae Constitutiones
The Novellae consisted of new laws that were passed after 534. They were later re-worked into the Syntagma, a practical lawyer’s edition, by Athanasios of Emesa during the years 572–77.
Continuation in the East
The term Byzantine Empire is used today to refer to what remained of the Roman Empire in the Eastern Mediterranean following the collapse of the Empire in the West. This Eastern empire continued to practice Roman Law and formalized it via the Corpus Juris Civilis. The law was modified to be adequate for the new social relationships in the Middle ages, and to account for the language shift of the empire’s administration from Latin to Greek. Thus the tradition of Byzantine law was created. New Greek legal codes, based on Corpus Juris Civilis, were enacted. The most known are: Ecloga (740)—enacted by emperor Leo the Isaurian, Proheiron (c. 879)—enacted by emperor Basil the Macedonian and Basilika (late 9th century)—started by Basil the Macedonian and finished by his son emperor Leo the Wise. The Basilika was a complete adaptation of Justinian’s codification. At 60 volumes it proved to be difficult for judges and lawyers to use. There was need for a short and handy version. This was finally made by Constantine Harmenopoulos, a Byzantine judge from Thesaloniki, in 1345. He made a short version of Basilika in six books, called Hexabiblos. This was widely used throughout the Balkans during the following Ottoman period, and along with the Basilika was used as the first legal code for the newly independent Greek state in the 1820s. Serbian state, law and culture was built on the foundations of Rome and Byzantium. Therefore, the most important Serbian legal codes: Zakonopravilo (1219) and Dušan’s Code (1349 and 1354), transplanted Roman-Byzantine Law included in Corpus Juris Civilis, Prohiron and Basilika. These Serbian codes were practised until the Serbian Despotate fell to the Turkish Ottoman Empire in 1459. After the liberation from the Turks in the Serbian Revolution, Serbs continued to practise Roman Law by enacting Serbian civil code in 1844. It was a short version of Austrian civil code (called Allgemeines bürgerliches Gesetzbuch), which was made on the basis of Corpus Juris Civilis.
Recovery in the West
Corpus Iuris Civilis, 1583
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Justinian’s Corpus Juris Civilis was distributed in the West but was lost sight of; it was scarcely needed in the comparatively primitive conditions that followed the loss of the Exarchate of Ravenna by the Byzantine empire in the 8th century. A two-volume edition of the Digest was published in Paris in 1549 and 1550, translated by Antonio Augustini, Bishop of Tarragona, who was well known for other legal works. The full title of the Digest was Digestorum Seu Pandectarum tomus alter, and it was published by “Apud Carolam Guillards”. Vol. 1 of the Digest has 2934 pages, while Vol. 2 has 2754 pages. The only western province where the Justinianic code was effectively introduced was Italy, following its recovery by Byzantine armies (Pragmatic Sanction of 554), but a continuous tradition of Roman law in medieval Italy has not been proven. Historians disagree on the precise way it was recovered in Northern Italy about 1070: legal studies were undertaken on behalf of papal authority central to the Gregorian Reform of Pope Gregory VII, which may have led to its accidental rediscovery. Aside from the Littera Florentina (a 6th-century codex of the Pandects that was preserved at Pisa) there may have been other manuscript sources for the text that began to be taught at Bologna, by Pepo and then by Irnerius. Irnerius’ technique was to read a passage aloud, which permitted his students to copy it, then to deliver an excursus explaining and illuminating Justinian’s text, in the form of glosses. Irnerius’ pupils, the so-called Four Doctors of Bologna, were among the first of the “glossators” who established the curriculum of medieval Roman law. The tradition was carried on by French lawyers, known as the Ultramontani, in the 13th century.
The merchant classes of Italian communes required law with a concept of equity, and law that covered situations inherent in urban life better than the primitive Germanic oral traditions. The provenance of the Code appealed to scholars who saw in the Holy Roman Empire a revival of venerable precedents from the classical heritage. The new class of lawyers staffed the bureaucracies that were beginning to be required by the princes of Europe. The University of Bologna, where Justinian’s Code was first taught, remained the dominant centre for the study of law through the High Middle Ages.
Referring to Justinian’s Code as Corpus Juris Civilis was only adopted in the 16th century, when it was printed in 1583 by Dionysius Gothofredus under this title. The legal thinking behind the Corpus Juris Civilis served as the backbone of the single largest legal reform of the modern age, the Napoleonic Code, which marked the abolition of feudalism.
The Corpus Juris Civilis was translated into French, German, Italian, and Spanish in the 19th century. However, no English translation of the entire Corpus Juris Civilis existed until 1932 when Samuel Parsons Scott published his version The Civil Law. Unfortunately, Scott did not base his translation on the best available Latin versions, and his work was severely criticized. Fortunately, Fred. H. Blume did use the best-regarded Latin editions for his translations of the Code and of the Novels.
Born on this day:
1803 – Flora Tristan, French author and activist (d. 1844)
Flora Tristan (7 April 1803 in Paris – 14 November 1844 in Bordeaux, France) was a socialist writer and activist. She made important contributions to early feminist theory, and argued that the progress of women’s rights was directly related with the progress of the working class. She wrote several works, the best known of which are Peregrinations of a Pariah (1838), Promenades in London (1840), and The Workers’ Union (1843).
Tristan was the grandmother of the painter Paul Gauguin.
Her full name was Flore-Celestine-Therèse-Henriette Tristan-Moscoso. Her father, Mariano Tristán y Marquis fabii,was a colonel of the Spanish Navy, born in Arequipa, a city of Peru. His family was one of the most powerful in the south of the country; his brother Pío de Tristán became viceroy of Peru. Flora Tristan’s mother, Anne-Pierre Laisnay, was French; the couple met in Bilbao, Spain.
When her father died in 1807, before her fifth birthday, the situation of Tristan and her mother changed drastically from the high standards of living they were accustomed to. In 1833 she travelled to his hometown to claim her paternal inheritance, which was in possession of an uncle. She remained in Peru until 16 July 1834. Though she never secured the inheritance that brought her there, Tristan wrote a travel diary about her experiences during Peru’s tumultuous post-independence period. The diary was published in 1838 as Pérégrinations d’une paria.
The Workers’ Union
Tristan wrote this essay in 1843 after an extensive stay in Peru and a short trip to Britain where she produced works on the social conditions along the Channel. The Workers’ Union was the last of her writings and gave her a public persona of political activist. Through this work, one can compare Tristan to similar Utopian Socialists including Charles Fourier (whom she knew personally) and the works of the French Socialists, the Saint Simonians, whose works she had studied through the years. Tristan took into account the studies and teachings of these previous socialists, but created a different solution to the suppression of not only the proletariat, but the working women as well. She was the first to connect the freedom of the working class with the deliverance of women’s rights.
Tristan recognized that the working class had been fighting for over twenty-five years to no avail. Her suggested solution is to act and create a Workers’ Union. She sees a great advantage to this because “divided, you are weak and fall, crushed underfoot by all sorts of misery! Union makes power. You have numbers in your favor, and numbers mean a great deal.” Through union dues, she insisted on plans to provide the proletariats’ children with safe havens and increased access to education, to build palaces for the ill and wounded workers, and to reach out to manufacturers and financiers, including those among the nobility, in order to sustain and maintain such programs.
Although seemingly two different essays, Flora Tristan acknowledged the need for the liberation of women in order to complete the emancipation of the working class. The society is not whole and the working class itself is fractured. She argues that once society fixes the pieces of the fissure (women’s rights) then the rest will fall into place. In a sense, women’s liberation will lead to the greatest good for the greatest number of people thereby supporting a Utilitarian mindset. Although thinking positively about women’s liberation, Tristan did recognize that in the post-revolution French society, women would not be easily considered equal just because they are human beings. Therefore, Tristan had to make the argument based on a series of benefits to the male majority. In addition to introducing new ways of thinking about socialism, Tristan was also the first to ally the emerging social rights movement to the idea of women’s liberation. In doing so, she laid the groundwork for a new ideology—feminism. She made the analogy between the proletariat to the bourgeoisie and the wife to the family before Friedrich Engels in a posthumous collection of her notes by Abbe Constant entitled The Emancipation of Woman and the Testament of the Pariah: “The most oppressed man finds a being to oppress, his wife: she is the proletarian of the proletarian.” Tristan’s analogy is also more articulate than Engels’. The Worker’s Union explained that the liberation of women would be the continuation of what the French Revolution had initiated. Thus women too, like the proletariat, would have their day: “What happened to the proletariat, it must be agreed, is a good omen for women when their ‘1789’ rings out.”
Her effort at creating a common union was the last before Flora Tristan’s death in 1844. By drawing and building upon her colleagues’ and mentors’ socialist concepts, she attempted to create a logical and reasonable plan that the proletariat could realistically achieve. She opted to change the angle previously attempted and was able to include women’s rights as an important lever in the machine to create an independent Workers’ Union.
Mario Vargas Llosa, in his historical novel The Way to Paradise, analyzes Flora Tristan and her grandson Paul Gauguin’s contrasting quests for the ideal life through their experiences in and outside their native France.
Place Flora Tristan (48.832394°N 2.320632°E) in the XIVe Arrondissement, Paris, is marked with a sign describing Tristan as “Femme de Lettres” and “Militante Féministe”.
(Larger, more comprehensive aerial view would be nice.)