The approach to the ius antiquum of the Eastern Roman emperor Justinian

Speaker: Halcyon Weber (University of Cambridge)
Series: Tony Thomas Roman Law Series

As part of Justinian’s codification project, the emperor and his legal advisors prepared a series of constitutions known as the ‘quinquaginta decisiones.’

They were issued between July 530-April 531, and according to Constitutio Cordi solved classical-era juristic disputes.

The purpose of this paper is to consider evidence surrounding the purpose of the decisiones, and specifically whether the disputes were resolved so that the compilers could identify and choose consistent texts from amongst the huge number of legal works they perused when compiling the Digest, or so they could interpolate the new rule.

If this happened, the decisiones were in effect absorbed by the Digest, and after it was published they had no legal relevance or role whatsoever.

This indeed is the current academic consensus. After all, the Digest and decisiones had the very similar functions of sorting out the confused law of the C2-3 jurists and eliminating contradictions; and the timeframe more or less accords with the theory. So were their principles indeed transfused into the Digest?

By way of example we shall look at C.3.33.16, a decisio concerning loss of usufructs. C.3.33.16 held that usufructs were lost where in effect non-use was as long as the usucapio period (the time required whereby ownership could be claimed by long usage).

Although the decisio doesn’t say how long the usucapio period was, an almost contemporaneous enactment provides that it was now 10-20 years for land (depending on the usufructuary’s presence) and 3 years for movables. Hitherto the usucapio period had been 1-2 years.

The Digest title on usufruct loss (D.7.4) contains fragments confirming loss by non-use, but there is no mention of being tied to any particular test, still less that of usucapio.

However, pre-Justinianic texts show that the old time periods for usucapio and for usufruct loss had matched up, as do Justinian’s own constitutions that refer to the old regime.

Also, turning to the opposite side of the coin, namely the length of time necessary to be liberated from servitudes of all types, links with the usucapio timeframes are plainly made out, strongly suggesting that conceptually the two legal institutions had already been linked.

These texts are enough to be relatively certain that the jurists had associated usufruct loss with the usucapio time periods; however, the compilers did not include any texts to this effect.

Nor is there any simple assertion in D.7.4 of the actual timeframes (as opposed to the test) on usufruct loss.

Turning to titles on adverse possession, again we are not told of the length, be it under the old or new regime. Instead, we see phrases such as ‘legitimo tempore’, which may be a Justinianic means of replacing obsolete statutory provisions on time.

Accordingly, there is a possibility of interpolation here, but not so as to insert the rule contained in the decisio, but rather just to prevent inconsistencies.

So if any juristic opinions had formed the foundation of the decisio on usufruct loss through lapse of time equating to that of usucapio acquisition, they were not included in the Digest.

Because of the likelihood that usufruct loss had already been associated with the usucapio time frames, it seems very unlikely that no jurists had stated this; no voices that contributed to the original debate are reproduced in the Digest, whether they were in conflict or harmony with the decisio.

But equally, neither was there any attempt to include such excerpts through interpolation.

It is also notable that inconsistent texts, whether known to us through pre-Justinianic sources or implied through the decisiones, were likewise omitted.

The evidence points to active engagement on the part of the compilers with the consequences of this decisio, mostly negatively even if sometimes positively, but never so as to reiterate its principles.

Does this suggest deliberate omission of fragments that directly replicated the decisiones?

If so, was it in obedience of the introductory constitutions that frowned on repetitions?

As for interpolations, it may be that there are some, but only to suppress old discrepant law, not to reflect the new law.

But the established opinion that the decisiones were reflected in the Digest is clearly thrown into doubt.