Du Plessis: Borkowski's Textbook on Roman Law 5e
What follows are general reflections that may aid the reader in tackling Roman legal texts. It is worth mentioning that there are many different ways of looking at Roman legal texts and many different uses for them. The nature of the specific course will dictate the level of detail adopted in the exegesis of Roman legal texts. The comments below should be seen as general guidance to be supplemented in greater detail by course teachers.
- The Institutes of Gaius ? As the only textbook for students of law to have survived from the classical period of Roman law, this work provides a unique insight into the state of the law and the mind of the author. Gaius is known to have had antiquarian interests and often recounts the history of a rule/principle. There are relatively few textual problems with the Institutes and the commentary by De Zulueta remains an invaluable resource.
- The Institutes of Justinian ? This work is interesting for at least two reasons. First, as a textbook which formed part of Justinian?s legislative project it served the same aims (though in a more formal manner) than the work by Gaius. In second place, a comparison between the topics and indeed the content of Gaius? Institutes and that of Justinian provides invaluable insights into the changes which Roman law had undergone by the 6th century and the motives of the compilers of this work. There are relatively few textual problems with the Institutes of Justinian.
- The Digest ? Of the entire body of Roman-law texts, the Digest contains the most scope for analysis. When analysing a text from the Digest, there are a number of questions to be asked. These are:
- Who is the original author of the fragment and what do we know about the original work from which it was taken?
- Does the author cite other authors/schools of jurists? Who are they and what are the reasons for this citation?
- Does the original context of the work (i.e. the paragraphs immediately preceding and following it) [as reconstructed in the Palingenesia] provide any added insight into the meaning of the text?
- If this text is concerned with an aspect of procedure, does the formula of the action as reconstructed in Lenel?s Edictum Perpetuum provide any additional insight? What about procedure more generally?
- Is there any evidence that the original text has been amended by the compilers of Justinian?s Digest and, if so, how does this affect our understanding of the content of the text?
- What is the line of reasoning adopted by the jurist and why?
- How does the line of reasoning adopted by the jurist relate to other texts in which the same topic is discussed?
- The Code and the Novels ? To the scholar of Roman law, texts from the Code provide interesting insights into Imperial interference with private law. The texts do not suffer from the same anxieties about interpolations as is commonly encountered in the Digest, but there is some evidence that longer Imperial enactments were sometimes carved up and distributed among several titles. The main points of reference in relation to Code texts are:
- Who is the petitioner and where/when was this Imperial decree enacted? Does this context provide us with greater insight into the content of the text?
- How does the law as explained in this text relate to juristic discussions found in the Digest?
- Other sources (epigraphic and papyrological) may also cast light on Roman law, but these require specialist handling. For more on this topic, see Robinson, O.F. The Sources of Roman law: Problems and Methods for Ancient Historians (London 1997).