Cambridge Ancient Hi.. - Index of

242 9. roman law
iii. sources of law and law making 15
Once the monarchical principal of government had been fully established
in the fourth century, the emperor or, as it might be, the central bureaucracy
acting in his name was in sole control of the machinery of legislation.
To a greater or lesser extent he also dominated all other law-making organs
– namely, the senate, the regional magistrates and local authorities, especially
the towns and other communities, whose finances had gradually been
brought under imperial control.
Imperial legislation adhered to the diverse forms handed down from the
earlier period, above all resolutions of the senate and magistral edicts. In
this spirit the fundamental pronouncement on the sources of law for the
whole epoch, enacted on 7 November 426, 16 recognized as universally
binding statutes only the so-called resolutions of the senate (imperial legislative
proposals communicated to the senate, orationes ad venerabilem coetum
missae) and imperial edicts. The term ‘edict’ must be understood as including
not only pronouncements which expressly so describe themselves but
also all others which were published throughout the empire by the governors
and claimed to have general application. In short, pronouncements
took effect according to their own tenor – to apply to everybody, the text
had only to speak as a lex generalis. From a.d. 446, a new statute required the
assent of the imperial consistorium and the senate. 17
The mass of law handed down from the past continued in force so far
as it had not been changed by more recent legislation. It remained the principal
source of rules for contemporary application. The law was thus to be
found in the standard legal literature, now known in the west simply as ius
in contradistinction to leges, 18 which was used of imperial pronouncements.
The a.d. 426 enactment concerning the sources of law gave instructions
about handling conflicts of opinions in the canonical books: 19 these should
be resolved by counting heads, while in a tie Papinian had the casting vote.
In the west the only books easily available were those of Gaius, Papinian,
Paul, Ulpian and Modestinus. Even in the case of Julian and Marcellus
there were evidently problems so that their opinions were only to count
when the relevant text could be corroborated from more than one manuscript.
Theodosius II entertained a plan to overcome all the uncertainties in
relation to the law gathered from the writings of the old private jurists. He
intended that the part of the old literature which was to remain in use
should be issued in one authoritative edition of excerpted works. He did
15 Gaudemet (1979a); Liebs (1992).
16 Five pieces survive: CJ i.14.3; i.14.2; i.19.7; i.22.5; C.Th. i.4.3.
17 CJ i.14.8; Wetzler (1997) esp. 127–31 and 197–9. 18 Gaudemet (1979b).
19 C.Th. i.4.3; see Volterra (1983).
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