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Is Ius Equal to Lex? Or: What is ius civile? A Greco-Roman approximation in the Institutes of Justinian

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This article deals with one of the unidentified fragments of the Institutes of the Justinian law compilation (Inst. 1.2.2a). It is argued that the specific passage as well as the arrangement of the whole title on ius naturale, ius gentium and ius
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  DOI 10.15731/AClass.062.04 62  ACTA CLASSICA  LXII (2019) 62  –  77 ISSN 0065  –  1141 IS IUS   EQUAL TO LEX  ? OR: WHAT IS IUS CIVILE  ? A GRECO-ROMAN APPROXIMATION IN THE INSTITUTES   OF JUSTINIAN Sven Günther Institute for the History of Ancient Civilizations (IHAC) Northeast Normal University Changchun (People’s Republic of China)    ABSTRACT This article deals with one of the unidentified fragments of the Institutes   of the  Justinian law compilation (  Inst  . 1.2.2a). It is argued that the specific passage as well as the arrangement of the whole title on ius naturale  , ius gentium   and ius ciuile    reveals the individuality of Justinian’s compilers, and therefore  of their legis-lative and educational program, as well as of their didactical approach, particularly towards Greek-speaking students while redacting the Corpus Iuris Civilis  . KEYWORDS : Roman law, Justinian, Institutes 1.2.2a, ius civile  , lex Besides transparency, comprehensibility and efficiency, accuracy is one of the axioms of legal language as well as of the study and practice of the law. In daily life, terms and expressions that are ambiguous or merely ap-proximations of the intended meaning can generally be understood by others from the context or because of shared concepts. By contrast, an imprecise term in legal codes is likely to influence, and totally change, the explanation, interpretation and application of a legal text by jurists or  judges to an actual case. This well-known phenomenon quite often causes difficulties among legal exp erts and their allegedly ‘perfect’ system and ‘legalese’ mode of expression , and affects the communication with the socio-political sphere that enacts laws and regulations for this sub-system from outside  –   sometimes with different opinions and intentions in respect of legal terminology. 1  Scholars investigating the language of the law today are very conscious of the problems of communication between the legal sub-language and the plain everyday language. They make a real effort to recognise and over-  1  Cf. especially the studies of Dietrich Busse on legal texts and semantics, such as Busse 2008; other publications by Busse are easily available for download at http://www.germanistik.hhu.de.   63 come misleading differences in vocabulary, morphology, syntax and semantics, by, for instance, special committees checking the formulation of laws before their enactment. 2 Hitherto, this matter has not attracted very much attention in the field of Roman Law. The communis opinio  , at least as perceived outside the field, still believes in, or even acknowledges, a ‘system’ of Roman law, a construct of nineteenth-century Romanists who were interested in applying that conceptualised framework to their own legal sphere, which was then under construction, when Europeans were themselves involved in nation-building. 3  Nevertheless, some studies have tried to challenge this concept by studying the language and individuality of Roman jurisprudents 4  and discussing their often assumed fungibility, following and building on the basic studies of Roman jurisprudents by Wolfgang Kunkel (and Detlef Liebs), and on the sources of Roman law by Leopold Wenger. 5  However, by focusing on the jurisprudents and their legal language, semantics and style, the work of the compilers of the Digest   and of the whole Justinian legal code, later named Corpus Iuris Ciuilis  , has often been overlooked  –   probably a natural phenomenon following from the sustained impact of Interpolationsforschung  . This is even more obvious with regard to the Justinian Institutes   which were mainly studied as an effluence and updated version of the work of the second century AD  jurisprudent Gaius, following the description of the compiling process in the Constitutio ‘ Imperatoriam maiestatem  ’  (   proœmium §6): 6   2  See, for example, the contributions and references in Freeman and Smith 2013 for a current state of the art in legal scholarship in English. 3  For a critical review of the so-called Pandectic, see Haferkamp and Repgen 2017. 4  To avoid confusion between the ancient Roman and the modern meaning of the term ‘jurist’, the present author prefers to use the old- fashioned term ‘jurispru - dent’ to describe the status, profession and scope of Roman ‘jurists’.   5  Baldus et al  . 2012; Kunkel 2001 [1967] ; cf. Liebs’ entries to individual jurists in the new edition of the Handbuch der lateinischen Literatur der Antike  , part of the Handbuch der Altertumswissenschaft   8.1.4.5; Wenger 1953. On new approaches to ancient law, see Günther and Harris 2018. 6  The Latin text follows the edition of Krueger and Mommsen 1928, the English translation is taken from Moyle 1913. The author is aware of the other modern English translations such as Thomas 1975; Birks and McLeod 1984, which have not substantially improved in rendering the relevant passages. See also the com-mentaries of Dalla 1998 and Moyle 1912. For an introduction and guide to the Institutions  , see the companion edited by Metzger 1998.   64 Quas ex omnibus antiquorum institutionibus et praecipue ex com-mentariis Gaii nostri tam institutionum quam rerum cottidianarum aliisque multis commentariis compositas cum tres praedicti viri prudentes nobis optulerunt, et legimus et cognouimus et plenissi-mum nostrarum constitutionum robur eis accommodauimus. Compiled from all the Institutes of our ancient jurists, and in particular from the commentaries of our Gaius on both the Insti-tutes and the common cases, and from many other legal works, these Institutes were submitted to us by the three learned men aforesaid [sc. Tribonian, Theophilus and Dorotheus; add. by the present author], and after reading and examining them we have given them the fullest force of our constitutions. However, even if the arrangement is very much like Gaius’ and many parts can be traced back to his introduction, or works of other authorities  –   one has only to follow the footnotes in the edition of Paul Krueger and Theodor Mommsen (1928)  –   there remain passages that are not, or can- not yet be, attributed to predecessors, and thus may reflect the compilers’ voice and ideas, or at least represent an unknown individualità  . 7  One such passage will be found in the first book of the Justinian Institutes   with regard to the definition of ius naturale  , ius gentium   and ius ciuile  . 8  That second title has, in terms of its arrangement, similarities with Gaius’ Institutes   but also shows slight differences. 9  While Gaius only differ-entiates between ius ciuile   and ius gentium   (Gai. Inst  . 1.1) whereby the latter is, according to him, a naturalis ratio inter omnes homines (‘natural reason among all human beings’), 10  the Justinian Institutes   specify ius   in a threefold way, including among ius naturale   also the shared rules among all living creatures (  Inst  . 1.2pr.). The difference between ius gentium   and ius ciuile    is then described closely to Gaius’ definition (  Inst  . 1.2.1): 7  The bulk of literature on the compilation of the Digest   (and Institutes   ) cannot be discussed here. For an overview, see Wieacker 2006:301  –  19, §§82  –  83); 444 – 45 (bibliography). 8  The literature on the topic, and the different concepts reflected in this title of the Justinian Institutes   is enormous. As the focus is here on the didactical arrange-ment, I will not deal with the different views and discussions. See, instead of all, the important works of Kaser 1978 (  ius honorarium   ); 1993 (  ius gentium   ); Levy 1963 and Rainer 2015 (  ius naturale   ). 9  For a detailed account of the argument, see MacCormack 1998. However, he does not deal with the question addressed in this paper. 10  Thus, Gaius focuses only on the human sphere, and might have been aware of the concept of ius naturale  , too.   65 Ius autem ciuile uel gentium ita diuiditur: omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur: nam quod quisque populus ipse sibi ius constituit, id ipsius proprium ciuitatis est uocaturque ius ciuile, quasi ius proprium ipsius ciuitatis: quod uero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custo-ditur uocaturque ius gentium, quasi quo iure omnes gentes utuntur. et populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sunt, suis locis proponemus. The civil law of Rome, 11  and the law of all nations, differ from each other thus. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. Those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations. Thus the laws of the Roman people are partly peculiar to itself, partly common to all nations; a distinction of which we shall take notice as occasion offers. In the following passage, there is the attempt to give a more precise definition of both, by using examples (  Inst  . 1.2.2): Sed ius quidem ciuile ex unaquaque ciuitate appellatur, ueluti Atheniensium: nam si quis uelit Solonis uel Draconis leges appel-lare ius ciuile Atheniensium, non errauerit. sic enim et ius quo populus Romanus utitur ius ciuile Romanorum appellamus, uel ius Quiritium, quo Quirites utuntur; Romani enim a Quirino Quirites appellantur. Sed quotiens non addimus, cuius sit ciuitatis, nostrum ius significamus: sicuti cum poetam dicimus nec addimus nomen, subauditur apud Graecos egregius Homerus, apud nos Vergilius. Ius autem gentium omni humano generi commune est. nam usu exigente et humanis necessitatibus gentes humanae quaedam sibi constituerunt: bella etenim orta sunt et captiuitates secutae et seruitutes, quae sunt iuri naturali contrariae (iure enim naturali ab initio omnes homines liberi nascebantur); ex hoc iure gentium et omnes paene contractus introducti sunt, ut emptio uenditio, locatio conductio, societas, depositum, mutuum, et alii innumerabiles. 11  The srcinal text does not refer exclusively to the ius ciuile   of the Romans. First, it gives the general definition; then there is application to the Roman situation. This is particularly important for the didactic structure of that passage (see below).   66 Civil law takes its name from the state wherein it binds; for instance, the civil law of Athens, it being quite correct to speak thus of the enactments of Solon or Draco. So too we call the law of the Roman people the civil law of the Romans, or the law of the Quirites; the law, that is to say, which they observe, the Romans being called Quirites after Quirinus. Whenever we speak, however, of civil law, without any qualification, we mean our own; exactly as, when ’ the poet ’  is spoken of, without addition or qualification, the Greeks understand the great Homer, and we understand Vergil. But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. The law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others. While the second part about the ius gentium   appears to have some similarities with the fragment from the epitomae iuris   of the Diocletian  jurisprudent Hermogenian mentioned in the Justinian Digest  , 12  the first part is unique, probably composed by the Justinian committee, though it might actually come from another, perhaps unknown, earlier jurisprudent or source. 13  By way of comparison, it tries to come closer to a better understanding of the aforesaid legal framework of ius ciuile  . But it is even more than a mere simile. It offers the contemporary reader an important insight into the communicative framing of the Roman and Greek spheres, and is thus worth examining here in some detail, by analysing the gram-matical structure of this passage as well as the didactic framework of the 12   Dig  . 1.1.5: Hermogenianus libro primo iuris epitomarum. Ex hoc iure gentium introducta bella, discretae gentes, regna condita, dominia distincta, agris termini  positi, aedificia collocata, commercium, emptiones uenditiones, locationes conduc- tiones, obligationes institutae: exceptis quibusdam quae iure ciuili introductae sunt. (  ‘Hermogenian, Epitome of Law  , Book 1: As a consequence of this  jus gentium  , wars were introduced, nations differentiated, kingdoms founded, properties indivi-duated, estate boundaries settled, buildings put up, and commerce established, including contracts of buying and selling and letting and hiring (except for certain contractual elements established through  jus civile. ’  ) All translations of the Digest   are by Watson 1998. 13  Cf. Honoré 1978:187 with n. 6; 252 with n. 84 (implying that Tribonian was the author of the passage). The passage is not dealt with in Moyle 1912:101 (  ad loc  .); Thomas 1975:7 (  ad loc  .); nor in Dalla 1998:43 (  ad loc  .).
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