2007-09-06

Ancient forgeries — by lawful decree

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by Neil Godfrey

Emperor Justinian needed historical precedents for his new codification of law to command the respect of both his citizenry at large and the legal profession in particular.

Sometimes controversy rages over the question of whether biblical works have been rewritten, interpolated, redacted, forged . . . In this context it is interesting to observe what happened — and why — in a well known case “by law”. Understanding the culture of ancient minds can often add enlightenment in many directions.

Roman law had grown higgledy-piggledy over centuries largely through praetor decisions that could be re-used as precedents or set aside for new judgments. Four names among great jurists in the early imperial period who attempted to bring some cohesion among the precedents that were to be acknowledged as such were Julian, Papinian, Gaius and Ulpian. Justinian’s new codification of law in the early sixth century would only attain authority if it could be shown to be built on the solid foundations of such as these. An entirely new law code could command no more reverence than any other novelty.

In the collection and abridgment of jural writings, The Digest, the lawyer Justinian assigned the task of legal reform, Tribonian, fills the treatise with respectable citation after citation from the great jurists of the past.

But, in dozens if not hundreds of cases, what Tribonian and his colleagues incorporated is not what Gaius wrote, but what they wanted him to have written, in order to be consistent with Ulpian, or Julian. Had the 1954 U.S. Supreme Court followed the style of Tribonian, Brown vs Board of Education would not merely have overruled the “separate-but-equal” endorsement given by its predecessors forty-eight years before in Plessy vs. Ferguson, but altered the words offered in Plessy itself.

The commission was trapped between the rock of precedent and the hard place of consistency. The application of precedent — a fundamental value to anyone who respects the law — meant they had to incorporate existing statutes and prior decisions; but the contradictions within and between those statutes and decisions still needed to be eliminated. The modern solution is to add the original decisions to legal registers with the words “as amended” . . . .

The commissioners were forced to either cite anonymous precedents, or to put words in the mouths of predecessors that were not previously there. Thus, perversely, the respect that the commission gave to historical precedent trumped their respect — if, indeed, they had such — for scholarly honesty. . . .

“. . . . the Digest needed not to compile, but to legitimate, the laws. When they did not agree, they were made to agree.” (p.128)

All the above (except for the biblical works comparison) is from Justinian’s Flea: Plague, Empire and the Birth of Europe by William Rosen. (Guardian review)

 

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Neil Godfrey

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