Catholic Encyclopedia (1913)/Pandects

(PANDECTÆ, or DIGESTA)

This part of Justinian's compilation was his most important contribution to jurisprudence. The language of d'Aguesseau, applied by him to pre-Napoleonic Continental law, has equal application to the Common Law System. The reasons underlying legal institutions are either historical or logical; and every logical rule of law is capable of illumination from the law of the Pandects. There is no other standard of comparative jurisprudence. D'Aguesseau pithily observes: "Justice has fully unveiled her mysteries only to the Roman jurists. They are the safest interpreters of our own laws: they lend their spirit to our usages, their reason to our customs; and, by the principles they give us, serve as our guides even when we walk in paths that were unknown to them." Of the Pandects, Prost de Royer says: "It is an immense edifice, without distribution, without proportion, without ensemble. The pediments have disappeared, the columns are broken, the statues are mutilated: it is no longer imposing by its grandeur, by the beauty of its parts, by the richness of its details. After so many centuries, the digging goes on, as our artists still go to seek rules and models among the ruins of Palmyra, of Athens and of Rome."

Hastily compiled by Tribonian and his associates (in a scant three years) from the writings of thirty-nine eminent jurisconsults, the Pandects leave much to be desired in arrangement and abound in repetitions and antinomies. The arrangement, which follows that of the Perpetual Edict, is historical or traditional, rather than scientific. The adjective, or remedial, element dominates the classification. Although more rights were actually defined or capable of definition in the Roman legal system than is even now possible in the Common Law System, no classification based upon rights was evolved. The thing classified was an actual system of law, and the only principles of arrangement were those of tradition and convenience. Neither the jurists nor the compilers were concerned with theoretical jurisprudence. The materials of the Digest were not written into a continuous text. The fragments give the name of the jurist and the book from which they are taken. This method was designed to perpetuate the fame of the jurists and we thus enjoy a certain familiarity with them, although their writings for the greater part have perished. There are four hundred and thirty-two "titles" contained in the fifty books of the Digest. The whole is divided into seven parts: the first, called prota, has four books (I-IV); the second, "De judiciis", seven books (V-XI); the third, "De rebus", eight books (XII-XIX); the fourth, "Umbilicus", eight books (XX-XXVII); the fifth, "De testamentis", nine books (XXVIII-XXXVI); the sixth, with a great variety of matters, eight books (XXXVII-XLIV); the seventh part, six books (XLV-L). The sixth and seventh parts seem to have had no special designation. This division into seven parts was never of practical importance.

The later, or occidental, arbitrary division adopted by the glossators during the Middle Ages was probably due to the order of time in which the materials became available for the production of a complete vulgate text. The division was as follows: "Digestum vetus" (bk. I-XXIV, tit. 2); the "Infortiatum" (bk. XXIV, tit. 3, - XXXV, tit. 2, §82); the "Tres partes" (bk. XXXV, tit. 2, §83 - XXXVIII); the "Digestum novum" (bk. XXXIX-L). The vulgate Manuscripts are in three volumina (the "Infortiatum" with the "Tres partes"). The first printed editions follow this valueless division, and it was abandoned only in the seventeenth century. The celebrated fragment from Gaius (a facsimile of which, as it appears in the Florentine Manuscript, is shown in the accompanying illustration): "Omne jus quo utimur pertinet vel ad personas vel ad res vel ad actiones" (Every right which we enjoy concerns either persons, or things or actions) is not an Aristotelean division of law, was not so regarded by Gaius himself, and was given no importance as a canon of classification by the compilers of the Digest.

The Florentine Manuscript

The rediscovery of the Pisan, or Florentine, Manuscript of the Pandects has been regarded as the critical secular event for modern civilization by those who associate the revival of Roman law with the legend of Amalfi. Charlemagne, who destroyed the Lombard monarchy (c. 800), was unable to find a copy of the works of Justinian. Yves de Chartres, three centuries later, mentions fragments, and shortly after his death the legendary narrative begins. Pothier accepts it and relates the circumstances in which the "complete copy of the Pandects emerged from the shadows of the tomb as by a miracle of Divine Providence". During the siege of Amalfi (about 1136 or 1137), the Emperor Lothair II, sustaining the cause of Innocent II against Roger, Count of Sicily, champion of the antipope Pietro Pierleone (see ANACLETUS II), recovered the priceless Manuscript and gave it to the Pisans as a reward for their great service in furnishing him a fleet. A Pisan historian claims to have seen the original deed of gift. The Manuscript was long treasured at Pisa, but at last fell into the hands of the victorious Florentines, who carried it away in triumph in the early fifteenth century. It was preserved with great veneration in the ducal palace at Florence, as an original written in the time of Justinian and by him sent to Amalfi. About the time of the fabled finding at Amalfi, a copy of the Code and a second copy of the Pandects were unearthed at Ravenna.

The sacking of Amalfi (according to the tradition) led to the founding, by Irnerius of the first and most famous school, that of Bologna, and was the beginning of the revival. Sigonius gave his authority to the story, and it was generally credited until 1726, when Grandi, a Pisan professor, seriously questioned it. The revival of the study of Roman law was well under way at Ravenna and at Bologna long before the alleged sacking of Amalfi and the immediate school of Irnerius had reached its zenith before the year 1118. It is an established fact that there was a very ancient Manuscript at Pisa, that this Manuscript was brought to Florence in 1406 or 1411, and that it is still in existence. It is however a copy, not an original, and probably dates from about one hundred years after Justinian. Odofredus (died 1265) says it was brought to Pisa from Constantinople; according to Bartolus (died 1357), it had always been at Pisa. That it ever was at Amalfi is improbable, and the legend is supported only by Pisan chronicles. Laferrière maintains that the story is true. Savigny and Ortolan reject it. Ortolan argues that if Irnerius and the early glossators became acquainted with it only as the result of the sacking of Amalfi, they would not have passed over so momentous an event in silence.

The Vulgate

By comparison of earlier Manuscripts then extant with each other and with the Manuscript at Pisa, the glossators reconstructed the generally received text of Bologna, known as the Vulgate.

Pandekten

In the sixteenth century the Roman law was received in Germany and became the positive common law. The law of the Pandekten in the special sense is Roman law, as a body of actual law, modern Roman law "modified by the Canon law, the customary law of Italy and Germany, and by the statute of the German Empire". The Pandekten, as part of the legal curriculum, give the altered Roman law. The pure private law of Rome, the Roman law of the sixth century, is generally designated Institutionen. The Pandekten, in the special sense, since the adoption of the new German Civil Code, are no longer of legal efficacy in Germany.

For modern texts of the Pandects. for translations into vernacular languages, and general references, see LAW, ROMAN and bibliography to that article: ORTOLAN, POTHIER, SOHM, HOLLAND AND SHADWELL, MÜHLENBRUCH, and other authorities there cited.

JOSEPH I. KELLY.