REPUBLICANS AND IMPERIALISTS Authors copyright

Murray J Leaf 2003

Roman law defined itself as a systematic body of ideas and

practices, and the definition served as a tool for making itself true.
That is, the Roman theory of law was also a formula for actually
constructing law. However, in this case the main vehicle for legal
exegesis was not philosophy but history. Roman history
incorporates both the substance of the political and legal
system and an extraordinarily many-sided analysis of what did and
did not work.
What follows is a much compressed paraphrase of what most
educated people would have understood in the latter half of the
nineteenth century as the development of Roman law. It mainly
follows Thomas Collet Sanders’ 1903 introduction to his
translation of The Institutes of Justinian supplemented, H. L.
Havell’s 1914 Republican Rome, and the Roman historian-
philosopher Livy.

There were three main constitutional epochs: the monarchy, the

republic and the empire. In all three periods the accounts analyze
the constitution in terms of four main elements: the system of
social classes, the public assemblies, the elected officials, and the
substantive laws. The monarchy was a kin-based society with an
elected king held in check by kin-group leaders. In the republican
period, government was based on elected officers and popular
assemblies arranged in a complex system of checks and balances.
The empire was centralized and totalitarian. As the systems
differed, so did their basic view of the source of law and of the
legitimacy of legal institutions. In general law was held to be the
will of the Gods, but exactly how that will was to be known and
expressed varied radically. For the monarchy, the king was the
chief authority on the law. For the republic, the doctrine was vox
populi, vox dei – the voice of the people is the voice of the Gods,
on the understanding that “the people” in this sense was the people
in formal assembly. The Empire returned to the monarchial idea:
“The emperor is the voice of the law.”.

In all periods, the social classes were clearly marked and a matter
of public record. At about the time of the end of monarchy, when
myth begins to give way to history, there are two classes or orders
and each is organized differently. The society was basically
similar to what we see in the Greek epics that the Romans
incorporated in their own mythology as well. The upper class are
the patricians, also in different aspects called the patres and the
cives. They were taken as the descendants of the true and original
Romans and made up the political body, the populus Romanum,
whose organization and laws were fundamentally those of a largely
agrarian tribal society with social position and power strongly
based on family and gens (clan). The patres alone had legal rights,
including the rights to vote and hold office. They alone made up
the army and paid the taxes, and they alone were entitled to legal
protection in their relationships with one another, the protection of
the commercium and connubium. Commercium was Roman
contract law. It provided forms to enter agreements, buy, sell,
borrow, rent or pledge goods, adopt a person, or free a slave or a
member of one's household. Connubium was Roman family law,
and conveyed the right to legally marry other citizens. It also
allowed one to enter the Roman religious community – a
prerequisite for voting and holding office (Sandars 1903:xviii).
The second order, the plebs, under the monarchy had none of these
rights or duties. They neither served in the military nor paid taxes.
They were forbidden marriage with the patricians and denied the
commercium and connubium, although in principle the body of
civil and criminal law applied to them as well as to the citizens.

Although there was occupational diversity in both classes, the

policy interests of the patres were those of large, well-capitalized,
commercial farmers who produced crops like wine and oil and
among other things could treat large areas of public land as their
own for farming and grazing. The policy interests of the plebs were
those of artisans and small-scale peasant farmers growing a
mixture of foodgrains, short of land and credit and with no access
to state lands. One of the main themes in the histories written in the
later republic was the struggle of the plebs for legal and political
equality, the “struggle of the orders.” But while the orders
eventually merged, the merger was never complete and these
opposed agrarian interests remained.

The relationship between the two classes was clientship. Patrician

families had plebian clients who worked for them and provided
political support. The term client comes from the word meaning
"listener."

In the monarchial system, the patricians were divided into three

tribes (tribus), each tribe into ten curiae, and each of these in turn
into ten decuriae, the gens (clans). The symmetry suggests the use
of a system for periodically regrouping families into the larger
units. The comitia curiata was a great council consisting of the
heads of all the families. The senate (from senex, old man), was a
smaller body consisting of the 300 heads of each of the gens.
When legislation was required, it was formulated by the Senate
and submitted for approval to the comitia curiata. If approved it
was enforced by the king. Kingship was not hereditary. The king
was nominated by the Senate but elected by the curies (Sandars
1903:x). The term of office was not fixed. The king was the
commander in chief, the chief priest (and in this capacity the
principle authority on the law), and the supreme magistrate.

The sixth and penultimate king was Servius Tullius, who reigned
for forty-four years (578-534) until he was assassinated by his
daughter and her husband, Lucius Tarquinius Superbus. Having
seized the office by force Tarquin ruled by force, according to Livy
(1.35) , murdering potential opponents, depopulating the Senate,
forming foreign alliances to support his rule, not consulting as
required in decisions, and, thereby, finally provoking the rebellion
that initiated the republic in 509 BC.
Servius is credited with a series of constitutional reforms that set
the stage for the republic, and Livy remarks that according to some
writers he had wanted to abdicate in favor of a republican
government. Among other things, he undertook a census of the
entire population and on this basis grouped every adult man into a
system of military classes according to their wealth. In the
republic, these classes became the basis of the system of election
and the foundation of the plebs’ struggle for enfranchisement.

There were five classes of infantry and two classes more at either
extreme. The latter two were the equites and the proletariat. The
equites (knights) were charged with maintaining horses and
making up the cavalry, receiving an allowance from the state for
the purpose. The proletariat were those who had little or nothing
and whose only obligation was to provide sons. Each class (or
rather the men of each class) was divided into a number of
“centuries” that were also voting bodies when assembled on the
Field of Mars, outside the sacred boundary of the city as the
comitia centuriata. Voting was by class. The majority in each
century determined who got its vote. There were initially 193
centuries in all. The equestrians and first class of infantry were
divided into 18 and 80. Thus they alone held a majority. According
to Livy, classes after the first two were called upon to vote only
until a majority was obtained. The last classes were seldom called
(1.43). Voting was by voice until 139 BC, when ballots were
introduced.

Republican magistrates were divided into those who exercised

imperium – the power to command – and those who did not.
Those who exercised imperium were elected by the assembly of
centuries. These were the highest ranking magistrates, consul and
praetor and, later, censor, and curile aedile. Election did not confer
the imperium, however. That was done separately by the comitia
curiata, which continued to exist and which voted separately to
ratify the election.
Magistrates served for fixed terms of one year. While in office they
were sacrosanct, inviolable in their person. Initially, the chief
magistrates elected by the assembly of centuries were praetors,
"generals" with the closest counterpart of the king being the
Praetor Maximus. The office had also existed under the kings.
Soon, however, this was replaced by the office of consul. The
consul was a divided office, one office held by two people. Both
had to act together, and either could annul the action of the other. It
may have been intended that one of the consuls would be from the
plebes, although this was not always done. In the event of a
national emergency, the senate could direct one of the consuls to
appoint a dictator. The dictator acted with the full authority of both
consuls, but only for a term of six months. No one could be consul
who had not previously served as praetor (Petit 1974:1096).

In theory, what a consul or praetor could do was limited only by

the rank of his imperium, except that any magistrate could reverse
the action of another whose imperium was equal or lesser and in
capital offences the defendant had the right of appeal to the
populace, represented by the comitia centuriata. The magistrate’s
imperium was represented by the number of lictors that could
accompany him. A lictor was a person who bore the symbol of
official power — the fasces, an arrangement of sticks and an axe.
Within the city, the sticks were tied with thongs into a bundle
around the axe. Outside the city the axe was exposed. The
symbolism reflected the derivation of the term lex, law, from
ligare, to bind. The stated meaning was that within the city the
magistrates were under the higher authority of the Roman
populace; outside, they were not.

Writers disagree over whether praetors ceased to be elected for a

time after the consuls were created and were later restored or
whether they existed continuously (cf. Thomas 1976:15). In any
case, in 242 BC an historically important distinction was made
between the praetor urbanus and the praetor perigrinus. The first
was to oversee law and legal disputes between Roman citizens.
The latter was concerned with law in the provinces and disputes
involving foreigners. The number increased to four after 227, six
after 197, and 8 under the dictatorship of Sulla (82-79 BC). Some
of these were specifically to serve as provincial governors.

The Servian reforms are also traditionally credited with creating

the comitia tributa, in which the old ethnically defined patrician
tribes were replaced by tribes combining both orders and defined
by place of residence. There were originally four in the city itself
and sixteen in the outlying areas. By 241 BC, the total had
increased to 35. The comitia tributa could be convened by either a
consul or a praetor. Since they were not a military assembly, their
meetings were held inside the sacred boundary of the city. They
elected minor magistrates, heard criminal appeals above a certain
value, and enacted leges (laws) (Thomas 1976:18). Since there
was no weighting by wealth, the plebs had a greater voice here
than in the assembly of centuries. From 449 BC, the enactments
of the comitia tributa could become laws for the entire population
if they were sanctioned by the Senate and curies (Sandars
1903;xvii).

With the constitution of the comitia centuriata and the territorial

comitia tributa, the plebs became part of populus Romanum and
obtained the right to connubium and commercium, although they
were at first still prohibited from marriage with patrician families.

With the admission of the plebs to the populus, a new group of

patres conscripti was added to the Senate, appointed on the basis of
seniority in public service. All Senators were ranked, which
determined the order in which they could speak. The lists of the
Senators were originally drawn up by the consuls but came to be
drawn up after 443 BC by the censors (Thomas 1976:15). Censors
were elected every five years for a term of 18 months to conduct
the Roman census. Censors were to be men of outstanding
integrity, who had already served as consul. When each census
was completed, those who had completed service in the relevant
elected offices would be added to the Senate, but those who had
become notorious (for improper conduct) would be expunged.
There was no appeal against a decision to expunge. Nor was such
action limited to Senators. By a mark in the roles (nota censoria)
the censors could reduce any person in rank and remove them from
their tribe.

In domestic matters, the main activity of the Senate was to advise

serving officers, using the rigidly standardized form of senatus
consultum. In foreign affairs, the Senate was supreme. It served
as the ultimate supervisory body for conquered territories and
appointed sitting or (later) former consuls or praetors to serve as
pro-consuls or pro-praetors as governors. It appointed ambassadors
and made treaties. Ambassadors from other countries presented
themselves to it, not the consuls. The only check was that
declaring war remained the prerogative of the comitia centuriata
alone.

In 493 BC, the plebs demanded greater protection against

economic exploitation under cover of law by the patricians. They
refused to disband after returning from a military campaign, and
threatened to secede. The outcome was that they received the right
to elect tribunes to defend their interests. (Sandar 1903:xii).
Tribunes were elected only by and from the plebs. Initially two, by
449 BC they had increased to ten (Thomas 1976:16). The Tribune
had no imperium but could veto (literally “I forbid”) the act of any
magistrate (and block the act of another Tribune) and was
sacrosanct and inviolable in his person while in office. Lack of an
imperium meant that there was no need for confirmation by the
comitia curiata, not weakness. On their authority, a person could
be arrested, exiled, and have his property confiscated (Havell
1914:49). In 151 and 138, the tribunes stopped the enrollment of
soldiers for unpopular wars in Spain by imprisoning the consuls.

A second major theme in the histories of Roman law is the shift

from law that was unwritten to law that was written. The law of the
king was unwritten. When the monarchy was overthrown, the
ability of the king to say what the law was passed to the college of
priests and augers, the pontifs, whose chief priest, the pontifex
maximus, was consulted on law in the trial procedure of the early
republic. But this office was under the control of the patrician
curia, and was not considered neutral by the plebs. It was this
system that provoked the demand for tribunes, and the tribunes in
turn pressed demands for legal reform that produced the
foundation of the written law. This was the Twelve Tables, drawn
up (not without untoward incident) in 451 and 452 BC, by a
committee of ten men, the Decimvirs, who acted for those years in
place of the consuls. The Tables, inscribed on twelve bronze
tablets, were thereafter posted at the rostrum at one end of the
forum Romanum, the physical and political center of the city. The
temple of pontifs was at the other.

Roman scholars customarily praised the Twelve Tables lavishly.

Modern scholars frequently observe that they appear to contain no
important legal innovations. The importance was in the manner of
production. The Decimvirs were both patrician and plebian, and
specifically charged with making the law public. They thus
symbolized the idea of a republic— res publica, a public thing —
itself.

Additional sources of written law were laws of the comitia tributa,

and senatusconsulta, as described, and after 287 BC, plebiscites.
Acceptance of plebiscites, legislation originating with the plebian
assemblies, as law, marks the end of the struggle of the orders. In
later centuries, the edicts of the Praetors accumulated and the legal
opinions and writings of certain private legal scholars, the juris
consults or juris prudents, were added. Finally, all were absorbed
in the codifications of the Emperors.

The edicts of the praetors developed from the system of election.

A candidate declared the laws he would enforce by an edict, a
declaration, that he wrote on a white tablet that would be kept on
display during his term. As time passed, laws that found favor
became more and more fixed. Finally, the emperor Hadrian (117?
to 138 AD) ordered the edicts which had become customary for the
praetor and aedile to be set down by the jurist Julianus. This
became the "Perpetual Edict."

Republican legal scholarship reflected the republican conception of

the law as grounded in the authority of the people. The
jurisconsults, as they developed in the later republic, were private
citizens who served in the capacity of modern lawyers. Their
mode of scholarship, fundamentally akin to that of the Sophists,
rested on saying how laws had developed and been interpreted, for
what common purposes, and with what effect. The articulation
between constitutional structure and Roman substantive law was
the same as it is for us. The constitutional structure implies a
system of rights and prerogatives. Substantive law cannot violate
them. As the constitutional structure makes a major value of
protecting established economic interests while preventing the
abuse of power by the rich, so must the substantive law. As the
constitutional structure provides for access to law and equal
treatment under law for all citizens, so must substantive law.

The third great theme in the Roman histories is that the law
gradually evolved from being piecemeal and formalistic to being
coherent, comprehensive, and flexible. Substantive law consisted
of three major bodies that progressively built upon each other: the
jus civile, the jus honorarium, and the jus naturalis.

The jus civile began in the monarchy and lasted until about 180
BC. It was customary and initially unwritten, dealing mainly with
family relations, inheritance, marriage, adoption, contract and civil
liability. It was originally narrow and formalistic in two senses.
The first was that there were rigid rules for making a legally
enforceable transaction. Certain very specific words had to be
spoken as question and response. Even this was only valid if it
were done on certain days, and neither the formulae nor the days
were common knowledge.

To bring a case (legis actione), the practice was to obtain

statements of the relevant formulas and rules from the college of
the pontifs. Then, before the magistrate, each party to the suit
made a wager, which would be forfeit if they were judged wrong.
The amount wagered would attest to their faith in their cause,
cover court costs, and provide a donation to the city cult. Then the
magistrate asked each party separately if they had done what the
law required and each party responded, also in a highly formalized
way. Then the magistrate instructed a judge (judex), or, for certain
kinds of cases, a panel of judges, what factual circumstances
should result in a judgment for either side. The judex was
appointed by mutual agreement of both parties from a fixed list of
qualified persons . His task was to make the findings of fact and
select the option the magistrate directed accordingly. There was at
first no conception of mitigation or mutual interdependence of
obligations, and many types of actions were simply not provided
for. However, it was always a requirement of Roman law that a
contract had to be made in accordance with good faith and good
morals (bona fides and boni mores).

The jus honorarium grew mainly out of the experience of the

praetor perigrinus, and lessened the difference between Roman law
and laws of other peoples. To create it, attention shifted from the
forms of bringing and defending the suit to the formulae of the
instructions that the magistrate gave the judex. These were
expanded and systematized in such a way as to allow more
consistency as well as scope to view obligations as mutually
contingent. An important new element was the exceptio
(exception). This could, for example, allow a defendant to admit to
having accepted an obligation, but say he had done so because of
fraud on the part of the plaintiff (cf. Sandars 1903;lxx). It also
became normal to compose penalties in money (Sandars
1903:lxix).
The lex naturae, according to Cicero, came from the Stoics, mainly
Chrysippus (280-209 BC). It was the doctrine that legal results
should not be contrary to morality — but then again neither could
some magistrate's conception of morality override established law.
As Sandars puts it, under this rule:

"The Praetor considered himself bound to arrange his decisions so

that no strong moral claims should be disregarded. He had to give
effect to the lex naturae not only because it was morally right to do
so, but also because the lex naturae was a lex." (Ibid. xxiii).
Lex naturae became increasingly important in the empire, as the
republican assemblies were progressively stripped of control over
the imperial bureaucracy or abolished.

Roman substantive law distinguished between private law and

public law. Private law defined the relationships between one
private person and another. Public law defined a person's rights
and obligations in relation to the state. Family and contract law
were private law. The laws governing military and political service
were public law.

In family law, the central idea of the jus civile was the patria
potestas, the power of the father. Within the family, only the patre,
the father, was a legal person. Only he was he was sui juris, having
an independent will (in law). In legal terms, his family was based
on this power. While the head was alive, all under his potestas
were his closest circle of kin, his agnatio, unless he formally
discharged them. For a daughter, this could be done by marriage
according to a specific ceremony. A son could be formally released
by manumission, a kind of false sale. According to an old law (it
was said), a son was free if a father sold him three times. So to
release a son, a father would arrange to sell him three times to a
non-agnate, and that person could then simply declare him free.

The same procedure for freeing a son from the potestas of the
father could be used to transfer a son from one family to another as
a form of adoption. A person sui juris could be adopted by a
different procedure, called arrogatio. The next wider circle of kin
were the cognati, all those connected to the agnati by ties of blood.
Finally, affines were the cognati of each of the other parties in a
marriage (Sandars; xlii). Whether a person was under the potestas
of another in private law had no bearing on their relationship in
public law.

Contract law was conceived as a system of rights against things

and rights against persons – a powerful concept directly related to
the way Roman law was both egalitarian and evidentiary. A “right”
thus becomes a possible object for legal attention entirely separate
from, for example, the social status or religious position of the
person who holds it. Rights against things were rights in
ownership, possession, to use on payment of rent, and to use as a
pledge or hypothecation (mortgage). Things were res mancipi or
res nec mancipi. It appears that the former were things concerning
the original agrarian economy, and the latter were others. Rights
against persons were broken down into the right to require a person
to give something to another, make something or not make
something for another, or to make up a loss. In all three, such
obligations could arise either from consent of the parties
(contractus) or from injuries (delicta). Ten forms of consent were
recognized, with different rules for each. Debts incurred were to
be made good against the person of the debtor, rather than his
property. If the debtor was assessed a penalty and defaulted, he
himself was liable to be turned over to the creditors. They could
jail him, sell him as a slave, or kill him and divide him according
to what was owed.

The law was also careful about what was to be meant by "person.".
A person did not have to have physical existence. The state, the
fiscus or imperial treasury, and corporations were also persons. A
person’s capacity for legal action was determined by its status.
Status had three "constitutive elements:" liberty, citizenship, and
membership in a family. Liberty meant whether the person was
free or a slave. Citizenship was whether a person was a Roman
citizen or an other (varieties of "other" and their legal powers
varied over time). Family meant whether a person was sui juris,
under the potestas of another, or under another in any of several
other specified capacities.

The republic died under the weight of its success. With the end of
the third Punic war (149-146 BC), the temptations to corruption
and exploitation of the conquered areas overpowered the system of
public oversight. Constitutional bodies fell into the hands of
radically separate constituencies, each intent on co-opting the
collective success for themselves. The Senate became the tool of a
landed aristocracy of old patricians and “new men,” self-named the
optimates. The tribunate became the weapon of the populares, the
great mass of the poor and of small peasant farmers in Rome and
among the Italian allies who had long been denied the rights and
spoils of citizenship, and who were losing land to the senatorial
party. And after the reforms of Sulla the equites became a middle
class of middling farmers and large financiers who held a distinct
interest in controlling provincial tax collection and limiting the
oversight of the governors sent out by the Senate. Civil violence
began when the Tribune Gracchus was murdered in 133 BC, by
members of the Senate in retaliation for pushing through a reform
law that, among other things, allowed the Latin allies access to
conquered lands. It accelerated with each political shift thereafter,
leading to the Social War and then the Civil War that ended with
Caesar assuming all power. Caesar was elected dictator for ten
years in 46 BC and for life in 45 BC. He was assassinated in 44
BC. “Dictator for life” was a constitutional self-contradiction.

Augustus made Caesar’s consolidation of powers legally palatable.

He attained the apex of republican power with his election as
consul in 31 BC and was re-elected annually until 23 AD. When
that term expired he declined to run for reelection but had himself
given, for life, a pro-consular command superior to other senatorial
pro-consuls. (A partial innovation; normally proconsuls could not
rule other proconsuls or Rome itself.) He also asked for and
received election as a Tribune, although he was a patrician. And in
13 BC, he was also appointed pontifex maximus (the title now
borne by the Pope). Thus all the republican offices were preserved,
more or less. It was just that they were held by the same person.
This constitutional system was known as the "Principate."

The Principate soon came to be regarded a single office. Under the

"Dominate" established by Diocletian (AD 284-304), it came to be
regarded as a hereditary personal estate, the pattern for the
hereditary monarchies of Europe. Caesar, Kaiser, and Czar are
cognates — from Julius’ and Augustus’ family name.. The empire
was ruled by imposition from above in practice as well as theory.
Emperors from Diocletian on tried repeatedly to solve problems
by measures such as compelling people to remain in key trades,
such as shipbuilding, if they had been born in them under penalty
of death. They legislated prices to control inflation, collected key
commodities at sword's point, and made local tax collectors
personally liable for shortfalls.

Styles of scholarship changed to reflect the new system. Augustus

began the process of transforming the jurisconsults from private
scholars to official draftsmen. He appointed certain of them to give
responsa (written answers to written questions) with his own
authority, although this practice lapsed. Subsequently, Septimius
Severus (ruled AD 193?211) paid great attention to legal reform
and appointed several famous jurisconsults to important
administrative posts. The "classical jurisprudence," more aimed at
codification based on logical classification than case by case
advice, coalesced at this time.

In 426 AD, the Emperor Valentinian III (419? - 455) declared that
the doctrines of five scholars of the classical jurisprudence were to
be followed in deciding cases. These were Gaius (130?180 AD),
Ulpian (died 228 AD), Papinian (140?212 AD), Modestinus
(contemporary of Ulpian) and Paulus (flourished C. 212). When
emperors began to order codifications of their own, beginning with
the Theodosian Code (438 AD), these also rested on the earlier
jurisconsults. They were not original legislation but compendia.
Contemporary scholars, serving as the emperors' voice, said what
the law was by drawing on Aristotelian logic to rearrange what
previous scholars said it had been under the headings of a
putatively timeless and universal scheme.

The culmination of imperial codification was Justinian's Corpus

Juris Civilis, consisting of three main works completed in final
form in 534, AD. The first was the first Code itself, a systematized
arrangement of quotations from the classical jurists in twelve
books. The second was the Digest (called Pandects in Greek),
arranged in the same manner as the code and intended to "form the
necessary base of a legal education" and arrest the declining
quality of legal decision making (Sandars 1903:xxxii). The third
was the Institutes, a still more compact summary, in four volumes.

The arrangements are “logical” and hierarchical. The first section

of the Digest is "Justice and Law" and recounts general definitions
of both. The second is on the origin of law and the different
judicial offices, and begins with a quotation from Gaius on the
origin of the XII tables. This is followed by a long quotation from
Pomponius recounting the development of the Roman legal system
through the stages described here. The substantive laws follow in
order of topic and scope. The Code now extant is the second of
two versions, incorporating an intermediate work in which
Justinian answered unsettled points. When the first Code had been
published, Justinian ordered all other legal works destroyed and
forbade the use of anything else by any judge. When the final code
was published, the first was "carefully suppressed" (Sandars:
xxxiv).

Justinian's introduction to the Code added the claim that he was

acting "In the Name of Our Lord Jesus Christ," and the Code
itself changed traditional Roman family law in favor of Christian
recommendations by omitting provisions for divorce and holding
that a man and woman joined in marriage were “inseparable” (IX:
xxiii.2.1). Concurrently, Aristotelian, neo-Platonic and Stoic ideas
were being adopted in the Church as the basis of systematic
theology. Thus the Roman Empire converted itself to what was to
become the various forms of the Holy Roman Empire and the
Church Hellenized itself to meet it.

Justinian evidently assumed that once the law was fixed into a
consistent logical form and everything else obliterated, it would
remain stable thereafter. Few predictions have been more wrong.
The empire split in his lifetime and the western half was lost.
Procopius, his general, was quite direct about the reasons. It was
the result of alienation and disaffection that flowed from the
central characteristic of the system itself: as sole voice and source
of the law, there was nothing to prevent the Emperor from abusing
the law. Law became force. He characterizes Justinian as a
"destroyer" who, among other things, "devoured all the public
moneys and robbed each member of the Senate, publicly and
privately, of all estates; and . . . by bringing false charges he
confiscated the properties of every one else who was reputed to be
wealthy (Atwater 1927;242).

In the Eastern Empire, Justinian's corpus was soon known only by

Greek paraphrases and abridgments. In the western Empire,
effective law came to be that of the Germanic tribes, as represented
by the Visigothic and Burgundian codes. These were based on pre-
Justinian Roman models and served a double purpose. They set
down their own traditional laws in a newly public and systematic
form, and they coordinated these laws with those of the Roman
settlements the German rulers took under their protection (cf. Drew
1972:6-10).

The scholars of the republic had persistently praised its law for its
ability to attract the loyalty of its citizens by aligning their personal
interests with the preservation of public institutions — integration
from below. The scholars of the empire reversed the principle and
attributed stability to the submission to authority from above.
Modern pragmatic and positivistic arguments are built on the same
patterns.