Epilogue
make up the Bible, we will want to ask what literary qualities they have. We
can treat such a canonical work, in other words, as a self-contained body of
text which we have profound motives for wishing to interpret.
Let us take first the example of Roman law. Wecanapproachitasatime-
less example of legal reasoning and of the expression of legal principles, as
embodied above all in three texts: primarily theDigestand theInstitutes, both
compiled or written on the orders of Justinian in the sixth century, and sec-
ondly Gaius’Institutes, written in the second. All three, it is true, are, in the
nature of their contents, not wholly timeless: for they refer to particular
items of legislation, enacted at particular moments in the past, and also to
decisions in particular cases, and (especially as regards theDigestand Gaius’
Institutes) to imperial legal rulings embodied in replies to office-holders or
private individuals. They are also distinct from each other in literary char-
acter and composition: Gaius writes as a private academic jurist of the mid-
second century; theInstitutesof Justinian is proclaimed by the Emperor as
the work of three named jurists, who, however, in the text then speak in the
Emperor’s name, in the first person; and theDigestis a compilation, under
a long series of separate headings, of relevant extracts from the private aca-
demic writings of the jurists of the classical period, namely the second and
third centuries, thus several centuries earlier than Justinian’s reign. None the
less, it is a possible and legitimate way to read these texts, especially if the
interest of the reader is in subsequent civil law codes, to analyse them in order
to determine what ‘‘the’’ Roman law ‘‘was’’—for instance, the law of prop-
erty, or theft or inheritance or contract—and what underlying concepts and
principles are present.
No such approach, however, is acceptable if our interest is not formal, but
empirical and historical. For if, in enquiring about ‘‘Roman law,’’ what we are
concerned about is the law and legal system which operated in what histori-
ans, and indeed the man in the street, would normally call ‘‘Rome’’—namely,
the centuries from (say) Coriolanus to the age of Sulla or Cicero, Augus-
tus, or Trajan—then all that already lay in the past, and much of it centuries
in the past, before even the earliest surviving work summing up ‘‘Roman
law,’’ Gaius’Institutes, was written. Whether the principles set out by Gaius
or those who succeeded him had actually been formulated centuries earlier,
and hence had been determinative of what law was applied in real-life cases,
is an empirical question. The answer will depend on what contemporary evi-
dence we have from earlier periods, either as to specimens of relevant legal
reasoning (of which there are some for instance in the speeches of Cicero)^16
. See now J. D. Harries,Cicero and the Jurists().