29th May 2010

A ‘bonfire of laws’! How agreeable! But European law is sacred; government will make the final decision, whatever we say; and it cannot be sensibly done without a far more demanding operation.

The Lex Aquilia (after its proposer Aquilius, c. 287 BC) dealt with unlawful killing, and one section is devoted to ‘four-footed beasts of the class of cattle’. So which animals – apart from cows and bulls – are those? The Roman jurist Gaius (c. AD 160) attempted to answer. Sheep, goats, horses, mules and asses were indeed ‘classes of cattle’, he decided. Pigs? Yes, just. But not dogs, much less bears, lions and panthers. Elephants and camels? Wild they may be, he mused, but they were used as draught animals. So, on balance, yes.

This is, in fact, an extract from an amazing work, the Roman legal Digest ordered by the emperor Justinian and published in AD 533. It was condensed from the two thousand legal volumes written between the 1stC BC and the 3rdC AD by thirty-nine Roman jurists, including Gaius; compiled in three years by sixteen legal experts from all over the Roman world; and published in fifty volumes. The result was the definitive account of the whole of Roman private law. Further, Justinian realised that students would need a dumbed-down version to guide them through the big one. He therefore commissioned a digested Digest, the four-volume Institutes.

Practical people, the Romans. But a vital feature of the Digest is that, as Justinian said in his sonorous introduction, ‘in these books the law previously in force is briefly stated, as well as that which had fallen into disuse but has now been brought to light by the imperial authority’. And that is the point. Romans knew of the law’s tendency to lose itself in its own thickets. Even the famous XII Tables were originally X. Julius Caesar wanted to shrink the statute book, but was assassinated. The historian Tacitus wondered, since there were so many laws, why society was so corrupt; or was it that the more corrupt the society, the more laws were needed?

So before we make a bonfire, we need first to establish what is available for burning and what the implications are. Only a Digest will allow us to do that intelligently.