Justinian's Digest: The Interpretation of Interpolation

Abstract

In the early years of this century Roman law must have been much more fun. Romanists still played one of the great intellectual games of all time. In 1925 it was christened 'interpolation hunting'. But since that time it has been in sad decline. The principle of the game was quite clear and quite unobjectionable: in Justinian's Digest what we have is a sixth-century compilation of mainly secondand third-century legal writings. Which passages (or fragments) reflect the law of which period? Or are all fragments an intractable amalgam of elements of more than one period? And how are the different elements to be distinguished? These questions had already engaged the attentions of the humanists, who were well aware that Justinian's Digest does not reproduce the ipsissima verba of the classical Roman jurists, but modifies them for its own ends. Yet more recently the legal scholarship of the Pandectists had studied the Digest not for antiquarian reasons but as a system of living law: interest had scarcely been focused on the changes which classical texts had undergone but purely on the compilation as promulgated by Justinian. With the making of the civil codes around 1900, however, this notion changed, and the law of the classical jurists once again became an object of historical interest in its own right. It became a matter of interest too what Justinian had done to their words. The hunt for interpolations was on. But times have changed. Indifference to interpolation hunting is now overwhelming, and has been for the last fifteen years or so. Why is this the case? The answer is to be found in the recent history of its practice. Enthusiasm in the hunt for interpolations was at a high point in the 1910s to 1930s.' Virtually all Romanists were swept off in this tide. The most notorious were Beseler and Albertario, and the most notable survivors were Buckland and Riccobono.2 But a reaction swiftly set in. Among the earliest protests was the famous article of Lenel, 'Interpolationenjagd', that is 'interpolation hunting', which named the game.3 Reaction