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INTRODUCING INIURIA
by
ALAN RODGER (Edinburgh)
I. - The Puzzle
In 1969 Professor Raber drew scholars' attention to a puzzle, for which he had
no particular solution to propose1 . Perhaps because no-one else had either, the
puzzle has been ignored. It is none the less a genuine problem and Romanists can
be more dangerously employed than in trying to solve it.
The puzzle relates to the order of the texts at the start of the Digest title 47,10,
de iniuriis et famosis libellis2. The inscriptions of 2 and 4 proclaim that they
come from Paul 50 ad edictum. If that were so, when excerpted they would have
been found later in the edictal mass somewhere after 18 from Gaius 22 ad
edictum3 . However, Lenel saw that neither 2 nor 4 could possibly have come
from Paul 50 ad edictum since the context, de liberali causa4, is unsuitable. The
inscriptions of 2 and 4 must accordingly be corrupt. Since certain other texts of
Paul which deal with iniuria derive from Paul 55 ad edictum5, Lenel emended
the inscriptions of 2 and 4 from Paulus libro quinquagensimo ad edictum to Pau-
lus libro quinquagensimo quinto ad edictum. As the omission of quinto would
be an error of a type which occurs quite commonly 6, the correction appears
straightforward, indeed routine.
In fact, however, it is not straightforward, as Raber reminded his readers. This
is because, if 2 and 4 come from Paul 55 adedictum, they are still out of position.
Presumably Krtiger noticed this because, while printing Lenel's emendation in
a footnote7, he placed an asterisk against both 2 and 48. Honor69, who ap-
proaches the arrangement of the title from a slightly different standpoint, also
signals 2 and 4 as being out of their proper order - presumably for the same rea-
son. The precise reason stems from the fact that in Bluhme's scheme 10 Paul 55
1. F. Raber, Grundlagen klassischer Injurienanspriche (Vienna- Cologne-Graz
1969), 9 et seq.
2. Texts from this title are cited by their number in the title only.
3. See T. Mommsen, P. Kruiger, Corpus luris Civilis 1 (12th edition, Berlin 1911 and
reprints thereof) (hereinafter 'Stereotype Digest'), 929 no. 113. The fundamental work on
the order of the fragments is, of course, that of F. Bluhme, Die Ordnung der Fragmente
in den Pandectentiteln, (1820) 4 Z.G.R. 257 = (1960) 6 Labeo 50.
4. Das Edictum Perpetuum (3rd edition, Leipzig 1927), 377 et seq.
5. 0. Lenel, Palingenesia luris Civilis 1 (Leipzig 1889), 1072-1073.
6. E.P., 8.
7. Stereotype Digest, 830 n. 10.
8. Stereotype Digest, 830 n. 4.
9. A.M. Honor6, The Editing of the Digest Titles, (1973) 90 Z.S.S. 262, 300.
10. Stereotype Digest, 929 no. 107.
A. RODGER
ad edictum fell to be read in the same group as Ulpian 57 ad edictum"1 , but in
a different group from Ulpian 56 ad edictum12 . The groups are:
Ulpian 56 Ulpian 57
Paul 54 Paul 55
Gaius 21 Gaius 22
Yet at the start of D. 47,10, if we emend the inscriptions as Lenel suggests, we
find the pattern:
I. Ulpian 56
2. Paul 55
3. Ulpian 56
4. Paul 55
5. Ulpian 56
6. Paul 55
7. Ulpian 57
8. Paul 55
9. Ulpian 57
10. Paul 55
11. Ulpian 57
While, say, the sequence 7 to 1I shows the texts of Ulpian 57 ad edictum inter-
woven with texts of Paul 55 ad edicturn from the same group, as we should ex-
pect, the sequence 1-5 has a pattern of Ulpian 56 ad edictum texts (1, 3 and 5)
interspersed with Paul 55 ad edictum texts (2 and 4) which do not come from the
same group.
Now, in theory one explanation for this pattern might be that 2 and 4 were read
quite independently and inserted as comments on 1 and 3 at the editorial stage.
As Raber perceived 13, however, and as we shall see in more detail below, the
material in 2 and 4 fits so closely with the substance of 1 and 3 that they form
the kind of sequence which indicates that these portions of Ulpian and Paul were
read together 14 .
Faced with the dilemma that 2 and 4 seem to belong with 1 and 3 but to come
from different groups in Bluhme's scheme, Raber flirts briefly with the various
pre-Digest theories 15 , but rejects them as being inadequate to explain the close
connexion of the texts 16 . In the end he leaves the matter in the air with no
explanation 17 . So we are presented with our puzzle.
In looking for an explanation, we start from the premise that it must conform
to Bluhme's basic scheme. For reasons too well known to bear repetition' 8 , we
must not seek refuge in pre-Digests or the like. The premise immediately dictates
the most important part of the solution: 2 and 4 derive, not from Paul 55 adedic-
turn but from Paul 54 ad edicturn, from the same group as 1, 3 and 5. This in-
volves saying that part of Paul's commentary on the title de iniuriis was con-
11. Stereotype Digest, loc. cit.
12. Honor& adds Paul 53 ad edictum: T. Honor6, Tribonian (London 1978), 270.
13. Grundlagen, 12.
14. For the basic argument, see Bluhme, 4 Z.G.R. 277 et seq.; 6 Labeo 58 et seq.
15. Grundlagen, 11.
16. Grundlagen, 12.
17. Grundlagen, 12.
18. See, for example, Honor6, Tribonian, 250 et seq. with the literature there cited.
INTRODUCING INIURIA
tained in book 54 and part in book 55 of his work. In Part II we shall establish
that this hypothesis is possible. In Part III we go on to consider the scope of in-
troductions to the title de iniuriis, while in Part IV we see how 2 and 4 might have
fitted into such an introduction. In Part V we examine another text, 6. We end
with a brief remark on Collatio 2.5 and 2.6 in Part VI.
I1.- Paul 54 ad edictum
As we saw above, the sequence of texts of Ulpian and Paul in 1- 5 will conform
to Bluhme's theory if 2 and 4 come from Paul 54 ad edictum. The actual inscrip-
tions of 2 and 4 read 'libro quinquagensimo' which is certainly wrong. It is a
conjecture of Lenel which inserts quinto, but, especially if the number including
the word quarto was written out, then we can just aseasily assume that a scribe
omitted quarto as that he omitted quinto19. From the palaeographic standpoint
there is nothing to choose between the emendations. We are free, if we wish, to
give 2 and 4 the inscriptions Paul 54 ad edictum.
Raber rejected this solution because, he said, the texts would no more fit into
Paul 54 ad edictum than they would fit into Paul 50 ad edictum2(. In this he is
wrong, as a close inspection of books 54 and 55 of Paul will reveal. We need to
look also at the equivalent portions of Ulpian.
In book 53 Paul discusses the title de praediatoribus2l. Ulpian deals with this
at the start of book 5622. Since, as we saw above, Honor6 points out that book
53 was part of the same group as book 54 for excerpting purposes23, these areas
of text will have been considered together by the compilers.
In Paul book 54 he begins with a large excursus on possession and usucapio24.
Why this subject occurs here in Paul and certain other authors is a mystery too
deep even for Lenel to plumb25, and we shall not pause to ponder it. Nothing
similar occurs in Ulpian book 5626. Instead he goes through de hominibus
armatis27, de turba28 and de incendio ruina29 before ending up with a segment
on the title de iniuriis3° . Similarly in book 54 of Paul we find texts on vi bono-
rum raptorum3l and de incendio ruina32.
It is therefore clear that at some point in book 54 Paul had dealt with all the
19. E.P., 8 and n. 3.
20. Grundlagen, 10.
21. Pal. 1, 1063; E.P., 389.
22. Pal. 2, 761; E.P., 389.
23. Tribonian, 270.
24. Pal. 1, 1063-1071.
25. E.P., 24 et seq. See recently L. Winkel, 'Usucapio pro suo' and the Classification
of the 'causae usucapionis' by the Roman Jurists, New Perspectives in the Roman Law of
Property (edited by P. Birks, Oxford 1989), 215.
26. Pal. 2, 761; E.P., 15.
27. Pal. 2, 761-764; E.P., 391 n. 2.
28. Pal. 2, 764-765; E.P., 395 n. 10.
29. Pal. 2, 765-766; E.P., 396 n. 6.
30. Pal. 2, 766-768; E.P., 397 n. 2.
31. Pal. 2, 1071; E.P., 391 n. 3. This is part of de hominibus armatis.
32. Pal. 2, 1072; E.P., 396 n. 7.
A. RODGER
matters which lay just before the title de iniuriis in the Edict. He was ready to
start on that title. Lenel and all subsequent authors assume that Paul did not ac-
tually embark on iniuria until book 55, but there is nothing which precludes us
from holding that he started in book 54. There is, for example, no reason to
doubt that he would have had room in book 54. While it is true that Paul had
an excursus on possession and usucapio in book 54, Ulpian had to cover de
praediatoribus in book 56 and yet he had space for some remarks on iniuria. We
have, besides, no way of telling how long the treatment of any particular section
was in either author and the fragments preserved by the compilers may give a
completely false impression.
There are therefore no palingenetic grounds for saying that Paul may not have
concluded book 54 with a section on the title de iniuriis, and then continued with
more on the topic in book 55, just as Ulpian began his treatment in book 56 and
continued it in book 5733.
While the argument so far permits the conclusion that Paul may have had a
section on the title de iniuriis at the end of book 54, it does not justify the conclu-
sion that 2 and 4 may have been part of it. For this piece of the argument we must
investigate what the section of commentary in book 54 would have contained and
then see whether 2 and 4 could have derived from that context.
III. - Introductions to de iniuriis
The scope of Ulpian's tract at the end of book 56 is well understood. It con-
tained an introduction to the edictal title de iniuriis34 . Although some remarks
of Schulz might suggest to the casual reader that such introductions cannot be
traced in the edictal commentaries of other authors35, this is not in fact so. In
the case of Paul, for instance, scholars have for many years been aware that the
remains of such introductions are to be found in book 35 ad edictum on the title
de re uxoria36 , in book 38 on the title de tuteli 37 and in books 72 and 73 on the
title de stipulationibus praetoriis38 ,39. The question which therefore arises is
whether the end of book 54 may have contained the whole or part 40 of a similar
introduction by Paul to the title de iniuriis.
Two general points may be made before we turn to look at the texts in a little
more detail.
33. Pal. 2, 768-777; E.P., 397 n. 8.
34. E.P., 397 n. 2. See also, for example, F. Schulz, History of Roman Legal Science
(corrected edition, Oxford 1953), 197 n. 8 = Geschichte der r6mischen Rechtswissenschaft
(Weimar 1961), 245 n. 6.
35. History, 198; Geschichte, 246. For such introductions generally see A. Pernice, UI-
pian als Schriftsteller, Sitzungsberichte der Preussischen Akademie der Wissenschaften zu
Berlin, Phil. Hist. Klasse (1885) 443, 445 et seq. = (1962) 8 Labeo 351, 353 et seq.
36. Pal. 1, 1039-1042; E.P., 302 n. 7.
37. Pal. 1, 1045; E.P., 314-315.
38. Pal. 1, 1088-1090; E.P., 314-315.
39. See also P. Kruiger, Geschichte der Quellen und Literatur des ROmischen Rechts
(2nd edition, Munich and Leipzig 1912), 230; A. Berger, in: Pauly Wissowa Real Ency-
clopaedie der Classischen Altertumswissenschaft 10-1 (Stuttgart 1917), 690, 705-706.
40. The introductory remarks to the title de praetoriis stipulationibus begin in book 72
and continue into book 73: E.P., 514.
INTRODUCING INIURIA
First, although the thesis of this paper is that we have at least two texts (2 and
4) from the introduction in book 54, the argument that such an introduction may
have existed does not depend on those texts, though they provide the evidence
for its existence. Because the compilers used Ulpian as their main quarry for the
edictal commentaries and took material from Paul and the others only where
they contained something which the compilers wanted and which was not in
Ulpian41 , we have very much less of authors such as Paul from which to un-
cover the structure of their commentaries. For this reason the introduction to the
title de iniuriis and many other such introductions may have existed even if we
have no evidence for them in our sources. This is indeed very likely. Putting the
point another way, the absence of any evidence in the sources would not disprove
the theory that such other introductions existed: it would merely mean that their
existence cannot be proved. Indeed to hold the converse involves subscribing to
a belief that the compilers took excerpts from all of Paul's introductions which
they came across, and for the reasons already given that is most unlikely.
Secondly, de iniuriis seems a good example of a title where an author might
give some general exposition before turning to the individual edicts. The history
of iniuria is, to say the least, disputed, but all scholars would agree that there was
an evolution which meant that the classical law was to be found in a variety of
provisions. In so far as certain common principles could be identified which were
to be applied to all the remedies, there was much to be said for expounding these
at the outset even though this would involve referring, by way of illustration, to
situations which would fall under the particular edicts. We shall see that Ulpian
adopted this kind of approach. Our suggestion is that Paul did also.
We must now see what topics are covered in the texts from book 56 which con-
stitute Ulpian's introduction. The detail of some of this is very controversial
42
but need not concern us for present purposes. The topics can be summarised:
lpr.: meaning of iniuria; 1,1 - 1,2: ways in which iniuria is inflicted; 1,3-1,9:
persons who suffer iniuria directly and indirectly; 3pr.: persons who may inflict
iniuria; 3,1: persons who may not inflict iniuria; 3,2-3,4: circumstances in which
iniuria may not be suffered; 5pr. - 5,8: action on lex Cornelia de iniuriis; 5,9:
action for defamatory publication, apparently on the basis of a senatuscon-
sultum 4 3 ; 5,10: other cases under the senatusconsultum44; 5,11: treatment of in-formers, apparently under the senatusconsultum4 5.
It is also worth noting how Ulpian's commentary on the edictum generale
begins4 6 . At 7pr. he gives the text of part of the edict requiring the plaintiff to
specify the iniuria which he claims to have suffered. Ulpian gives a general moral
justification for the requirement and then proceeds to discuss some practical ef-
fects. First in 7,1 he covers the choice between, and precedence of, the praetorian
41. See, for example, Berger, R.E. 10-1, 705.
42. See A. V61kl, Zum Verfahren der 'Actio Legis Corneliae de Iniuriis', Sodalitas,
Scritti in onore di Antonio Guarino 2 (Naples 1984), 561 and the vast literature which he
cites.
43. Sodalitas 2, 584 et seq.
44. Sodalitas 2, 585.
45. For possible interpolations and discussion see Sodalitas 2, 586.
46. E.P., 398 n. 2.
A. RODGER
action and proceedings under the lex Cornelia, while touching, by way of argu-
ment, on the Aquilian action. The thrust of the remarks seems to be that, where
the facts fall squarely within the kind of situation specifically mentioned in the
statute, the praetorian action should yield to the statutory procedure, but other-
wise not. Next, in 7,2 and 7,3, as further justification for spelling out the circum-
stances, we are told that they may show whether any action sought should be
granted against a patron or parent. In 7,4 Ulpian explains what amount of
specification is necessary and in 7,5 whether a set of facts may give rise to more
than one action. With 7,6 the commentary moves on to the matter of atrox iniu-
ria, a theme which lasts to 9,347.
A glance at the list of topics from book 56 of Ulpian confirms that the in-
troduction identified and examined issues of broad application to the whole area
of iniuria. The most obvious example is the analysis of the very concept of iniuria
itself in lpr., but equally plainly a discussion of the need for an appropriate in-
tent in 3,1-3,4 is something which would apply to all the edicts. Ulpian seems
to have been concerned also to mark out the spheres of iniuria on the one hand
and the lex Cornelia and senatusconsultum on the other. This again would be a
major theme of general application.
With these indications of the scope of this part of Ulpian's commentary we can
consider whether 2 and 4 could have come from a similar context in Paul.
IV. - D. 47,10,2 and 4
Lenel assigns 2 and 4 to the general edict48. Although he does not spell out
their precise context, one can be sure at least that he does not believe that they
came from any kind of introduction to the title de iniuriis as a whole because,
if he did, he would place them under the title de iniuriis and before the section
on the general edict 49.
Since Lenel prints 2, 4 and 8 in the order in which they occur in the Digest,
he must be proceeding on the view that the compilers have not rearranged them.
That is certainly the simplest basis, and the simplicity is attractive. If this assump-
tion is adopted, then 2 and 4 would have occurred before 8 in the original work.
In fact 8 constitutes something of a signpost since it deals with atrox iniuria which
we should expect Paul to have discussed in the context of the general edict provi-
sion on the taxatio to be used in the formulae50 . Besides, 10 is another fixed
point since it must come from Paul's commentary on the first of the special
edicts, de adtemptata pudicitia5 1. So, on Lenel's approach, we should expect 2
and 4 to come from some area of Paul's commentary where he had not yet
reached the taxatio under the general edict.
We saw in Part III that the extracts from Ulpian suggest that he began his
47. E.P., 398 n. 4.
48. Pal. 1, 1072; E.P., 397 n. 9.
49. Cf. Pal. 2, 766 and 768 (Ulpian).
50. E.P., 398; cf. Collatio 2.6.1.
51. Pal. 1, 1072 and E.P., 400 n. 9.
INTRODUCING INIURIA
commentary on the general edict by analysing the requirement that the plaintiff
specify the iniuria which he claimed to have suffered 52. After that he moved on
to atrox iniuria. If Paul followed a similar order - and given the lemmatic nature
of his commentary that is very likely - then we should require to find a home
for 2 and 4 in the corresponding stretch of Paul on the specification of the iniuria.
In 2 the question at issue is whether a wife can sue for iniuria to her husband.
The answer is that she cannot. There is no obvious place for this as a comment
on specification of the iniuria. It might possibly be suggested that the text would
be similar to 7,253. Paul would be saying that the plaintiff needs to specify the
iniuria so that it could be seen that the wife could not sue for iniuria to her hus-
band. But such a suggestion would not convince. In the case of a freeman he can
sue his patron for some iniuriae but not for others
54 . The freeman therefore is
required to specify the kind of iniuria so that it could be seen whether the action
was permissible. By contrast the ban on a wife suing for iniuria to her husband
applied to all kinds of iniuriae and so there would be no room for an argument
that the type of iniuria had to be spelled out to determine whether she could sue.
No readily identifiable context for 2 comes to mind.
The other text, 4, fares little better. It deals with the case where I mean to slap
(pugnum ducere) my slave but strike (percusserim) you instead. Lenel draws at-
tention to the pattern formula under the general edict which uses pugnum and
percutere5 5 . Paul's use of facts which would fall under the general edict does
not, however, justify the conclusion that the text comes from a comment on that
edict. For example, in 3,3, which Lenel assigns to his introduction
5 6 , Ulpian uses
the verb percutere. More particularly, however, the actual point in 4 does not re-
late to specification of iniuria: the point is not to explain how or why particular
circumstances should be pleaded as iniuria but to explain that these particular cir-
cumstances do not amount to iniuria.
These contexts which Lenel suggests - and which carry with them the disad-
vantage that they involve inconsistency with Bluhme's theory - are to be com-
pared with a possible origin in an introductory section. In fact, as long ago as
1916 H. Kruger suggested that 2 and 4 came from an introductory section, but
his remarks seem to have been ignored
5 7 .
We have already noticed that Raber remarked on the close relationship be-
tween I and 2 and between 3 and 458. Since 1 and 3 both come from Ulpian's
introduction, it would not be surprising if 2 and 4, having that close relationship,
came from a similar context.
Further scrutiny confirms the close relationship to which Raber refers. First,
Paul's discussion of whether a wife may sue for iniuria to her husband. These
52. Text at note 46 supra; E.P., 397 n. 2 and 398 n. 2.
53. Text following note 46 supra.
54. For the literature and a conservative approach see Raber, Grundlagen, 95 et seq.
Even Beseler, who rejects everything from etenim, leaves the text saying that the iniuria
needs to be specified to see if an action is to be given against a patron.
55. Pal. 1, 1072 n. 2.
56. Pal. 2, 767.
57. H. Kriger, Verweisungsedikte im pratorischen Album, (1916) 37 Z.S.S. 230, 236.
58. Grundlagen, 12.
8 A. RODGER [8]
remarks in 2 can readily be seen as part of a passage, of the type found in
1,3-1,9, about how people suffer iniuria and who may sue. In particular Ulpian
refers to iniuria to a wife in 1,3, 1,8 and 1,9. If an introductory section could
discuss the circumstances in which iniuria to a wife might give rise to a right of
action in the husband, it would hardly be surprising if an introductory section
by Paul mentioned that the reverse did not apply and that wives did not sue for
insults to their husbands 59. It is just the kind of additional point which the com-
pilers might wish to lift to supplement the basic account of Ulpian.
In 3,2-3,4 Ulpian deals with intention as a pre-requisite to liability and says
in particular that a person who beats a freeman thinkingthat he is his slave is
not liable (because he does not intend to insult). At this point 4 is inserted giving
Paul's case of a man who intends to slap his slave but strikes you who are stand-
ing next to the slave. The master is not liable - because he lacks the necessary
intent. Again it is easy to see how, if Paul had an introductory section covering
intention, this would be precisely the kind of context in which we should expect
to find 4. The fact that it uses an example which derives from the kind of situa-
tion covered by the pattern formula for the general edict does not argue against
this, because any example illustrating a general point would have to come from
the area of one of the edicts.
We are therefore entitled to conclude that 2 and 4 are texts which, to judge by
their content, could well have come from an introductory section of material
such as we find in the corresponding parts of 1 and 3. Since, moreover, we know
that Paul did have introductory sections in his work, it would not be rash to sug-
gest that 2 and 4 are fragments of an introduction to the title de iniuriis.
Towards the close of Part II we noted that there was no palingenetic reason
to reject the idea that Paul had an introductory section on the edict de iniuriis
at the end of book 54 just as Ulpian had at the end of book 56. That being so,
if 2 and 4 derive, as we suggest, from an introductory section, they could certain-
ly have come from book 54. As we also saw, Bluhme's theory provides cogent
evidence that they actually do come from book 54. If these various points are
taken together, then we shall conclude (a) that Paul's edictal commentary con-
tained an introductory section on the title de iniuriis; (b) that the introductory
section came at the end of book 54; (c) that 2 and 4 are fragments of it and (d)
that the inscriptions of 2 and 4 should be emended to libro quinquagensimo
quarto rather than to libro quinquagensimo quinto as Lenel proposed.
V. -D. 47,10,6
We have so far considered only 2 and 4, but it is also worth looking at 6 since
it is attached closely in the Digest to the closing sections of 5 where the senatus-
consultum is mentioned. According to its inscription, 6 comes from Paul 55 ad
edictum and, despite its apparent ties with 5, Lenel assigns it to his commentary
on the edict ne quid infamandi causa6° . This means that Lenel assumes that in
59. Cf., for example, P. Bonfante, Corso di diritto romano, 1 (corrected edition,
Milan 1963), 282 and n. 1.
60. Pal. 1, 1072; E.P., 401 n. 2.
INTRODUCING INIURIA
the original work 6 was found at a very much later point and that only at the
editorial stage was it moved to its present position as an important supplement
to 5. While it may not be possible to exclude the possibility that 6 did indeed
originate in that part of Paul's commentary, the fact that the text is closely allied
to a text taken from Ulpian's introductory section justifies us in considering
whether 6 may have come from Paul's introduction too. Such a solution would
obviate the need to assume that the text had been moved.
The text discusses a senatusconsultum which provides some kind of public
remedy primarily for use where a scurrilous attack is made but the victim is not
named and so cannot use the private law remedy. Paul goes on to discuss whether
both the public and private law remedies are available where the victim is
named61 . Lenel gives no precise context for this passage though he seems to as-
sume that it would come before commentary on the aestimatio, possibly the
original context of 18pr.62. If 6 came from Paul's commentary on ne quid, then
one might suggest two possible origins. First, it might have been included in some
section at the beginning identifying cases which fell under the senatusconsultum
rather than under the action based on this edict. This would be along the lines
of what we find in 7,1, though the occasion for the comment would hardly be
the same. Alternatively, for Lenel at least, 6 might have been seen as a comment
on illi in the ne quid formula63. However, illi is not found in the text of the Col-
latio and is part of a conjecture by Lenel which Daube has demonstrated to be
unreliable64 . Indeed one could go further and argue that, if Lenel's reconstruc-
tion of the formula is incorrect, then this undermines the rationale for attaching
this case to that edict at all since there would be no reference to the sending of
a libellus. But this would probably be to go too far. As Daube points out 65, the
famosus libellus is the most prominent ground of defamation in texts from the
Empire. That being so, the matters mentioned in 6 might well come up in the con-
text of this edict. So, while we may not be able to pinpoint where 6 would have
been found, we must accept that it could have come from the general area in
which Lenel locates it.
By the same token, however, 6 could also have come from an introductory sec-
tion if that introductory section contained remarks on the lex Cornelia and the
senatusconsultum, as Ulpian's certainly did66. What we now find in 5 makes
that clear: Paul like Ulpian would be exploring the relationship between the
remedies for iniuria provided in the praetor's edict and the remedies for particu-
lar situations afforded by the lex Cornelia and the senatusconsultum. From the
point of view of substance the suggestion is straightforward.
From a palingenetic standpoint it is perhaps less straightforward and more in-
teresting. As we saw, the inscription says that 6 comes from book 55 of Paul's
commentary. If that is correct and if the text comes from an introductory section,
61. For the detail see Sodalitas 2, 586 et seq.
62. Cf. E.P., 399.
63. E.P., 401.
64. D. Daube, Collatio 2,6,5, Essays in honour of the Very Reverend Dr. J.H. Hertz
(edited by 1. Epstein, E. Lewis and C. Roth, London 1942), 111.
65. Hertz Essays, 115.
66. H. Krfiger thought that 6 came from such an introduction: 37 Z.S.S. 236.
A. RODGER
then we should have to assume that Paul's introduction spilled over into book
55 and that, say, the part on the lex Cornelia and the senatusconsultum was
found at the beginning of book 55. This is perfectly possible. We know that else-
where an introduction by Paul straddled two books67 and if his section on the
lex Cornelia and senatusconsultum came, as Ulpian's did, in the later stages of
his introduction, then it could well have been found at the start of book 55. In-
deed this suggestion might be supported by a further suggestion that D. 48,7,4,
Paul 55 ad edictum, which Lenel rather surprisingly slices in two 68, may also
have formed part of this introductory account of the relative spheres of applica-
tion of the lex Cornelia and the praetor's edict. On the other hand if 6 came from
book 55 it would not have been read in the same group as the corresponding por-
tion of Ulpian in 5. This would be somewhat anomalous, as Raber recognises 69.
A further possibility is open and is well worth considering, even although some
readers may find it perverse. The inscription of 6 may be corrupt. Raber remarks
that this has never been suggested 70 . I1 faut un commencement A tout. In his dis-
cussion of errors in inscriptions Lenel points out that quarto and quinto become
confused because they begin with the same letters 71. It may therefore be that the
inscription of 6 should be libro quinquagensimo quarto instead of quinqua-
gensimo quinto. The fact that 8 and 10, the next texts of Paul, for instance, had
quinquagensimo quinto in their inscriptions might very well prompt a scribe to
"correct" the inscription of 6 to make it consistent with these other inscriptions.
It must be stressed that the mere fact that the inscription of 6 in its present from
is perfectly possible is no guarantee that it is not corrupt. As was pointed out long
ago 72, only divine intervention could bring it to pass that the readings of a
manuscript are right wherever they are possible and impossible wherever they are
wrong. Such assistance from Providenceis not lightly to be assumed. Hence,
while the point is not capable of proof, there is no reason to reject the suggestion
that 6 may have come from an introductory section in book 54.
Such a correction of the inscription would ease the difficulty felt by Raber 73.
It is similar to the difficulty with 2 and 4. The matter in 6 is so closely linked to
the topic in 5 that we should expect them to proceed from a process of common
reading and yet, as we saw, if 6 comes from book 55 of Paul, it would not have
been read along with 5, which derives from book 56 of Ulpian. Rather, it would
have been read along with 7, 9 etc. and the remainder of the texts from book 57
of Ulpian's commentary. If one looks merely to the sequence of texts in the
Digest title, 6 is properly positioned as part of the group of texts containing
Ulpian 57 ad edictum starting at 7, though perhaps unusually the text from
Paul would precede that from Ulpian. Hence, for instance, 6 has no asterisk in
Kruger's footnote74. It is when one looks at the substance of 6, as Raber does,
67. See text above at note 38.
68. Pal. 1, 1072 and 1073.
69. Grundlagen, 14.
70. Grundlagen, 14.
71. E.P., 8.
72. A.E. Housman, M. Maniii Astronomicon Liber Primus (London 1903), xxxii.
73. Grundlagen, 14.
74. Stereotype Digest, 830 n. 4.
INTRODUCING INIURIA
that one feels less sure, since 6 looks as if it may share a common origin with 5.
That suggests that it should belong in the same group as 5, and hence in the sec-
tion taken from introductory material, rather than in the same group as 7 where
the author turns to more detailed commentary on the individual edicts. The pro-
posed emendation to the inscription of 6 would explain how it could well have
belonged to that introductory section.
VI. - Collatio 2,5 and 2,6
If in fact Paul's commentary began in book 54 ad edictum and continued in
book 55, then certain assumptions about Collatio 2,5 and 2,6 may require slight
revision. The Collatio bears to contain excerpts from a liber singularis de iniuriis
by Paul75. The predominant view is that this is not a genuine work, but rather
some kind of post-classical compilation from Paul's edictal commentary book
5576. In favour of this view Schulz argues indeed that Paul is unlikely to have
written a separate liber singularis77 on iniuria when he wrote a single book on
the same topic in his edictal commentary78. This particular argument loses its
force if in fact the coverage in Paul's edictal commentary stretched over more
than one book.
It has been argued above that Paul's edictal commentary contained an in-
troduction to the title de iniuriis. If the liber singularis was composed from Paul's
edictal commentary, it is at least possible that the general remarks in Collatio
2,5,1 and 2 were taken or adapted from that introduction. Scholars have not
hitherto bothered to consider precisely from which part of the commentary 2,5
would have come. The words hoc edictum in 2,5,3 suggest, however, that that
part derives from commentary on the edictum generale itself. It is accordingly
possible that the immediately preceding remarks were taken from that context
also79 . The matter deserves further consideration 80 .
75. PaL. 1, 1112-1113.
76. Schulz, History, 195 et seq.; Geschichte, 243. See also F. Wieacker, Textstufen
klassischer Juristen (G6ttingen 1960), 87, 136; Raber, Grundlagen, 19.
77. On this type of work see recently D. Johnston, On a singular book of Cervidius
Scaevola (Berlin 1987), 12.
78. History, 195; Geschichte, 243.
79. For the kind of repetition which would be involved see Pernice op. cit. (note 35),
451-452; 8 Labeo 359-360; Honor6, Ulpian, 205-206. The practical demands would tend
to affect any writer of such a commentary.
80. I am grateful to Dr. David Johnston for his comments on a draft of this article.
I am responsible for the errors which remain.