GRAECA NON LEGUNTUR
While we are on the speculative path, it might be the right moÂment to say something about the absence of the Greek law of Antiquity in the make-up of the medieval ius commune. The quesÂtion here is why something did not happen that might very well have happened.
The query is by no means fatuous, since it was in the line of logical expectation that Greek law would have intrigued the West. After all, Greek law was interesting for its own sake, being democratic and speculative and the product of the famous Athenian city-state. It also belonged to a civilization that fascinated medieval scholars, who could never have enough of Plato, Aristotle and other Greek scientists, mathematicians, geographers and anatomists. So the question why Greek law left the western Middle Ages indifferent is a reasonable one to ask. Not much has been written about it, because historians are naturally inclined to write about what happened rather than what did not. This is a pity, since the absence of certain events, ideas, reactions or feelings can be revealing, if only we give it our attention.[113]Several reasons come easily to mind why the medieval juÂrists ignored Greek law. The most obvious is that the Latin West in general â€?did not read Greek’ (graeca non leguntur). The School of Bologna ignored even the original Greek text of cerÂtain recent imperial constitutions in Justinian’s lawbook, which were replaced by the old Latin translations from the Authentica.[114] Hattenhauer, however, believes that â€?it is all too easy to explain the aversion of medieval jurists to Greek legal texts by their linguistic ignorance’. He points out that in the north Italian cities, which had numerous links with Byzantium, Greek was indispensable, as â€?it was a language of great importance in comÂmerce, politics and law’. The author goes on to explain that Greece and Rome were not only estranged but had become enemies; â€?in the West Greek thought had turned into heresy’, wherefore â€?the phrase graeca non leguntur...
was the expression of a strict self-imposed tie with the spirit ofRome and the Digest’.[115] There is doubtless a good deal of truth in this, but why did this aversion to all things Greek not stop the Latin West studying Greek philosophy and Greek science — in translation — with true passion? When thinking people were interested in Greek and Arabic science, they procured the necessary translations and went to work, teaching, commenting (and sometimes being acÂcused of heresy). What stopped the jurists obtaining translations of the laws of Hellas and the reflections on law and justice in the Athenian democracy? Roman law admittedly had the enormous advantage of being available in one comprehensive and systemÂatic collection; there was nothing like it for Greek Antiquity. But when one sees with what zeal medieval intellectuals looked for sources of information and ordered and digested them, one can hardly doubt that, had they wanted to, they could have come up with some interesting witnesses of ancient Greek law in order to comment and lecture on them.[116] One cannot help feeling that something more visceral was to blame, i.e. a fundamental political preference for Imperial Rome over democratic Athens. Neither the feudal barons, nor the emerging papal and royal monarchies could find any justification or inspiration in Athens, but the monarchies found plenty of useful material in Justinian’s lawbook and they were happy to employ lawyers trained in the leges. On the other hand the Romans had produced more gifted jurists, particularly in the field of private law, than the Greeks, who surpassed them in philosophy and the arts but could not rival them in the subtle definition of legal rules and principles: for the teachers of private law in the medieval Schools Greece had nothing to offer comparable to the Digest.So strong was the appeal of Greek philosophy that when, in the last two centuries of the Middle Ages, urban democracy and anti-papalism became vigorous, the intellectuals, such as Marsiglio of Padua (d. ι 343) turned, not to Greek law, but to Aristotle for inspiration.