Public law theories developed by the glossators of Roman law went overlooked by legal historians for a long time.
As Friedrich von Savigny (1779—1861), doyen of the â€?historical school', noted in the preface to his Geschichte des Romischen Rechts im Mittelalter (1816), it was acceptable for scholars to enquire above all into the Roman private law, if somewhat less into the Roman criminal law, beÂcause traces of both were still preserved in modern states; no interest, Savigny noticed, could be shown towards Roman constitutional law because â€?absoluteÂly nothing' of it carried over into the present, on the other hand.[430] Savigny may have recognised this defect, even though he would do little in his own work to address it.
Later it was Otto von Gierke (1841-1921) who reoriented the disciÂpline of legal history towards corporate and associational formats, in the third volume of his monumental history which appeared buttressed by long quotaÂtions of medieval glosses and treatises of Roman and canon law, opening the way to a study of public law doctrine. Yet he came to these sources like a GerÂmanist. The medieval interpretation of ancient Roman law, Gierke insisted, did not consist of a fair exegesis of the text. On the contrary, it expressed the â€?GerÂman spirit' that lived in the hearts of jurists who could never avoid expressing the rules of German institutions when interpreting Roman texts.[431]Acknowledging the German historiographical context is important for a number of reasons, forasmuch as the entire European tradition of studying
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and teaching medieval legal history is indebted to the experience of professors of â€?Deutsche Rechtsgeschichte'. Much of their research entailed a careful avoidÂance of every â€?contamination' of the learned law (that is, those medieval sourcÂes that acknowledged in some measure or other the authority of Roman law).
This reconstruction prompted historians of German law to deprioritise the output of the medieval schools, and look instead towards ancient, customary institutions, in order to identify how they endured through time and were modified, if at all, in practice. If these historians acknowledged the Roman lawÂyers' influence upon court life and judgments, they described that influence as wholly external. Medieval institutions were considered profoundly Germanic, they argued, regardless of the Roman vocabulary used by jurists that someÂtimes implied otherwise.[432]While the field of medieval legal history has come a long way since the early twentieth century, still it remains possible to interpret the origins of the modÂern state as a process of displacing the â€?despotic' Roman law in favour of â€?GerÂman' principles of corporate sovereignty. Following this interpretation, the very core of the modern legal state (Rechtsstaat or etat de droit) lies far from the Roman respublica. According to this narrative, polities first had to escape from the Roman law in order to establish the â€?rule of law' (as England and France apparently had over the long course of the Middle Ages). It is tempting to detect the lasting effects of interpretations given to us first by the GermanÂists well over a century ago, continuing to impart in some legal historians a sense of ambivalence or indifference towards the influence of Roman models in the construction of medieval forms of public power.[433]
This chapter comes to the glossators with a different motivation, making the case for greater attention to be shown towards the cultural, religious, and poÂlitical contexts in which they wrote. For many cities in what is today Italy, the twelfth century was one of renewal. Classics were revered afresh, influencing many aspects of cultural and public life. And law was at the very core of this renaissance. It follows that historians of legal thought should search for connections across art and politics for new insights into the law of this period. By adopting an approach of this kind, significant rewards are to be gathered. Focusing at first upon a revival of interest in the city of Rome itself, this chapter will then advance into a discussion of a neighbouring city of rising importance in the twelfth century: Pisa. After considering the development of procedural and substantive legal thought within and in relation to these two Italian cities, this chapter will then identify what may be taken as the rudiments of the pubÂlic law theory of the glossators: one that would come to inform new lines of thinking in relation to private and public property, to cities and churches, and to the Imperator himself.
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