Signs of a New Legal Science in the Roman Tradition

The ancient Roman legal tradition slowly began to influence law. An aptitude and a capacity for looking at everyday events and defin­ing them juridically became part of the new cultural heritage and en­couraged specialization in an activity that, thanks to intense and con­stant repetition, lent substance to the new professions of the practice and the theory of the law.

There are at least two works that testify to the new attitudes of the eleventh century, the Expositio nd Librum Pupiensem and the Exceptio­nes Petri.

The first of these works was anonymous and was probably written in Lombardy around 1070. It was constructed as a series of annota­tions added to the LiberPapiensis and taken from the Lombard Edicta and the Capitulare italicum. For the first time in centuries, the names of “jurists” appear in these annotations: Bonfiglio, Bagelardo, Gug­lielmo, Sigefredo, Ugo, Walcausus. These men cite Justinian’s legisla­tive texts frequently and at length, and there are indications that the author or authors were acquainted with the Codex a work that had been forgotten for more than five centuries and was known only indi­rectly from a greatly abridged text that circulated sporadically, the Epitome Codicis, or from a slightly fuller version, the so-called Epitome Codicis aucta. The Expositio posed questions about dubious legal points and included references to disagreements among jurists.

The consistency of these annotations and the significance of their contents suggest the presence of jurists and legal circles already in­tensely pursuing specialized tasks. Exegesis was important not only (and not so much) for the interpretations it arrived at concerning in­dividual norms but also (and even more) for the methodology that was its point of departure. At least three theoretical directions pro­vided criteria for textual analysis, three directions that are known by the name given to their followers.

First there were the antiquissimi^ who belonged to a past age but whose thought was mentioned on occasion for a specific contribution that it had made to the comprehension of a specific aspect of a norm. Then there were the antiqui and the modemι. who were distinguished by the method that they employed and believed in rather than by chronology, since they all lived at roughly the same time and were all part of the new generations of the second half of the eleventh century. The antiqui held that a norm could be interpreted only by comparing it to other norms in the same collection or by an appeal to principles common to a homogeneous body of precepts (edicts, capitularies, and so forth). As a consequence, they held that where no norm was provided or where the norm was dubious one should turn to the con­text of the dispositions in question and draw from them—and only from them—the needed norm or the most likely indication. The mod­em^ on the other hand, thought it possible and proper to return to Roman law either to understand Lombard edicts or Carolingian ca­pitularies better or to fill in their eventual lacunae. They declared, in justification of their method, that this was possible “because the Ro­man law is the general law for everyone” (quia lex romana est genera­lis omnium), thus treating Roman law as meriting special attention. A bright future awaited this underlying premise.

A number of circumstances during roughly the same period (the eleventh and early twelfth centuries) show proof of a return to the study and the use of Roman law in the form it had assumed in the compilations of Justinian. In some areas of Italy—in Tuscany, and in particular in Arezzo and in Lucca—the technical quality of notarial acts showed a clear improvement. There were some composite works in circulation that presented the salient points of Justinian’s compila­tion in simple terms. Furthermore, legal concepts began to reappear, not only in the theoretical works of jurists involved in constructing the new science of jurisprudence but also as essential working tools to enable practitioners to define adequately the terms in a legal act, conflicting interests, or situations that required surveillance.

The second work that manifested the new spirit was for all intents and purposes anonymous, since the author indicated in one of the variants of its title has not yet been identified. The work circulated either as Exceptiones Petri or as Exceptiones Iegum romanarum. The copies that have come down to us contain notable textual variants: at times the work is given as dedicated to a certain Saxolinus (a Tuscan, ^ccFlorentine civitatis magister”); other versions give a certain Odilo of Valence (a Frenchman, ^ccValentine civitatis magister”). As a result, historiographical debate on the work’s land of origin, although lengthy and bitter, has not produced any sure results, and we still do not know whether the work originated in Tuscany or in Provence, although it is certain that it was used in both regions. Fragmentary documentary evidence of the work has turned up in various parts of Europe, and we can assume that these documents were either partial copies of the larger work or modest original sketches that were joined with others to form the full written version of the Exceptiones. There are many of these partial documentations: an ^ccAshburnham Book,” a ^ccTiibingen Book,” a ^ccGraz Book,” a ^ccVercelli Book,” and an ^ccAd- mont Book.”^[48]

The eleventh century ended and the twelfth century began in a new cultural climate. More and more concentrated thought was devoted to legal norms and the behavior they regulated. At the same time, juridical theory helped to give a new quality and a new dignity to the work of practitioners, notaries first among them.

A new era was beginning for them too.