The Curriculum and Teaching Method

What was taught from the beginning at Bologna was the text of the Roman law compiled by Justinian's jurists in the sixth century. Indeed, it is likely that the law school was founded primarily for the purpose of studying that text.

The manuscript consisted of four parts: the Code, comprising twelve books of ordinances and decisions

of the Roman emperors before Justinian; the Novels, containing the laws promulgated by Emperor Justinian himself; the Institutes, a short textbook designed as an introduction for beginning law students; and the Digest, whose fifty books contained a multitude of extracts from the opinions of Roman jurists on a very wide variety of legal questions. In a modern English translation, the Code takes up 1,034 pages, the Novels 562 pages, the Institutes 173 pages, and the Digest 2,734 pages. 8

The outlook of the European jurists of the late eleventh and the twelfth centuries dictated that they treat all these writings as a single body.

Primary importance, however, was attached not to the Institutes,

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which was a kind of short primer of Roman law, and not to the Code or the Novels, which laid down specific imperial statutes and decrees, but to the Digest, also called the Pandects. The Digest was a vast conglomeration of the opinions of Roman jurists concerning thousands of legal propositions relating not only to property, wills, contracts, torts, and other branches of what is today called civil law, but also to criminal law, constitutional law, and other branches of law governing the Roman citizen. It was "municipal" law (jus civills, "the law of the city"), covering everything except "the law of nations" (jus gentium), which applied also to non_Romans and which was only touched on incidentally. The Digest was not a code in the modern sense; it did not attempt to provide a complete, self_contained, internally consistent, systematically arranged set of legal concepts, principles, and rules.

The legal propositions which the Digest set forth were very often "holdings" (as they would be called today) in actual cases. Others were statements ("edicts") of magistrates, called praetors, of how they would rule in prospective cases: for example, "The praetor says, 'If you or your slaves have forcibly deprived anyone of property which he had at that time, I will grant an action only for a year, but after the year has elapsed I will grant one with reference to what has [subsequently] come into the hands of him who dispossessed the complainant by force.' " Such propositions are then followed by quotations from opinions of various jurists. For instance, concerning that statement of the praetor, the jurist Ulpian is quoted as saying: "This interdict was established for the benefit of a person who has been ejected by force, as it is perfectly just to come to his relief under such circumstances. This interdict was devised to enable him to recover possession... This interdict does not have reference to all kinds of violence but only to such as issued against persons who are deprived of possession. It only relates to atrocious violence, and where the parties are deprived of the possession of soil, as, for instance, to a tract of land, or a building, but to nothing else." Other jurists also comment on the same interdict -- for example, Pomponius is quoted as saying: "If, however, you are ejected by armed force, you will be entitled to recover the land, even if you originally obtained possession of it either by force (ui), or clandestinely (clam), or under a precarious title (precario)." 9

The Roman jurists, as John P. Dawson has written, directed most of their attention "not to theoretical synthesis, but to the consistent and orderly treatment of individual cases...

require much discussion. They were problem_solvers, working within this system and not called upon to solve the ultimate problems of mankind's needs and destiny. They worked case by case, with patience and acumen and profound respect for inherited tradition." 10____________________________

Professor Dawson notes the Roman jurists' "intense concentration on specific cases," sometimes hypothetical but often drawn from actual litigation. "The cases," he says, "are briefly stated, likewise the jurists' own conclusions. No elaborately reasoned justification was needed, for to persons outside the elite group the jurist's own authority was enough and those inside would understand the reasons well enough. There were many assumptions that were unspoken or merely hinted at and that have only been disclosed through centuries of later patient study. The primary task of the jurists as they conceived it was to provide solutions for cases that had arisen or might arise, testing and revising their central ideas by observing their effects on particular cases." ¹¹

Law students in Europe today, who study Roman law as it has been systematized by university professors in the West since the twelfth century, find it hard to believe that the original texts were so intensely casuistic and untheoretical. They are taught to show that implicit in the myriad of narrow rules and undefined general terms was a complex system of abstract concepts. It is this very conceptualism of Roman law that is held up by way of contrast to the alleged particularism and pragmatism of' English and American law. But that is to view the Roman law of Justinian through the eyes of later European jurists; it was they who first drew the conceptual implications -- who made a theory of contract law out of particular types of Roman contracts, who defined the right of possession, who elaborated doctrines of justification for the use of force, and who, in general, systematized the older texts on the basis of broad principles and concepts.

The curriculum of the twelfth-century law school consisted in the first instance of the reading of the texts of' the Digest. The teacher would read -- and correct -- the language of the handwritten text, and the students would follow it in their (usually rented) manuscript copies and would make the necessary corrections. The term lecture, meaning "reading," was applied to this exercise. Some students who could not afford to buy or rent copies of the Digest would learn it by heart.

Since the text was very difficult, it would have to be explained. Therefore, after reading the text the teacher would "gloss" it, that is, interpret it, word by word, line by line. (Glossa, in Greek, means both "tongue," or "language," and "unusual word.") The glosses, dictated by the teacher, were copied by the student between the lines of the text; as they became longer, they spilled over into the margins. Soon the written glosses had authority almost equal to that of the glossed text itself. In about 1250 the Glossa Ordinaria of Accursius became the standard

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authoritative work on the Digest as a whole. Thereafter came the "postglossators," or "commentators," with their "commentaries" on the texts and the glosses.

The glosses were of several kinds. Some (called notabilia) gave short summaries of the contents of the passage glossed. Others (nicknamed brocardica) were statements of broad legal rules (maxims) based on the part of the text that was being glossed. In addition, the teachers would annotate the text by classifications called distinctiones: they would start with a general term or broad concept and would divide it into various subordinate species, which in turn would be divided and further subdivided, with the writer "following these ramifications of sense and terminology into the most minute details." 1²- Finally, in addition to making "distinctions," the teacher would pose quaestiones, testing a broad doctrine by its application to particular problems or "questions."

The curriculum and the form of lectures and disputations were described by the statutes of the university.

First I shall give you summaries of each title [of the Digest] before I proceed to the text. Second, I shall pose as well and as clearly and as explicitly as I can the examples of the individual laws [given in the title]. Third, I shall briefly repeat the text with a view to correcting it. Fourth, I shall briefly repeat the contents of the examples [of the laws]. Fifth, I shall solve the contradictions, adding general principles commonly called "brocardica" and distinctions or subtle and useful problems [quaesliones], with their solutions, so far as the Divine Providence shall enable me. And if any law shall seem deserving, by reason of its celebrity or difficulty, of a Repetition, I shall reserve it for an evening Repetition. ¹³

In addition to the readings of the texts and the glosses, and the analysis of them through distinctions and questions, the curriculum at Bologna and other medieval law schools included the disputatio, which was a discussion of a question of law in the form of a dispute between two students under the guidance of a professor or else a dispute between professors and students. It has been compared to a modern moot court, but the questions were always questions of law, not actual or hypothetical situations of fact.

As time went on, the law curriculum at Bologna, Paris, Oxford, and other universities of Europe expanded to include more than the Roman law contained in the Corpus Juris Civilis. The principal new subject added in the latter half of the twelfth century was the newly developed canon law of the church. In contrast to Roman law, canon law was current, prevailing law, replenished by decrees of popes and church councils and applied by ecclesiastical courts. Also, as the secular legal systems

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of the cities, principalities, and kingdoms of Europe developed_______ usually under the guidance of

jurists trained at Bologna or elsewhere_____ the curriculum was enriched by references to current

problems of secular law.

Thus the revival of the study of Roman law of an earlier time led to the analysis of current legal problems. Roman law served at first as an ideal law, a body of legal ideas, taken as a unified system; current legal problems, previously unclassified and inchoate, were analyzed in its terms and were judged by its standards. In a sense, Roman law played a role for the medieval legal mind similar to that which legal history played for the modern Anglo-American legal mind from the seventeenth to the early twentieth century. It gave a perspective for analyzing prevailing laws, and it provided ideals for testing the validity of prevailing laws. This is not to say that Roman law was thought to be something other than prevailing law. It prevailed alongside newer laws, and in a sense over them. But it had a fundamental quality which they lacked. The newer laws were in the flux of becoming; the rules of Roman law were present to be concorded.