THE DEVELOPMENT OF THE LAW: OUTLINE

23 In the development of private law there is no dramatic divide between the fifteenth and the sixteenth centuries. Admittedly, it was towards 1500 that the reception of Roman law in Germany took place; some decades later the homologation of customs began in the Netherlands; and the sixteenth century saw jurisprudence domi­nated by the Humanist School.

As soon as customary law no longer met the requirements of society, the need for modernization appeared more and more pressing. It could be achieved either by internal transformation of the �native’ law or by receiving into that law an existing system, which was more sophisticated and better able to meet new demands: in the event, Roman law. In their attempts to modernize traditional customary law and assimilate learned doctrine, European countries tried both methods, and consequently the old European law can be called a Roman-Germanic system.

After several centuries of diffusion, the learned law had finally established itself in the sixteenth century in the various countries and regions of continental Europe. The development was to be expected in the Mediterranean regions, where learned law had already acquired a predominant position in the Middle Ages, as well as in Germany, where it had been introduced by way of authority. Yet a similar development is to be observed in the areas where homologated customs were in force. Several factors may explain this diffusion of Roman law in the regions of customary law: legal scholarship there was wholly under the influence of learned law; the courts of justice were peopled by lawyers whose university education was based on Roman law; and the customs themselves (once homologated) often recognised Roman law as having a binding supplementary role. The sixteenth and seventeenth centuries, the classical age of political absolutism, also coincided with the classical age of modern Roman law. But the Roman law of that time was essentially an academic legal system, a �professors’ law’ barely accessible and intelligible to an uninitiated public. It was employed in practice in secret bureaucratic procedures, which aimed as far as possible to avoid any direct contact with the people to whom the law applied.

The meaning of the law was frequently unclear, and certainty in the law elusive. It was an improvement when customs were set down in writing, first on individual initiative and later by official order, but the written versions were often highly imperfect and had to be supplemented by learned law. But the learned law itself (and this was not the least of the practitioners’ difficulties) was at that time made up of a mass of works which were sometimes inordinately long, and which were written by Innumerablejurists who were inclined to contradict one another.

The eighteenth century marked the end of the old European legal order. Various factors contributed to its disappearance: a refusal to submit to the authorities of Antiquity, notably Roman law; the search for a new legal order based on reason, or on the nature of man and society as conceived and defined by reason; the triumph of the idea of codification; and the will to make the closed and esoteric world of law and justice accessible and democratic.