THE EUROPEAN IUS COMMUNE

The rediscovery of the �Corpus iuris^,

29 Towards 1100 the West rediscovered the Corpus iuris civilis of Justinian. This was not simply a matter of finding the whole text of the compilation again; it meant that from now on the text was studied, analysed and taught at universities.

^j4 Cf. J. van den Broeck, �J. B. C. Verlooy, Codex Brabanticus (1781)’, Revue d^, Kistoire du droit 46 (1978), 297-325; J. van den Broeck, J. B. C. Verlooy, Vooruitstrevend jurist en politicus uit de 18e eeuw, 1746-97 (Antwerp and Amsterdam, 1980).

^a* The expression �Roman-Dutch’ was not used by Grotius, and appeared only in 1652 in Simon de Leeuwen’s Paratitulajuris novissimi, dat is een Kort Begrip van het Rooms Hollands Regt (in the 1664 edition the subtitle has become the main title).

^a6 In French it has been suggested that by analogy with Medio-Iatin, one might speak Qimedio- romain for medieval Roman law. became the common basis for university teaching and legal science throughout Europe?⁷ Medieval Roman or â€?civil’ law together with canon law (which was itself strongly influenced by Roman law) made up the learned law common to the whole of the West: hence the name ius commune. The Roman component of this written common law was the essential one, for it was the principles, terminology and doctrine of Justinian’s law which were the basis for the study of canon law, rather than the reverse?⁸

Ius commune is to be contrasted with ius proprium, the �particular’ law which was in force in its countless variations in the various countries, regions and cities of Europe, in the form of customs, ordinances and charters?® The study of Roman law in the Middle Ages might perhaps have limited itself to purely academic research, like our own approach (for instance) to ancient Egyptian law.

There is nothing exceptional about the reception of a foreign legal system which is regarded as technically superior. Sometimes this is a sudden, deliberate process; sometimes a slow infiltration, a gradual, imperceptible osmosis. A well-known example of assimilation of the first kind (apart from the reception in Germany at the beginning of modern times) is the decision of the Japanese authorities in the nineteenth century to introduce western (mainly German, although also French) civil law, in a conscious policy Ofwesternization aiming

»’ Except for Russia and the territories occupied by the Turks.

’’ This is the meaning of the maxim 'Iegista sine canonibus parum valet, canonista sine Iegibus nihiΓ (Decretum c.7 d. 10). Cf. F. Merzbacher, â€?Die Paromie Iegista sine canonibus parum valet, canonista sine Iegibus nihil’ Studia Gratiana 13 (1967), 273-82.

≈s The term is no doubt borrowed from Institutesi.2.1.: â€?quod quisque populus ipse sibi ius constituit, id ipsius proprium civitatis est Vocaturque ius civile, quasi ius proprium ipsius civitatis’.

Cf. A. Watson, Legal transplants (Edinburgh, 1974). to free the country from its feudal shackles.3' In this instance Japan opted for a foreign law, but for a live contemporary one. By contrast, the assimilation of ius commune in the Middle Ages depended on the law of an empire and civilization which had vanished centuries ago, and of which the Corpus iuris was (so to speak) merely an embalmed relic.

The enthusiasm which characterized the study of the Corpus iuris as it spread from Italy into the various societies of the West was simply part of a more general cultural renaissance, one aspect of which was the founding of universities. Besides ancient law, Greek philosophy (Aristotle) and Graeco-Arabian science (medicine, phys­ics, mathematics) were discovered, translated and commented upon. The authority of ancient learning was absolute: what Holy Scripture was to theology, Aristotle was to philosophy, Galen to anatomy, and the Corpus iuris to the law. But additional motives and demands sustained the interest in ancient Roman law: expanding cities and principalities needed a legal framework adapted to new administra­tive structures; and during the investiture contest, each side sought arguments to support its cause in the texts of the Corpus iuris.

Three great schools of study of Roman law may be distinguished according to approach and method: the glossators from the twelfth century to the first half of the thirteenth; the commentators in the fourteenth and fifteenth centuries; and the humanists of the sixteenth century.

The glossators of Roman law

30 The Corpus iuris studied by the glossators (to whom it owes its name) was the entire Justinianic compilation which had been

s^, Cf. the general observations of W. Wilhelm, ⁱBemerkungen zur Rezeption auslandischen Rechts^,, Ius commune 5 (1975), 122-37; A. B. Schwarz, ¹Rezeption und Assimilation auslandischer Rechte’ in H. Thieme and F. Wieacker (eds.), Gesammelte Schriften von A. B. Schwarz (Karlsruhe, i960); W. Fikentscher (ed.), Entstehung und Wandel rechtlicher Tradilionen (Freiburg, 1980; Verdffentlichungen Inst. hist. Anthropologie, 2). On Japan, W. G. Beasley, The Meiji Restoration (Stanford, 1973); Z.

Naturally the Digest was the most important part. It seems to have been unknown in the West from the seventh century until a sixth­century manuscript reappeared in south Italy in the eleventh century: the Littera Pisana.^ This manuscript was evidently the basis for a copy made about 1070 which, with other manuscripts, was the basis for the standard edition followed by the glossators. The Codex of Justinian had not entirely disappeared in Italy in the early Middle Ages but it was known only in a ruthlessly abridged version; as with the Digest, the complete texts reappeared only in the eleventh century.³⁵ By contrast, the whole text of the Institutes was not lost in the early Middle Ages, at least not in Italy. In addition the glossators were able to study the Novels in the compilation known as the Authenticum,& the extant manuscripts of which go back no earlier than the eleventh century.^{[6] [7] [8]’}

The glossators had to devise methods and principles for assimilat­ing and comprehending the Corpus iuris. Their main aim was like that of the scholastic theologians: just as the theologians aimed by the light of human reason to elucidate a Scripture whose authority was absolute, so the jurists attempted to understand the Corpus iuris with the aid of formal logic.

�Glosses’ in the sense of explanations or clarifications sometimes went beyond purely literal exegesis, for example where the meaning of a rule was elucidated by reference to other passages of the Corpus (�parallel texts’) containing other principles or qualifications which contributed to a better understanding of the text. It follows from the structure of the Corpus iuris that the same subject-matter can be dealt with in different places, both in the Codex (when it is a matter of an imperial constitution) and also in the Digest (when for instance it is the opinion of a jurist). Reference to parallel texts certainly per­mitted a better overall view on a given question.

These cross-references at the same time brought to light dispari­ties, and sometimes even contradictions, which Tribonian and his colleagues had not succeeded in avoiding in the compilation. Nowadays it seems only natural that a compilation of materials from various sources and different periods should not always display a perfectly coherent whole. For the jurists of the Middle Ages, however, the Corpus represented perfection itself, and so contradic­tions in it could not be genuine but must be merely apparent.³⁹ The glossators therefore attempted to eliminate these antinomies, par­ticularly by resorting to the technique of distinctio (a minute distinc­tion between the different meanings of a particular word).⁴⁰ In applying this technique, they were sometimes tempted into excessive subtleties or logical artificialities. Such excesses may explain the unfortunate reputation of the learned jurists, who were accused of

s’ Glossa means �word’ (as in �malbergic glosses’) as well as �exegesis of a word’.

39 Hence the medieval expression in hortulo juris nil spinosum (â€?there are no thorns in the garden of the law’). Even in the eighteenth century Jean Bouhier (d. 1746) subscribed to the declaration by Claude de Ferriere (√. 1715) that â€?Roman law is founded on natural reason and the principles of equity; it is a ray of divinity which God has communicated to man.’ *⁰ For example, the constitution c. 4.35.21 in re mandata affirms that each man is â€?suae rei arbiter' while D. 4.8.51 si de re sua claims that none can be de re sua arbiter. The apparent contradiction is avoided by distinguishing the meaning of the two expressions: in the first case each is the master of his own property and can take the responsibility of disposing of it; in the second it is a question of an arbiter called on to judge his own case. Cf. R. Feenstra, ¹Historische aspecten van de private eigendom als rechtsinstituut^,, Rechtsgeleerd Magazijn Themis (1976), 248-75. distorting the law by misrepresenting the true meaning of the texts. On the other hand the same methods had more than merely academic uses, and these lawyers proved themselves formidable advocates even in other areas of law.

One teaching technique which was widely employed was the casus. Originally this was a presentation of a fictitious case, in which whatever rule of law was being studied had to be applied. Later the same expression was used to describe an account of a complex question. Pfotabilia and brocardica, that is brief, striking aphorisms summing up a rule of law, were also very popular.+¹

The premisses from which the glossators set out imposed certain restrictions. In their view there was no question of casting doubt on the doctrine of the Corpus iuris, as it expressed ratio scripta, written reason. An assault on the texts was therefore (literally) unreasonable and senseless. Nor did they see the Corpus iuris as the product of a given civilization; far from considering it a historical document, they elevated it to the status of a universal and eternal model, a revelation. A further consequence of this attitude was that the glossators did not go beyond the Corpus iuris. In their scholarship and teaching they did not deal, for instance, with feudal institutions or with irrational modes of proof, although ordeals were still current in their own age. The Corpus did not raise these questions, and the glossators therefore felt entitled to ignore them. Thus Accursius could declare that according to Roman law the emperor was not subject to any jurisdiction, and it is typical that he paid not the least attention to the political reality of the time, which he knew perfectly well: that the authority of the pope undeniably extended to emper­ors and kings, and that pontiffs had even exercised their authority in practice by pronouncing interdicts, excommunications, and some­times even orders for deposition.⁴² The converse, however, was not true: if the learned lawyers ignored customary law in their studies, they did not hesitate to employ their own arguments on the Corpus iuris when consulted by litigants, or when they appeared as advocates.⁴^

'^, E.g. actor sequitur forum rei; locus regit actum; in dubio pro reo.

∙' Cf. B. Tierney, â€?The prince is not bound by the laws. Accursius and the origins of the modern state’, Comparatwe Studies in Society and History 5 (1962), 378-400; D. Wyduckel, Princeps legibus solutus. Eine Unlersuclumg zur Jruhmodemen Rechts- und Staatslehre (Berlin, 1979).

« A. P. Schioppa, �Le role du droit savant dans quelques actes judiciaires italiens des XI' et XII' siecles^,, Confluence des droits savants et des pratiques juridiques. Actes du colloque de Montpellier 1977 (Milan, 1979), 341-71.

Legal science acquired a very pronounced abstract character, since it concentrated on the legal system of a bygone age, and did not develop, as is more usual, from the encounters of daily practice and the experience of generations. Yet the researches of the glossators revealed ancient law to the world of the late Middle Ages, and their works of exegesis gave access to the Corpus iuris. The School of Glossators thus prepared the way for the jurists who Subsequendy tried to produce a synthesis of medieval customs, legislation and Roman law.

The scholarly work of the glossators took various shapes. First, of course, glosses. These were originally brief isolated notes inserted between the lines or in the margin of the text of the Corpus. Little by little these glosses built up and took on the form of a continuous commentary {apparatus). In manuscripts, as well as in old editions of the Corpus, the page is laid out with the textus in the centre, completely surrounded by the glosses (which often exceed it in length). The great merit of Accursius {d. 1263) was to make a selection from the thousands of scattered glosses which his numerous scholarly predecessors had written. His version rapidly became the standard gloss and was therefore known as the glossa ordinaria {c. 1240); the apparatus fixed by Accursius represented the culmination of the School of Glossators.

Some glossators wrote original treatises, in which they discussed the law of the Corpus as a whole. The Summa Codicis of Azo, written about 1208-10, is the best known of these: while he follows the rubrics of books 1 to ιx of the Codex, Azo in fact gives a systematic account of the subject-matter of the Corpus. This â€?summary’ was for long the classic Roman law manual which the jurists consulted in conjunction with the glossed Corpus.

Little evidence about the first glossators has come down to us. The first name to appear is that of Pepo, who is said in a legal action towards the end of the eleventh century to have referred to the Codex and Institutes, and to have begun in Bologna auctoritate sua Iegere in legibus. After him, Irnerius undertook the teaching of the whole Corpus iuris, again in Bologna. He had been educated in the artes, and applied his literary knowledge and skill to the legal texts. Among his pupils, most is known of the â€?Four Doctors’ {quattuor doctores), Bulgarus, Martinus Gosia, Hugo, and Jacobus. Their teaching made Bologna the indisputable capital of legal studies; their influence extended far beyond the circle of their students, and even great figures of the time such as Frederick I Barbarossa sought their opinions.⁴⁴

The commentators of Roman law

31 Nowadays the jurists of this school are referred to as �commen­tators’; previously they were known as �post-glossators’, owing to the fact that they taught after the glossators and in a sense continued their work. Yet that name wrongly implies that the new school amounted to no more than an unoriginal continuation of the work of its precursor. The name �commentators’ emphasizes that these jurists wrote important commentaries on the Corpus iuris as a whole. In addition they wrote numerous consilia or legal opinions, delivered on actual questions on which they had been consulted: hence the name consiliatores has also been proposed to describe this school. The zenith of the School of Commentators was in the fourteenth and fifteenth centuries; its authors too were mostly Italian. Their aims and methods were these.

The Corpus iuris and the Gloss formed the basis of their works. The importance accorded by them to the Gloss was such that it some­times eclipsed the original texts.⁴⁵ The commentators’ method was strongly influenced by scholasticism, which had reached its high point in the thirteenth century, and which had imbued subsequent scholarly thought with Aristotelian logic. In particular the commen­tators adopted the system of argumentation, disputation and pole­mic typical of scholasticism. They also took up its excesses, and this is the origin of their interminable discussions on trivialities, their excessively subtle analyses of authorities, and their exaggerated reliance on the technique of successive distinctions. The work of the commentators is essentially academic, and this is to be associated largely with university teaching, which was then undergoing a major expansion. Universities had first been founded in Italy and in France, but rapidly spread in Spain, England and then in the other

« Of !menus’ work, only glosses are preserved; of the four doctors’, some other rather brief works have also survived. Some short anonymous treatises of the twelfth century are also known; cf. e.g. G. Dolezalek, �Tractatus de diligentia et dolo et culpa et fortuito casu. Eine Abhandlung fiber die Haftung fur die Beschadigung oder den Untergang von Sachen aus dem Zwolften Jahrhundert', Aspekte europdischer Rechtsgeschichte. Festgabe fur Helmut Coing (Frankfurt, 1982; Ius commune Sonderheft, 17), 87-122.

« Hence Cynus’ aphorism sicut antiqui adorabant idola pro deis, ita advocati adorant glossatores pro Cvangelistis (�just as the ancients adored idols as gods, so advocates adore the glossators as evangelists’). countries of continental Europe (e.g. Louvain 1425). The law conceived in the law faculties was inevitably a learned and academic law, a professors’ law.

None the less the School of Commentators differs from the glossators in that its authors took a greater interest in the law outside the Corpus iuris civilis, and in their scholarly work even paid attention to the social realities of the time. Thus the commentators had firm views on the sources of non-learned law too, such as customs and ordinances. In spite of their positions in universities, they were realistic enough to appreciate that it was inconceivable in their time (no doubt in the future too) for learned law to become the common law for all Europe. Regional customs, feudal principles, munici­pal regulations and statutes, and royal ordinances were much too firmly anchored in practice and much too intimately bound up with vested interests to be swept aside and replaced with an academic system from Bologna. On the other hand, the commentators also appreciated that the learned law would play only a trifling part if it remained confined to the narrow artificial context of the Corpus iuris and the ancient world. The commentators adapted the learned law to the needs of their time; they worked out doctrines of practical value; they allowed the learned law to complement and enrich the other sources of law without eliminating them; and so they enabled it to play an effective and vital role in legal practice.

Learned law could also provide a method and principles suitable for the scholarly study of non-Roman laws. Here the distinction made by the commentators between ius commune (the �common’, cosmopolitan and learned law of the whole of the West) and ius proprium (the law �proper’ or particular to a country, region, town or corporation) took on a major importance. Although the commentators recognized and respected the significance of ius proprium, they urged that it should be studied and that gaps in it should be filled by the learned law and its method. Their interest in ius proprium also led them to deal with real problems, often taken from everyday life. An example is their theory of statutes (which is still applicable in private international law), which was developed from the conflict of laws between statutes and the other municipal laws of Italian cities. It should not be forgotten that these pro­fessors were often directly involved in legal practice as judges or advocates.

The typical works of the School of Commentators are in line with this approach to law: the commentators were first and foremost professors, and their teaching remained based on Justinian’s compi­lations. Their courses (lecturae) still scrupulously followed the order of the Corpus. Most authors gave Iecturae only on certain parts of the Corpus, but sometimes the teaching of a professor extended to the whole of the compilation. Lecturae, once filled out with academic debate and discourses on specific problems, sometimes grew into the encyclopaedic commentaries which gave their name to the school. Another genre, treatises, allowed the authors to leave the confines of the Corpus: the point of departure was no longer a particular text drawn from the compilation, but a real instance or problem of legal practice to which the jurist attempted to give a satisfactory solu­tion by making use of the learned law. Examples are the treatise of Bartolus on arbiters or that of Cynus on intestate succession. Closer still to legal practice were the numerous consilia written by the authors of this period: the consilium was a legal opinion, often very detailed, given by one or more professional lawyers on an actual case, at the request of an individual or an institution. Even the courts requested such opinions (and even in the nine­teenth century, German law provided a procedure under which the courts could in certain circumstances request an opinion from the faculties of law). It is largely in the mass of extant consilia that the experience and learning of the commentators are to be found.

The School of Commentators produced many authors and an impressive volume of their work survives. Mostly Italians, they maintained the traditional pre-eminence of their nation in the area of legal science. French jurists, however, the best known of whom are Jacques de Revigny (d. 1296) and Pierre de Belleperche (d. 1308), had been the precursors of the Italian commentators in the second half of the thirteenth century. Their doctrines were diffused in Italy by Cynus of Pistoia (d. 1336), the first great author of the School of Commentators. After him the school reached its scho­larly summit with Bartolus of Saxoferrato (d. 1357) and Baldus de Ubaldis (d. 1400). The tradition was continued in the fifteenth century by many other Italian jurists, such as Paulus de Castro (d. 1441) and Jason de Mayno (d. 1519). Italian pre-eminence was such that this school was known as the mos italicus iuris docendi (â€?Italian method of teaching law’), as opposed to the French school or mos gallicus, by which is meant the approach of the sixteenth-century humanists, who were essentially connected with France.*⁶

The Humanist School of Roman law

32 Sixteenth-century jurisprudence was dominated by the achie­vements of the Humanist School of Roman law. The last school to profess the primacy of the Corpus iuris, it none the less adopted an approach very different from that of the glossators and commenta­tors. Its rise was but one manifestation of the renaissance of Antiquity which, from the end of the Middle Ages, profoundly influenced European science, arts and letters. The impulse once again - but for the last time - came from Italy. The positive stimulus for the Renaissance was a new enthusiasm for the culture of Antiquity. This was a rediscovery of ancient culture more profound, precise and complete than the somewhat naive and blind admiration characteristic of the Middle Ages. The negative side was the often harsh disdain the humanists directed towards the �Middle Ages’, an expression they coined to describe the obscure centuries between the cultural peaks of Antiquity and their own time. They accused the people of the Middle Ages of having bastardized classical Latin through neologisms and stylistic imperfections which were incom­patible with the ancient language of culture; and they reproached them for their ignorance of Greek.

The humanist approach to law brought about a revival of studies of Roman law and the civilization which had created it. The original element in the humanist approach was to apply both historical methods, in order to understand the social context of legal rules, and philological methods, in order to determine the exact meaning of Latin and Greek texts. These principles enabled the humanists to expose the erroneous and anachronistic interpretations given by their predecessors. Sometimes they launched violent attacks on the jurists of the Middle Ages, describing them as fools and accusing them of having submerged Roman law under a mass of Gothic and barbaric accretions.*?

*⁶ â€?Gallicus’ here means â€?French’ rather than â€?Gaulish’; this school flourished in France in the sixteenth century. The expression derives from the fondness of the humanists for ancient Latin geographical names (Belgicus for Dutch, Gallicus for French, and so forth).

♦7 In some caustic remarks, Rabelais described the medieval lawyers as being â€?ignorant of everything necessary for the understanding of law’, accused them ofâ€?knowing neither Greek nor Latin but only Gothic and Barbarian’, and charged them with being totally unacquainted with the letters and history of Antiquity. In humanist circles, vituperation of the lawyers was de rigueur, and Petrarch, Filelfo, Valla and Politian were all true to the tradition. On Rabelais, see E. Nardi, Rabelais e U diritto romano (Milan, 1912).

The positive results of humanism were considerable. Numerous errors committed by the glossators and commentators owing to their lack of historical and philological expertise were corrected, and knowledge of the ancient world therefore became much more precise and profound; the Annotationes of Guillaume Bude, for instance, exposed a whole series of misconceptions by the jurists of the Middle Ages. Their approach enabled the humanists to see the Corpus iuris as a historical phenomenon of its own time and place, as a human achievement, and not a â€?gift fallen from heaven’ as Bude said ironically of the naive medieval approach.+⁸ Yet humanist criticism had its unfortunate consequences. The Bartolists had adapted the Roman law of the Corpus iuris to the needs of medieval society. The humanists rejected these adaptations on the ground that they corrupted the original purity of Roman law; and so they reduced that law to the state of an academic relic, a historical monument, a dead law for scholarly study only. It will be recalled that the Latin language had undergone a parallel evolution: in the Middle Ages Latin had remained a living language, owing to constant adaptation and the introduction of new terms and expressions, but the purism of the humanists turned it into a mere academic tool, a dead language.

By demonstrating the historicity and thus the relativity of the Corpus iuris, the humanists destroyed the absolute authority which it had until then enjoyed. IfRoman law was no more than the product of a given society of a given period, what reason was there to submit to it in another period, or to accord it an authority superior to the laws of modern peoples?

The founder of the Humanist School was Andrea Alciato {d. 1550), an Italianjurist who studied in Pavia and Bologna, where he became the pupil ofjason de Mayno; he then taught at Avignon and Bourges, and later at Italian universities.+^ The university of Bourges became the main centre of the mos gallicus, owing principally to Jacques Cujas {d. 1590). He was the most outstanding exponent of

*⁸ Sometimes even the humanists fell into gross errors: U. Zasius₁ for example, thought the word carocerus (the symbolic coach of the city of Milan) was a proper name. On Bude₁ D. R. Kelley₁ â€?Guillaume Bude and the first historical school of law’, American Historical Review 72 (1967)₁ 807-34.

's Among his many works the Armotationes in tres posteriores codicis Hbros (1513), dealing with the political and administrative institutions of ancient Rome, expresses the novel approach of humanist study. humanism, and he taught in Bourges (with a few interruptions) from ¹555 ^{to 1}59^o∙ Cujas approached his subject with an exceptional mastery of Roman law and philology, which until the work of Th. Mommsen (d. 1903) was to remain unequalled. There were also distinguished German and Dutch proponents of humanism. In Germany, Ulrich Zasius (d. 1535), a friend of Erasmus, was one of the first legal humanists. In the Netherlands, the University of Louvain rapidly became a centre of humanism, and jurisprudence was also affected by this cultural revival. At the Faculty of Law, Gabriel Mudaeus (Van der Muyden, d. 1560) acquired a great reputation. Among his pupils were Jacob Reyvaert (Raevardus, d. 1568) and Mattheus van Wesembeke (Wesenbecius, d. 1586). Viglius (d. 1577) edited the Greek version of Roman law texts and wrote a commentary on some titles of the Institutes according to Alciato’s method.

Several jurists of the Humanist School were implicated in the religious conflicts of the Reformation and were compelled to go into exile because of their beliefs. This applies notably to the Frenchman Hugues Doneau (Donellus, d. 1591) who took refuge and taught in Germany and in the northern Netherlands. He became one of the leading lights of the University of Leiden (founded in 1575), where he became renowned for his immense learning and total lack of any practical sense. (It is related that the eminent jurist did not know how to make out a receipt for the salary paid to him by the Dutch state.) His Commentarii iuris drills in twenty-eight books had great success in Germany and the Netherlands.

The Humanist School made an unprecedented contribution to broadening and deepening knowledge of ancient law and the ancient world. Even in the nineteenth century, Mommsen was able to start from humanist works published three centuries earlier. Practitioners throughout Europe, however, continued to apply Roman law in the Bartolist tradition, since Bartolist commentaries, treatises and consilia supplied solutions to real and present problems. Yet the opposition between mos gallicus and mos italicus should not be exaggerated. Many lawyers—judges, advocates, and scholars - were inspired by both schools. They still based themselves on the practical work of the medieval Italian school, but from the humanists they acquired a broader conception of law, a more philosophical ap­proach, and the taste for elegant development of their ideas and arguments. These lawyers were above all practical, but they took a lively interest in ancient history and literature.⁵⁰ It is quite right, therefore, to speak of the â€?Elegant School’ to denote the lawyers of the United Provinces who integrated the style and quality of the humanists into their practical work.⁵¹ With other legal historians, we may therefore recognize a third school besides mos gallicus and mos italicus, made up of lawyers who hoped to preserve the advances of medieval learning but were also disposed to follow the broader lines of the Humanist School, and to assimilate the human and stylistic qualities of classical literature.⁵²

This revived academic Roman law was finally supplanted by national codes inspired by the School of Natural Law. The influence of the old schools, however, did not altogether disappear. Traces of the mos italicus are still to be found in legal doctrines and in some parts of the modern codes such as the law of obligations; while the mos gallicus survives in the more academic study of ancient law, and in the general culture of legal education.

The influence of Roman law on canon law

General considerations

33 The intensive study of Roman law at European universities was not just academic recreation, nor purely historical research. Quite the reverse: it strongly influenced and guided both the practical and the doctrinal development of law. The word �guided’ is used advisedly since, without the renaissance of Roman law, the develop­ment of law in Europe would have been fundamentally different. Even without the Corpus iuris, the society of the late Middle Ages would have had to free itself from the archaic law of the feudal period and develop a law adapted to its new needs. Such a law would have been the result of original innovation and intellectual effort, its solutions to comparable problems would no doubt some-

s^o E.g. P. Wielant¹S library (whose catalogue has recently been discovered) contained many humanist literary works.

s^, Among the members of the Dutch Elegant School are Joachim Hoppers (Hopperus, d. 1576), Arnold Vinnius (means a Muslim) converted to Christianity, and was deserted by his wife, who was opposed to the new religion. He then married a Christian woman and on her death entered the clergy. Later he was elected bishop. Gratian formulates three legal problems (quaestiones) in relation to this case: (i) is a marriage between non-believers valid? (ii) May the convert remarry while his first wife is still alive? (iii) Should a man who marries another woman after having been baptized be considered a bigamista2⅛ The answers proposed by Gratian are (i) between non­believers there can be an honest marriage, but it is not binding; (ii) in a marriage between non-believers, if the wife leaves her husband, he may remarry even if he has converted in the meantime; (iii) by his second marriage, he none the less becomes bigamista and cannot as a result attain to higher orders. The man elected bishop cannot therefore be ordained or installed. (In this example too there are contradictory authorities: StJerome saw no impediment in the state of â€?bigamy’, but St Augustine followed by Pope Innocent I asserted the opposite, and Gratian opted for their view.^[12]+)

Gratian therefore combined the qualities of compiler and teacher, and his work was not merely a collection of earlier sources but also a manual for study. For centuries the Decretum served as the basis for university teaching, even though it was never officially sanctioned. Gratian’s work inaugurated the important studies of the School of Decretists, which was later followed by the decretalists.

The decretals

35 Gratian marks the end of the first millennium of the history of canon law and also the beginning of its new and unprecedented ascendance. Gratian’s work and teaching had started and had facilitated the rise of canon law from the twelfth century, but that had been caused above all by a veritable explosion of ecclesiastical legislation beginning even in his time. This legislation included the canons of councils,⁶J but was made up principally of ponti­fical decretals. While no decretal had been promulgated between ad 891 and the mid-eleventh century (the beginning of the Gregorian Reform), there are almost 2,000 for the period from the pontificate of Alexander III (1159-81) to that of Gregory IX (1227-41).

An illustration is the decretal Veniens ad nos of Alexander III (x.4, i, 15) which was decisive for the Canonistic theory on the formation of marriage. The decretal was the response to an inquiry from the bishop of Pavia about a specific case: in his diocese a certain G. had been surprised by his host while in bed with the host’s daughter. Thereupon the daughter and G. exchanged consents for marriage de presenti which, according to contemporary theory, sufficed to form a valid marriage. It then transpired that the man was already living together with another woman and actually had children, but he had not married her and had merely promised to marry her de futuro. Which of these �marriages’ was valid? The decision was referred to the pope, who held that a promise of marriage (sponsalia de futuro) followed by sexual relations (copula carnalis) formed a valid marriage, and that G. was therefore actually married when he made his declaration of marriage de presenti to the daughter of his host. The second marriage was therefore void.^[13]

Systematic collections of new decretals were begun very early in order to meet the needs of teaching and practice.^[14] A period of legislation and intensive compilation culminated in 1230 when the Spanish canonist Ramon de Penaforte, chaplain to Gregory IX, was entrusted by him with the task of editing a definitive collection of the constitutions and decretals promulgated since the composition of the Decretum of Gratian. In carrying out this task, for ease of consultation Ramon de Penaforte added to the texts summaries in his own words, and rubrics indicating the subject-matter. The various subjects were ordered and corrected, some were eliminated, and they were regrouped in five books according to an older model: index (the judge) on the organization of the courts; indicium (processjudgment) on procedure; clerus (the clergy) on their rights and privileges; connubium (marriage) on the law of the family and persons; crimen (crime) on criminal law and procedure. In 1234 the collection was promulgated by Gregory IX: any texts later than the Decretum of Gratian which were not included in the new collection were abrogated, and the text of the collection alone was declared authori­tative. It is entitled Liber decretalium extra Decretum vagantium (�book of decretals current outside the Decretum') and is now known as the Liber extra. The collection was also intended for teaching: copies were sent to the universities of Bologna and Paris. Just as the School of Decretists had devoted their study and teaching to the Decretum, so the decretals now became the object of study by the decretalis ts.

The canonists also glossed the texts of the Decretum and the decretals (just as the Roman texts had been glossed) and composed an apparatus on the entire collection. The apparatus of Johannes Teutonicus (rf. 1245 or 1246), revised by Bartholomew OfBrescia (d. 1258) became the ordinary gloss on the Decretum', that of Bernard of Parma (d. 1263), based among others on the gloss OfVincentius Hispanus (d. 1248), became the ordinary gloss on the Liber extra. The Decretum and Liber extra were also the subject of important summae and lecturae,™ as well as repertories, collections of casus and other works largely intended for practitioners. New decretals were promulgated after the Liber extra, and some popes published partial collections of them, notably the Liber Sextus of Boniface VIII (1298)⁶9 and the Constitutiones Clementinae of Clement V (1314, promulgated in 1317 by his SuccessorJohn XXII).

The Decretum of Gratian and the official collections of decretals together make up the Corpus iuris canonici, a title used from the fifteenth century (by analogy with Corpus iuris civilis). In the six­teenth century the collections were submitted by pontifical order to a commission called the Correctores Romani for textual revision. The results of their work were published in Rome in 1582 under the title Corpus Iuris Canonici and this was not replaced until 1917 by the Codex Iuris Canonici of Benedict XV, which was conceived as a modern code. A revision of canon law was undertaken in connexion with the Second Vatican Council and led to the promulgation of a new code in 1983.

The canonists

36 There are several aspects to the influence of Roman law on canonistic legislation and doctrine. The example of Roman law enabled canon law to establish itself as an independent discipline, distinct although not separate from theology and ethics. This point deserves emphasis, since other religions make no distinction between rules of conduct and religious taboos on the one hand, and rules of

⁶⁸ Among the earliest works of the Decretists are the Summae of Paucapalea (1140-8), of Roland Bandinelli (the future Pope Alexander III) composed before 1148, and of Stephen of Tournai (not earlier than 1160); the Summa of Huguccio (not earlier than 1188) is very important. Among the best-known works of the Decretalists are the Summa aurea or Hostiensis of Henry of Susa (ι 250-3) and the commentary OfSinibaldus Fliscus (the future Pope Innocent IV) composed about 1251.

⁶β ⁱSextus^y because it was intended to complement and continue the five books of the Liber Extra. law on the other; or, in other words, between the confessional and the court. Roman law scholarship at Bologna contributed to the rise of an independent Canonistic scholarship which was soon dis­tinguished by its own faculties, schools, classic works and authorita­tive commentaries. The study of Roman law was (as we have seen) necessary for the education of canonists, for it was in the schools of the civilians that canonists learned the â€?grammar’ of learned law, and there that they assimilated methods, fundamental concepts and legal terminology.

The Corpus iuris civilis gave strong support to the centralist policy of the popes. The Roman emperor as universal legislator and Supremejudge served as a model for pontifical aspirations to legislate and to administer justice for the whole of Christendom. The rise of canon law coincided with a marked resurgence of legalism within the church, and a focusing of attention more on questions of com­petence, justice and fiscality than on teaching, spirituality or asceti­cism. Although the popes had taken an interest in questions of law even before this time, it is significant that the tradition of pontiff­jurists begins only in the twelfth century. Officials of the church came to be chosen more and more for their legal education and experience, rather than for their aptitude to govern or their personal sanctity or charisma.⁷”

Canon law expressly recognized the authority of Roman law, inasmuch as it was the legislation of the Christian Emperor Jus­tinian, at least so far as its dispositions were not contrary to the canons. This doctrine is found in Gratian: the statutes of emperors are to be applicable in ecclesiastical matters unless they are contrary to the holy canons of the church (d. x c.7; dicta post d. x c.6 and post c.4, c. xv q. 3). The Decretum also contains some texts taken directly from Justinian’s compilations.⁷' The influence of Roman law is also to be found in the application by analogy of some Roman rules to subjects which were peculiarly ecclesiastical. Thus the doctrine of the canonists on error in persona as the key to the nullity of marriage is inspired by Roman principles of error in the contract of sale. The

This excessive Iegalism was attacked by the reformers, who thought the church of the late Middle Ages paid too much importance to institutional and administrative questions and too little to its holiness.

7' The source of the (much more numerous) additions of canonical texts known as paleae (a term whose exact significance is unclear) has not yet been established; they are attributed to pupils of Gratian. appeal of this theory was such that, in the absence of canonistic scholarship or legislation, the canonists used it to develop rules on error as to person, which vitiated consent and so entailed the nullity of marriage?² Canon law criminal procedure is another striking example of the use of the Roman law analogy. For the rigorous repression of heretics, the canonists resorted to the very severe rules provided in Roman criminal law for the crime of treason. In the medieval period heresy as an offence â€?against divine majesty’ was assimilated to affront to the imperial majesty in ancient Rome. The civilians also contributed so much to creating a modern pro­cedure for the church courts that it is known as Roman-canon­ical procedure; here Roman and canonical elements became fused. 73

The influence of canon law on secular law was considerable; in fact the history of law in Europe is inconceivable without the contribution of canon law. The institutional structure of the post-Gregorian church, with its hierarchy, centralization, admini­stration and its bureaucracy, served as a model for the institu­tions of kingdoms and principalities from the late Middle Ages onwards.

In some important areas of private law even lay people were subject to the jurisdiction of the church courts. The obvious example is the law of marriage and the family. This had inevitable repercus­sions for the law of succession, in which the question of legitimacy or illegitimacy was often decisive. People encountered the learned law, at least in its canonical form, in innumerable actions on questions of engagement, marriage, separation and paternity.⁷⁴ At the same time they encountered Roman-canonical procedure, with its own rules of evidencejudgment and appeal. This was the first experience which many people had of Roman law in practice, since the secular courts actually began to apply Roman law only after church courts

J. Gaudemet, â€?Droit canonique et droit romain. A propos de Γerreur sur la personne en matiere de manage’, Studia Gratiana 9 (1966), 47-64. Obviously error as to person was very rare; but error as to the social status of the spouse was more frequent and, according to some authors, could be assimilated to error in persona-, thus a free person who married a serf by mistake could invoke error to argue for nullity.

n Cf. below section 38.

” C. Vleeschouwers and M. van Melkebeek, Liber Sentenciarum van de Officialiteit van Brussel 1448- 5g (2 vols., Brussels, 1982-3; Commission royale des anciennes Iois et ordonnances, Recueil de Fanciennejurisprudence de la Belgique, γ serie). had become widespread, even in the Mediterranean regions (and a fortiori in more northerly regions).^[15]

Some modern legal theory was developed by the medieval cano­nists. One example is the doctrine of nuda pacta, which was inspired by moral considerations {solus consensus obligat∙, pacta sunt serυanda^. every agreement, even if concluded without formalities, must be respected); another is the theory of causa in the law of obligations.^[16] In criminal law, the canonical theory of culpability^[17] prepared the way for modern criminal law, which attaches prime importance to determining culpability (voluntary or involuntary, premeditation, recidivism, mitigating circumstances, and so on), whereas primitive criminal law was interested above all in the harm done and in compensation.

The influence of the �ius commune’ on legal practice in general

37 The glossators (as we have seen) exercised an early and profound influence on canon law. But the spread of learning in Roman law was not limited to canon law, whose field of application was restricted both ratione materiae and ratione personae. Roman law increasingly affected legal life and practice in Europe in general. The degree of Romanization varied greatly from one country to another, but none completely escaped. The Roman law of the medieval universities therefore shaped and steered the development of law throughout Europe.

Extent and speed of Romanization

38 In some areas of the Mediterranean world, learned law was adopted as early as the thirteenth century as the basis of the legal system. In these areas, the customs and ordinances peculiar to each country or city were regarded as local variants, which were of course valid but were of limited application and were anyway subject to the general rules of the learned law. Italy and the south of France, the regions of written law,⁷⁸ are the classic instances of this type of Romanization. In Spain, there was a more tenacious tradition of local Jueros (compilations of local law, sometimes archaic and of Visigothic origin), and the ius commune did not succeed in taking over entirely.

In Italy and the south of France the learned Roman law penetrated more easily owing to the tradition of Roman vulgar law. In Italy the university centres of learned law were clearly an important factor in Romanization. Twelfth-century Italy was also the European country in the most advanced state of development, not only politically but also socially and economically. There were strong cultural links between the Occitan region in southern France and Lombardy and Tuscany: the Italian glossators had already lectured in the south of France in the twelfth century, and univer­sities and law teaching emerged there during the first half of the thirteenth century. The conversion of Roman vulgar or customary law into learned law could therefore take place in Italy and in the Midi spontaneously and without official intervention. Practitioners there recognized without difficulty the superiority of the ius scriptum taught at Bologna, and naturally preferred it to the local primitive and underdeveloped laws which had grown up over the centuries on the basis of Roman vulgar law.

In France, the voluntary adoption of the ius scriptum in the south and the preservation of ancient Germanic customary law in the north brought about and institutionalized a division between the region of written law and the region of customary law which was to last until the end of the ancien regime.⁷9 The Crown tolerated this division, but it always refused to recognize that Roman law was applied in the south because of imperial authority; instead, in its '⁸ The boundary between the regions of written law to the south and customary law to the north became established in the thirteenth century. It ran from the Atlantic in the west above the island of Oleron to the north of Saintonge, Perigord and Limousin, then south of the Auvergne, north of the Maconnais, Bresse and the Pays du Gex to Lake Geneva. It roughly corresponded to the linguistic boundary between French and Occitan, which was just to the south. See the map in H. Klimrath, â€?Etudes sur les coutumes^,, Revue de legislation et de jurisprudence 6 (1837), 107-35, 161-214, 321-93; the map has frequently been reprinted inter alia in J. Brissaud, Cours d’hisloire generale du droit Jranfais, 1 (Paris, 1904); J. A. Brutails, La geographic monumentale de la France (Paris, 1923); J. Gilissen, Introduction historique au droit (Brussels, 1979), 241.

re Its distant origin was examined in the chapter on the early Middle Ages. The dichotomy remained to the end of the ancien regime, at least in theory; in practice differences exist even nowadays. view it was founded solely on the ancient practices of the region, which had to be respected by the king.⁸° The decretal Super specula promulgated by Pope Honorius III in 1219 at the instance of the king of France⁸' made reference to â€?Francia⁸² and the other provinces’ of the kingdom â€?where lay people do not live under the rule of Roman law’. In this official document the legal dichotomy in France was openly acknowledged.

At a later period the learned law was introduced and adopted as national law in some northern regions, and replaced disparate and inconvenient customs. This was the case in Germany, where the Reception began towards 1500, and in Scotland, where continental learned law established itself during the sixteenth century. A Ger­man version of the ius commune was developed in early modern times and is known as the Usus Modernus Pandectarum (â€?new use of the Pandects or Digest’). The last flourish of the Usus Modernus was in the nineteenth century, particularly in the work of B. Windscheid (d. 1892), the most important of the pandectists. The legal authority of the Digest in particular, and Roman law in general, disappeared when the Burgerliches Gesetzbuch (BGB) came into force in 1900. Still, the influence of the Pandectist School continued to be felt; and, besides, Windscheid played a large part in the compilation of the BGB. Scotland in the twelfth and thirteenth centuries had been strongly influenced by England, and Scots law had come close to Common Law. This development was interrupted when Scotland and England were at war, and to fill the gaps in its own under­developed customary law, Scotland decided to introduce continental ius commune, which had all the right credentials. It could give Scotland a sophisticated legal system, which was uniform through­out the regions, and it was also distinct from English law.⁸3 In these countries the learned law, Roman and canon law, was in principle the national common law; regional laws had a secondary role.

In other regions, northern France and the southern Netherlands,

^β0 This conception is found in a royal ordinance of July 1254 about the seneschalsy of Beaucaire. An ordinance of July 1312 provided that the kingdom was not ruled by written law; and although the population of one part of it lived by written law with royal consent, that was not because written law was established, but because their traditional customary law was in conformity with written law. Such political speciousness did not affect the views of the regional counsellors, who sat in the parlements of Aix, Grenoble and Toulouse: for them it was enough to apply the Corpus iuris civilis, and that was that.

^8, Cf. section 43 below.

^βa I.e. the Ile∙de-France, the old domaine direct of the Capetians.

⁸s For this reason many Scottish students studied Roman law on the continent, initially at Orleans and Louvain, and after the Reformation mainly at Leiden. official compilations of traditional customary law were made and promulgated. Although this preserved the customary character of these regions for the following centuries, the ius commune was not ignored and it played an official supplementary and interpretative role. Even in the customary regions, an education in written law was in any event indispensable for all those laying claim to be lawyers. In the northern Netherlands, Roman-Dutch law was a unique develop­ment: in Holland the customs had not been homologated, and the ius scriptum had not been formally introduced by way of authority. Jurisprudence therefore evolved a new synthesis of Dutch law and Roman law, adapted to the society of its time. Roman-Dutch law rapidly acquired an uncontested prestige and its influence was considerable right to the end of the ancien regime.

The development in England was without doubt the most unusual in Europe. In the twelfth century the royal courts had created an English common law inspired by feudal and customary law and devoid of Roman elements. This Common Law remained the basis of English law and was not affected by the diffusion of Roman law. Other courts, however, were created besides the Common Law jurisdiction. These developed their own case law and their own principles, which were in several respects remote from classical Common Law and closer to continental learned law, especially Roman-canonical procedure. This applies above all to Equity, the case law of the chancellor, who in the Middle Ages was almost always a bishop. He employed a procedure close to the Roman- canonical, which suited him (as a bishop) better than that of the Common Law courts. But the Court of Chancery and the Court of Requests (which was modelled on it) were less marked by Roman law than the Court of Admiralty, where the judges applied pure ius commune. There were also canonical elements in the procedure of the Star Chamber. The Church courts also, in England and throughout the medieval West, already applied canonical law and procedure, and that tradition was maintained even after the break with Rome.^[18]* The learned law in England was not confined to the legal practice of some jurisdictions, but was also taught at Oxford and Cambridge, and the principal Common Law author of the Middle Ages, Bracton (√. 1268) in his celebrated treatise On the laws and customs of England betrays a profound knowledge of learned law.⁸⁵ Since Vacarius,⁸⁶ the Corpus iuris civilis had never been completely absent from English legal theory and practice.

The ius commune was a true European law which transcended geographical boundaries. Yet it still met with social obstacles, for it was accessible only to a restricted elite of those educated at univer­sity, and to the people at large its Latin was a Sibylline tongue.

The dynamic of the �ius commune’: ideas

39 Any historian who is not content merely to recite facts must ask himself what caused the remarkable but incomplete success of Roman law in the Middle Ages and early modern times. In part it must be attributed to the intrinsic qualities of the Corpus iuris, which is the product of a highly developed civilization and the long experience of one of the greatest legal nations in history. Although Roman law was several centuries older, it still corresponded to a stage of social evolution incomparably more advanced than that of Europe around 1100. Rome had been a cosmopolitan and sophisti­cated empire, with a developed urbanized economy. Europe in the eleventh century, on the other hand, was a feudal and agrarian society of provincial scale and style; and in the twelfth century its degree of cultural and intellectual development was still primitive.

Romanization therefore meant modernization. Roman law appeared to be a modern system, progressive, orientated to the future, while customary law was traditional, antiquated and bound up with an increasingly obsolete stage of development. Roman law also had the advantage of being taught and studied in the univer­sities, which in the late Middle Ages represented the centres par excellence of learned thought. To appreciate this, it is sufficient to compare the technique and mastery of style, the presentation, and the rigour of reasoning of the civilian treatises and commentaries with the clumsy attempts of their contemporaries who tried to formulate customary law relatively clearly. Jurisprudence was a skill

⅛ Bracton on the laws and customs of England, ed. G. E. Woodbine, trans, with revisions and notes by S. E. Thorne, 4 vols. (Cambridge, Mass, and London, 1968-77; Latin text and English translation).

⁸⁶ Vacarius was an Italian glossator who taught Roman law at Oxford in the time of King Stephen (1135-54) and produced a cheap abridged version of the Corpus iuris for his students, which is known as the Liber pauperum (â€?book of the poor’). See the edition by F. de Zulueta (Oxford, 1927). which had necessarily to be acquired in the school of Roman law. And when the professors in their teaching paid attention to the practical demands of the time, as did the Bartolists, the appeal of their message was irresistible. It is symptomatic that when Bracton set out to describe and comment on English law (which had escaped the influence of Roman law) he felt obliged to borrow the principles of a â€?general theory’ of law from Azo and other glossators.

Yet the intrinsic qualities of the ius commune do not alone explain the Romanization of the West. The teaching of the Bolognese masters, excellent though it was, would hardly have been sufficient in the absence of other powerful social factors. The rise and fall of legal systems and great legislative projects are in practice deter­mined by the will of the dominant groups and institutions in a given society. The history of law cannot be understood out of the context of political history, and the effect of law on society is itself a political phenomenon in the broad sense. It is proper therefore now to consider what political and social circumstances allowed the learned law to spread through Europe.

The church was the first of the great powers of the medieval world to lend resolute support to Roman law. The education of Church lawyers was based on the Corpus iuris civilis, from which the methods and sometimes even the principles of canon law were derived, and the procedure of the church courts was impregnated to such a degree with Roman law that it is called �Roman-canonical’. Centralization, hierarchy, bureaucracy, rationalization from above, the importance of law and administration: these were all elements contained in Roman law which the church authorities could use. From the Gregorian Reform, they were the broad lines of papal policy, and they were also precisely the characteristics displayed by Roman law, especially the law of the late Roman empire as enshrined in the Corpus iuris. The church adopted Roman law without hesitation despite the fact that the principal authors had lived in pagan times, for the law of the Corpus was associated with the prestige of the great Christian emperor Justinian.

Kings and emperors also realized the advantages they could derive from Roman law. In the Holy Roman Empire the authority of Roman law was self-evident, as the emperors considered them­selves the successors of the Christian principes of ancient Rome. Kings too thought of themselves as the successors of the caesar or princeps of the Corpus iuris; the expression rex imperator in regno suo (â€?the king in his own kingdom is [as sovereign as] the emperor’) was a commonplace from the twelfth century. For the sovereigns of the late Middle Ages, the Corpus was above all an inexhaustible reserve of arguments to reinforce their positions. The Corpus says nothing about the rights of the people or limits on the power of the state; it knows nothing of democracy. Principles which support the omnipotence of the em­peror and the majesty of the state therefore stand out all the more clearly. Maxims of the type princeps legibus solutus and quod principi placuit legis habet vigorem^ suited to perfection sovereigns who were eager to break away from the feudal mould and establish modern political structures. This was why Emperor Frederick Barbarossa approached the four doctors of Bologna at the time of the diet of Roncaglia (1158) seeking a definition (which was to be used against the cities) of regalia, the sovereign and inalienable rights of the Crown. In France the legal advisers of Philip IV the Fair employed Roman law to justify the condemnation of the count of Flanders, as vassal of the king of France. Traditional feudal conceptions now came up against modern ideas on the indivisible sovereignty of the state.⁸⁸

For sovereigns pursuing policies of rationalization and unification of the laws of their kingdoms it was tempting to take up the available model of Roman law.⁸⁹ No doubt it would be inaccurate to maintain that the rise of the modern sovereign state was a consequence of the teaching of the glossators; and it can in any case be shown that it had already taken shape in England and in Flanders before Roman law appeared there. None the less it is undeniable that the Corpus iuris provided authorities and solid compelling arguments for reinforcing state power against feudal fragmentation, and that many commen­tators on Roman law took the side of absolutism in the great debate of the age on the power of the state.⁹⁰ The legists⁹' stood at the centre

•’ â€?The emperor is not bound by the laws’ and â€?What pleases the emperor has the force oflaw.’ ⁸⁸ The Dutch cleric and scholar Philip OfLeiden (d., 1382), who was in the service of count

William V of Holland, wrote a Tracatatus de cura rei publicae et sorte principantis in which he argued for the extension of royal power and the civil state and against the nobility; for these purposes he made use of the Roman law he had studied at Orleans (he was also a doctor of canon law of the University of Paris). See P. Leupen, Philip of Leyden. A fourteenth century jurist (The Hague and Zwolle, 1981; Rechtshistorische Studies, 7).

*⁸ E.g. Louis IX ofFrance in the ordinances of 1254 and 1258 which attempted to introduce a French version of Roman-canonical procedure. This met with resistance in feudal circles, which preferred such things as duels to inquests.

9° Baldus, for example, wrote in his commentary on c. 1.14.4 that 'suprema et absoluta potestas principis non est sub lege'; cf. R. W. and A. J. Carlyle, History of medieval political theory, vι (London, 1950), 20. On political exploitation of the auctoritas of Roman law, W. Ullmann, Law and politics in the Middle Ages. An introduction to the sources of medieval political ideas (London, I975)∙

9^, So called as at university they had studied the leges of the Roman emperors (i.e. the Corpus iuris civilis).

of power, and there they developed doctrines to support the policies of centralization, rationalization and standardization pursued by sovereigns.

The dynamic of the �ius commune’: the jurists

40 The authorities of the emerging nation states not only made use of the principles of Roman law, but also secured the services of grad­uates of law faculties. In addition to ideas and rules, the universities could supply officials trained in the reasoning and argumentation of the learned law. From the thirteenth century, legists are to be found occupying influential positions in central institutions and courts of justice even beyond the Mediterranean world. In France they sat in the Parlement de Paris⁹² from the mid-thirteenth century, and at court proved themselves loyal servants of the imperialist policy of Philip IV the Fair. In the county of Flanders, they appeared from 12 79 at the court of Guy de Dampierre. The first councillors were still Italian and French, but in the fourteenth century most were Flemings who had studied at Bologna or Orleans.⁹^

Large and powerful cities were also conscious of the advantages to be derived from having officials in their service whose legal edu­cation had equipped them to carry out the specialized tasks of municipal administration. The cities preferred to have university graduates to prepare and defend their legal actions. While city magistrates had been unimpressed by the theories in favour of sovereign power, they could see that the professional education offered in the law faculties could be turned to their advantage, and that in the huge arsenal of the Corpus it was not too difficult to discover quotations which could support their own interests.

Here it should be noted that medieval thought did not object to citation of ancient sources completely out of context or their application to situations for which the Romans had never intended them. The Corpus iuris could therefore satisfy the most diverse demands. The maxim quod omnes tangit ab omnibus approbetur^ was

Cf. section 53 below.

s’ SeeJ. Gilissen, â€?Les Iegistes en Flandre aux XIII' et XIV' siecles^,, Bull. Comm. Roy. Anc. Lois 15 (i939)> u7-23ⁱ∙

^{94 c}∙ 5∙59∙5∙3∙ The rule was wrenched from its context and applied, in favour of the Conciliarist thesis, to the organization of both church and state. Cf. J. Maravall, â€?La formula “quod omnes tangit” y la corriente democratica medieval en Espana’, Album E. Lousse, ιv (Louvain, 1964), 1-13; A. Marongiu, â€?Le “quod omnes tangit” et une legende dure a mourir^,, Revue historique de droit franςais et etranger 48 (1970), 10-11; W. Ullmann, Law and politics, 281—2.

Europe and Roman-Germanic law, c. ιιoo — c. ιγ50 75 invoked as a fundamental principle in favour of representative institutions and participation by the people in decisions which concerned them. A literal reading could give the maxim a demo­cratic meaning. To find such a rule in Justinian’s Code, which is after all the work of an authoritarian regime, would be surprising - except that there it has no connexion with state power, and applies instead to a private-law institution, tutorship. Acts of administration which affected the property of a ward had to be approved by all the tutors. For such reasons it was inevitable that from the thirteenth century Italian cities should entice law professors, create universities and appoint lawyers to public office. In the twelfth century Roman law was still regarded as an instrument of imperial power; but its application in the thirteenth century in the cities of northern Italy (where Bologna had become a staunch focus of opposition to the emperor) was such that in 1224 Frederick II created a university in Naples favourable to his own interests, where the Corpus would be interpreted and elucidated more â€?correctly’. In northern regions there was a comparable development: legists were appointed to the service of cities, and universities were founded on municipal initia­tives, for example Louvain in 1425. But all this happened considera­bly later than in Italy.⁹⁵

Finally, legal circles made their own contribution to the diffusion of the learned law. Advocates, always on the lookout for arguments to suit their own cases, did not hesitate to cite the Corpus iuris to impress their audiences.⁹⁶ In his defence a litigant had no option but to call another advocate who could either cite other texts of the Corpus refuting the arguments of his adversary or show that the texts cited by him were not relevant. From now on mastery of the learned law became an important trump card.⁹⁷ Besides, it was useful not just for the parties but for judges too, when confronted with new

95 From 1304 to 1332 Ghent had in its service Hendrik Braem, Iegumprofrssor, at a salary of roo pounds. Liege obtained the services of John of Hocsem (d. 1348), also Iegum professor.

≠ For the oldest testimony on this point, see A. P. Schioppa, â€?Il ruolo della cultura giuridica in alcuni atti giudiziari italiani dei secoli XI e XIΓ, Nuova rivista Storica 64 (1980), 265-89; L. Schmugge, â€?“Codicis Justiniani et Institutionum baiulus”. Eine neue Quelle zu Magister Pepo von Bologna’, Ius commune 6 (1977), 1-9.

97 From the time of the glossators, a letter is extant written by a monk of the Abbey of St Victor in Marseilles who was travelling Italy and sought permission from his abbot to study Roman law; he pointed out that in the future the abbey would thereby be better placed to defend itself against its detractors. The date of the letter is uncertain, but recent research places it between 1124 and 1127. Cf. J. Dufour, G. Giordanengo and A. Gouron, �L’attrait des “leges”. Note sur la Iettre d’un moine victorin (vers 1124/1127)’, Studia et documenta historiae et iuris 45 (1979), 504-29.

problems: the ins commune was so extensive and the consilia so abundant and detailed that, in the absence of a customary rule, judges could be sure of discovering a principle in the learned law.⁹⁸ In great political debates a need was also felt to make reference to Roman law or contradict opponents by quoting the Corpus: when Philip IV the Fair attacked the count of Flanders with the aid of the Corpus iuris, the count felt obliged in his turn to ask legists for help in defending his position, for the traditional rules of feudal law no longer made any impression.

Learning and the university

41 The university" was the common basis of the powerful supra­national body of lawyers. Its origins go back to the twelfth century in Bologna, Salerno and Paris. In the centuries which followed, universities spread throughout the West. Although there were important local differences, the medieval universities had various features in common. In the teaching of law the following are notable. In the Middle Ages above all, the university world was cosmopoli­tan: national frontiers (which at the time counted for little) consti­tuted no more of a barrier than vernacular languages. At all the universities from Poland to Portugal, from Scotland to Sicily, teaching was in Latin, the basic works were the same, and the qualifications were recognized in all countries. Students flocked from all areas of Europe especially to the large universities and organized themselves into �nations’; at Orleans, for example, the students who came from the German empire formed the �Natio Germanica’ within which students from Brabant, Liege and Holland were strongly represented. The recruitment of professors was also wholly inter­national, and so were the regulations and the syllabuses which the new foundations often borrowed from old and sometimes distant universities.

Like all teaching institutions, the medieval universities had an ecclesiastical character. Most had been created by a pontifical bull and placed under the authority of a cleric as chancellor. Originally s∙ For the circumstances in which the first arguments of learned law were made before the Flemish courts, see E. I. Strubbe, â€?De receptie in de Vlaamse rechtbanken van midden veertiende tot einde vijftiende eeuw^,, Revue d’hisIotre du dr oil 29 (1961), 445-62 (also in idem., De Iuister van ons oude recht. Verzamelde Techtshistorische studies (Brussels, 1973), 601-15).

w Originally universitas meant �group’, �society’, or �corporation’; it came to be used for the associations of professors or students of a town. Litde by little, it became the standard term for the body of professors and students of the studium generate in a town. all the students belonged to the clergy, although the great majority had merely entered minor orders, and only a few ended up being ordained priests. Towards the end of the Middle Ages, the clerical character abated, and from then on the majority of the student population was made up of lay people.

The universities of the Middle Ages were fiercely independent in their administrative and financial management. This was natural for the first groups of students which grew up around certain well- known professors; but even after the universities had become institu­tionalized with charters of foundation, regulations, and financial support from public authorities, they retained extensive indepen­dence. State interference in prescribing courses and appointing professors is a late phenomenon more characteristic of early modern times. At that time a certain �nationalization’ of the universities also occurred. From the end of the Middle Ages, some rulers had founded universities specially intended for their subjects and to provide for the needs of their administration and government. In exceptional cases, such as the �political’ university founded in Naples in 1224, study abroad was actually forbidden. In early modern times this type of monopoly tended to multiply: for instance, in the sixteenth century in the southern Netherlands in favour of Louvain and Douai, for motives which were as much political as religious.

The first universities were not deliberate foundations: they were spontaneous associations or corporations (so popular in the Middle Ages) either of magistri and scholares together or â€?masters’ and â€?students’ separately.¹⁰⁰ Some universities originated when professors and students seceded from an existing university, owing to internal differences, longstanding disputes, or conflicts with the municipal authorities, and set up a new university in another town. The University of Cambridge, for instance, was founded after a secession from Oxford. At a later stage the deliberate official foundation of a university went hand in hand with the setting up of an official organization and the granting of state or local endowments. In several Italian cities professors were paid out of the municipal budget; at Vercelli in 1228 the community undertook payment of the salaries of seven professors of law. This meant progressively

^,o° Sometimes professors were appointed and paid by the student body: in the thirteenth century the University of Bologna was a student corporation with an independent administration, and many students were men with legal and administrative experience. In the fourteenth century, administration fell into the hands of the town itself. greater interference by the authorities in the internal affairs of the universities.

The universities were elitist, first in the intellectual sense. The courses of study were long (seven years or more was normal) and demands were high. Familiarity with Latin was essential in order to take part in â€?disputations’, as well as to learn the Corpus iuris (often by heart) and the Gloss. Secondly, the small circle of students'⁰¹ was elitist by social origin. Studies were often pursued abroad and were expensive; bursaries were rare.¹⁰² Some students did manage to pay for their studies by working in the service of wealthy students,¹⁰³ but most belonged to the nobility or the haute bourgeoisie, which in early modern times supplied the administrative classes and the noblesse de robe. The petite bourgeoisie, artisans and countrymen were hardly represented. Finally, the students made up an elite by virtue of their rights: members of the university enjoyed numerous privileges, notably that they were not subject to the jurisdiction of the ordinary courts. The constitution Habita of 1158 OfFrederick Barbarossa had already given important privileges and exemptions to university scholars. In early modern times in particular the circle of university- educated lawyers tended to form an exclusive elite. Alliances within the homogeneous social class of senior officials and magistrates were frequent; an introduction or a promotion often depended on family connexions. Yet the lawyers, in spite of this influence, did not succeed in extending their grip beyond administration and legal practice. Political decisions remained in the hands of the sovereign, and the attempts of some courts of justice such as the Parlement de Paris to play a political role provoked several grave conflicts with the Crown.

In early modern times university syllabuses and the elitism of the lawyers hardly changed. Roman law and canon law still had almost '^o' Around 1200 the University of Bologna, the main institution for legal education, is thought to have had around 1,000 students. Orleans and Avignon towards the end of the fourteenth century had significantly fewer (256 bachelors and 368 students at the former, 339 bachelors and 467 scholars at the latter). At Cologne, probably the most important faculty in fifteenth-century Germany, the estimate of law students is 100 or 200. In general the larger universities had from 500 to ι,ooo students, and the smaller about 100.

'⁰² The complete set of the five manuscript volumes of the glossed Corpus cost as much as a town-house. Bursaries were sometimes awarded by municipalities in the hope of attracting to themselves a devoted lawyer; most bursaries were awarded for the same reason by ecclesiastical bodies (chapters or abbeys) to their most promising members.

^,°3 They were inscribed as pauperes in the registers and exempt from matriculation fees. a monopoly on the subjects taught.¹⁰⁴ On the one hand the state increasingly interfered in university affairs, while on the other the intellectual level and originality of legal teaching declined.

The university and the theoretical approach

42 The fact that for centuries leading lawyers were educated in law faculties had great importance for the development of law in Europe. It gave continental European law not only its Romano-Germanic basis but also its typically theoretical and conceptual character. In a general historical perspective, it is rather surprising that these lawyers received their professional education far away from daily legal practice; their education instead took place in universities and consisted in an initiation lasting several years into the �sacred books’ of their discipline. The education of common lawyers is much more typical: young people who wanted to devote themselves to a legal career were taken on as apprentices with an established practitioner and worked as clerks or assistants in practice in London, where the royal courts sat. They lived in institutions for students, the Inns of Court, where they received lodging and a training which was basic and not to be compared with a university syllabus. There was no requirement for university study of law until the twentieth century in England, and the most eminent lawyers (the judges of the higher courts) were not graduates in law but practitioners who had learned their skills on the job. Only recently did it become the norm for intending lawyers to study law at university and to obtain a degree in law.^,o5 On the continent, for centuries judges and advocates

^,o* Reference to the customs and ordinances in force was very infrequent. A hesitant start on teaching non-learned law was made in France by the Ordonnance of St Germain-en-Laye of 1679, which prescribed that a chair of French law should be established in Paris and elsewhere. The first professor of French law in Paris wrote a commentary on the Institutes of Loisel (see section 26 above). Cf. A. de Curzon, â€?L’enseignement du droit franςais dans les Universites de France aux XVII' et XVIII' siecles^,, Revue historique de droitJranfais et etranger 43 (¹9¹9)> 209-69, 305-64 (also published separately, 1920). The order of the Consejo of Castile in 1713 to replace Roman with local law was ineffective, owing to the opposition of the faculties.

^l°s In 1976 70 per cent of new solicitors and from 90 to 95 per cent of new barristers were law graduates. Around the middle of the nineteenth century virtually nothing was prescribed for legal studies in England; it is not surprising that the report of the Select Committee of 1846 which had examined the issue ended with a long list of complaints that made numerous references to the position abroad. It is therefore only since the second half of the nineteenth century that universities have begun to award degrees in law. Many eminent judges, however, opposed this innovation, and in 1904 Vaughan Williams LJ observed that the law schools would lead to codification, and so it would be better to do without them; cf. A. H. Manchester, Modem legal history of England and Wales (London, 1980), 54-66. trained in practice practised alongside university graduates. In the Netherlands the latter acquired real importance only from the fifteenth century,¹⁰⁶ and in general the notion that a university education was indispensable forjudges and advocates in the higher courts became current only in early modern times.¹⁰? A parallel evolution took place in medicine: originally it was in the hands of surgeons and doctors trained in practice, and graduates were a minority; but graduates established themselves little by little and finally acquired a legal monopoly in the art of healing.

Each educational system - theoretical on the continent, practical in England - has its advantages and disadvantages. The continental method offered the prospect of acquiring a detailed knowledge of the principles of a rational legal system, but it was remote from actual legal practice and did not prepare graduate lawyers to practise customary law. The English method on the other hand immediately confronted the intending lawyer with daily practice and living law, but it could not offer him the theoretical and analytical approach peculiar to universities, nor familiarize him with Roman law to broaden his intellectual horizons.

Opposition to �ius commune’

43 In the Europe of customary law, the reception given to Roman law was not always favourable. It is worth noting the main points of opposition. Like every innovation, the spread of ius commune dis­turbed conservative circles, which saw it as a challenge to their traditional interests and their manner of thinking. Feudal law was not just an abstract system of rights and obligations, but the very foundation of the landed property of numerous noble families; unforeseen innovations threatened to alter the nature of landowner­ship completely and the rights and burdens which attached to it.

'^o6 At the Audience, which later became the Council of Flanders, in the course of the sixteenth century legists became ever more numerous until they obtained a monopoly. From that time almost all councillors in the superior courts had to have a legal education. At the parlement (1473-77) and the Great Council (ι 504-1794) of Malines, all the councillors were doctors or graduates in law. In the important courts of aidermen, from the fifteenth century one or two learned lawyers sat in each court, and in the eighteenth century they formed the majority. In lower courts the aidermen asked a qualified lawyer to frame an appropriate judgment.

^,07 There was occasional legislation to this effect: at the Council of Brabant an ordinance of 1501 required that advocates should be graduates in Roman or canon law. H. de Ridder- Symoens, â€?Milieu social, etudes Universitaires et carriere des Conseillers au Conseil de Brabant (1430-1600)’, Album amicorum J. Buntinx (Louvain, 1981), 257-302. Farmers were equally preoccupied. By applying the Roman law conception of absolute ownership, the learned law threatened to overturn time-honoured practices of exploiting farmland and using common lands to the profit of landowners.¹⁰⁸ In still other areas feudalism opposed the innovations of the learned lawyers. Thus in 1236 English barons blocked the introduction of the canon (and Roman) law principle of Iegitimatio per subsequent matrimonium because it would have had important repercussions for the traditional scheme of inheritance. Their refusal to adopt the learned law was categorical: nolumus mutare leges Angliae. ^,°⁹ A similar reaction had already been seen in France, where in the second half of the thirteenth century the knights vigorously opposed the new â€?inquest’ procedure which was inspired by Roman-canonical principles and was intended to replace the traditional duel. Owing to their resistance to learned law in general, the regions of customary law retained their own character. At the Parlement de Paris, the councillors were obliged to judge appeals from these regions accord­ing to the customs of the region and not according to the learned law. In 1278 Philip III even prohibited advocates from citing Roman law in cases coming from the regions of customary law.¹¹⁰ The councillors and advocates found themselves in a dilemma. Since they were educated in Roman law, they reasoned according to its categories and for their own purposes prepared their judgments or pleadings following the principles of the Corpus iuris, but they were prohibited from making open use of them or explicit reference to them.

The conservatism of certain circles did not provide the only support for traditional customary law: regional and local particu-

^,°⁸ See the discussion in A. Stern, â€?Das r∂mische Recht und der deutsche Bauernkrieg^,, Zeitschrift fur Schweizerische Geschichte 14 (1934), 20-9. The peasants’ registers Ofgrievances took particular exception to the code for Baden compiled by Zasius, probably because it altered the surviving spouse’s right of succession into line with Roman law (i.e. in favour of cognates). The peasants also demanded that judges should be elected by the community, and that all the books containing ^tJuristerei und Sophisteref should be burned.

^,°9 Feudalism was based on primogeniture and, according to the traditional view, an illegitimate son born before the parents married was a bastard, who was excluded from all rights ofsuccession, even if the parents subsequently married; but if he was legitimated by Iegitimatio per subsequeris matrimonium he inherited the entire fief, and his younger brother born after the marriage of the parents did not.

^,,0 Ordonnances des rois de France xι (Paris, 1769), 354, art. 9, â€?Li advocats ne soient si hardis d*eus mesler d’aleguer droict escrit, la ou coustumes aient lieu, mais usent de coustumes’ (â€?Advocates are not to be so bold as to cite written law where custom applies, but are to make use of customs.’).

Iarism was another factor in its favour. In the Netherlands, among other places, local custom was valued as an element of political independence, and for the cities in particular custom constituted an obstacle to the policies of central authorities. It is typical that, when Charles the Bold conquered Lille, he abolished customary law there and replaced it with the ius commune, a measure revoked after his death when the Burgundian occupation ended.

Opposition to Roman law might also be inspired by consider­ations of national policy. This was especially so in France. Roman law, which was regarded as imperial law, awoke anxieties in the French monarchy, always eager to refute the potential claims of the Holy Roman emperors to legal supremacy. The French kings therefore always opposed the very idea of Roman law having the force of law by virtue of the authority of the German emperors. This opposition caused another dilemma: the kings appointed legists to the Parlement de Paris and included them in their governments, but refused to recognize any authority in â€?imperial’ law. This is the background to the bull Super specula pronounced by Honorius III in 1219 at the instance of the king of France: it prohibited any teaching of Roman law (but not canon law) at the University of Paris.¹¹¹

In the sixteenth century the rise of sovereign nation states and nationalistic sentiments made its mark. In France, Fr Hotman maintained that a codified French law was needed. His was one of the first projects to aim at codification on a national level of the whole of private and public law. This was to take place in the context of a policy of nationalization and standardization of French law, and in connexion with a strong national monarchy. Hotman stressed the relative authority and the imperfections of Roman law.

It is a fact that, in spite of its intrinsic qualities, ius commune also presented certain disadvantages; in spite of everything lawyers found �thorns in the garden of law’. Criticisms that learned law and procedure were beyond popular comprehension were not

^,,' Although this prohibition was to some extent evaded by �private’ lessons, it remained in force until its revocation by Louis XIV in 1679. One reason (among others) alleged by the papal bull was that the study of Roman law was turning too many clerics in Paris away from their proper discipline: theology. Cf. G. Peries, LaJaculU de droit dans Vanaenne UniversiU de Paris (Paris, 1890), 99-108; W. UUmann, �The prohibition of Roman law at Paris’, Juridical Review 60 (1948), 177; S. Kuttner, �Papst Honorius III und das Studium des Zivilrechts*, Festschrift Martin Wolff (Tubingen, 1952), 79. unfounded; discontent was aggravated by the secrecy and the length and expense of legal actions and appeals. The golden days of legal actions in the open air completed in a day-as prescribed by a capitulary of Charlemagne - were longingly evoked. The tendency of learned lawyers to entangle themselves in quibbles and quarrels and to contradict themselves was also a defect of the ius commune. The accuracy of the medieval expression doctores certant was too often demonstrated: for every opinion of a doctor legum, after a little investigation a contrary opinion could be found. The certainty of the law was at risk. Several sovereigns resorted to a lex citandi declaring, for instance, the exclusive authority of Bartolus over every other author. But this could only mitigate the basic weakness very imperfectly.

Commercial law

44 What of the role of merchants in the diffusion of Roman law? It might be thought that the Corpus iuris and its advanced law of obligations would have supported the growing international com­merce of the late Middle Ages, and that merchants would have been among the most active exporters of the ius commune. Yet this was not the case. Commercial and maritime law developed independently of Roman law and canon law (and in opposition to the latter, so far as interest on loans was concerned). Both the ius commune and commer­cial law were international and multi-dimensional: each flourished but each pursued its own path, the first in the world of universities and the higher courts of justice, the second in the daily practice and customs of merchants and their own market and maritime jurisdic­tions. Roman law was suited better to jurisprudence and to admin­istration than to commercial practice, so from the twelfth to the fifteenth centuries, a customary and cosmopolitan commercial law was developed in practice. It was dictated essentially by the needs of practice and commercial efficacy in commodity and money markets, in trade fairs, corporations, banking operations and means of insurance and credit.

Although, from the sixteenth century, there were attempts to systematize this body of rules according to jurisprudential criteria, commercial and maritime law remained connected with practice to such a degree that in the following century the author of the first general treatise on commercial law was not a lawyer but a merchant, and in France the codification Of commercial law under Louis XIV was also in large part the work of a merchant."² Western ius mercatorum (commercial law) was largely shaped at the great inter­national trade fairs, in particular those of Champagne in the twelfth and thirteenth centuries; ancient practices turned into generally recognized usages and rules, for example in the case of bills of exchange. Contributions to the formation of European commercial law were also made by the rules of merchant corporations, as well as by the two great families of maritime law, that of the Mediterranean lands, where the lex Rhodia"* and the Consulat de Mar were observed; and that of the north of Europe, where the â€?Roles d’Oleron’ and the maritime law of Damme and Wisby were followed."⁴

Merchants had their own jurisdictions, market and maritime courts (Consulat de Mar), in which rules of commercial law were applied, and merchants were judged by their peers. In general, commercial customs were unwritten, but compilations were made at Genoa from 1154 and in Venice under doge Ziani in 1205-29. There were also various Spanish compilations, culminating in the Barce­lona version of the Consulat de Mar which goes back at least to 1370.^1,5

The example of commercial law shows that the Middle Ages were capable by their own means of developing a new body of legal rules in response to economic demands. In the late Middle Ages practice

I.e. the Consuetudo vel lex mercatoria of Gerard Malynes of 1622 and the Ordonnance sur Ie commerce of 1673 or Code Savary, named after the merchant Jacques Savary who had an important part in its compilation. The elements of commercial law were for a long time to be found in practical manuals, together with such miscellaneous topics as weights and measures, geodesy, mathematics, economics and so forth.

"3 Since Roman times the expression lex Rhodia (after Rhodes and the merchant community based there) has referred to the body of maritime customary law of the Mediteranean, of which little is known other than the citations in the Digest. From the eighth to the tenth centuries a written Byzantine collection was produced, which can be regarded as the point of departure for medieval maritime law. The principal concern of the ancient authors was general average, which is why the ancient law is known as the lex Rhodia de jactu (jactus meaning jettison). '

The â€?Roles d’Oleron’ is a thirteenth-century collection Ofjudgments of the commercial court of the island of Oleron₁ which lies on the Adantic coast, on the busy sea route linking the Mediterranean with Flanders and England. Wisby was a Hanseatic town on the Swedish island of Gotland in the Baltic Sea.

"s For a general sketch, see H. Pohlmann, �Die Quellen des Handelsrechts' in H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europdischen Prioatrechtsgeschichte, 1 (1973), 801-34; L. Goldschmidt, Unioersalgeschichte des Handelsrechts, 3rd edn. 1 (Stuttgart, 1891); H. Manage, Evolution historique de la Iigislation commerciale de Pordonnance de Colbert a nos jours (Paris, 1959); G. Colon and A. Garcia I Sanz, Llibre del Consolat de Mar, 2 vols. (Barcelona, 1981-2); M. Bottin, �Le Developpement du droit de la mer en Mediterranee occidentale du XII'au XIV' siecles’ Recueil de mimoires et travaux des ancienspays de droit icrit 12 (1983), 11-28. and custom evolved an impressive legal system regulating business in general, and the organization of credit, insurance and banking in particular. This system was adequate for its time, and some of the basic principles worked out in the Middle Ages (especially fiduciary currency and bills of exchange) were preserved in the international commerce of modern times. Like the Common Law, commercial law took a fundamentally different approach from ius commune', the learned law, unlike Common Law and the lex mercatoria, had a general theory of law; it approached specific questions by setting out from general categories and concepts; and it swore by written sources (the text of the Corpus) and by logic, rather than by experience, precedent or practice.