The Origin of Western Legal Science in the European Universities

Maitland called the twelfth century "a legal century." It was more than that: it was the legal century, the century in which the Western legal tradition was formed. The great revolutionary events that inaugurated that tradition, however, and the first great legal achievements, occurred not in the twelfth but in the last decades of the eleventh century -- the Dictates of Pope Gregory VII and the centralizing administrative measures of the Norman rulers of Sicily, England, and Normandy, the scholarly achievements of the great canon lawyer Ivo of Chartres ( 1040-1116) and of the great Roman lawyer Irnerius (about 1060-1125).

The emergence of modern Western legal systems in the late eleventh and the twelfth centuries was closely related to the emergence of the first European universities. There, for the first time in western Europe, law was taught as a distinct and systematized body of knowledge, a science, in which individual legal decisions, rules, and enactments were studied objectively and were explained in terms of general principles and truths basic to the system as a whole. Trained in the new legal science, successive generations of university graduates went into the chanceries and other offices of the emerging ecclesiastical and secular states to serve as counselors, judges, advocates, administrators, legislative draftsmen. They applied their learning to give structure and coherence to the accumulating mass of legal norms, thus helping to carve new legal systems out of the older legal orders which previously had been almost wholly diffused in social custom and in political and religious institutions generally.

Of course, law in the usual sense of legal data, such as legal rules and procedures, cannot constitute a science, any more than matter or animal behavior can constitute a science. Legal science, if it exists, must be the scientific study of such legal data, the scientific body of knowledge about law, just as physical or biological science is the scientific study of, or

-120- body of knowledge about, matter or animal life.

To say that in the late 1000s and the 1100s law began to be taught and studied in the West as a distinct science, at a time when the prevailing legal orders were only beginning to be disembedded from politics and religion, raises a number of questions. What did the first law teachers teach? How was it possible to teach law when the prevailing laws and legal institutions, both ecclesiastical and secular, were largely local and customary and largely merged in religious beliefs and practices and in political, economic, and social life generally?

The answer sounds curious to modern ears. The law that was first taught and studied systematically in the West was not the prevailing law; it was the law contained in an ancient manuscript which had come to

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light in an Italian library toward the end of the eleventh century. The manuscript reproduced the enormous collection of legal materials which had been compiled under the Roman Emperor Justinian about 534 A.D. over five centuries earlier.

The Roman law compiled under Justinian in Constantinople was a highly developed, highly sophisticated legal system, very different from the Germanic folklaw. It had at one time prevailed in the Western Roman Empire as well as the Eastern. In 476, however, the last of the Western emperors was deposed, and long before that, Roman civilization had been superseded in the West by the primitive tribal civilizations of the Goths, the Vandals, the Franks, the Saxons, and other Germanic peoples. After the sixth century Roman law survived in the West only in fragments, although it continued to flourish as a system in the Eastern Empire, called Byzantium (including southern Italy). Some of its

individual rules and concepts appeared in the occasional enactments of Western ecclesiastical and secular authorities as well as in the customary law of the peoples inhabiting what are today France and (northern) Italy.

It was of critical importance, however, that the jurists who studied these ancient texts believed, as did their contemporaries generally, that that earlier civilization, the Roman Empire, had survived until their time, in the West as well as in the East. It had survived in a special sense -- in a new form, as the soul of a person might survive the body. More than that, they believed it had a universal and permanent quality. They took Justinian's law not primarily as the law applicable in Byzantium in 534 A.D., but as the law applicable at all times and in all places. They took it, in other words, as truth -- the way they took the Bible as truth and the works of Plato and (later) Aristotle as truth. Although, for example, what was written in Justinian's compilation about ownership of land had nothing to do with the regulation of feudal property rights prevailing

122- in 1100 in Tuscany or Normandy, this did not mean that it was not "the law." It was, in fact, the true law, the ideal law, the embodiment of reason.

Two other ingredients were also necessary to the creation of the Western legal tradition. One was the method of analysis and synthesis which was applied to the ancient legal texts -- a method which in modern times has been called, somewhat disparagingly, "scholasticism." The second was the context in which the scholastic method was applied to the books of Roman law -- namely, the university.

These three elements-the discovery of the legal writings compiled under the Roman Emperor Justinian, the scholastic method of analyzing and synthesizing them, and the teaching of law in the universities of Europe -- are at the root of the Western legal tradition. The Roman law gave all Europe (including England) much of its basic legal vocabulary. The scholastic method has remained a predominant mode of legal thought throughout the West to this day. The universities brought together legal scholars -­teachers and students-from all over Europe, brought them into contact not only with one another but also with teachers and students of theology, medicine, and the liberal arts, and made them a calling or,

in today's terminology, a profession.