The Relation of Canon Law to Roman Law
It is sometimes said that the new system of canon law was an "offspring" of the Roman law of Justinian, 12 and that "the great codifications that make up the Corpus Juris Canonici were patterned on those that make up the CorpusJurls Civilis." 13At the very least, such statements require the modification that it was not the Roman law of sixth-century Byzantium, but the revivified and transformed Romanist law of eleventhand twelfth-century Christendom, to which the parentage of canon law must be traced.
Yet even with this modification, the idea that canon law was somehow modeled on Roman law involves serious misconceptions. The canonists used Roman law abundantly -Вas Roman law was understood in their time -- just as they used Biblical law, and just as they used Germanic law; they used them all as sources. Thus one may speak, in a qualified sense, of the "romano- canonical" legal system. Also the canomsts shared with the Romanists of their day the same basic theories concerning the nature and functions of law and the same basic methods of analysis and synthesis of opposites -- theories and methods which were as much borrowed from them by the Romanists as by them from the Romanists. Indeed, not only theories and methods but also many specific legal concepts and institutions were taken over into contemporary Roman legal science from the new science of canon law. 14The comparison of Roman law and canon law in the late eleventh, the twelfth, and the thirteenth centuries is confounded by the fact that canon law was the positive law of the church, while Roman law was not the positive law of any specific polity in the West. Roman law was, of course, the positive law of the Roman Empire in Byzantium; but that was not Roman law as the Western Romanists understood it -- it was not the corpus juris Romani.
In the West, Justinian's Roman law was considered to be an ideal law, a written embodiment of reason, ratio scripta, whose principles ought to govern all legal regulation everywhere, both in the church and in the secular politics. Jurists turned to Justinian's texts as they turned to the Mosaic law and as they later turned to Aristotle, as-204-
sources of positive law. It is true that from the time of Charlemagne, Western emperors claimed succession to the authority of the ancient Roman emperors; and with the discovery of the Justinian texts, the Western emperors relied upon them______________________________________ as did the popes____ for support. But the "Holy
Roman Empire of the German Nation" 1 5 was governed by the laws laid down by Western emperors, which were superimposed on tribal (clan), local, feudal, urban, mercantile, ecclesiastical, and other particular laws. Rules and concepts and institutions of Roman law only became the positive law of the Western Empire, just as they only became the positive law of the Western Church, if they were expressly incorporated into that positive law by legislation or juristic interpretation. Roman law was called "a handmaiden of canon law": it could equally have been called a handmaiden of imperial law and a handmaiden of the positive law of the emerging secular kingdoms and city_states. It was, however, always a handmaiden; those scholars err who suppose that Western jurists believed that the Eastern Roman Empire of Justinian somehow continued to exist in the West as a political reality. 16_ Perhaps the most significant difference between Roman law and canon law in the West was the fact that Roman law, with certain rare exceptions, was treated as finished, immutable, to be reinterpreted but not to be changed. 17Canon law, by contrast, although also handed down from the past, was not finished, it was continually being remade. It had a quality of organic development, of conscious growth over generations and centuries. This gave it a somewhat disorderly character, which has perhaps made it less appealing than Roman law as an intellectual discipline, 18but surely more interesting from both a moral and a political point of view. For its "disorderliness" as a science was a necessary part of its dynamic quality as a system -- its movement from past to future. The existence of such a time dimension is an essential attribute of modern Western legal systems.