ROMAN LAW IN THE TWENTIETH CENTURY

With the coming into force of the German Civil Code in igoo, Roman law ceased to be applicable, even in a modernised form, in any significant European state. The only exception is the Republic of San Marino, which rejected the idea of a civil code and still applies the uncodified ius commune.

Thus in an English case in ig8y, involving the rights of two parties whose oil had been mixed in the hold of an oil-tanker, the judge consid­ered certain old English cases, which suggested that where the mixing had been done wrongfully by one of the parties, the other was entitled to the whole of the mixed oil. Having decided that he was not bound by precedent to follow any of them, he stated that he was free to adopt ‘the rule which justice required' and proceeded to apply the Roman rule of confUsio. The latter would have divided the oil between the parties, according to their respective shares (which could be precisely deter­mined), and allowed a separate claim for damages for any loss caused by wrongdoing (Inst. 2.1.27).

The virtual cessation of references to Roman law in practice had no immediate effect on its prominent position in the curriculum of European faculties of law, where it was presented as the foundation on which the institutions of modern codified civil law were based. Freed from the need to assist the development of the law in force, however, the professors of Roman law made their subject much more historical than it had been. The aim was now to reconstruct the state of classical Roman law at its peak in the second and early third centuries.

Romanists concentrated on the study of Justinian's texts rather than on the interpretations of its various commentators.

Textual study concentrated on the purification of those texts by the identification of interpolations, attributable either to post-classical editors or to the compilers of the Digest. The sixteenth-century human­ists had begun this work, which was now taken up with renewed vigour, so that the period between the two world wars was dominated by the ‘hunt for interpolations'. The textual changes were said to be indicated either formally, by the use of particular Latin expressions, which were stigmatised as Byzantine and so non-classical, or substantially, by the fact that the text seemed to state a doctrine which could be demonstrated to be unclassical. The trouble was that each of these criteria begged the question. We do not know with any certainty the kind of Latin written in the third century by, say, Ulpian, who was actually not Roman in origin but came from Tyre in the eastern Mediterranean. And we cannot know what was the classical law on most topics except through the very texts which are under investigation. In any case classical law was not a homogeneous whole but was marked by disagreements among the jurists, hints of which survived in the texts, notwithstanding the efforts of the Digest compilers to eliminate them.

The excesses of interpolation-hunting made the study of Roman law seem to many non-specialist jurists an esoteric sport quite irrelevant to modern law. As a result, the pendulum of textual criticism in the second half of the twentieth century has swung to the opposite extreme. It is now recognised that many of the signs of alteration in the Digest texts are due to the compilers' need to abbreviate them rather than to their desire to make changes of substance.

All the main European countries have contributed to the twentieth­century literature of Roman law, but the most intensive scholarship has been concentrated in Germany and Italy. The law faculties of the Italian universities have over a hundred chairs dedicated to the subject. When, after the collapse of communism, the countries of Eastern Europe were concerned to re-establish their credentials as participants in the tradition of Western legal culture, they revived the study of Roman law and gave it more prominence in the curricula of law faculties.

Whereas in the nineteenth century there was no sharp division between scholars of Roman law and scholars of modern civil law, the twentieth century has seen a widening gap between the two. In general, reform of the principal European civil codes has proceeded piecemeal, although two countries, Italy and the Netherlands, have introduced complete new codes, Italy in 1942 and the Netherlands in 1992 (the latter still lacks the final part). In both cases commentators have noted some softening of the terminological rigour which characterised the nine­teenth-century codes.

In the middle of the century there was a movement, based in Germany, to locate the study of Roman law in the wider context of ‘ancient legal history’. Attempts were made to relate Roman law to the growing information about other laws of antiquity, in particular the various Greek laws and Mesopotamian law. The study of the latter is based on the large number of tablets recording legal transactions that have been discovered by archaeologists. Such evidence is valuable as showing the law in action, but it contributes little in the way of legal argument. For none of these other legal systems of antiquity seems to have developed a class of specialist jurists, comparable to the Roman jurists. It is the fact that we have a record of the debates of the classical jurists that has given Roman law the rich texture which makes its study valuable even today.

The European movement and the institutions it has produced have resulted, during the last two decades, in a revival of interest in Justinian’s law, as the law of an ancient unified Europe, and even more in the medie­val ius commune, which transcended national boundaries and was every­where expounded in the same way and in the same language. The institutions of European Community law are frequently described as forming the beginning of a new ius commune.The difference, which is some­times overlooked, is that the medieval ius commune was adopted through­out Europe voluntarily, through the recognition of its superiority to any alternative, whereas the new ius commune, such as, for example, the rules of product liability, is imposed from above in the interest of uniformity.

Nevertheless the idea that European Community law is in some sense not a new thing but a renewal of a cultural legal unity, which once covered the whole continent, has sparked interest in what is described as ‘the civilian tradition’. This study traces the development of legal doc­trines from Justinian’s law up to the modern codes and brings out the contributions from scholars of different countries to that development. The result of such studies has brought into relief the extent to which legal notions worked out by the Romans have usually survived, in a rec­ognisable form, all the changes imposed on them by those seeking to adapt them for current needs.

FURTHER READING

In general, K. Zweigert and H. Kotz, An Introduction to Comparative Law, trans. T Weir, Oxford 1977; H. Coing, Europäisches Privatrecht, 11: 1800 bis 1914, Munich 1989; A. Gambaro and R. Sacco, Sistemigiuridici comparati, Turin 1996.

5.1. N. Horn, ‘Romisches Recht als gemeineuropäisches Recht bei Arthur Duck’, in Studien zur europäischen Rechtsgeschichte, ed. W Wilhelm, Frankfurt 1972, 170; K. Luig, ‘The institutes of national law in the seventeenth and eighteenth centuries’, Juridical Review (1972), 193; G.

5.2. K. Luig, ‘Die Würzeln des aufgeklärten Naturrechts bei Leibniz’, in Naturrecht-Spataufklärung-Revolution, ed. O. Dann and D. Klippel, Hamburg 1994, 61; P Stein, ‘Civil law maxims in moral philosophy’, Tulane Law Review 48 (1974), 1075; K. Luig, ‘Wissenschaft und Kodifikation des Privatrechts im Zeitalter der Aufklärung in der Sicht von Christian Thomasius’, Europäisches Rechtsdenken in Geschichte und Gegenwart: Festschrift H. Coing, Munich 1982, 177; P Cappellini, Systema iuris 1: genesi del sistema e nascita della scienza delle pandette, Milan 1984; G. Tarello, ‘Sistemazione e ideologia nelle Lois civiles di Jean Domat’, Materialiper una storia della culturagiuridica, 2 (1972), 1959.

5.4. B. Bauer and H. Schlosser, W X. A. Frhr von Kreittmayr, 1705-1790, Munich 1991; H. E. Strakosch, State Abbolutism and the rule of Law. Th,e Struggle fir the Codification of the CM Nil m Au/tAi. 1753-1811, Sydney 1967; A. Schwennicke, Die Entstehung der Einleitung des Preussischen Allgemeinen Landrechts von 1794, Frankfurt 1993; G. Dilcher, ‘Die januskopfige Kodifikation- Das preussische ALR 1794’, Zeitschrift für Europäisches Privatrecht (1994), 446.

5.5. A. J. Arnaud, Les origines doctrinales du code civil frangais, Paris 1969.

5.6. J. P Eckermann, Conversations with Goethe, trans. J. Oxenford, Everyman edn, London 1971, 313; P Stein, Legal EvvUeiiou^. The Story of an Idea, Cambridge 1980; J. Rückert, ‘Savigny’s Konzeption von Jurisprudenz und Recht, ihre Folgen und ihre Bedeutung bis heute’, TvR, 61 (1993), 65; H. Brunner, Grundzüge der deutschen Rechtsgeschichte, 7th edn, Leipzig 1919, 264; F W Maitland, Introduction to O. Gierke, Political Thames of the Middde Agtb, Cambridge 1900, xvi.

5.7.

5.8. J. Austin, Lectures on Jurisprudence, 5th edn., London 1885; P Stein, ‘Legal theory and the reform of legal education in mid-nineteenth-century England’, in LEducazione Giuridica 11, ed. A. Giuliani and N. Picarda, Perugia 1979, 185 (=Character, 231); M. Graziadei, ‘Changing images of the law in XIX-century English thought (the continental impulse)’, in The Heceti^oo of Cduttn.IlItCIdeas m the Common Law World 1820-1920, ed. M. Reimann, Berlin 1994; The Victorian Achievement ofSir Henrf Maine. A Centennial Rea, pperda.isaAl. Diamond, Cambridge 1991.

5.9. Indian Oil Corp. Ltd v. Greenstone Shipping S.A [1987] 3 All E.R. 893, on which P. Stein, Cambridge Law Journal 46 (1987), 369; R. Knütel, ‘Rechtseinheit und Romisches Recht’, Zeitschrift für Europäisches Privatrecht (1994), 244; R. Zimmermann, The Law of fbligatioos: itomaa Ft mdationo of the Civilian Tradition, Cape Town 1990.