The reception of Roman law

We have seen that Roman law, as interpreted by the Glossators and the Commentators, entered, through university-trained lawyers, the legal institutions and practices of the various European territories and came to be accepted as part of the law of the land.

Besides the work of the jurists, both the expansion of economic activity and the idea of the continued Roman empire played a part in the process known as the 'Reception' of Roman law - the process through which Roman law became the basis of a common body of law (jus commune) that came to apply in most of continental Europe. Like the Latin language and the universal Church, the ius commune served as an important universalising factor in the West at a time when there were no centralised states and no unified legal systems, but a multitude of overlapping and often competing jurisdictions and sources of law (local customs and statutes, feudal, imperial and ecclesiastical law). But the course of the reception was complex and characterised by a lack of uniformity, for the way in which Roman law was received in different parts of Europe was affected to a great extent by local conditions, and the actual degree of Roman law infiltration varied from region to region. Thus, in parts of southern Europe, where Roman law was already part of the applicable customary law, the process of the reception may be described as a resurgence, refinement and enlargement of Roman law. This was the case, for example, in Italy, where the influence of Roman law had remained strong, and in southern France, where the customary law that applied was already heavily Romanised. In northern Europe, on the other hand, where very little of Roman law had survived, the process of the reception was prolonged and, in some regions, at its closing stages much more sweeping. The common law of Europe that gradually emerged towards the close of the Middle Ages was the result of a fusion between the Roman law of Justinian, as explained by medieval scholars, the canon law of the Church and Germanic customary law.

The dominant element in this mixture was Roman law, although Roman law itself underwent considerable change under the influence of local custom, statutory law and the canon law of the Church.^{^[1378]}

The reception of Roman law in France

In the period between the sixth and the ninth centuries three bodies of law applied in France: under the system of the personality of the laws, the Germanic sections of the population were governed by their own laws and customs, whilst the Roman inhabitants of the country continued to live according to Roman law; at the same time everyone in France, irrespective

of ethnic origin, was bound by the laws promulgated by the Frankish monarchs. In the course of the ninth century the personal system of laws began to disintegrate (as the fusion of the different races made its application virtually impossible) giving way to a territorial system. The shift from the system of personality to that of territoriality coincided in time with the expansion and consolidation of the feudal institutions in France. Whilst the territory of every feudal lord was governed by its own customs, in general the customary law that applied in an area tended to be that of the predominant ethnic group. And since the Roman element was dominant in the south of France and the Germanic element was dominant in the north, the whole country came to be divided into two broad regions: the country of the written law (pays de droit ecrit) in the south, where Roman law, as modified by local customs, prevailed; and the country of customary law (pays de coutumes) in the north, in which a variety of local customs of Germanic origin were in force. In both zones the law in force also included elements derived from royal, feudal, and canonical sources.^{^[1379]}

In the south of France, the land of written law, notwithstanding local differences, Roman law was in effect the common law of the region.

After the revival of Roman law in the late eleventh and twelfth centuries and the spread of its study from Bologna to Montpellier and other parts of France, the Roman law of Justinian was rapidly received in southern France and came to be accepted as the living law of the land.^{^[1380]}[1381] In the northern regions of France, the country of customary law, a multitude of Germanic customs were in force. Some of these customs applied over a wider area (coutume generate), whilst others were confined to a particular town or locality (coutumes locales)^ In this part of France Roman law was regarded as a supplementary system, invoked where the customary law was silent or ambiguous. Moreover, in certain areas of the law, such as the law of contracts and the law of obligations, the Roman system had been adopted as being superior to customary law and as being better suited for dealing with many of the new problems that emerged as a result of the expansion of economic activity.

From the beginning of the thirteenth century the customs of many of the more important and larger regions of northern France began to be put into writing and a number of collections of customary law appeared, written in the vernacular but modelled on Roman law compilations.^{^[1382]} The purpose of these works was to gather together and to present in a clear form the rules of customary law that applied in one or more regions so that these rules could more easily be proved in the courts of law. Some of these compilations were private whilst others were issued under the authority of various feudal lords (chcirtes de coutumes). In order to reduce the confusion caused by the multiplicity of customs King Charles VII ordered the compilation of the customs of all regions of France in his Ordinance of Montils-les-Tours in 1453. Although the direction proved largely ineffectual, it was repeated by subsequent monarchs and, by the end of the sixteenth century, most of the customary law had been reduced to writing.

The consolidation of customary law through its official publication precluded the wholesale reception of Roman law in northern France, although elements of Roman legal doctrine entered the fixed body of customary law by way of interpretation.^{^[1383]} Moreover, Roman law continued to apply in areas of private law on which customary law was silent. It was this interaction of Roman and customary sources that gave the law that applied in northern France its distinctive character.

Although the publication of the customs removed much of the confusion caused by local differences, legal unity was by no means achieved. In addition to the differences between northern and southern France, considerable regional differences persisted even within each of the main territorial divisions. It was not until the introduction of the Napoleonic Code in 1804 that legal unity was finally established in France.^{^[1384]}

During the early Middle Ages the law that applied in Germany was customary law which, as a result of the shift from the system of personality to that of territoriality of the laws, tended to vary from area to area. Some of the customs applied over a whole region, whilst others were confined to a single city, village community or manor. After the establishment of the Holy Roman Empire in the tenth century imperial law (concerned almost exclusively with constitutional matters) came to play a part as an additional source of law. Although the Holy Roman Emperors regarded themselves as successors to the Roman emperors and imperial legislation was influenced by the idea of a universal empire, initially no attempt was made to make Roman law applicable to all German regions as a form of common law that could replace local customs. In the twelfth and thirteenth centuries Germans who had studied at the law-schools of Italy and France introduced some knowledge of Roman law into Germany; but its effect on the applicable customary laws was limited as Roman law scholars were largely ignorant or contemptuous of the local laws, which they regarded as primitive in both form and substance and as unworthy of the serious attention of the learned.

In the thirteenth and fourteenth centuries there appeared a number of compilations containing the customary laws observed in certain regions of Germany.

The most important of these were the Sachsenspiegel, or the Mirror of the Saxons, composed around 1225 by Eike von Repgow and containing the territorial customary law observed in parts of northern Germany; the Deutschenspiegel, or Mirror of the Germans, published about 1260 in southern Germany; and the Schwabenspiegel, or Mirror of the Swabians, a collection of the customs of Swabia, published in the late thirteenth century.^{^[1385]} These works were aimed at providing a basis for developing a common customary law for Germany, but the centrifugal tendencies that prevailed were far too strong to be overcome by them. The weakness of the imperial power, which was exacerbated by the political splintering of the Holy Roman Empire in the late thirteenth century, and the multitude and diversity of the local customs made impossible the formulation of a native common law for the whole of Germany based upon Germanic sources. A further obstacle to the attainment of legal unity was the fact that there was no organised professional class of lawyers interested in developing a common body of law. The administration of the law was in the hands of lay judges, the schoffen, whose task was to declare what the law was on a particular issue in court by reference to the customary law that applied in each district. But the pronouncements of the schoffen, concerned only with particular cases and reflecting the personal views of laymen not necessarily guided by generally established rule or principle, added to the uncertainty surrounding the application of customary law.

In the fifteenth century the problems caused by the fragmented nature of the law in Germany became intolerable as commercial transactions between the different territories that formed the German confederation continued to proliferate. Local custom was no longer adequate to meet the needs of a rapidly changing society and the weakness of the imperial government made the unification of the customary law by legislative action alone unthinkable.

But if a common body of law could not be developed on the basis of Germanic sources, there was another system, namely Roman law, that offered a readily available alternative. The acceptance of the Roman law in Germany was facilitated by the idea that the Holy Roman Empire of the German nation was a continuation of the ancient Roman empire. In this respect, Roman law was viewed not as a foreign system of law, but as a system that continued to apply within the Empire as its common law.^{^[1386]} This idea found support in the newly established German universities, where the teaching of law was based exclusively on Roman and canonical sources, whilst Germanic customary law was almost completely ignored. Like the jurists of other countries, German jurists regarded Roman law as superior to the native law and as being in force both as written law (ius scriptuni) by virtue of the imperial tradition, and as written reason (ratio scripta) by virtue of its inherent value.

At a practical level the reception of Roman law in Germany was facilitated by the establishment in 1495 of the Imperial Chamber Court (Reichskammergericht) by a legislative act of Emperor Maximilian (14931519). This act was aimed at the centralisation of the German system of judicial administration and was part of Maximilian's broader political programme intended to restore the power of the monarchy and to secure legal and political unity. The new imperial court was directed to decide cases 'according to the imperial and common law and also according to just, equitable and reasonable ordinances and customs'. Since the personnel of the court was composed at first as to half, and later wholly, of Doctores iuris, i.e. jurists trained in Roman law, the term 'common law' was naturally interpreted as meaning Roman law. The significance of the 1495 legislation was that it formally acknowledged Roman law as positive law in Germany. Although under it judges were required to apply Roman law only where a relevant custom or statutory provision could not be proved, in practice the difficulty in proving an overriding German rule meant that Roman law became the basic law throughout Germany. The example of the Imperial Chamber Court was followed by the territorial courts of appeal founded by local princes in Austria, Saxony, Bavaria, Brandenburg and other German states. At the same time the courts in which lay judges still sat came to rely increasingly on the advice of learned jurists (city advocates, state officials and university professors) for information and guidance concerning local as well as Roman law. In the course of time the role of the lay judges diminished and the administration of justice came to be dominated by professional lawyers who had been trained in Roman and canon law at the universities.^{^[1387]}[1388]

By the end of the sixteenth century Roman law had become firmly established as the common law of Germany. Germanic law had to a large extent been rejected in favour of the more advanced Roman system and German jurisprudence had become essentially Roman jurisprudence. The Roman law that was received was the Roman law of Justinian as interpreted and modified by the Glossators and the Commentators. This body of law was further modified by German jurists to fit the conditions of the times and, in this way, a Germanic element was introduced into what remained a basically Roman structure. Moreover, in some parts of Germany, such as Saxony, Germanic customary law survived, and certain institutions of Germanic origin were retained in the legislation of local princes and of cities. The process of moulding into one system the Roman and Germanic law, carried out by legal practitioners and jurists from the sixteenth to the eighteenth century, led to the development of a new approach to the analysis and interpretation of the Justinianic Roman law, referred to as usus modernus Pcmdectarum‘^>0 This approach continued to be followed in Germany, subject to local variations, until the introduction of the German Civil Code in 1900.^{^[1389]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The reception of Roman law

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