The revival of Roman law

As was noted before, from the early eleventh century improved political and economic conditions gave medieval Europe a more favourable environment for cultural development.

At the same time, the growth of trade, commerce and industry and the increasing secularism and worldliness of urban business life led to a renewed interest in law. The legal revival began in northern Italy. Among the earliest centres of legal learning was the law-school of Pavia, where both Roman law and the customary and feudal law of the Lombard kingdom were being taught and developed.^{^[1352]} The study of Lombard law was based primarily upon the Liber Papiensis, a work composed probably in the early years of the eleventh century.^{^[1353]} This compilation contained materials going back to the Edict of Rothari, the basic statement of Lombard Law, which was published in 643 AD.^{^[1354]} The chief source for the study of Roman law was the Lex Romana Visigothorum. By the end of the eleventh century the antiqui, the jurists concerned with the study of ancient Germanic sources, had been superseded by the moderni, who were interested primarily in the synthesis of Roman law and Lombard customary law. While the antiqui regarded Roman law as a system subordinate and supplementary to Lombard law, the moderni sought to rely on Roman law as a basis for the improvement and development of native law. But the Lombard capital of Pavia was not the only Italian city where law was being studied and legal works were being produced. At Ravenna, the former centre of the Byzantine Exarchate in Italy, there existed in the eleventh century an important school of law where Justinian's texts were known and studied.^{^[1355]} In Southern Italy too, which remained for centuries under Byzantine rule, Roman legal learning was preserved through the influence of the Byzantine law.^{^[1356]}

Towards the end of the eleventh century Roman law studies experienced a remarkable resurgence.

It is difficult to assign a single reason for this development, although some writers place central importance on the discovery in Pisa, late in the eleventh century, of a manuscript containing the full text of Justinian's Digest, which had remained largely unknown throughout the early Middle Ages.^{^[1357]} The rediscovery of the Digest came at a time when there was a great need for a legal system that could meet the requirements of the rapidly changing social and commercial life. The Roman law of Justinian, because of the authority it possessed as a legacy of the ancient imperium Romanum and because it was in book form written in Latin, the lingua franca of western Europe, offered a hope for a unified law that could in time replace the multitude of local customs. As compared with the prevailing customary law, the works of Justinian comprised a developed and highly sophisticated legal system whose rational character and conceptually powerful structure made it adaptable to almost any situation or problem, irrespective of time or place. The revival of interest in Roman law had been fostered also by the conflict between the empire and the papacy, which was from the outset a conflict of political theories for which the rival parties sought justification and support in the precepts of the law. Roman law attracted the attention of secular scholars seeking to find intellectual grounds for refuting the papal doctrine of the final supremacy of the Church in temporal affairs. At the same time emperors gave it a ready welcome because its doctrine of a universal law, founded on a grand imperial despotism, provided the best ideological means to support the theory that the emperor stood at the pinnacle of the feudal system.^{^[1358]}

The Glossators

The principal centre of Roman law studies in Italy was the newly founded (c. 1084) University of Bologna, the first modem European university where law was a major subject.

By the close of the thirteenth century a number of similar schools had been established at Mantua, Piacenza, Modena, Parma and other cities of northern and central Italy, as well as in southern France. Of the early teachers of Bologna the most influential was Imerius, a grammarian, who about 1088 began lecturing on the Digest and other parts of Justinian's codification.^{^[1359]} Imerius's fame attracted students from all parts of Europe and, by the middle of the twelfth century, about ten thousand students were studying at Bologna. The jurists of Bologna set themselves the task of presenting as clear and complete a statement of Roman law as possible through a painstaking study of Justinian's texts (instead of the vulgarised versions of Roman law contained in the various Germanic compilations usually relied upon in the past). Their object was to re-establish Roman law as a science, as a systematic body of principles and not simply as a tool for practitioners. But the ancient texts were unwieldy, for they contained an immense body of often ill-arranged materials and dealt with a multitude of institutions and problems that were no longer known. The first thing which therefore had to be done was to accurately reconstruct and explain the texts.

The work of interpretation, which was closely connected with the Bolognese jurists' methods of teaching, was carried out by means of short notes (glossae) explaining difficult terms or phrases in a text and providing the necessary cross-references and reconciliations without which the text was unusable. These notes were written either in the space between the lines of the original text (glossae interlineares), or in the margin of the text (glossae marginales). The extended glosses of a single jurist formed a connected commentary on a particular legal topic and, through the continuous glossing of the texts, whole collections or apparatuses of glosses emerged dealing with individual parts or the whole of Justinian's codification.

By employing the general pattern of scholastic reasoning, the Glossators (Glossatores), as the jurists of Bologna became known, sought to expose the conceptual and logical background of the various passages under consideration and to ascertain the consistency and validity of the principles underlying the legal material upon which they commented. They did this by comparing different passages from various parts of Justinian's work dealing with the same or similar issues, explaining away the inconsistencies and harmonising what appeared to be contradictory statements.^{^[1360]} These successive processes corresponded to the medieval progression in the curriculum of the trivium from grammar and rhetoric to logic or dialectic - the content of Justinian's works had first to be understood, and so explanatory notes were used; then the consistency of the texts had to be established through the application of the dialectical method.^{^[1361]}[1362] On the basis of this explanatory work various forms of juristic literature were developed. These included synopses or summaries of contents of particular parts or the whole of Justinian's work (siimmaef' works explanatory of conceptual distinctions arising from the texts (distinctiones)'™ collections of conflicting juristic interpretations (dissensiones dominorum)·™ compilations of unresolved problems arising either from the texts or from actual cases (quaestiones)', anthologies of opinions on various legal questions connected with actual cases (consilia)·, cases constructed to exemplify or illustrate difficult points of law (casus)·, collections of noteworthy points (notabilia) and of statements of broad legal principles drawn from the texts (brocarda)', and various treatises on particular legal topics, such as the law of actions and legal procedure.

The interpretation and analysis of Justinian's legislative works was the exclusive preoccupation of the Bolognese jurists until the late thirteenth century.

Among the successors of Imerius, the most notable were Bulgarus, Martinus Gosia, Jacobus and Ugo (these became known as the "four doctors of Bologna"), Azo, Vacarius, Rogerius, Placentinus, John Bassianus, Odofredus and Accursius. Late in the twelfth century Rogerius, probably together with Placentinus, founded the law-school of Montpellier, in France, which became an important centre of legal learning. Vacarius, a Lombard, went to England around the middle of the twelfth century and began teaching civil law at Canterbury.^{^[1363]}[1364][1365] Azo became famous for his influential work on Justinian's Code (Summa Codicis or Summa Aurea).^{^[1366]}The greatest of the late Glossators was Franciscus Accursius, a pupil of Azo's, who dominated the law-school of Bologna during the first half of the thirteenth century. Around the middle of the thirteenth century Accursius produced his famous Glossa Ordinaria, an extensive collection or apparatus of glosses of earlier jurists covering the whole of Justinian's codification, supplemented by his own annotations. The Glossa Ordinaria both summarised and made obsolete the whole mass of glossatorial writings of the preceding generations of jurists.^{^[1367]} It represented the culmination of the work of the Glossators and gained rapid acceptance in Italy as the standard commentary on Justinian's texts, providing guidance for those engaged in the teaching and practice of law. With the publication of Accursius' great gloss the contribution of the school of the Glossators to the revival of Roman law came to an end, although their methods continued to be applied in the teaching of law at Bologna and elsewhere for a long time.

What characterises the Glossators' approach to Roman law is its lack of historical perspective. Neither the fact that Justinian's codification had been compiled more than five hundred years before their own time, nor the fact that it was made up of extracts of a still earlier date meant much to them.

Instead, they looked upon it as if it embodied the law of their own age, paying little attention to the fact that the law actually in force was very different from the system contained in Justinian's texts. This attitude was reinforced by the theory that the Holy Roman Empire was a successor to the ancient Roman Empire - a theory which the Glossators tended to support. It was also associated with the fact that the Glossators' interest in law was chiefly academic and their learning was to a large extent remote from practical affairs.^{^[1368]} Being true medieval men, the Glossators regarded Justinian's texts in much the same way as theologians regarded the Bible, or contemporary scholars viewed the works of Aristotle. Just as Aristotle was treated as being infallible and his statements as being applicable to all circumstances, so the texts of Justinian were regarded by the Glossators as sacred and as the repository of all wisdom. Nevertheless, the Glossators did succeed in getting back genuine familiarity with the whole of Justinian's codification and their work prepared the ground for the practical application of the legal doctrines contained in it. Their new insight into the workings of Roman law led to the development of a true science of law which was to have a lasting influence on the legal thinking of succeeding centuries.^{^[1369]}

The Commentators

By the close of the thirteenth century the attention of the jurists had shifted from the purely dialectical analysis of Justinian's texts to problems arising from the application of the customary and statute law and the conflicts of law that emerged in the course of inter-city commerce. The enthusiasm for the study of the ancient texts, which in the twelfth century had carried so many students and scholars to Bologna, had now waned and the place of the Glossators was taken by a new kind of jurists, known as Post-glossators (post-glossatores'), or Commentators (commentatores)?' The new school, the chief centres of which were the universities of Pavia, Perugia, Padua and Pisa, reached its peak in the fourteenth century and continued into the fifteenth and sixteenth centuries. Unlike the Glossators, the Commentators were concerned not with the exegesis of Justinian's texts in isolation, but with constructing a complete legal system by adapting the Roman law of Justinian to the needs and conditions of their own time. The positive law that applied in Italy at that time was a mixture of Roman law, Germanic customary law, canon law and the statute law of the Empire and the various self-governing Italian cities. The Commentators set themselves the task of integrating these bodies of law into a coherent and unitary system. In carrying out this task they abandoned the excessive literalism of the early Glossators and, by applying the methods of rational inquiry and speculative dialectic, sought to bring to light the general principles of law and, on this basis, to formulate a general theory of law. Since the Commentators were mainly concerned with the development of contemporary law, they tended to pay little attention to the primary sources of Roman law and the synthesis that occurred was between the non-Roman elements and the Roman law of Justinian as expounded by the Glossators. On this body of law systematic treatises and commentaries were written, especially in areas of the law where there was a need for the development of new principles for legal practice. The Commentators succeeded both in adapting Roman law to the needs of their own time and in giving the contemporary law a scientific basis through the theoretical elaboration of Roman legal concepts ^{^[1370]} and principles. Of particular importance was their contribution to the development of commercial law, criminal law and the theory of conflict of laws.

Among the most influential of the Commentators were Bartolus de Saxoferrato (1314-1354) and his pupil Baldus de Ubaldis (1327-1400). Bartolus took his doctorate at Bologna and lectured at Pisa and Perugia. He enjoyed great fame among his contemporaries and his writings came to dominate the universities and the courts for centuries.^{^[1371]} Like Accursius' Great Gloss, Bartolus' commentary on the whole of Justinian's codification was acknowledged as a work of authority and was extensively used by legal practitioners and jurists throughout western Europe. In Portugal his writings were declared to have the force of law in 1446; during the same period in Italy, under the doctrine of communis opinio doctorum (according to which the solution supported by most juristic authorities should be upheld by the courts), the opinions of Bartolus were regarded as having the same weight as the Law of Citations had accorded to the works of Papinian. Baldus taught at Bologna, Perugia and Pavia. He was best known for his opinions (consilia), concerned with the solution of problems arising from actual cases, especially cases involving a conflict between Roman law and local laws and customs.

The thousands of students from all over Europe who had studied at Bologna and other Italian universities carried back to their own countries the new legal learning based on the revived Roman law. Throughout western Europe, in France, Spain, the Netherlands, Germany and Poland, universities were established where scholars trained in the methods of the Glossators and the Commentators taught the civil law on the basis of the texts of Justinian. Their students formed a new class of professional lawyers whose members came to occupy the most important positions in both the administrative and judicial branches of government. Whilst prior to the twelfth century justice was administered by untrained jurors and on the basis of local legal sources, justice now was administered by professional judges appointed by a sovereign who could apply Roman law if local sources, either customary or statutory, were found lacking. Through the activities of university-trained judges and jurists Roman law, as expounded by the Glossators and the Commentators, entered the legal life of Continental Europe and became the basis of a common body of law, a common legal language and a common legal science (ius commune) - a development known as the 'Reception' of Roman law. Aided by the expansion of economic activity and by the idea of the Holy Roman Empire, the ius commune gradually infiltrated or displaced local laws and customs and became international, a body of law that transcended territorial and political boundaries. The unity achieved by the reception of Roman law was fostered further by the development of canon law - the universal law of the Western Church.

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

The revival of Roman law

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