The second life of Roman Saw

11.2.1 The term 'Reception' and its phases

The Reception of Roman law can be broadly described as the trend (predominantly in Western Europe) towards the increasing Romanization of law and legal institu­tions during the late medieval period.

Universal agreement is lacking as to meaning of 'the Reception' and therefore as to its time span. Some would argue that the Reception is strictly a sixteenth-century phenomenon sparked mainly by developments in the legal systems of the Holy Roman Empire, but Alan Watson has suggested that an early Reception occurred some 1,000 years earlier when the codes of the Germanic tribes extensively bor­rowed from Roman law (although he considers that the Reception started in the eleventh century): The Evolution of Law (1985), ch.

The reception of Roman law in Western Europe is commonly divided into three phases linked to the rise of certain legal-philosophical currents. The first phase, from the scientific rediscovery of Roman law in Italy at the end of the eleventh century to the start of the sixteenth century, is generally regarded as the formative period of the European ius commune. It was during this period that the principles, terminology, and structure of Roman law were moulded into a medieval learned law to become the backbone of a common European legal culture in which the existing customary law could develop into national legal systems.

The second stage of reception, from the start of the sixteenth century to the mid­eighteenth century, is linked to the rise of the nation state and the development of national legal systems based on the principles of the European ius commune. The influence of the principles of Roman law on legal development during this period changed somewhat. As Stein (Roman Law, 75) has noted:

By the end of the fifteenth century the ius commune developed by the Sartolists was becoming more and more influential throughout Europe, as new universities were founded and more jurists were trained in the traditional learning. At the same time, however, the more it was adapted to find solutions to contemporary problems, the further the ius commune moved away from the law of Justinian, from which its authority derived.

It was also during this second phase of reception that the universal applicability of Roman law as the basis of the European ius commune came to be critically evaluated, first by the legal humanists of the sixteenth century and thereafter by the support­ers of the secularized natural-law doctrine during the seventeenth century.

The third and final phase of reception, from the mid-eighteenth century to the end of the nineteenth century, witnessed the emergence of various national codi­fications of law in Western Europe. The principles and structure of Roman law also fulfilled an important function during this period. The adoption of codes such as the french, German, and Swiss by other countries also resulted in a late Reception of Roman law outside Western Europe. In virtually every legal system in the world, other than those that adhere to an English common law tradition or Marxist ethos, the influence of Roman law continues to be strongly felt. The United States is gener­ally regarded as a common law system, but for some half a century following inde­pendence there was a real prospect that civil law would prove supreme (it actually did in Louisiana, which promulgated an influential Romanist code in 1825 based on French and Spanish law). Some of the outstanding statesmen of the period, such as John Adams and Thomas Jefferson, were not only great admirers of ancient Rome but erudite in her law. See Sellers, M. N. S., American Republicanism (1994). Not surprisingly, following the Revolution there was a certain hostility towards the common law, and a receptiveness to French influences. Civil and natural law were importan t elements of legal education, American jurists read Pothier, and legal lit­erature of the period was decidedly enthusiastic about civil law. However, the legal profession did not share the enthusiasm, and this was perhaps the major factor why Roman law gradually faded as a potentially dominant influence. See Stein, Character and Influence, 411 ff.

11.2.2 The birth of the European ius commune

11.2.2.1 The Glossators

The Reception was made possible by a revival of the study of Roman law in the eleventh century, particular interest being shown in Justinian's Digest (which had long been forgotten in Western Europe, see Tamm, Roman Law, 201-2, as well as Hallebeek, J., 'Structure of Medieval Roman Law: Institutions, Sources, and Methods', in OHELH, 286-308, at 293-302, together with Herzog, Short History, 75-92). This revival was part of the wide-ranging intellectual and artistic move­ment affecting all aspects of society during the eleventh and twelfth centuries. Central to this 'renaissance' were various factors, including the gradual relaxation of feudal structures, the rise of towns and urban civilization in Italy as well as an increase in trade and commerce between Italian city states and other regions in Western Europe. The crucial elements, as far as the study of law was concerned, were the rise of the professional jurist and the work of the law schools in the univer­sities of northern Italy, especially Ravenna, Pavia, Verona, and above all, Bologna, where law (and more specifically Roman law), for the first time since the fall of the Western Empire, came to be studied as an autonomous discipline. The extent to which Roman law was studied before this period is uncertain.

The revival of interest in the Digest was stimulated, amongst other things, by the Investiture Contest, a series of disputes between Pope and Holy Roman Emperor over the right to appoint bishops and lesser clergy and to invest them with the symbols of their office. This dispute formed part of a larger controversy concern­ing the relationship between the ecclesiastical jurisdiction of the Church and the secular jurisdiction of the ruler (see 11.2.1). It arose during the papacy of Gregory VII (1073-85) and was not settled until 1122 with the Concordat of Worms. During the course of this dispute, both sides searched the ancient authorities for support­ing arguments, and it is at this time that the Digest was 'rediscovered', perhaps in Ravenna (see Roman Law Tradition, 3).

Apart from annotating the texts, the Glossators wrote a great deal, especially summaries and commentaries on their glossing of the Digest, culminating with the monumental Glossa Ordinaria ('Standard Gloss'), the work of another Bologna scholar, Accursius (c. 1184-1263). This work, containing some 97,000 entries, became accepted as the standard commentary on Justinian's codification. It took the form known as apparatus—a comprehensive compilation of glosses.

The Bologna doctors regularly lectured on their work—with attendant disputations—attracting students from all over Europe (see Stein, Roman Law, 52-4). Roman law became the focus of law as a university subject, to be studied for a period of five years, with oral examinations necessary for the award of a degree: Robinson et al. consider that the concept of a university law school began at Bologna (ELH, s. 3.8.1; Bellomo, Common Legal Past, 112-25). Exposition of the Corpus Juris Civilis became part of the intellectual mainstream of early medieval Europe. This sparked an interest in the study of Roman law in other centres of learning. For example, evidence suggests that the subject was being taught in the universities of Paris and Oxford in the second half of the twelfth century. But the most important centres, apart from northern Italy, were in southern France, particularly in Provence (see Dauchy, S. 'French Law and its Expansion in the Early Modern Period’, in OHELH, 760-81). The law schools at Montpellier, Arles, and Toulouse achieved a high repu­tation in the study of Justinian's codification under scholars such as Rogerius and Placentinus, both of whom had studied at Bologna (see 11.2.2.3). Two important works date from this period: the Exceptiones Petri, a compilation of rules extracted from Justinian, and meant for practical use in the administration of the law; and Lo Codi, a manual written in Provencal dialect (possibly by Rogerius) intended for use by judges which draws on Roman rules for the solution of cases. See Vinogradoff, Roman Law in Medieval Europe (1929), ch. 2.

The Bologna doctors sometimes took part in important affairs of State. Bulgarus, for example, was an adviser to both the Pope and the Holy Roman Emperor, and he and others became embroiled in the difficult relations between Church and State at that time. In England, Glossators are thought to have appeared against King John in disputes over ecclesiastical appointments. Thus, their work at times had a vital practical application, even if its main thrust was the exposition of Justinian's law.

Although it cannot be denied that the Glossators were instrumental in the redis­covery of Roman law and that they provided the initial impetus for the reception of Roman law across Western Europe, their methodology was not without its critics. Owing to the lack of available sources, the Glossators did not always have a clear grasp of the history of the Roman Empire or the technicalities of classical legal Latin and some of their observations on the texts were speculative and histori­cally unsound. Furthermore, many of the Glossators did not read Greek and thus excluded parts of the Code and the Novels from their glosses or commentaries. More significantly, though, the Glossators' reverence for the text precluded them from suggesting alterations to the order of the fragments, which in the eleventh and twelfth centuries was still somewhat speculative. Nonetheless, without the ground-breaking work of the Glossators, the scientific rebirth of Roman law and the resulting transformation of the principles of Roman law Into the ins commune of Western Europe would not have occurred. (On the Glossators and their signifi­cance, see Robinson et al., ELH, ss. 3.1-3.8.6; Stein, Roman Law, 43-9; Beilomo, Common Legal Past, 55-77; Tamm, Roman Law, 203-6; Lesaffer, ELH, ch. 4.)

11.2.2.2 Canon law

Canon law consisted of the canons of the Church—ecclesiastical decrees concerned mainly with the administration of the Church, doctrinal issues, and jurisdiction over matters such as marriage and wills. In some respects, it had close affinity with Roman law, was influenced by it, and in turn influenced its revival. During the early centuries of the 'Dark Ages', the Church had stepped into the vacuum left by the disintegration of civil authority in the west to extend its jurisdiction and to develop its own legal system based on Roman law for use in its ecclesiastical courts. During the next few centuries, canon law became an important force in medieval society. Its prominence is reflected in a number of unofficial compilations of canon law that appeared during the course of the sixth to the eleventh centuries (see Helmholz, R., 'Canon Law and Roman Law', in Cambridge Companion, 396-422 as well as Clarke, R, 'Western Canon Law in the Central and Later Middle Ages', in OHELH, 265-85).

The transformation of canon law into a science in the late medieval period, which occurred roughly at the same time as the scientific rediscovery of Roman law, was largely the work of Gratian, a monk working at Bologna. In c. 1140, he produced a systematic compilation of the canons of the Church that, though unofficial and never promulgated as law, was soon considered authoritative. This compilation— the Decretum Gratiani—provided a rich source for the study of canon law. A school of Decretists emerged, using methods similar to those of the Glossators—glossing the texts, with the attendant literary output.

Canon law had two distinct advantages over Roman law (or civil law as it came to be called) in the late medieval period. First, it had direct application in eccle­siastical courts (see Clarke, 'Western Canon Law', 279-84), while civil law only had subsidiary application where local customary law proved ineffective. Second, and more importantly, Gratian's Decretum was not a dosed compilation, unlike Justinian's codification. Popes and ecumenical councils were frequently producing more material that supplemented and developed existing canon law into a more efficient legal system. During the course of the thirteenth and fourteenth centuries, for example, three new compilations appeared which were designed to supplement. Gratian's work. These were the Liber Extra of Pope Gregory IX produced in 1234; the Liber Sextus of Pope Boniface VIII in 1298; and the Clementinae of Pope Clement V in 1317. These compilations gave rise to a second group of canonist scholars, the Decretalists, who wrote commentaries on the Liber Sextus and the Liber Extra.

It was said that canon law could, not be understood without studying Roman law, and vice versa, because of their close relationship (see Clarke, 'Western Canon Law’, 266). For example, both systems were founded on written law; Bologna was the leading centre for a while of both canon law and Roman law scholarship, simi­lar methods (glossing the texts) being used in both; the clerics of the Church often studied both—some of the leading canonists were pupils of Glossators; canon law procedure was based largely on the cognitio process of the later Roman Empire (hence described as 'Romano-canonical' procedure); and even the unofficial name given to the classical body of canon law—Corpus luris Canonic) (a collection of the above-mentioned compilations together with the Extravagantes first produced in 1580)—resembled the title of Justinian's codification, the Corpus luris Civilis. See Wieacker, History, 47 ff. He emphasizes the ‘interchange of legal rules' which in his view was facilitated by 'a mutual principle of subsidiarity: spiritual courts used to apply Roman law in the absence of law of their own, and secular courts likewise applied the general principles of canon law' (54).

The fact that many leading clerics—often among the leading statesmen of the secular State in the medieval period—were versed in Roman law contributed to the revival of Roman law. So did the prevalent use of cognitio procedure in the ecclesias­tical courts, especially in matters of 'secular' interest such as marriage and wills (see Robinson et al., ELH, s. 5.7 for a detailed discussion of the local application of canon law). Moreover, the universality of canon law acted as an example for the secular law: 'This universality of legal thinking and practice must have been an important factor in the creation of the ius commune, and in bringing such outlying areas of medieval Europe as Scotland within the framework of European legal civilisation' (Robinson et al., ELH, s. 5.1.3, and generally ch. 5). (On medieval canon law, see Robinson et al., ELH, ss. 5.1-5.9; Stein, Roman Law, 49-52; Beilomo, Common Legal Past, 65-77; Tamm, Roman Law, 211-15; Helmholz, Spirit, ch. 5.)

11.2.2.3 The school of Orleans (UltramontanE)

From the mid- to the iate-thirteenth century, the University of Orleans became an important centre for the study of Roman law. While the glossatorial methodology was still being followed at many Italian universities, it had lost much of its appeal following the publication of Accursius' Glossa Ordinaria and the time had come for the development of a new approach to the study of Roman law. This approach came from a country to the North of Italy 'across the mountains' (Ultramontani, meaning 'those beyond the mountains', was an Italian description). Although the teaching of Roman law had earlier (in 1219) been forbidden in Paris by Pope Honorius III, his successor Gregory IX had declared in 1235 that this prohibition did not apply to Orleans, thereby paving the way for the scientific study of Roman law at this university. The appointment of legal scholars from Italy such as Guido de Cumis also contributed to the rise of this university as an important centre for the sci­entific study of Roman law. Two jurists commonly associated with the School of Orleans are Jacques de Revigny and Pierre de Belleperche. Although the methodo­logical approach of these jurists largely followed that of their predecessors, their approach to the texts was to have a lasting impact on a later group of Italian jurists, the 'Commentators'. The school at Orleans concentrated on teaching Roman law to clerics destined for high office, but took a less dogmatic approach than the Glossators to the Roman texts. Those who attained high office, especially in the service of the royal court, became adept at balancing the claims of custom against the rules of Roman law in dealing with the practical issues of the day, see Robinson et al., ELH, ss. 4.2.1-4.3.3; Stein, Roman Law, 67-8.

11.2.2.4 The commentators

From the late thirteenth century onwards, an important shift of emphasis occurred in the study of Roman law (see Hallebeek, 'Structure', 304-6). The law of the time, largely a mixture of feudal custom and remnants from the codes of vulgar law of the Dark Ages, was inevitably influenced by the academic revival of Roman law in the universities. This process was enhanced by the fact that the scholars who flocked from all over Europe to Bologna and the other law schools occasionally attained high office in their countries. The scholars of the later medieval period, known as the 'Commentators', aimed principally at adapting Roman law for contemporary use. In contrast to the Glossators, they were not interested in the exegesis of Roman legal texts in isolation, but attempted to construct a system of law also suitable to the needs of fourteenth-century Italy by adapting the texts to the circumstances of their time and by distilling legal principles from these texts.

Not only had Justinian's codification achieved a revered status through the work of the Bologna doctors, but it came to be regarded (the Digest in particular) as a repository of solutions to virtually all legal problems. The conflicts, inconsistencies, and varying opinions found in the Digest, Justinian's best efforts notwithstanding, offered a rich store of possibilities: 'the Commentators were able to transform the law of Justinian into ius commune, a common law for the whole of Europe, and to apply to the rich variety of the non-Roman laws in Europe their ways of think­ing about law' (Wieacker, History, 57). Their work was clearly Influenced by the Ultramontani.

The Commentators, principally Italian jurists of the fourteenth century, became influential mainly through their teaching and literary output. Their teaching meth­ods were similar to those of the Glossators. Bologna was no longer the preemi­nent school: several other Italian universities were closely associated with the Commentators, including Padua, Perugia, and Naples. Their literary output took two main forms: extensive commentaries or monographs on Justinian’s codification (as glossed by the Glossators) and collections of opinions on specific legal problems. In both types of work, the writers took particular account of local statute and cus­tom, and as a consequence were prepared to interpret the Roman texts much more freely than the Glossators, thus making them more directly relevant to the condi­tions of the time: 'This literature was the major catalyst in the Reception of Roman law in Germany after the fifteenth century, for whenever learned decision-making took the place of unsophisticated judicature this literature was used' (Wieacker, History, 60).

The two outstanding Commentators were Bartolus de Saxoferrato (1314-57) and his pupil Baldus de Ubaldis (1327-1400). Bartolus wrote the most important com­mentary of the period, a work that became the standard text for subsequent ages,. and led to the quip 'no one is a jurist unless he is a Bartolist'. The task of adapting Roman law for practical use in systems that were based partly on customary law led Bartolus to anticipate the problems that could arise through the conflict of laws in different regions of Europe. A fundamental problem was the potential conflict between local law and the Corpus Juris Civilis. Bartolus rejected the notion that the latter must automatically prevail. Instead he took the view that the problem was essentially one of interpretation of the scope of the local law. To that extent he can be legitimately viewed as the 'father' of the conflict of laws as a specific legal disci­pline. See Stein, Character and Influence, 83 ff., who thinks that the importance of Bartolus lies: 'not so much for his specific doctrines but rather because for the first time he offered a systematic survey of the various categories of problem that were likely to occur in practice' (90).

Baldus, a scholar of wide-ranging interests, was responsible for the richest collec­tion of opinions in his era. His work and that of Bartolus inspired succeeding genera­tions of scholars, so that by the middle of the fifteenth century the Commentators were active in academic centres throughout much of Europe. The result was the growth of a European legal tradition, a common legal language deriving its core from Roman law, just as some of the languages of Europe possessed common roots in Latin. 'The influence of these Italians is one of the best examples in history of the constant cultural interchange between the peoples in Europe' (Wieacker, History, 61). Moreover, the supremacy of Roman law, when compared to the vagaries of the feu­dal law that permeated much of Europe in the medieval period, was much touted by academic and practising lawyers. Public disputations on the merits of Roman law were not uncommon, especially in the universities of Germany; and the teaching of Roman law in universities throughout much of Europe was one of the intellectual achievements of the age, see Robinson et al., ELH, ss. 4.4.1-4.6.8; Stein, Roman Law, 71-4; Bellomo, Common Legal Past, 147-8; Tamm, Roman Law, 206-8.

11.2.3 Towards a European Ins commune and beyond

By the end of the fourteenth century, Roman law had been transformed into the European ius commune, see Hallebeek, J., ‘Structure of Medieval Roman Law: Institutions, Sources, and Methods', in OHELH, 286-308, as well as Rufner, T, 'Substance of Medieval Roman Law: The Development of Private Law', in OHELH, 309-31. This process had occurred in three phases. During the twelfth century, Justinian's codification had been meticulously cross-referenced by Glossators and had lent much of its vocabulary and doctrine to the emerging canon law. During the thirteenth century, the liberal interpretation of the School of Orleans had pro­vided a new slant on the interpretation of these texts, while the 'Commentators' of the fourteenth century had blended Roman law together with local custom and statute into a legal system suited to their particular needs. Through the endeavours of these jurists, a Romanization of the law had begun that was not dissimilar to the transformation that had occurred in the life of the territories settled by the Romans in the heyday of the Roman Empire. This process, which continued until the start of the sixteenth century, did not always lead to a substantial change in the content of the law; the transformation was often more evident in the structure and proce­dure of legal systems, and in the methods of thinking and the techniques adopted by academic and practising lawyers.

The Romanization of the law also owed much to political and economic fac­tors. The growth of the idea of statehood, a characteristic trait of the fifteenth and sixteenth centuries, made Roman law attractive to some of the rulers of the devel­oping states of Europe, since it was regarded as imperialistic, authoritarian, cen­tralized, and secular in character. And the growing merchant classes in European states often found in Roman law (particularly its law of contracts) a surer legal basis for mercantile endeavour than the outdated, fragmented customary laws then prevalent. The mere fact that Roman law was written law (with dearly identifia­ble sources) gave it certainty and authority, and therefore a pronounced advan­tage compared to largely unwritten custom, see Ryan, M., 'Political Thought', in Cambridge Companion, 423-51.

The Romanization of the law in Italy was influenced by an unusual factor—the operation of the podestà constitution. Italian cities in the medieval period some­times became ungovernable, primarily because of strife between warring fac­tions and families. The expedient was occasionally tried of inviting an unbiased outsider—the podestà—to act in a judicial and administrative capacity as governor to restore good order. He might find that the problem lay partly in the operation of the local law, in which case it could make sense to resort to a 'neutral' law—namely, Roman law—in adjudicating difficult cases. The podestà would normally be trained in Roman law—indeed, some Glossators and Commentators were known to accept the invitation.

With hindsight, the many and disparate factors contributing to the revival of Roman law in the medieval period can be seen to lead to the Reception with a certain inevitability. To this extent it is surprising to read in Vinogradoff: 'Within the whole range of history there is no more momentous and puzzling problem than that con­nected with the fate of Roman law after the downfall of the Roman State. How is it that a system shaped to meet certain historical conditions not only survived those conditions, but has retained its vitality even to the present day, when political and social surroundings are entirely altered?' (Roman Law in Medieval Europe (1929), 11). Watson, on the other hand, takes the view that massive, voluntary legal borrowing from Roman law was to be expected in societies with a primarily customary system of law, even though very different conditions—whether political, social, economic, or religious—prevailed there. Thus: 'it is a non-Reception which would have constituted the most puzzling problem of history. The first (and most) important step in under­standing the Reception is to know that we should explain its cause by not explaining its causes', see The Evolution of Law (1985) 97, and generally Ch. 3. The notion that the search for causes is somehow misconceived—if that is what Watson argues—is difficult to maintain, although the thesis that legal borrowing between societies is probable, or even inevitable, is readily understandable. As Wieacker puts it: 'The adoption by one people of cultural elements fashioned by another is simply one instance among many of the constant changes on which all human civilization ultimately depends. The very idea of Reception illustrates our sense of the continuity of human history as a whole, or at any rate the continuity of great civilizations' (History, 91).

Romanization of the law took diverse forms and proceeded at a disparate pace in different countries (Lesaffer, ELH, ch. 5). Generalizations are particularly fallible when made in relation to the Reception, but it can be safely asserted that nowhere was there a sudden, overnight metamorphosis from feudal custom to Roman law. There occurred, however, certain events (such as the reform of existing courts or the introduction of new appellate courts using learned law) that undoubtedly hastened the progress of the Reception. Individual rulers tended to staff their highest courts with jurists trained in Roman law. That led to a greater reliance on skilled advo­cates, themselves trained in Roman law at the universities. The staffing of appel­late courts by judges trained in Roman law proved to be an important factor in the course of the Reception in several countries apart from Germany, especially in the Netherlands and Scotland.

In the countries of the western Mediterranean—Spain, France, and Italy—the Reception generally took a slower, more gradual course. There was an absence of momentous events in the later stages of the Reception in these countries, largely due to the fact that Roman law had retained a foothold in parts of this area through­out the Dark Ages. In Spain, for example, it was present in Visigothic law and sur­vived the Moorish invasions. In the thirteenth century, a succession of Castilian kings extended royal authority at the expense of local custom by imposing the Fuero Juzgo ('the custom of the judges')—Visigothic law applied normally in appel­late tribunals. The revival of Roman law in Spain was typically aided by those in royal service who had studied in Italy or at the University of Salamanca. In the reign of Alfonso X (1252-84) there was promulgated a comprehensive statement of law, Las Siete Partidas (The Seven Parts of Law). Based on Roman law, it gradually achieved general recognition during the period of reconquest of Spanish cities from the Moors, and came to be regarded as the foundation of Spanish law (and thus the law of the New World, South America, when Spain started to acquire its vast over­seas empire). See Mirow, M., 'Spanish Law and its Expansion', in OHELH, 782-805.

Scarcely a country in Europe was unaffected by the Reception of Roman law, although in some areas—especially Scandinavia and parts of Eastern Europe, such as Poland— the influence was minor, at least until the sixteenth century, despite the teaching of canon law and some Roman law at the universities. Russia was largely outside the European mainstream until even later (see Giaro, T., 'Some Prejudices about the Legal Tradition of Eastern Europe', in Comparative Law in Eastern and Central Europe, 26-50).

11.2.3.1 France

French scholars were at the forefront of the scientific revival of Roman law in the late medieval period—notably Glossators such as Rogerius in Provence and the Ultramontanl of Orleans (see 11.2.2.3 and generally Tamm, Roman Law, 220). However, the influence of Roman law during the medieval period was confined to the southern regions of France. Broadly, there was a north-south divide in terms of legal development. The south was the pays de droit ecrit ('the land of written law') because there Roman law gradually became a dominant influence—the general law which was applied unless local custom dictated otherwise. The reasons for the more comprehensive Reception of Roman law in the south of France are diverse. The region's geographical proximity to Italy ensured that a strong Latin tradition remained throughout the Dark Ages. The 'barbarian' codes containing elements of Roman law also remained in force in the South of France throughout this period and later medieval compilations of customary law from the southern regions of France show the extent to which Roman law had been received (see Stein, Roman Law, 54-6). Finally, the foundation of universities during the twelfth century and the academic migrations of Italian scholars to these universities contributed to a strong Roman-law influence in the South of France.

The north was the pays de droit coutumier ('the land of customary law') where mainly Frankish custom was followed. The strength of the customary laws of the north—particularly in Normandy, Brittany, and the Ile-de-France (Paris and environs)—delayed substantial Romanization of the law. The prominence of cus­tomary law in the northern regions of France was aided, amongst other things, by the decree of Pope Honorius III in 1219. By the end of the thirteenth century, customary law had become the local law in force in the northern regions of France (see Robinson et al., ELH, s. 7.5). However, even in the north it is clear that parts of the customary law, especially procedure, property, and contract, were influenced by Roman notions, e.g. the Coutumes deBeauvaisis c. 1280. See Vinogradoff, Roman Law in Medieval Europe (1929) 80 ff. The influence of the framework and terminology of Roman law are also visible in the numerous compilations of customary law that had arisen by the fifteenth century. The compilation of French customary law had been an ongoing project of the French Crown since the fifteenth century (initiated by the Ordinance of Montils-les-Tours in 1454). By c. 1600, a series of separate codes for each region existed—e.g. the Custom of Paris was issued in 1510. Nevertheless, the application of the customary law by the parlements (superior royal courts) in the provinces, the eventual codification of these laws, and the suspicion of some French kings that Roman law constituted a threat to their privileges, prevented a full-scale Reception in the north. (See Robinson et al., ELH, ss. 7.5.1-7.5.14 on French courts and their use of customary law; Bellomo, Common Legal Past, 101-6; Tamm, Roman Law, 219-22.)

There was, however, a notable development in France of academic interest in the study of Roman law—the 'humanist' revival of the sixteenth and early seventeenth centuries. See Stein, P. G., 'Legal Humanism and Legal Science’, in Stein, Character and Influence, 91-100 (also in (1986) 54 TR, 297-306). It formed part of a cultural and intellectual re-evaluation of the classical cultures of Greece and Rome that had started in northern Italy during the latter part of the fifteenth century. This meth­odology eventually came to dominate all aspects of society in Western Europe dur­ing the sixteenth century 'Legal humanism' was essentially a reaction against the aims and methods of the Commentators, which French jurists (as well as certain of their Italian and German contemporaries) considered to be somewhat crude and conducive to the distortion of Roman law. The humanists therefore focused on the original Latin and Greek texts (with their motto petere fontes), largely discard­ing the glosses, and attempted to rediscover classical Roman law in its original context. This task was of course aided by a great number of classical texts that had once again become available in the West after the fall of Byzantium (see 11.1.1). Their editions of Justinian's codification bear witness to a greater clarity and refine­ment in style and method ('elegant jurisprudence') than that displayed by the Commentators. But then, the latter were aiming at different and arguably more important things. The humanist soon found sympathizers in other countries, par­ticularly in Germany in the early-sixteenth century and later in the Netherlands. However, it was France that was to prove to be the most important home of the humanist revival, especially the law school at the University of Bourges. The pio­neering work of stripping the texts of all the glosses and commentaries which had engulfed it since the twelfth century was done by the Frenchman Guillaume Bude (Budaeus) (1467-1540) and the Italian, Andrea Alciato (Alciatus) (1492-1550) who taught law at various French universities. It was carried on by illustrious French jurists such as Franyois Baudouin (Balduinus) (1520-73), Jacques Cujas (Cujacius) (1522-90), Hugues Doneau (Donellus) (1527-91), Francois Hotman (Hotomannus) (1524-90), and Antoine Favre (Faber) (1557-1624). For much of the sixteenth century Bourges was: 'the most exciting institution for legal study not only in France but in all Europe' (Robinson et al., ELH, s. 10.2). Some of the French human­ists had Protestant leanings, and thus had to leave France when the persecution of the Huguenots became intolerable in the 1570s. Some settled in Germany, but it was chiefly in the Netherlands that they carried on their work, helping to foster there a humanist tradition in Roman legal studies (see 11.2.3.3).

The work of the humanists took various forms, emanating from the central aim of returning to the original texts, which could only be properly understood—argued the humanists—within their historical context. That required a student of the texts to view them in the light of knowledge about the history, language, customs, and traditions of the time, as well as disciplines such as philosophy and medicine: total immersion in classical antiquity was de rigueur. The connection between law and its historical context had a significant impact on the widely held view concerning the universal applicability of Roman law. By equating law with history, the legal humanists showed how different the historical context of Roman law was from the circumstances of the sixteenth century and thereby challenged the way in which Roman law should he studied.

By stripping the texts of all the glosses and commentaries and exploring its historical context, legal humanists also became involved in the search for inter­polations as they realized that the texts preserved in Justinian's codification con­tained layers of law from different periods (see 2.5.3.2). Moreover, some humanists were concerned to provide a more systematic ordering of the material and looked towards the division of Justinian's Institutes into persons, actions, and things as an alternative arrangement. The efforts of predecessors such as the Glossators were likened (rather unfairly) to 'quack medicine' and the difference was described in the phrases mos italicus—'the Italian way', namely the work of the Glossators and Commentators—and mos gallicus, 'the French way’, the humanist approach. (On legal humanism in France, see Robinson et al., ELH, ss. 10.2-10.5.8; Stein, Roman Law, 75-82; Bellomo, Common Legal Past, 203-10; Tamm, Roman Law, 222-4.)

The influence of French legal humanism on legal practice was less pronounced and the courts in France (and elsewhere) continued in the Bartolist tradition. These courts (especially in the north) applied local customary laws that, by the fifteenth century, were available in many compilations. Although compilations of regional customary law made it more accessible, legal uncertainty still prevailed on account of the limited applicability of local customary law and its inability to deal effec­tively with many aspects of commerce. Though there were calls for reform of cus­tomary law throughout the sixteenth century and attempts were made to blend customs of entire provinces into a more standardized system, uniformity of custom was never achieved. Many commentaries on these customary compilations were produced during the sixteenth and seventeenth centuries. These commentaries proved influential to the development of French national law (see Robinson et al., ELH, ss. 12,1-12.5.5). Arguably the most influential jurist on French national law during the sixteenth century was Charles Dumoulin (Molinaeus) (1500-66) whose Commentary on Customs of Paris was an attempt to find a general custom suit­able for France. The most influential proponent of French national law during the seventeenth century was Jean. Domat (1625-96) who wrote an extensive commen­tary on the Reception of Roman law in France entitled Les lots civiles dans ieur ordre naturel (1694). This work was strongly influenced by the secularized natural law doctrine of the seventeenth century (see 11.2.3.3), but it also supported the meth­odology of the usus modernus Pandectarum (see 11.2.3.2) in Germany. During the eighteenth century, French national law was dominated by Robert Pothier (1699- 1772) who, '... had an immense knowledge and tremendous organizing ability' (Robinson et al., ELH, s. 15.7.2). His well-known work The Pandects of Justinian in New Order (1748) attempted to reorder the text of the Digest within their spe­cific titles in order to illustrate principles of law. He also wrote on the Customs of Orleans and produced treatises on various areas of the law of property and obliga­tions which proved very influential, not only in the development of French private law, but also in the development of other legal systems, such as the Netherlands. (See now Dauchy, S., 'French Law and its Expansion', in OHELH, 760-81).

Although the codification of French law had in a certain sense already begun dur­ing the sixteenth century when attempts were made to compile regional customary law (see Robinson et al., ELH, s. 15.7.1), the true stimulus for codification came from the unsettled political climate of eighteenth-century France. The eighteenth century was the age of the Enlightenment—a shared view of the world based on a profound scepticism towards traditional systems of authority. In the second part of the eighteenth century, this scepticism would fuel the French Revolution and would lead, albeit indirectly, to the eventual codification of French law. As Stein {Roman Law, 114) observes: 'They [the sons and daughters of the Revolution] sought to sweep away the legal structure that propped up the anden regime, and replace it with a short, simple code, that would express the aspirations of liberty, equality and fraternity.'

Various attempts at codification were made between 1793 and 1799, but it was only when Napoleon Bonaparte came to power in 1799 that the codification of French law became a reality. A commission of four jurists, all of whom had been trained in Roman law, drafted the French Civil Code of 1804. Napoleon Bonaparte took a keen interest in the project and appears to have personally drafted some of the provisions. The Code was based mainly on the Corpus Iuris Civilis, especially Justinian's Institutes, in the light of custom and natural law. Napoleon's commission was greatly aided by the organization and exposition of French law by eighteenth­century jurists, notably Robert Pothier and Jean Domat. Since its promulgation the Code Civil has generally been regarded as a model of rational principles, clearly and simply expressed. No code has been more widely admired and copied all over the world than the Code Civil. It was Napoleon's finest achievement and represents one of France's most enduring contributions to world civilization. Its stirring emphasis on human rights and liberties has given it universal appeal. (On the codification of French law, see Robinson et al., ELH, ss. 15.7.1-15.7.11; Stein, Roman Law, 114-15; Bellomo, Common Legal Past, 6-11; Tamm, Roman Law, 245-52.)

11.2.3.2 Germany

Scholars have remarked that: 'Germany had no real part in the creation of the ius commune. When the learned law was received there, it had already been modified' (Robinson et al., ELH, s. 7.4.3). Large parts of Germany—predominantly in thenorth and east—had experienced little or no contact with Roman civilization in antiquity, and by the late Middle Ages had acquired an effective customary law which was enforced by local courts (called Schoffen courts) using a largely oral procedure. This was particularly true of the ports and cities of the Hanseatic League—which oper­ated under an efficient customary commercial code—and Saxony with its relatively enlightened compilation of customary and feudal law, the Sachsenspiegel, produced during the first half of the thirteenth century. Romanization of the law during this period was far less pronounced than in the Mediterranean countries and authors such as Bellomo have likened the situation in Germany prior to the fifteenth century to that of the pays de droit coutumier in France {Common Legal Past, 109). Nevertheless, in Wieacker's view there was a clearly discernible 'Pre-Reception' prior to the fifteenth century (History, 84 ff.). Signs of this 'pre-Reception' are visible in, for example, trading links with the cities of northern Italy that encouraged adoption of Roman practices. German graduates from Bologna often entered imperial admin­istration, or the service of city councils or the various territorial powers within the Holy Roman Empire. A major factor was the influence of canon law. Most German universities were founded (from the mid-fourteenth century onwards) with the pri­mary aim to teach canon law that, in pre-reformation Germany, exerted a wide sphere of influence over many areas of the law through its application in ecclesiasti­cal courts. Notaries, who had the important function of drafting public legal docu­ments, were trained in canon law. Moreover, an embryonic legal literature emerged, largely the work of canonists and civilians.

The pronounced political and legal fragmentation of the Holy Roman Empire made her particularly susceptible to the Reception of Roman law. The breakdown of imperial hegemony resulted in a profusion of States and territories with a large degree of autonomy in the late medieval period. The lack of centralized political authority was mirrored in the diverse and localized legal systems throughout the Empire, lacking an effective j udicial hierarchy. Moreover, law differed not only from territory to territory (Landrecht) but also according to status: e.g. feudal relations between lord and tenant were encompassed by the Lehnrecht, but there were also a manorial law, a municipal law, a trade guild law, and so forth (see Heirbaut, D., 'Feudal Law', in OHELH, 528-47).

It can thus be seen how significant the developments of the fifteenth century were when the supremacy of customary law in Germany was challenged. The chal­lenge presented itself on two fronts. First, the schoffen courts began to allow liti­gants to use the Romano-canonical procedure used by ecclesiastical courts in the Holy Roman Empire since the thirteenth century. Soon thereafter, the complexity of this procedure combined with the increased use of Roman-law elements as the foundation for more intricate legal claims forced these courts to enlist the aid of scholars trained in learned law. By the end of the fifteenth century, the practice of Aktenversendung had developed whereby local courts requested legal opinions from academic scholars in faculties of law. Since both canon and Roman law had been actively studied at these faculties since the foundation of German universities, this practice contributed to the infiltration of additional elements of the ius commune into legal procedure and substantive law applied in courts.

A second and more important factor in the Reception of Roman law in Germany was the foundation of the Reichskammergericht (the supreme court of the Holy Roman Empire) at the end of the fifteenth century (1495). The motives for the foun­dation of this court were undoubtedly political and it was a conscious attempt to introduce a new legal order based on the ius commune for the Holy Roman Empire. Not only was a written procedure used in this court from its inception (which soon developed into the Romano-canonical procedure), but the requirement that at least half of the judges presiding over this court had to be trained in learned law had a definite impact on the Reception of Roman law (see Wijffels, A. 'Civil Procedural Law, The Judiciary, and Legal Professionals', in OHELH, 654-77). The judges of this court were specifically instructed to judge cases according to the Taw of the Empire', which was in effect an instruction to judge cases according to the prin­ciples of the ius commune. Thus, by the end of the fifteenth century, Roman law had become the most viable candidate to fulfil the function of a ius commune for the Holy Roman Empire (see Schmoeckel, M. 'Holy Roman Empire of the German Nation', in OHELH, 358-77).

It was now taught extensively at the universities, which in time came to be regarded as authoritative interpreters of the law (not unlike the classical Roman jurists). See Robinson et al., ELH, s. 11.2., and generally Part V of this book. The circulation of legal literature concerned with Roman law became widespread fol­lowing the invention of printing with movable type in Germany, and German legal scholars, notably Ulrich Zasius, were among the foremost humanists of the era. Although the Reception was delayed in the north and east, the superiority of Roman law over indigenous and diverse German custom came to be generally rec­ognized among those holding power: 'The real forces behind the actual Reception were city councils, local rulers, and the territorial estates who saw that if profes­sional lawyers were allowed to extend to judicature their existing monopoly of administration, law could become rational, uniform, and unprejudiced' (Wieacker, History, 109, and generally Chs. 6-11). These various factors led to the widespread application of Justinian's law to 'modern' conditions (usus modernus Pandectarum) as the communal law of Germany, See Oestmann, R, 'The Law of the Holy Roman Empire of the German Nation', in OHELH, 731-59.

The usus modernus Pandectarum dominated German legal scholarship of the seventeenth and early eighteenth centuries. It was not a 'movement' of jurists with similar views, as such, but rather a shared methodological approach to the use of Roman law texts. The usus modernus used Roman law texts as practical solutions to real legal problems. In doing so, they contributed greatly to the development of new doctrines in private law based on existing Roman-law elements. According to Wieacker (History, 167):

[I] t is to the legal science of this age—a legal science based on German decision-making, set out in books both learned and practical, broadened because the discipline of the ius commune was now applied to the whole of the law—that we owe the particular kinds of law teaching and writing with which we are still familiar today.

The usus modernus was an important phase in the development of German national law and contributed to the rise of a national legal consciousness in academic works such as those of Benedikt Carpzov (1595-1666) and Samuel Stryk (1640-1710), while reforms in legal education gave rise to a new German legal science. The usus modernus, while predominantly centred in Germany, also had influential support­ers in France, the Netherlands, and elsewhere in Western Europe (see Tamm, Roman Law, 225).

The seventeenth century saw Western Europe dealing with the fallout from the Protestant reformation. The rejection of papal authority also had widespread intel­lectual consequences. It became the age of scientific revolution where authority was rejected in favour of empirical exploration. Furthermore, the seventeenth century saw the rise of a new approach to natural law that rejected the existence of a higher order and proposed that the principles of natural law could be discovered through rational thought (see Ibbetson, D., 'Natural Law in Early Modern Legal Thought', in OHELH, 566-83). One of the most influential proponents of this view was the Dutch scholar Hugo Grotius whose views on natural law also found favour in Germany in the works of Pufendorf, Wolff, and Thomasius. These scholars, who represent the 'German school of natural lawyers', continued to develop Grotius' notion that natural law should be freed from all authority and suppositions and moulded into a system that could be deduced logically through rational thought.

The most famous exponent of this view was Samuel Pufendorf (1632-94). By the start of the eighteenth century, the German concept of natural law had reached new levels of abstraction in the works of Christian Wolff (1679-1754) and Christian Thomasius (1655-1728).

From the middle of the eighteenth century there was evident another form of Reception—this time through the medium of codification (see Halperin, J. L., 'The Age of Codification and Legal Modernization in Private Law', in OHELH, 907-27). States began to issue national codes that were based in varying degrees on Roman law, which thus ceased to be a direct source of law in these countries but survived as the foundation of their codified law. The trend towards codification was a signal part of the Enlightenment, the intellectual movement—bedded in part in natural law—driven by a philosophy characterized by a reliance on rationalist thought. Reformers invariably desired clarification and rationalization of the law, with the emphasis on organizing it into a simple and manageable system. Supporters of codi­fication often had opposing views on the purpose of a codification. Some wanted radical and sweeping reform designed to abolish all previous systems of authority (as in France), while others: 'wanted to consolidate a society divided into "orders," "estates" or "levels" and to assure the stability to each of these groups, to guar­antee its existence and guide it, in exchange for obedience to a sole and single law (the "code”) willed and imposed by a recognized and incontestable sovereign authority' (Bellomo, Common Legal Past, 4). Bavaria and Prussia were the forerun­ners of this latter type of codification, inspired by natural law and brought about by enlightened rulers and their ministers. For example, the Bavarian Civil Code 1756—heavily based on Roman law—was largely the creation of the Elector Max Joseph III and his Chancellor, von Kreittmayr. Efforts to codify Prussian law actu­ally preceded those in Bavaria but did not fully materialize until the code of 1794. The Prussian code—the work primarily of von Carmer and Suarez, encouraged by Frederick William I and II—was extremely detailed and (unlike the Bavarian code) superseded all previous laws (see Tamm, Roman Law, 238-9).

The process of codification in Germany was delayed by diverse factors, most nota­bly the academic debate which arose during the early nineteenth century between supporters of the 'Historical School' in Germany. This debate was sparked by A. F. J. Thibaut (1772-1840), a professor from Heidelberg, who published a pamphlet call­ing for the enactment of a code for Germany. This view was opposed by Friederich Carl von Savigny (1779-1861), Germany's leading jurist of the early nineteenth cen­tury and a staunch supporter of Roman law, who was strongly opposed to codifica­tion (and natural law for that matter) on the grounds that Germany was not then ready for it. Indeed, it is difficult to see how a general codification could have been achieved before German unification (which did not occur until 1871). There was, moreover, considerable disagreement as to what codification should entail between the Germanists within the 'Historical School’, who emphasized the importance of native tradition, and the Romanists, who advocated Roman law as the founda­tion of German law. (On the significance of the 'Historical School’ in Germany, see Bellomo, Common Legal Past, 14-18; Stein, Roman Law, 115-18; Robinson et al., ELH, ss. 16.2.1-16.2.11.) Even within these broad divisions there were sub-currents. For example, the 'Pandectists'—an offshoot of the 'Historical School' headed by Georg Puchta (1798-1846) that dominated German legal scholarship during the second half of the nineteenth century—favoured classical Roman law rather than later models.

The codification process, started soon after the unification of Germany, lasted virtually a quarter of a century and culminated in the enactment of the German Civil Code (Bürgerliches Gesetzbuch = BGB) in 1900. Pandectist influence in the codi­fication commissions was substantial, but the final product was a blend of Roman law and Germanic practice. As in the case of the Code Civil, the Roman influence was especially pronounced in the law of obligations. Compared to the French code, the BGB is more detailed, but at the same time more abstract and less related to life (On the 'Pandectists' and their influence on the BGB, see Stein, Roman Law, 119-23; Robinson et al., ELH, ss. 16.3.1-16,3.8.) 'The Code betrays in both its form and its content the intellectual and social conditions prevailing at the time of its creation. It is general and abstract private law, a system geared not to the conditions of life in society... but to the conceptual apparatus of law' (Wieacker, History, 376). In some respects, then, the BGB can be compared to the work of the Roman classical jurists, particularly in their legal isolationism and high degree of conceptualisa­tion (as emphasized by Watson). This characteristic helps to explain the appeal of the German code:'[I|ts scholarly and technical merits outweighed the fact that it had little emotional appeal, political colour, or concern for current social prob­lems. On the contrary, the very abstraction of the BGB apparently made it easier for alien cultures and social orders to assimilate it' (Wieacker, History, 384). Among the 'alien cultures' to adopt the BGB were Japan and Brazil, see Tamm, Roman Law, 252-8. (On the structure of the BGB, see Robinson et al., ELH, ss. 16.4.1-16.4.9.)

11.2.3.3 The Netherlands

To understand the way in which the principles of the ins commune contributed to the formation of Dutch national law, a brief historical synopsis of what is today known as the Netherlands and Belgium is required. During the late medi­eval period, the Netherlands (including Belgium) came to be ruled by the Dukes of Burgundy, mainly the result of a series of dynastic marriages that incorporated Flanders into the Duchy of Burgundy (thus creating an area as flourishing artisti­cally and economically as any in Europe). The Dukes of Burgundy nominally owed allegiance to the French Crown but in practice were independent. In the sixteenth century, the Netherlands came under the control of the Spanish Crown through a chain of events too tortuous to relate. The Spanish rule of the Netherlands was unpopular with the local population from the start. The rise of Protestantism in the northern regions of the Netherlands and the desire for self-determination fuelled a revolt in the 1560s against the rule of Philip II of Spain. In 1579, the seven north­ern provinces of the Netherlands seceded from Spain under the Union of Utrecht. The provinces were organized into a confederation (the United Provinces), each retaining a large measure of autonomy through its own laws and courts, but with the province of Holland, because of its wealth and prominence, as its leader. This marked the start of nearly a century of intermittent wars (the so-called Eighty year' war) through which the Dutch eventually obtained their independence under the Treaty of Miinster in 1648. Ironically, despite (or perhaps as a result of) the turbulent political events prevailing in the Netherlands during the sixteenth and seventeenth centuries, it was also one of the most creative periods in Dutch legal history in which the ius commune had its most pronounced influence on the forma­tion of Dutch national law.

It is, of course, worth noting that learned law was already prevalent in the. Netherlands by the thirteenth century. Flemish and Dutch students attended universities in Italy (and later in France) and the presence of the Church ensured that canon law and the Romano-canonical procedure used in ecclesiastical courts were familiar to the regions of the Netherlands. For much of the fourteenth and fifteenth centuries, however, localized customary law still prevailed. It was only in the latter part of the fifteenth century that the influence of the ius commune in the Netherlands became more pronounced. The reasons for this are many and varied, but the following factors deserve mention. The prevalence of localized custom­ary law and the absence of a unified legal system contributed to the Reception of learned law. Two courts with appellate jurisdiction were founded during the fifteenth century in which jurists trained in learned law were employed. In the north, the Court of Holland, Zeeland, and West Friesland (founded in 1428) func­tioned as the provincial court of appeal for these regions, while the Great Council of Malines (re-established in 1504, based on an earlier model) fulfilled the same function in the south. During the struggle against the Spanish, the Netherlands— predominantly Protestant in the north—became a haven for French humanists escaping the Wars of Religion. This development not only helped to preserve the humanist movement but also fostered a rich tradition of Dutch contribution to jurisprudence, especially in the seventeenth century.

It was also during this century that most Dutch universities were founded (Leyden in 1575, Franeker in 1585). Apart from the infusion of learned law through legal practice, the contributions of academic jurists to the foundation of a legal system for the Netherlands cannot be denied. The term 'Roman-Dutch law', first used by the Dutch jurist Simon de Leeuwen in the seventeenth century, is an indication of the prominence of Roman law in the development of a national legal identity for the United Provinces. In the words of Stein (Roman Law, 97-8):

The law of the United Provinces was largely created by Dutch Professors, particularly those of Leyden, and by the judges of the High Courts of the provinces, particularly the Hooge Road of Holland. Through their synthesis of legal science and legal practice, the Netherlands led the rest of Europe in the seventeenth century in the way that France had set the pace in the sixteenth.

Dutch legal science reached its formative peak during the seventeenth century. It was the period in which Roman-Dutch law developed into a fully-fledged legal sys­tem suited to the needs of an enlightened and wealthy Protestant Dutch Republic with trading interests spreading as far as India and Africa. The outstanding figure of this period was Hugo Grotius (Huig de Groot 1583-1645) whose diverse talents and profound achievements mark him out to be as great a jurist as any in history, ancient or modern. His monumental work De lure Belli ac Pacts ('On the Law of War and Peace') was published in 1625. In it he formulates a system of international law based on his vision of natural law: rational principles—derived from practice, expe­rience, and tradition—which could be regarded as binding on any State. Grotius' vision of natural law represented a significant reinterpretation of the medieval view of natural law (in which divine reason was the source of all law) and was des­tined to become an important and influential legal-philosophical current in the seventeenth century. It was undoubtedly influenced by the Protestant reformation of the previous century, which had shattered the authority of the Church in Europe, as well as the scientific revolution of the seventeenth century whereby the authority of God as the source of all wisdom was rejected in favour of empirical research and exploration (see Kelly, Short History, 222-7, and Witte, 'Law and the Protestant Reformation', in OHELH, 583-610). It is through this work that Grotius is widely recognized as having an important impact on the development of international law and modern natural law, as well as influencing major jurists in other jurisdictions such as Pufendorf and the 'German School of Natural Lawyers' in Germany (see 11.2.3.2) and Stair in Scotland (see 11.2.3.4).

Another outstanding work by Grotius was the Introduction to the Jurisprudence of Holland (1631) in which he achieved a synthesis of Roman law, custom, and natural law in outlining a national legal system. This work is regarded as the literary foun­dation of Roman-Dutch law. Remarkably, it was mainly written while Grotius was imprisoned for his religious beliefs.

The French humanist influence on the formative period of Roman-Dutch law set the trend for the development of a unique approach to legal scholarship known as 'elegant jurisprudence'. This approach developed principally at the uni­versities of Leyden and Utrecht by a number of distinguished jurists was based on the idea that legal education should consist of a synthesis of theory and practice. Although students of law were primarily trained to become practitioners of law, a course in the basic principles of law (i.e. Roman law) was fundamental to legal education.

Apart from Hugo Grotius whose religious affiliations forced him to spend much of his life away from the Netherlands, other Dutch jurists greatly contributed to the development of Roman-Dutch law as a legal system. While Grotius is often regarded as having laid the literary foundations of this new system in his Introduction to the Jurisprudence of Holland, his contemporary Arnold Vinnius (1588-1657), professor of law at Leyden, demonstrated the practical side of Roman-Dutch law in his exten­sive commentary on the Institutes in which he synthesized not only the opinions of German and French writers of the period, but also demonstrated how the rules of law applied to legal practice. Another influential jurist was Johannes Voet (1636-94), also professor at Leyden and a supporter of the usus modemus Pandectarum, who produced a majestic commentary on the Digest in which Roman law was synthe­sized with modern custom and legislation.

In the 1650s, the Dutch started to use the Cape of Good Hope as a supply base for the East Indies trade. Thus, Roman-Dutch law became the law of what is now South Africa, as well as throughout the Dutch Empire: 'It is, of course, in itself somewhat ironic that the southern tip of Africa should have become one of the last strong­holds in the modern world of European jurisprudence in its original uncodified form' (see Zimmermann, R., in Civil Law Tradition, 41 and 44). Roman-Dutch law is still regarded as a formal source of law, but it is clear that the influence of English law has been so pronounced that the South African system is best described as a mixed legal system. See Zimmermann, R., Roman Law in a Mixed Legal System: The South African Experience in Civil Law Tradition, 41-80 and Fagan, E., 'Roman-Dutch Law in its South African Historical Context’, in Southern Cross, 33-64.

The history of the codification of Dutch law in the first half of the nineteenth century is closely linked to expansion of the French Empire under Napoleon. In 1795, the Dutch Republic collapsed and was briefly replaced by the Batavian Republic (1795-1806). From 1806 to 1810, Louis Napoleon, brother of the French Emperor, ruled as king over the Netherlands and its existing system of Roman- Dutch law was heavily influenced by French law. During this period the first steps toward the codification of Dutch law were also taken. In 1807, Louis Napoleon instructed Johannes van der Linden, one of the most prominent Roman-Dutch jurists of the nineteenth century to draft a proposed code. The code was largely based on Roman-Dutch law, but it was never enacted. In 1808, under pressure from Napoleon, the French Civil Code was adapted for the Netherlands and enacted In. the following year as the Wetboek Napoleon ingerigt voor het Koninkrtjk Holland (the Code of Napoleon adapted for the Kingdom of Holland). In 1810, the Netherlands was annexed as part of the expanding French Empire and the French Civil Code remained in force until 1815 when French control of the Netherlands ceased. In this year, the sovereign Kingdom of the Netherlands was proclaimed. The next 15 years witnessed two draft codes and the secession of Belgium, but in 1830 the Dutch Civil Code (Burgerlijk Wetboek = BW) was enacted, (See Stein, Roman Law, 97-11 and Robinson et al., ELH, ss. 13.4.1-13,4.7 on Dutch elegant jurisprudence, Bellomo, Common Legal Past, 232-4 provides a readable account of the significance of Hugo Grotius and the secularized natural law doctrine of the seventeenth century.)

11.2.3.4 Scotland—a mixed jurisdiction

Little can be said about the state of Scots law before the twelfth century. It is gener­ally believed that unwritten customary law, which had some affinity to Celtic law, prevailed during this period (see Robinson et al,, ELH, s. 9.1 and Sellar, W. D. H., 'A Historical Perspective', in Meston, M. C. et al. (1991), The Scottish Legal Tradition, Edinburgh: Saltire Society and Stair Society).

The period from the introduction of Anglo-Norman law in Scotland in the twelfth century during the reign of David I until the mid-fifteenth century witnessed some Romanization of local law, but it can hardly be said that a 'Reception' occurred at such an early stage (see Simpson, A. R. C., 'The Scottish Common Law: Origins and Development, c. 1124-c. 1500', in OHELH, 450-73). The law consisted predomi­nantly of custom applied by the local sheriff courts which had limited civil and criminal jurisdiction. Itinerant royal officials known as 'justiciars' also dispensed civil and criminal justice, the king and his council had a theoretical supervisory jurisdiction over them, but in practice this did not result in any substantial degree of centralization. Local courts (both Sheriff and Franchise) applied the customary law relevant to its jurisdiction: there was thus a very high degree of legal fragmenta­tion. For example, certain towns were granted burgh status, which entitled them to various privileges, including exemption of trade from feudal restrictions, The burgh court would apply the particular customs pertaining to that town. However, although the ground for Romanization was promising, a full-scale Reception never materialized in Scotland. Roman law became an important subsidiary source of law, but it was regarded as at best persuasive rather than binding, and not as the sole or general law of the land. Customary law was never buried by the increasing influ­ence of Roman law; indeed, the burgh laws in particular retained their vitality for a long time.

As elsewhere in late medieval Europe, the canon law of the church courts proved important in the gradual infiltration of Roman notions, especially through the use of Romano-canonical procedure in litigation—its use soon spread to the secular courts. (See Robertson, J. J., 'The Canon Law Vehicle of Civilian Influence with particular reference to Scotland' in Civilian Tradition, 117-34.) This process of infil­tration was aided by the existence of ecclesiastical courts alongside sheriff courts (until the reformation during the sixteenth century) to deal with all matters falling within the jurisdiction of the Church. Crucial also was the migration abroad of Scottish students to study Roman and canon law, since there were no universities in Scotland prior to the fifteenth century.

The students at first studied mainly at the Northern Italian universities, then France (especially Paris and Orleans) and later still, Cologne and Louvain. Some of the returning scholars attained high office and contributed vitally to the Romanization of the law. For example, William Elphinstone—who had studied Roman law at Orleans—became Bishop of Aberdeen and Chancellor of Scotland. He appears to have inspired the enactment of the Education Act 1496 which imposed a duty on substantial freeholders to ensure that their sons learned Latin and attended schools of law so as to understand better the laws which they might one day admin­ister. He was also the founder of the University of Aberdeen. The Universities of St Andrews and Glasgow had been founded earlier in the fifteenth century through the efforts of bishops who had studied Roman law abroad. A major reason for the foundation of the Scottish universities was to satisfy the obvious need for instruc­tion in canon and Roman law. W. M. Gordon sees this as significant: 'One of the important indications of the value of Roman and Canon law in legal practice is the foundation of universities which had as one of their specific aims the provision of legal education' (Civil Law Tradition, 19).

The extent of the use of Roman law in medieval Scotland is difficult to gauge, but there is documentary evidence of Romanist arguments being employed in two celebrated cases c. 1380: one concerned the issue whether the Abbey of Llndores held lands of the Crown or the Earl of Douglas; the other tested the validity of a decision by the Bishop of Aberdeen that lands had not been validly granted by a former bishop to a certain John Crab. The same was true in the dispute about the succession to the Scottish Crown between John Balliol and Robert Bruce in 1291-2—the Great Cause. See Stein, Character and Influence, 294 ff. Moreover, there is evidence of some Roman law influence in early Scottish literature from the thirteenth century onwards, particularly Regiam Majestatem, a commentary on legal procedure in royal courts in civil and criminal cases dat­ing probably from the early fourteenth century and Quoniam Attachiamenta, a treatise on procedure in baronial courts. And medieval charters point to the level of expertise then current in Roman law: they contain 'renunciations'—clauses expressly excluding specific civilian remedies. The widespread use of renuncia­tions is some evidence—though not conclusive—of the extent to which Roman law was applicable in practice.

The pace and extent of Romanization of the law increased from the late fifteenth century, probably due to increasing reliance by professional advocates (eventually the Faculty of Advocates) on arguments derived from Roman law, and their accept­ance by the judges. Indeed, in the seventeenth century, competence in Roman law became an examined element in the general requirements for entry to the Faculty. The Roman law that was received was of course not necessarily that of Justinian, it was that of the ius commune—the law as glossed by the Glossators and adapted by the Commentators. In 1532, a supreme appellate court was established—the Court of Session—staffed by a professional judiciary consisting partly of judges trained in Roman and canon law, and operating a Romano-canonical procedure for the most part. The evidence suggests that the judges of Session were prepared to resort to Roman law whenever the indigenous law could not resolve an issue. This more systematic resort to Roman law influenced the local courts, similar to the effect of the restructuring of the Reichskammergericht. Moreover, it is possible that politi­cal ties with France—the 'Auld Alliance'—strengthened by dynastic intermarriage, contributed to the increased pace of Reception. Scotsmen continued to study in

Roman Law and the European fus Commune 335 France, especially Bourges, but later the universities of the Netherlands became more popular, Leyden in particular.

The extent of the Reception in Scotland can best be gauged by the literature of the institutional writers, authors whose works are regarded as an authoritative source of Scots law. The work of the insti tutional writers should be seen in the context of the rise of a national legal identity in Scotland during the sixteenth and seventeenth centuries. See Cairns, J. W. 'Institutional Writings in Scotland Reconsidered' (1983) 4 JLH, 76-117. The sixteenth century was intellectually dominated by the works of the French legal humanists and Scotland's contact with both France and the Netherlands ensured that their views had a lasting impact on the formation of Scots law. See Cairns, J. W., Fergus J. D., and MacQueen, H. L., 'Legal Humanism in Renaissance Scotland' (1990) 11 JLH, 40-69. At the same time, the rise of a national legal identity necessitated the writing of a work similar to Grotius' Introduction to the Jurisprudence of Holland, in which Scots law was systematically set out as a legal system based on a combination of learned and customary law. (See Luig, K., 'The Institutes of National Law in the Seventeenth and Eighteenth Centuries' (1972) ' Juridical Review, 193-226.) This work was Viscount Stair's Institutions of the Law. of Scotland, published in 1681. Stair, who became Lord President of the Court of Session, achieved a comprehensive exposition of Scots law, consistent with the. rational principles of modern natural law, in which Roman law is acknowledged as a persuasive (if not binding) source of law in the absence of native custom. Other institutional writers of importance included Craig, Mackenzie, Erskine, and Bell. See Robinson et al., ELH, s. 14.2.

Union with England in 1707 led to some anglicization of the law in the long term, and to a corresponding decline in the influence of Roman law. However, the Scottish legal system remains markedly different from its English counterpart in many respects, much of the difference being attributable to the legacy of the Romanist tradition in Scotland. See Stein, Character and Influence, 336 ff. where he concludes: 'the Roman notions which were introduced into Scots law during its formative period were embedded so firmly in its structure that many parts still bear an unmistakably Roman stamp; they cannot be fully comprehended without a knowledge of the Roman institutions from which they derive' (358-9). Robin Evans-Jones suggests that Scotland, essentially a mixed legal system, needs to main­tain at least 'two distinct legal cultures of high quality' and that it should occupy 'a challenging position at the interface of the Civil and Common law where it will be well placed, when appropriate, to select what is best from each' (The Civil Law Tradition in Scotland (1995), 11). See also Evans-Jones, R., 'Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law' (1998) 114 LQR, 228-49 and Sellar, W. D. H., 'Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions' (2000) 4(1) Edinburgh LR, 3-18. (On the reception of Roman law in Scotland, see Cairns, J. W., 'Historical Introduction', in Reid, K. G. C. and Zimmermann, R. (eds.) (2000), A History of Private Law in Scotland, vol. 1.)

11.2.3.5 Roman law in modem Scots law

The reception of Roman law in modern Scots law is a continuing process. The uncodified nature of the legal system and its compatibility with other mixed juris­dictions in areas of property and obligations enables Scottish courts and jurists to make ample use of the civilian heritage of Scots law. The following cases are but a few examples of Scottish courts' use of Roman law in recent decisions.

Sloans Dairies Ltd v Glasgow Corporation 1977 SC 223; 1979 SLT 17

This case dealt with the risk of accidental destruction in a contract of sale (see 9.3.1.4). Sloans Diaries (SD) had entered into negotiations with Glasgow Corporatio (GC) to purchase certain buildings. The missives stated that the parties would agree at some point in the future on the date of entry. Before the parties could agree on a date of entry, the buildings were gutted by fire and had to be demolished, GC refused to implement the contract and SD brought an action to enforce it. In the court of the first instance, the Lord Ordinary held:

The rule that the risk of accidental damage to the property passes to the purchaser on the conclusion of the contract stems from the Roman Law of Sale as set out in the Institutes of Justinian... With the possible exception of Stair (1.14.6) where the position of the purchaser of goods which has perished without fault of the seller is treated as an undecided question, the importa­tion of the rule into Scots law is supported by a long line of authority (Erskine, Institutes 337; Bankton 1.19.35; Bell's Commentaries 2321; Bell's Principles (10th edn.) para. 87;... [at 226-7].)

The court decided that the missives had created a valid contract of sale even though a precise date of entry had not been agreed. Furthermore, it was the opinion of the court that once the missives had been concluded, the risk of accidental destruction passed to the purchaser. GC reclaimed upon the latter point, but the reclaiming motion was refused (see 1979 SLT 17).

Will's Trustees v Cairngorm Canoeing and Sailing School Ltd 1976 SC (HL) 30

This case concerned the status of the river Spey as either a private navigable water­course in which the owners of the riverbanks had exclusive rights of navigation or a public navigable watercourse to which members of the public had legitimate access (see 6.1.2,2). WT as owners of large stretches of both banks of the river brought an action against Cairngorm Canoeing and Sailing School Ltd (CC5S) who used said river for recreational purposes. The Lord Ordinary found in favour of CCSS. Will's Trustees (WT) reclaimed, but the decision was upheld. It was decided that, even though the river Spey was not technically a public navigable watercourse, CCSS had established a restricted public right in favour of recreational use of the river. WT appeal to the House of Lords. In the latter decision, the Roman-law position and the writings of the institutional writers in light of an earlier decision (Grant v Gordon M. 12820) were extensively examined. The court found in favour of CCSS.

Cantiere San Rocco v Clyde Shipbuilding & Engineering Co. 1923 SC (HL) 105

This case dealt with unjustified enrichment (see 9.9.2). In 1914, Clyde Shipbuilding Sr Engineering Co (Clyde SE) contracted with CSR to build and supply a set of maritime engines. The terms of their contract stated that Cantiere San Rocco (CSR) would pay half the purchase price when the contract was signed, while the remain­ing monies would be paid at specific stages of the construction process. After the first instalment had been paid, but before construction could commence, war broke out. After the war, CSR brought a action in the Court of Session (1922 S.C. 723) stating that the contract had been dissolved by the intervention of war and reclaim­ing the deposit already paid. The court concurred, but granted Clyde SE leave to reclaim. In the second instance, the earlier decision was overturned in favour of Clyde SE. CSR appealed to the House of Lords. The House of Lords reversed the decision of the first division of the Court of Session and found in favour of CSR, The court reasoned that the instalment had been paid as part of the price for the engines and, since the delivery of the engines had been rendered impossible by the. outbreak of war, Clyde SE was responsible for the return of the deposit (subject to any counterclaim that they may have) on the basis of the condictio causa data causa non secuta. In its decision, the court examined both Roman law and the views of the institutional writers on the subject.

Morgan Guaranty Trust Co. of New York v Lothian Regional Council 1995 SLT 299

This case dealt with unjustified enrichment (see 9.9.2). In 1987, a local authority Lothian Regional Council (LRC) had entered into an interest rate and currency exchange agreement with a merchant bank, Morgan Guaranty Trust Co (MGT). The agreement would continue until 1992. In 1989, however, a decision in a divisional court in England (Hazell v Hammersmith and Fulham London Borough Council (1992) 2 AC 1) found such agreements to be ultra vires for local authori­ties and unlawful. MGT reclaimed the amounts paid to LRC. The Lord Ordinary concurred with the decision of the English divisional court on the matter, but found that he was bound by a Scotts case law in which it had been decided that an error of law in the interpretation of a public general statute concerning the contractual capacity of a local authority excluded the use of the condictio indeb- iti. MGT reclaimed and the decision of the Lord Ordinary was reversed. It was decided, after an extensive review of the institutional writers on the point (see 1995 SLT 311) that the condictio indebiti did indeed cover this situation and was the apptopriate remedy.

McDyer v The Celtic Football and Athletic Co. Ltd. 2000 SC 379

This case concerned the application of the actio de positis vel suspenses (see 10.7.1). McDyer was injured when a piece of wood fell from the stadium canopy while he waited for the opening of the European Summer Special Olympic Games. He sued Celtic Football and Athletic Co. Ltd. (Celtic FAC) (first defenders) as the occupiers of the stadium in terms of s. 2 of the Occupiers' Liability (Scotland) Act 1960 and the organizers of the Special Olympics (second defenders), but did not include the cause of the wood falling or the fault of the defenders in his initial claim. Instead, he relied on the principle of res ipsa loquitur. The Lord Ordinary dismissed the claim. McDyer reclaimed to the first division of the Court of Session and was allowed to amend his claim to reflect, inter alia, that the defenders incurred strict liabil­ity at common law for the incident based on the Roman-law rule of said action which was adopted and modified in Scots law (see 383E-F). The court examined the Roman-law position and the comments of the institutional writers on this point (see 387H-390E). It concurred with the pursuer, following a reading of Bankton, that the Roman-law rule had been received into Scots law, but noted that there was some uncertainty in the works of other institutional writers and later court decisions concerning the basis of the liability, In the end, however, it was the place where the injury had occurred which persuaded the judges not to resort to liability on the basis of the actio de positis vel suspenses:

We find it unnecessary in the present case to explore any more fully the questions which counsel for the reclaimer and second respondents raised about the nature of the liability under the old Roman law or about the passages in Bankton and Hume. It is noteworthy that both the Roman law provisions and the Scottish authorities upon which counsel for the reclaimer sought to rely were really concerned with the liability of occupiers and owners of buildings for injury and damage caused to those outside the premises, whether in the streets or in open spaces or on neighbouring properties, in this case, by contrast, we are concerned with the liability of Celtic and European to the pursuer who was actually in some part of the stadium when the piece of wood fell from the canopy area of the stadium. Indeed in each of the alternative cases, the pursuer recognises this and avers that Celtic and European are liable under the Occupiers’ Liability (Scotland) Act 1960. In these circumstances it appears to us that the law relating to the liability of the defenders to the pursuers is to be found in terms of the 1960 Act. [at 390G-HJ

11.3