IV. THE SECOND LIFE OF ROMAN LAW

Survival in the East. In the Eastern Empire the history of Roman law continued unbroken until the fall of Constantinople to the Turks in 1453, but it was a history of decline, and Byzantine law in its last form is a very remote descendant of the classical law.

Justinian, with the codifier’s habitual belief in the perfection of his work and in the possibility of preventing the growth of fresh controversies, had forbidden all commentaries. He made exceptions, however, for literal translations into Greek and for indices and paratitla. The latter are usually taken to be brief summaries and references to parallel passages. If this is so, the exceptions were, even in Justinian’s lifetime, liberally construed and the ban was later altogether ignored. This was inevitable. The language of the Eastern Empire was Greek, and even the Institutes must to many have been inaccessible. (An expanded Greek paraphrase, attributed to Theophilus, survives.) But the Digest presented the additional difficulties that it was vast, complex, and ill-arranged, and that it embodied institutions and concepts which were not in practice understood or applied. The need for summaries and commentaries was compelling. This Greek literature is best seen in the Basilica (‘Imperial Law’) promulgated by the Emperor Leo the Wise (886-911). This was compiled from earlier materials, and consists of drastically abridged and simplified Greek versions of the Digest, Code, and Novels, put together to form a single work. To these was later added an extensive apparatus of marginal comments or scholia, written mainly in the sixth or seventh centuries. In works such as this a form of Roman law survived until 1453, and indeed longer. For a manual in six books (the Hexabiblos), compiled in about 1345 by Harmenopoulos, a judge at Salonica, remained, in theory at least, the basis of the law of Greece until the coming into force of the Civil Code in 1946.

library in Florence since 1406.

It was brought there from Pisa, where it had been at least since the twelfth century. From it all other manuscripts ultimately derive. Survival and revival in the West. Even in the West the Roman law never wholly died out. The Roman subjects of the ‘barbarian’ rulers in southern France, Spain, and Italy continued to live by the ‘vulgar law’¹ to be found in compilations such as the lex Romana Visigothorum. In Italy, it is true, Justinian’s codification had been promulgated in 554, and some fragmentary knowledge of the Institutes, Code, and Novels survived, but the Digest was entirely forgotten. And in northern Europe almost all trace of Roman law disappeared.

The great influence of Roman law derives, however, not from this attenuated survival, but from the revival which began, as part of a wider renaissance of learning, at the end of the eleventh century. The Digest was rediscovered and for the first time thoroughly mastered. The first and greatest figure in this revival was Irnerius (c. 1055-c. 1130) who taught at Bologna. He and his successors at Bologna set themselves the task of elucidating, harmonizing, and expounding the Corpus luris text by text. The main literary form which this work took was the note or gloss written in the margin or between the lines of the text to explain its meaning and to provide the cross-references and reconciliations without which the work was unusable. For this reason Irnerius and his successors are called the Glossators, but their writings took also other forms, both systematic and controversial.

Enthusiasm for the new learning was immense. Students came to Bologna from all western Europe, and by the middle of the twelfth century their number had reached 10,000. Moreover, from Bologna the study of Roman law spread to other nascent universities in Italy and far beyond. In the later twelfth century, for example, Vacarius was teaching it in England.

The main impulse continued, however, to come from Italy, and after little more than a century the work of the Glossators was done. It was summed up and completed by Accursius (d. 1260), who combined all the glosses into one great gloss. This glossa ordinaria thereafter held the field alone, both in the manuscript versions of the Corpus luris and in the early printed editions.

This revival of Roman law was an academic revival, both in the sense that it originated in the universities and in the sense ¹ See above, p. 36.

that it was unconcerned with the law which was applied in the courts. In the former sense its academic character was never lost—and has to a large extent been transmitted to the modern civil law—but the practical law could not long remain uninfluenced by the ferment in the universities. And there was a corresponding change in the direction of academic interest. The successors of Accursius turned to the practical application of Roman law to the problems of their own time. For this purpose the method of the gloss was inadequate, and its place was taken by more systematic and extensive commentaries, the authors of which are therefore commonly called the Commentators (or Post-glossators). By applying, as occasion demanded, a restrictive or liberal interpretation, and by the use of fine distinctions, they adapted the ancient law to medieval needs. The material on which they worked was more often the gloss than the texts themselves, and the law which emerged was thus Roman law at third hand, but it was practical law and in this lay its strength. The greatest of the Commentators were Bartolus (1314-57) and his pupil, Baldus (1327-1400), whose authority was such that only the foolhardy would argue against it. Nemo iurista nisi Bartolista ran the maxim.

For the Glossators the attraction of the Corpus luris must have lain principally in the intellectual satisfaction to be derived from eliciting the underlying rational harmony of the texts.

That the harmony was not always there to be elicited was inconceivable: both for them and for the Commentators the Corpus luris was not the final product of an historical process but a single authoritative expression of right order. And yet what made their work fruitful was precisely that the harmony had to be sought for and—though they did not see it in this way—imposed. The defects in Justinian’s work now became virtues. Had it been a simple, systematic, closely coherent statement of sixth-century law, it could not have been so successfully adapted to the evolving needs of medieval society (and still less to those of later centuries). But, as it was, it provided an almost inexhaustible fund of solutions to practical problems which, while they presupposed a broadly consistent framework of principles, yet contained sufficient divergences and conflicts to enable the jurist to choose the solution best fitted to current needs. And so though he was in fact making a choice he could appear to be merely interpreting the authoritative text, merely proving that Justinian was right when he said that his work contained no conflicts which a subtle mind could not reconcile. For the lawyer in any system, be he judge or jurist, is in the dilemma that he sees—and wishes to see—the law as something which has its own life, which exists independently of himself and is merely applied by him, and yet he must on occasion in practice make law, either by laying down a rule for a case which has never previously arisen or by altering a rule which has become unjust or inconvenient. The medieval lawyer was fortunate in that, on the one hand, he could, in the spirit of his age, accord intrinsic value to a written text, and, on the other, could find within that ultimate authority more than one solution to many problems. In our eyes he made a choice, in his own he ‘distinguished’ the unique authoritative solution from those which were, on a proper interpretation, concerned with a slightly different problem.

Where different solutions were given by different texts to apparently identical problems, it could be presumed, for example, that in one case some additional, unmentioned fact was to be taken into account.

The Reception of Roman law. The text had the authority of its own intellectual force, but it had also the authority of its imperial origin. For the imperial idea, imperfectly realized in the Holy Roman Empire, was still a force in men’s minds. Both intellectual and imperial authority played a part in the process which accompanied the work of the Glossators and, still more, of the Commentators, and which we call the Reception of Roman Law—the process by which it became the common law of western Europe. But the course of this Reception was very different in different parts of the Continent. In the south—in Italy, Spain, and southern France—the Roman law had, as we have seen, never wholly died out, and therefore the gloss and the doctrines of the Commentators could be accepted as simply an enlargement of the law which had been preserved in the lex Romana Visigothorum and other compilations. There was here no catastrophic reception of a new system of law but rather a gradual revival and rediscovery of an old. In northern Europe, however, customary law alone survived, varying from place to place. The acceptance of Roman law was therefore much longer

delayed and, when it came, much more sudden. The hostility to the new learning came partly from the local lay courts, jealous of their customary law, and partly sometimes, as in France, from the Crown. For outside the Holy Roman Empire it was precisely the imperial origin of the Corpus luris that was an obstacle to its acceptance, until it was seen that the King or Prince could, by presenting himself as Emperor within his own territory, apply to himself all the texts which propounded the absolute power of the Emperor.¹

As the Middle Ages drew to a close the inconvenience and inadequacy of the innumerable local customs and the incompetence of the local courts made the claims of Roman law, and of the lawyers who had been educated in it, irresistible.

The resulting Reception was most sweeping in Germany and the Netherlands. In the later fifteenth century new courts with wider jurisdiction and composed of judges trained in the Roman law appeared, and in the course of the sixteenth century the Reception was completed. Much local custom survived, particularly in matters of family law and inheritance, but the structure of the law and the lawyer’s ways of thought and terminology were derived from the Roman law. The rules of customary law were a local variant intruding upon a universal system.

In northern France (the pays des coutumes, as opposed to the pays de droit ecrit in the south) the Reception began earlier than in Germany and was both more gradual and less sweeping. The customs were codified in the sixteenth century and were thus better able to withstand the infiltration of Roman law, but nevertheless its influence on the methods and ‘grammar’ of legal thought was inescapable.²

In England, on the other hand, though the Roman law was early known and taught, it never obtained a foothold in the

¹‘Rex Franciae est imperator in regno suo’ (the King of France is Emperor in his own Kingdom).

²One reason for this must have been the absence of any teaching of customary law at the universities. The first chair of French law was not established until 1679 (in Paris). It is true that the first chair of English law in England was not created until even later (1758, at Oxford), but the early strength of the Inns of Court and the early evolution of the Common law in the hands of the courts gave to English law a centre and a source which was quite independent of the universities. For this reason English law has never been academic in origin in the way that the continental Civil law to a large extent even now still is.

practice of the ordinary courts. The reason for this lay partly in the early establishment of the central power of the King which made it possible to replace the local customary laws by the common custom of the King’s courts which we call the Common law; and it lay partly also in the existence of the Inns of Court, strong professional bodies situated near the King’s courts but away from the universities, and having a common interest with the courts in the exclusion of Roman law.^{^[17]}

The Humanist revival. The culmination of the Reception was accompanied, however, by a reaction against the methods and purposes of the Commentators. The Humanist revival of classical learning produced scholars to whom the Commentators’ bad Latin, their total lack of historical sense, and their neglect of the original texts were deplorable. ‘Back to the texts’ was now the call. And the revival of interest in the text was accompanied by an emphasis on the historical character of the Corpus Iuris_y a desire to rediscover the Roman law as it was in Roman times. This in turn led for the first time to an attempt to detect the interpolations² in the Corpus luris and thereby to uncover the true classical law. This Humanist movement was particularly strong in France, where its principal representatives were Jacques Cujas (Cujacius, 1520 or 1522-90), Hugues Doneau (Donellus, 152791), and Antoine Favre (Faber, 1557-1624). The revival of interest in the Roman law as such led also to the recovery of some of the post-classical works which had survived independently of Justinian, and to a renewal of interest in the Theodosian Code, of which Jacques Godefroy (Jacobus Gotho- fredus, 1587-1652) published a great edition with commentary to which reference is still made.

Natural law. In the seventeenth and eighteenth centuries the antiquarian interests of the Humanists gave place to the new rationalism of the school of natural law. Believing that the law for any society could by the use of reason be derived from principles inherent in the nature of man and society, the adherents of this school rejected the unquestioned authority which the medieval Commentators had accorded to the Corpus luris, and yet found in the Roman law, with its doctrine of the ius gentium and the ius naturale,¹ a great deal which they could accept as being the embodiment of natural reason. The first of the great exponents of the new doctrine was the Dutchman Grotius (Hugo de Groot, 1583-1645), who applied it especially to the formation of a body of international law.^{^[18]}^{^[19]} It was indeed in this field that the school of natural law was most influential, but it encouraged also the elimination from the modern Roman law of the irrational, and therefore peculiarly Roman, features which the Humanists had emphasized, and insisted, even to excess, on the place of logic in law.

Codification and the modern Civil law. Natural law ideas led also to a call for codification. The ideal of a logically consistent set of principles and rules could best be realized and preserved in a written code. The call was partially answered in Bavaria (1756) and Prussia (1794), but incomparably the most important event in the history of modern European law was the enactment of Napoleon’s Code Civil in 1804. Its importance lay not so much in the fact that France, for the first time in her history, had a single system of law, as in the fact that the Code was adopted or copied by many other countries. Sometimes its adoption was the result of conquest by Napoleon, but its attraction continued long after his final defeat and is attributable partly to the clarity and simplicity of the Code itself, and partly to the prestige of France in the nineteenth century. Codes more or less closely copying the French were adopted in Holland, Spain, Italy, Belgium, Louisiana, Quebec, Egypt, and in many parts of South America.

In Germany, too, a French code might have been adopted at the end of the Napoleonic wars but for the influence of the great jurist Savigny (1779-1861). He argued that the time was not yet ripe: a far more profound study of the Roman law than had been achieved by the medieval lawyers or the school of natural law was necessary before a satisfactory code could be achieved. Thus began the last great period of the practical application of Roman law. In the hands of Savigny and his successors the Corpus luris was made to yield a highly systematic, closely analysed, and remarkably elaborate body of law (Pandektenrecht} for nineteenth-century Germany. It was not until the establishment of the German Empire that, on the foundations thus laid, the work of codification was begun, and not until 1900 that the German Civil Code finally came into force. More systematic and more elaborate than the French, it too has been copied elsewhere, by Japan and Brazil, for example, and its influence can be seen in the Swiss Code, which in its turn has been adopted by Turkey.

The movement for codification brought the second life of Roman law in one sense to an end. Except in South Africa and Sri Lanka, where the pre-Napoleonic Roman-Dutch law survives, the Corpus luris has ceased to be a direct source of law. Nowhere else can it be cited as authoritative, except on occasion where a code is silent or ambiguous. And yet in another sense codification gave Roman law a new life and extended it to territories into which it could never otherwise have entered. Uncodified systems are unsuitable for export, and by modern standards the Roman law is an uncodified system. The uncodified Common law has indeed spread over the globe, but it has followed the flag. It has only taken root where British rule, and with it lawyers trained in the Common law, have gone. Codes, on the other hand, as we have just seen, travel easily. But we must beware of exaggerating the extent to which the modern codes embody Roman law. The German, and still more the French, Civil Codes contain much that is entirely un-Roman, and even the Roman elements have often been transformed in the course of centuries; but in their structure, their ways of thought, and their essential terminology the Civil Codes have a strong family resemblance which, at least in the eyes of the Common lawyer, is more significant than their differences of detail. And this family resemblance derives from their common inheritance of Roman law. There is a danger, however, that we simply attribute to Roman law and the Roman jurists all the habits of mind which distinguish the modern Civilian from the Common lawyer, forgetting that the Corpus luris stands between the classical jurist and his Civilian successor, that the Civil law, whether codified or not, is a law of the book as the classical Roman law never was.

The modern historical study of Roman law. As the preparatory work for the German Civil Code began, the direction of Roman law studies changed. Roman law, it has been said, was handed over to the historians. At first in Germany, and later in Italy and elsewhere, scholars turned to the work, begun by the Humanists three centuries before, of rediscovering the classical law. And once again the defects of the Corpus Juris appeared as virtues. The ‘inscriptions’ of the fragments in the Digest¹ made it possible partially to reconstruct some of the main works of the later classical jurists; and from the reconstruction of the commentaries on the Edict it was possible to recover the order and in part the substance of the Edict itself. Similarly, from the constitutions in the Code some developments of the post-classical law could be traced. But over all stood the problem of interpolations. Some of the more obvious had been noted by the Humanists, but now the work began in earnest, with all the equipment and ingenuity of modern scholarship. The methods used were sometimes simple. Very occasionally a text in the Digest has also survived independently—in the Institutes of Gaius for example; or the same text occurs twice in the Digest itself, in different versions. More commonly we can tell that the law stated in a particular text is not classical because it represents an innovation made by a surviving constitution of a later date, or because the law is stated otherwise by Gaius or another classical source. Where these criteria are lacking, more complex and less reliable methods have to be used. The language, the grammar, or the logical structure of a passage may reveal the hand of the compiler, or the same author may be credited with incompatible views in different fragments drawn from the same work. Methods such as these—and there are many variants—are obviously capable of abuse, and certainly in the third and fourth decades of this century the hunt for interpolations led to many exaggerated claims, but a great deal which is of indisputable validity remains,² and our knowledge of the classical law has been transformed. Indeed it has become plain that we know in many ways less about the law of Justinian and of the post-classical

¹See above, p. 40. ² For examples, see below, p. 139, n. 1. period than we do about the classical law. For whereas previously it had been assumed that the texts reached the compilers substantially unaltered, and therefore that if the interpolations could be detected we should know both the classical law and the law of Justinian, it is now realized that the truth must be a great deal more complex. On the one hand it has become clear that the texts (other than the Institutes of Gaius) which survive independently of Justinian were edited and altered in post- classical times, and that it is therefore likely that at least some of the texts which reached Justinian’s compilers had been treated similarly. The search for these pre-Justinianean interpolations has begun. On the other hand, the divergence between the ‘vulgar law’ and the imperial law has been to some extent detected and described. There remains the further problem, as yet little investigated, of the extent to which the law of Justinian, in so far as we can see it in his constitutions and in those interpolations which can be attributed to his compilers, represents the law which was actually applied in the practice of his own time.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

IV. THE SECOND LIFE OF ROMAN LAW

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