The ‘Second Life’ or Roman Law: A Brief Overview

The legislation of Justinian marks the end of the history of Roman law in antiquity; at the same time, it heralds the beginning of a phase occasionally labelled the ‘second life’ of Roman law, i.e.

In the Eastern Empire of Byzantium, the legislation of Justinian remained in force and applied until the fall of Constantinople in 1453. As the most important parts of the codification were written in Latin, it was from the outset difficult to use in a Hellenized environment whose daily life was conducted in Greek. Thus, in the period after Justinian’s death various works in the form of translations, summaries, paraphrases, and commentaries on the existing law were produced in abundance. As in the post-classical era, the social conditions and intellectual climate of the Byzantine world required the simplification and popularization of the intricate legal heritage. This inspired the development of a whole new genre of legal literature that included several important legislative works and was designed to adapt the Roman law of Justinian to the prevailing conditions. The most important of these works encompassed: the Ecloga Legum, a collection of extracts from Justinian’s law codes produced by Emperor Leo III the Isaurian and published in 740 ad; the Eisagoge or Epanagoge, a formulation of law from a historical and practical perspective devised as an introduction to a new law code under Emperor Basil I (867-886 ad); the Basilica (basilica nomima), an extensive compilation of legal materials from Greek translations of Justinian’s Corpus in sixty books that was enacted at the beginning of the tenth century by Emperor Leo VI the Wise^[113]; the Epitome Legum composed in 913, a legal abridgment based on the legislation of Justinian and various post-Justinianic works; the Synopsis Basilicorum Maior, a collection of excerpts from the above-mentioned Basilica that was published in the late tenth century; and the Hexabiblos, a comprehensive legal manual in six books compiled around 1345 by Constantine Harmenopoulos (a judge in Thessalonica).

As noted previously, the collapse of the Roman state in the West entailed the replacement of the once universal system of Roman law with a plurality of legal systems: the Germanic conquerors lived according to their own customs, while the Roman portion of the population remained governed by Roman law. To facilitate the administration of the law in their territories, some Germanic kings ordered the compilation of legal codes containing the personal Roman law that regulated the lives of many subjects. Among the most important compilations of Roman law that appeared during this period were the Lex Romana Visigothorum (ad 506),^[114] the Edictum Theoderici (late fifth century ad)^[115] and the Lex Romana Burgundionum (ad 517).^[116] When Justinian reincorporated Italy into the empire (ad 553), his legislation was introduced to this realm.^[117] However, its validity was only sustained for a brief period as most of the Byzantine territories in Italy fell to the Lombards in ad 568. After that time, Justinian’s legislation only applied in those parts of Italy that remained under Byzantine control. The rest of Italy displayed a similar pattern to Gaul and Spain as Roman law prevailed through the application of the personal­ity of the laws principle. It also existed through the medium of the Church, whose laws were imbued with the principles and detailed rules of Roman law. In the course of time, as the fusion of the Roman and Germanic elements of the population progressed, the division of people according to their national origin tended to break down. The system of personal laws was gradually superseded by the conception of law as entwined with a particular territory: a common body of customary norms now governed all persons living within a certain territory.

From the eleventh century, transformed political and economic conditions in the West (particularly in Italy), created a more favourable environment for cultural development. The new scholarly enthusiasm for the heritage of classical antiquity and the economic expansion generated by the growth of trade and the rise of towns entailed a renewed interest in Roman law. This interest was precipitated by the discovery at Pisa in 1077 of a manuscript copy of the Digest that dated from the time of Justinian. But the revival of Roman law was also the product of the existing political conditions: the authoritarian tenor of Justinian’s Corpus was perceived as congenial for buttressing the claims to centralized power by emerging dynastic monarchies.

The centre of legal revival was the University of Bologna, the oldest in Western Europe. This university became the seat of the School of the Glossators, under the leadership of famous jurists such as Irnerius, Rogerius, Azo, Accursius and Odofredus.

By the end of the thirteenth century, jurists had shifted attention from the purely dialectical analysis of Justinian’s texts to the problems invoked by the application of the customary and statute law. They also explored the conflicts of law that emerged in the course of inter-city commerce. This development is associated with the emergence of a new breed of jurists in Italy, the so-called Commentators. Their primary interest was adapting the Roman law of Justinian to the new social and economic conditions of their own era. Bartolus de Saxoferrato and his pupil Baldus de Ubaldis were among the chief representatives of the School of the Commentators. The Commentators successfully rendered the Roman law of Justinian applicable to the environment of the city-states and small principalities in prosperous Italy.

Over time, Roman law as expounded by the Glossators and the Commentators entered the legal life of Continental Europe through the activities of university- trained lawyers and jurists. It formed the basis of a common body of law, legal language and legal science—a development known as the ‘Reception’ of Roman law. This common law (ius commune) served as an important universalizing factor in Europe at a time when there were no centralized states nor unified legal systems, but a multitude of overlapping and often competing jurisdictions of local, feudal, ecclesiastical, mercantile and royal authorities. It should be noted, however, that the process of reception was complex and characterized by a lack of uniformity. The reception of Roman law in different parts of Europe was affected by local conditions, and the actual degree of Roman law infiltration varied considerably from region to region. In parts of Southern Europe, such as Italy and Southern France, where Roman law was already part of the applicable customary law, the process of reception may be described as a resurgence, refinement and enlargement of Roman law. On the other hand, the process of reception in Germany and other Northern European regions was prolonged and, in its closing stages, much more sweeping. The common law of Europe that gradually emerged towards the close of the Middle Ages derived from a fusion between the Roman law of Justinian, as elaborated by medieval jurists; the (largely Romanized) canon law of the Church; and Germanic law. The dominant element in this mixture was Roman law, although Roman law itself was considerably transformed under the influence of local custom, statutory and canon law.

In medieval and even later times, there was no clear connection between the state and the legal order.

The rise of nationalism entailed an enhanced interest in the development of national law and this precipitated the move towards the codification of law. The demand to reduce the law to a code emanated from two interrelated factors: the necessities to establish legal unity within the boundaries of a nation-state, and develop a rational, systematized and comprehensive legal system adapted to the conditions of the times. The then dominant School of Natural Law with its ratio­nalist approach to institutional reform and emphasis on system-building provided the ideological basis of the codification movement, which engendered the great European codifications of the eighteenth and nineteenth centuries. When new civil codes were introduced in the various European states Roman law ceased to operate as a direct source of law. However, as the drafters of the codes drew heavily upon the Romanized ius commune, Roman legal concepts and institutions were incorporated in different ways and to varying degrees into the legal systems of Continental Europe. Moreover, through the process of legal borrowing or transplanting, these legal elements permeated the legal systems of many countries around the world.