The Common History of European Legal Scholarship (summary)

The Common History of European Legal Scholarship - Wallinga, Tammo


Roman Law; Justinian’s Corpus Iuris Civilis

The starting point lies in Bologna, a university founded against the background of the power struggle between the German emperor and the pope and the rise to prosperity of many cities in Northern Italy. The central text in legal education was the major text of Roman law: the Corpus Iuris Civilis of the (Eastern) Roman Emperor Justinian. Under his aegis, three important works were compiled in 528-534 in Constantinople: (1) the Codex Justinianus, (2) the Institutes (an introductory work for beginning students, but with force of law based on the Institutes of the Roman jurist Gaius) and the (3) Digest; a collection of fragments from the works of the Roman jurists of the classical period, ca. 100 BC-250 AD, issued as one constitution of Justinian. After the publication of these works, Justinian continued to issue new constitutions which are called Novels; a collection of 168 of these together with the three works mentioned earlier forms what is called the Corpus Iuris Civilis. The Institutes, Digest, Codex and a collection of Novels extant at the time were taken to Italy when Justinian’s generals had managed to gain control over a good part of it in a campaign that had started in 534. The texts were given force of law in Italy, supposedly at the request of Pope Vigilius, in 554. Towards 1100 Justinian’s Corpus Iuris Civilis formed the basic text for legal education in civil law. There were three approaches to the Roman texts: that of the Glossators, the School of Orléans and the Commentators.



The beginning of this first period is traditionally put at 1088. The glosses – notes in the margins and sometimes between the lines of the Justinianic texts – range from simple explanations to thorough analysis of the legal contents. The Glossators made the first efforts to come to grips with the rather unstructured work that the Corpus Iuris is. They set up a system of references (allegationes) that made it easier to relate texts on the same subject and they tried to interpret the texts in such a way that no contradictions remained. This they achieved by grouping the texts in favour of and against a certain argument or rule, and texts as the rule and others as the exceptions. The approach is essentially a-historical: the Glossators studied the Corpus Iuris Civilis as one body of authoritative texts and were not interested in the inscriptiones of the Digest, which provide information about individual jurists and make it possible to give each his own place in the historical development of Roman law. Another kind of commentary Summae are summaries, mostly of entire titles of the Corpus Iuris. They are systematic works, even if the system does not extend beyond the scope of the title in hand. Azo wrote a number of summae on different parts of the Corpus Iuris, to which others were added during the first half of the 13th century, to form a standard summa on the entire Corpus Iuris. No new summae were written after that. The summae paved the way for the later systematic approach of the Legal Humanists. The Glossators saw Justinian’s Corpus Iuris as valid law for their own time, since it was of imperial origin. They had no problems with accepting the validity of texts from a fairly distant past in their own day, that caused a rather isolated object of their academic interest. There was a strong connection between the Glossators and the emperor, in the sense that Roman law provided the emperor with a historical basis for his claim to power. However, one thing that neither Frederick Barbarossa nor his successors ever did was declare Justinian’s Corpus Iuris to be valid law.


Methodological Aspects: The Scholastic Method

The essential medieval scientific method is the scholastic method, or dialectics: formal logic applied to an authoritative text. The objective was to be able to read the text as a logical unit. This involved finding a way of harmonising texts containing opposite opinions about or solutions for the same legal problems. The formal logic applied was largely based on a work by Abélard, Sic et non, written around 1120. Sic et Non contains a philological method applied to authoritative texts. It raises a series of common doubts: has the text been corrupted?, has the author made a mistake?, do we really understand? That is, the works of Aristotle that were known at the time: the Logica vetus. This consisted of Latin translations, partly made by Boethius in the 5th century, and by further translations of Arabic translations. Texts are grouped in function of their similarity (similia) or contrariety (contraria) and reasoning per analogiam or a contrario is applied, with distinctions (distinctiones) being established that explain the differences between the groups. This so-called scholastic method could be applied to any authoritative text. As far as the sources of law are concerned, Schrage notes that among civil lawyers in the Middle Ages there was no specific hierarchy of the sources of law. There was a distinction between civil and natural law, but neither of the two was seen as more important than the other. It is not until Azo in the Summa that anyone puts forward the idea that some sources of law are more important than others.


School of Orléans

The School of Orléans may be traced back to 1235 as a place where legal education was organised; it was upgraded to a university in 1306. It had already won fame in the 13th century: Thomas Aquinas mentions Paris, Bologna, Salerno and Orléans as the four great studia generalia of his day. The first professors had more interest in legal theory than the Italian Glossators and a more historical approach to the Roman legal texts. The members of the School of Orléans also had their eyes wide open for legal practice and they contributed to non-Roman areas of law, like international private law and penal law. In their approach to Justinian’s Corpus Iuris, they were generally more original than the Italian Glossators, and they treated its texts with more freedom. An important innovation by Revigny was the creation of the legal person. However this particular subject was extensively treated by canon law as well. Eventually, the works of the School of Orléans were to form a source of inspiration for the Commentators in the 14th century

The Ultramontani (the French lawyers at Orléans, but also at Montpellier and Toulouse) used essentially the same methods as their Italian colleagues at Bologna, even if they may have been a bit more adventurous in applying them, and wrote the same types of legal literature. Many summae were written in France, perhaps because book production was less well organised there, meaning that copies of the Corpus Iuris Civilis were not readily available. One genre that blossomed especially at Orléans was the repetitio: a separate lecture on especially difficult texts. These were not treated in the context of the normal lectures, but at another time, in the afternoon. During the repetitio, the central text (sedes materiae) was studied in connection with other texts, which in the end often gave rise to a complete and systematic treatment of a certain theme. Some form of systematic treatment of the law is therefore also found in the School of Orléans.


Post-Glossators, Commentators and Consiliators

The representatives of the direction that legal scholarship took after the Glossators are often simply called Post-Glossators ,a more favourable name would be Commentators, and consiliators has been suggested as well. The Commentators built on the work of the Glossators and the School of Orléans. Accursius’ Glossa ordinaria is the watershed between Glossators and Commentators. The new era of the Commentators saw more involvement with legal practice. The time of the Commentators saw the true beginning of the reception of Roman law. With economic prosperity and development in the Italian cities during the 11th-13th centuries, the need for legislation had been met by local authorities with a great mass of local statutes. Together with all sorts of local customs, this did not make the picture any simpler: sources of law were many, inconsistent and incomplete. Given this situation, Roman law had a part to play as a more complete legal system in the background, a framework that could serve to assign local statutes and customs a place within a greater whole. At the same time, lawyers with university training in Roman law were ready to meet the demand for legal expertise in everyday practice. Legal thinking along Roman lines became increasingly important. The fact that Roman law was of imperial origin was an important factor. The increased attention for legal practice is visible in the genre of the quaestio disputata: the Bolognese professors increasingly based their quaestiones on local statute law or even customary law, which were thus analysed by means of the methods of civil law. Giving legal advice and being active in legal practice was not necessarily a new development that started with the Commentators, but they certainly showed more of their practical activities in their writings. The consilium – the academic advice of a law professor on a practical problem – became probably the most important form of legal literature of the time. Baldus made a name for himself as consiliator. Judges were often obliged to ask for a consilium before giving their decision. In other words, through the consilium the science of Roman law based on the Corpus Iuris acquired an important influence on legal practice. Roman law was used as the main argument; statute law was treated within its context.

Typical of the Commentators is also that they were more inclined to take their cue from a materia rather than from a text of the Corpus Iuris. The corresponding form of literature is the tractatus, which structure follows from the materia and incorporates texts from the Corpus Iuris as they fit the arguments and counter-arguments. What led to a more synthetic and systematic use of the texts of the Corpus Iuris. A useful tool for them to achieve this was the last title of the Digest: a kind of summary of the entire contents of the Digest. In the time of the Commentators, there was a stronger connection between civil law and canon law. It became customary for students to study both subjects and thus become doctor of both laws.


Canon Law

During the Middle Ages, canon law was as important as civil law. Canon law courts had a far from negligible jurisdiction. Originally, canon law had no manageable corpus of text comparable to civil law’s Corpus Iuris Civilis. This changed around 1140, when a monk called Gratianus made a collection of texts of very diverse origin called Concordia discordantium canonum (harmonisation of disagreeing canones), but is usually known as the Decretum Gratiani. It gained great authority, even if it was only a private collection and not an official codification. It provided a comprehensive and systematic collection of canon law, trying to bring together all the law of the Church into one systematic whole.

After the publication of the Decretum, the popes kept making laws, taking administrative decisions and giving sentences as judges. These texts (decretales) were later gathered together in other collections. The Liber Extra is a collection of decretals. It was followed in 1298 by a collection of decretals of Bonifatius VIII called the Liber Sextus. Both these collections are real codifications of canon law. To make sure that they would be applied in practice they were sent to the university of Bologna. Together with the Decretum they form the bulk of the Corpus Iuris Canonici, which additionally contains decretals of later popes.

In material law, canon law made a significant contribution to the development of a general law of contract. Canon law applied the principle that all agreements should lead to actionable obligations: pacta sunt servanda. The same general approach was applied by canon law, that anyone who through his fault (culpa) caused damage to another should pay the latter compensation. This led to the general approach we find in modern codifications. Canon law contributed much to the discussion about general principles of the law of procedure. The method of canon law is essentially the same as that of civil law. Reconciling disagreeing texts so as to form one authoritative whole. This was done with the help of the well-known dialectics. Just like civil law, canon law ended up developing more or less systematically treated doctrines and while concentrating on different themes: especially the law of persons and family law.


Moral Theology

Moral theology is a branch of theology that concerns itself with moral questions, which it tries to answer in the light of the Christian faith. It is concerned with good and bad in human behaviour. It comes quite close to law, which also concerns itself with questions of what is wrong or right, or what should be done in practical situations where people come into conflict. Sources are the Old and New Testament, but may also be found in philosophy, especially ethics, and natural law. The greatest figure in moral theology is Thomas Aquinas (±1225-1274). He wrote the Summa theologiae, a manual for beginning students of theology on all aspects of the relationship between God and man. It is derived from general principles, like the promotion of good and avoidance of evil. Important for law is Thomas’s doctrine of restitution, it states the very general principle that whenever anyone through his fault has caused another to have less than what is due to him, he must restore the latter to his original position. When this is not physically possible, he must pay him a compensation in money. It is a totally different approach than that of Roman law, where specific actions with a limited reach determine both the law of contracts and that of the delicta privata. Thomas based himself on Aristotle’s concepts of iustitia distributiva and iustitia commutativa in the Ethica Nicomachea. The thing to note about the doctrine of restitution is that it lays down a general approach to the law of obligations, equally applicable to the law of contracts as to the law of tort, negligence or delict. It is on a far higher level of abstraction than the Roman case-law built around the specific actions on a limited number of contracts and delicts.


School of Salamanca

Moral theology continued to base itself on the doctrines of Thomas Aquinas until early in the 16th century when the traditional ideas about man and his relationship with God and the world started to be challenged by Humanism, Protestantism and the discovery of the New World. The School of Salamanca took up these challenges and tried to provide an answer to them. The School did important work in the field of economics; it is considered to be the founder of economic science. But for law it was at least as important. The members of the School developed a theory of natural law that yielded interesting conclusions: equality and human rights and the idea that sovereignty rests with the people, which can transfer it to the monarch. Vitoria developed a theory about ius gentium and thus became the founder of public international law. Another creation of the School are theories about just war. And finally, some of its members took part in the famous debate about the legitimacy of the conquest of the New World. The ideas of the School of Salamanca reached the Netherlands along different lines. It was through Grotius that the general principles of moral theology would cross over from theology to law.


Legal Humanism

Legal Humanism had two periods during which it blossomed, in two different places: it started in France in the 16th century, especially at the University of Bourges. More than a century later, it was prominent again in to the Republic of the Netherlands. The young , prospering Republic attracted the interest of scholars from many countries through the high academic level of its antiquarian approach to the Roman legal sources, known as the Dutch Elegant School. With Legal Humanism, there began a completely different approach to the Corpus Iuris Civilis. The Legal Humanists were interested in the historical context of the texts of the Corpus Iuris and tried to read them against that background, relating them to the information provided by non-legal sources from antiquity. The typical publication in this field is the observatio, a short essay in (elegant) Latin making a specific point. Also, they tried to return to the oldest possible version of the texts and find the manuscripts that would help them to do so: ad fontes (back to the sources) sums up this approach. Another innovation was that, unlike their medieval predecessors, Humanists did read Greek texts which enabled them to use manuscripts of the Basilica to improve the text of the Corpus Iuris. The new historical and critical approach to the legal texts came to be known as the mos gallicus as opposed to the traditional Bartolistic method, the mos italicus. Practical lawyers did not like any doubt being cast on the texts they used to base their arguments on. The Legal Humanists were also responsible for the beginnings of interpolation criticism and palingenesia. Interpolation criticism aims at eliminating the changes made to the legal texts from the classical period of Roman law. It certainly strengthened the impression that the text of Justinian’s codification was anything but perfect. Palingenesia profits from the fact that every fragment of the Digest is provided with an inscriptio giving the name of the original author and where in which work of that author the fragment belonged.

Thanks to the Palingenesia, separate Digest fragments may be read within their original context, which can be very helpful for their interpretation. Thus it serves both a legal and an historical purpose.Apart from this more antiquarian approach, there was also a tendency to try and achieve a more systematic treatment of the contents of the Corpus Iuris. The medieval summae and repetitiones had introduced systematic treatment for one title at a time, but now it was attempted to present the entire Corpus Iuris as one systematic whole. Justinian’s Institutes were chosen as a model, since they are the only part of the Corpus Iuris Civilis containing a real system.

Another point that affects legal methodology is the fact that the critical approach of the Humanists slowly but surely eroded the authority of Roman law. This made Roman law vulnerable in the competition with other legal sources, especially natural law.


Natural law

During the 17th and 18th centuries, natural law became an increasingly serious competitor for Roman law, and it would eventually make an important contribution to the national codifications that would put an end to the direct application of Roman law in practice. The idea of natural law as an all-encompassing system of law may be traced back as far as the ancient Greek philosophers. Roman lawyers – under the influence of the Stoa – treated it as well, mainly as a body of law equally observed by all peoples, and therefore also called ius gentium. The Church father Aurelius Augustinus promoted the idea of a divine origin of the law. The Latin Bible thus became the main source of natural law. We have already seen that Thomas Aquinas (1224/1225-1274) later developed a legal philosophy which derived law from the ideal order of God’s creation. During the 16th century, as we have also seen, Thomas’s philosophy was adapted by the so-called Secunda Scholastica of the School of Salamanca. The Spanish doctrine of natural lawhad an important influence on legal philosophy and even on dogmatic aspects of law, since it treated specific contemporary problems from a natural law point of view. The Dutchman Hugo Grotius (1583-1645 continued the tradition of the School of Salamanca, but was responsible for an important change: he developed the idea of a rational natural law based on human intellect (ratio). In his famous and influential work De iure belli ac pacis (1625) he carefully states that even if we were so bold as to suppose that there is no God, there would still be valid natural law. The idea of a rational natural law was developed further by the German lawyer Samuel Pufendorf (1632-1694), who completely separated natural law from any theological foundation. Pufendorf built up a legal system more geometrico, by a method inspired on natural sciences, deducing its rules from a number of axioms. This rational natural law became an important source of criticism on Roman law. Introduction of a codification always entailed putting an explicit end to the application of Roman law in practice – however, since it remained an important subject in most universities, its intellectual life as a legal lingua franca continued, and has done so until now.


Usus modernus Pandectarum

If Legal Humanism was the fashionable way to work with the Corpus Iuris Civilis in the 16th and 17th centuries, in the background there were many more lawyers who used it from a purely practical point of view, continuing the medieval tradition of the mos italicus. The work of the Legal Humanists had made some difference through better editions of texts, and historical arguments also made their way into practice to some extent, but the methods of the practitioners remained largely unaffected. In Germany, this practical approach came to be known as the Usus modernus Pandectarum. This is a wide-ranging term, it can refer to any modern and even contemporary use of Roman as a source of law. In a narrower, more technical sense, it refers to the approach of positivist German lawyers in the 17th and 18th centuries. Superficially, it appears to be a continuation of the Bartolist method of the mos italicus; yet something had changed, largely due to the critical approach to Roman law initiated by the Legal Humanists. The Usus modernus Pandectarum developed a different doctrine about the sources of law. whereas Roman law has a part to play as a source of law, the position of local law is now different: it is to be studied for its own sake. During the Middle Ages, lawyers had also found themselves having to deal with several sources of law. The Usus modernus instead saw it as a further development of Roman law through custom. This approach ensured a much stronger position of local law in comparison to Roman law, which lost its pivotal position among the sources of law. As far as Roman law is concerned, the name Usus modernus Pandectarum is significant, especially the first two words. Usus implies that the aim is to apply Roman legal texts in practice and not to make a scientific study of them. Modernus further implies that it was related to what applied in contemporary law. The representatives of the Usus modernus may have taken some benefit from the work of the Legal Humanists, but they used the Roman texts unhistorically, as just another source of legal norms. There was no consistency in the Usus modernus as to which Roman legal texts were thought to apply.


The German Historical School / Pandectenwissenschaft

It is an ironic twist of fate that the German codification, the Bürgerliches Gesetzbuch (BGB) of 1900, was profoundly influenced by the works of a man who in 1814 strongly argued against the feasibility of a codification. In that year, Professor Anton Friedrich Justus Thibaut of Heidelberg had put forward the idea of carrying out a general civil law codification in order to promote national political unity. He made no secret of his admiration for the French Code civil. That same year, a Professor of Roman and Civil law in Berlin, Friedrich Carl von Savigny (wrote an eloquent and famous answer in which he argued that Germany was not ready for codification, and that much work still needed to be done before a successful codification could be carried out. It took almost another century before the BGB came into force and Germany obtained its unified civil law. Savigny’s theory is a reaction to the pretensions of rational natural law as a product of the Enlightenment. In Vom Beruf, Savigny opposes the idea that law can be constructed in a mathematical way, more geometrico. In his view, the law of a nation is as characteristic of that nation as its language. It is not made for the people, but grows organically with the people; it is a historical phenomenon. His conclusion is that the only way to achieve a better law for Germany is to have a legal scholarship that proceeds organically and studies the tradition from the beginning. And this is exactly what he and his pupils did, starting with the medieval reception of Roman law in Italy. In fact, Roman law – in its Justinianic form – was found to be an important common element in the law of many German countries. Savigny’s pupils used Roman law, and especially the Digest or Pandectae, to develop general notions that the Romans themselves had never used, like legal act or legal. This form of legal scholarship came to be known as Pandektenwissenschaft. One of its most famous representatives, Bernhard Windscheid (1817-1892), wrote a manual that has still not lost its importance, and he later became a central figure in the committee that would prepare the BGB. In the German BGB (1900), we find yet another form of reception of Roman law. The BGB certainly is a codification that is much more closely related to Justinian’s than, for instance, the French Code civil, even if it is almost a century further removed from Justinian in time.


Concluding Remarks

Let us return to the two points that were raised at the end of the introduction to this article. As far as the role of Roman Law in legal practice goes, we have seen that the Glossators may have applied it, though there is too little evidence to say anything with any degree of certainty. The Commentators definitely used it, and even if the critical approach of Legal Humanism eroded its authority to some extent, the traditional method of the Commentators continued to be used, not only in Italy but elsewhere as well. The Usus Modernus is a somewhat modernised version of Roman law that incorporates part of the findings of Legal Humanism. Roman law did, however, lose the self-evident imperial authority it had had during the Middle Ages due to its association with the emperor. The criticism of the Legal Humanists and natural lawyers meant that it eventually only applied to the extent that its intellectual content remained satisfactory. And to this extent it is often still present in modern codifications, albeit on the basis of a new authority. The second point is the development from case law to codifications with a system of legal rules at a relatively high level of abstraction. Roman law in its classical form consisted of case law – a characteristic, incidentally, that it shares with modern common law. Both Justinian’s Code and his Digest are collections of solutions of specific cases. In Roman times, these solutions did not have an automatic authority, as this would depend on the prestige of the author. However, they did play a part in future decision making that was similar to that of precedents in common law. During the reception process in the Middle Ages and later, Roman law was studied and treated in such a way that we eventually ended up with the civil law systems that we have today. There were probably two key contributing factors. The interior factor starts in the medieval summae, where titles of the Corpus Iuris Civilis are treated in a systematic way. The grouping together of agreeing and contrasting texts around a sedes materiae made it easier to find the general rules and principles that were hidden behind the solutions to the cases. The exterior factor is that canon law, moral theology and natural law tended to think much more in terms of general principles than Roman law did. Eventually this made possible the construction of systematic codifications of private law, in which a large amount of Roman law has found a place. All this underlines that the transition to national codifications a real paradigm shift in European legal scholarship. The focus of attention for lawyers was now the codification. In some countries, Roman law retained a place in legal education; in others the fixation on the codification was complete, still this does not mean that the common heritage of Roman law is now sure to slowly fade into oblivion. On the contrary, it seems to be making some sort of comeback. As the European Union aims to achieve greater uniformity in law and in order to try and develop a European Civil Code, Roman law is getting renewed attention as the common element, and even as a possible source of solutions for the future.

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