Introduction and Periodisation
The concept "Roman Law"1 has assumed various meanings in the course of time. Thus it refers to the Roman legal system in its historical aspect, the Roman law tradition, that is, the persistence of Roman law in the various European legal systems, the Common Law, German Pandectism, and finally today's Roman law studies. The subject of the latter is Roman law in its content and history. It is not possible to treat Roman law here in the last-named respect. This account will therefore relate mainly to Roman law in the sense of the legal system of ancient Rome, the rediscovery of Roman law in the Middle Ages, and its spread in the single European countries up to the 19th century. Particular attention is paid to the rise and development of this law, to those involved in its creation, and to its sources.
The development of Roman law begins, in the traditional view, with the origins of Rome in 753 BC, and ends with the death of Emperor Justinian I (482–565). Justinian had had Roman law codified in its entirety, thus decisively influencing the subsequent development of law in Europe. These 14 centuries have been periodised variously by modern historiography and Roman law studies. The following is based on the most common division to be found in Roman law manuals: Monarchy (753–509 BC), Republic (509–27 BC), Principate (27 BC–284 AD) and Dominate (284–565 AD).
Public Law and Private Law
The Romans themselves made the distinction between public law and private law. The most famous formulation of this distinction stems from the jurist Domitius Ulpianus (ca. 170–ca. 228 AD): "Ius publicum est quod ad statum rei romanae spectat, privatum quod ad singulorum utilitatem" (Public law is that which relates to the system of the Roman state, and private law that which relates to the interests of the individual: Digest 18.104.22.168). Thus public law relates to the organizational structure of society, and private law, by contrast, to its individual members and their relations with one another. Within public law, the Roman jurist Ulpian distinguished several sub-areas: "Publicum ius in sacris, in sacerdotibus, in magistratibus consistit" (Public law regulates the state cult, the priesthood and the magistrates: Digest 22.214.171.124).
Roman private law was based on various factors, and passed through a number of stages of development. The tripartite division of this sphere of law into personae, res, actiones (persons, things, lawsuits) was introduced by the Roman jurist Gaius in his Institutes (an introductory textbook for law students). This division, upon which the emperor Justinian I also based his own Institutes, still builds the basic structure of many modern codifications. Roman private law includes obligations and contracts, possession and property, relationships, marriage and marital property law, guardianship, legal and testamentary inheritance etc. It also includes delicta (delicts, unlawful acts, wrongs against an individual) such as furtum (theft) or iniuria (personal injury). Principles such as "good faith", "obligational relationship", and "liability" were introduced and further developed by the Romans. These institutions still serve as the basis of modern legal systems. They will not, however, be dealt with here because of their complexity.
Legal Sources in the Republican Period
The succession of the different forms of government in the course of Roman history had a considerable influence on the ways in which law is created. The individual legal sources, as to their development and significance, underwent correspondingly great changes.
Lex and mos
In the beginning, the king alone possessed the public powers, including that of law-making. Thus the leges regiae (royal laws) sanctioned by the king were, together with the mores (customs), the sole legal source. After the introduction of the Republic these laws lost their validity.
During the Republican era, which is characterized by the office of the consules, and the considerable weight of the popular assemblies, the leges populi Romani (laws of the Roman people, also called leges publicae) acquired increasing importance. The most important republican institutions and offices – consuls, popular assemblies and the senate – participated in the law-giving procedure. The plebeians also had their own magistrates and popular assemblies (the concilia plebis), whose resolutions were valid only for the plebeians themselves. At the latest from the 3rd century BC, however, the resolutions of the plebeian popular assembly were made equal to the leges publicae, and thus gained binding power for the whole community.
The Law of the Twelve Tables
In the early republican period, matters between private individuals were settled by customary law rather than by leges. This situation only changed with the Lex XII Tabularum (Law of the Twelve Tables), which, according to tradition, was drawn up in 451–450 BC by two different committees of ten men each (decemviri legibus scribundis). The reason for this was, in the framework of the social struggle between classes, the growing complaints of the plebeians at the arbitrary application of the unwritten law by the ruling elite of patricians. This codification was preceded by direct contacts with the Greek world (including the Greek colonies in Southern Italy), where there were already important models such as the codification of Solon (ca. 640–ca. 560 BC). The Twelve Tables, the original text of which has not been preserved, regulated among other things the law of civil procedure including foreclosure, the law of inheritance, power relations, guardianship and trusteeship, property and its delimitation, obligations arising from delict, and the funeral system.
The codification of the previous customary law in a written form in the Twelve Tables rendered the misuse of power by the patricians towards the plebeians more difficult. The Twelve Tables remained the "cradle" of the law of the city of Rome, the "source of all public and private law"2 (until Justinian I) according to Titus Livius (59 BC–17 AD), and furthermore the only codification with a comprehensive claim to validity. It was on the basis of the Twelve Tables that the first legis actiones ("actions based on the law") and other legal institutions were developed; they also served as a basis for the first of all works of legal science, the Tripertita of the jurist Sextus Aelius Paetus Catus (2nd century BC), which was at the same time the first literary version of the Twelve Tables.
Jurisprudence and its Origins
Within the Roman legal system, legal science (or jurisprudence) was also a recognized source of law. Having been founded by the pontifices, legal knowledge was from the beginning a prerogative of the elite. Beside the augurs and fetials, the pontiffs (pontifices) were indeed members of one of the most important Roman colleges of priests.
The legal knowledge of the pontiffs, together with their control of the calendar and therefore of the days on which, from the standpoint of religion, business might be done and lawsuits pursued, made the pontiffs themselves irreplaceable for the discussion and treatment of legal questions. Only they were in a position, not only to interpret existing norms and apply them to concrete cases, but also to create new law. Accordingly, knowledge of the formulae for lawsuits was their prerogative. Thus their collaboration was indispensable to both the magistrates and the parties for carrying out a case correctly (the principle of agere = to act, to manage a lawsuit). The pontiffs were accordingly asked by office-holders and private persons for legal information concerning concrete lawsuits, which they then decided by means of responsa (the principle of respondere = to answer, to give a legal advice). They possessed, finally, the necessary formulae for drawing up legal documents correctly (the principle of cavere = to take precautions, to draft legal documents, to suggest the right formula for the purpose). The knowledge and the advisory function of these first jurists were fundamental for the coming about and development of a ius civile (civil law), above all through its interpretation.
The Stratification of the Legal System: Magisterial Law
Leges, mores and the advice (responsa) of legal experts made up civil law (ius civile), which by its nature applied solely to the citizens (cives) of the city of Rome. The Roman legal system was, however, also characterized by the fact that there existed several interacting layers of law. Thus there came into being a parallel ius honorarium (magisterial law), also called ius praetorium (praetorian law), which developed from the continued jurisdictional activity of the praetor and from the publication, on taking office, of the edict. This contained a list of permitted actions (edicts) written on an album (a white table). Furthermore, from the activity of the praetor peregrinus, a new praetor with civil jurisdiction in disputes concerning non-Romans, there developed a special kind of magisterial law, the ius gentium, a body of legal institutions and principles common to all people, also to non-Romans. This law was characterized by the fact that it lacked formalities of traditional law, so that it was well suited to regulate the interests of the parties in a sensible and just manner.
Roman Legal Science
The End of a Legal Monopoly
The legal knowledge that had accumulated within the colleges of priests remained for a long time the monopoly of the pontiffs. This lapsed however owing to a series of decisive events. To this contributed the publication of the Law of the Twelve Tables, as well as the publication of the calendar and case formulas by Gnaeus Flavius (ca. 4th century) – scribe of the censor Appius Claudius (ca. 340–273 BC) –, as well as the Lex Ogulnia dating from 300 BC, which opened the colleges of priests to the plebeians. It was thus the first plebeian Pontifex Maximus, Tiberius Coruncanius (ca. 254–ca. 243 BC) who, around the middle of the 3rd century BC, for the first time gave legal opinions in public, and also informed his audience of his preliminary considerations.
The Formation of a Secular Jurisprudence
As a result of the teaching activity of Coruncanius, legal knowledge and techniques of interpretation and argumentation were made available to everyone who was interested in learning these activities, enabling the formation of a "secular" class of lawyers. The functions of agere, respondere and cavere now passed to the secular jurists. The influence of Greek philosophy and rhetorical theory led to a deeper systematic construction of the subject-matter, so that "legal knowledge" could become "legal science". The jurists, who were usually patricians, began to record their legal decisions in writing, thus giving rise to a special legal literature, which became more and more differentiated in the course of time. The work of the jurist Sextus Aelius on the Law of the Twelve Tables, the Tripertita, was the first written record of the interpretative activity of the jurists (interpretatio prudentium), deposited above all in the responsa (legal opinions), and became an independent source of law.
The auctoritas (reputation/dignity/authority) of the individual jurist lent assertiveness to his opinions, but many questions remained controversial. Thus there came about the special character of Roman law as a ius controversum (controversial law) which, on the one hand, could not be tied down to clear rules, but on the other was not speculative. Instead, the focus was always on the concrete case, and the decision, once arrived at, could be applied per analogiam (by analogy) to similar cases. For this reason, Roman law tends to be compared with Anglo-American case law. This evolution of the law found its limit in the opinions of the individual jurists, who regarded themselves as true guardians of justice and legality.
Jurists during the Imperial Period
From the beginning of the Principate, the emperors attempted more and more frequently to link the activity of jurists to themselves in order to control them.3 Emperor Augustus (63 BC–14 AD) replaced the auctoritas of the jurists, which up to then had been based on their personal prestige, by his own auctoritas, by awarding only to selected jurists the ius respondendi ex auctoritate principis ("the right to deliver opinions by the emperor's authority"), a kind of stamp of approval. The emperor Tiberius (42 BC–37 AD) continued this line with the ius publice respondendi ("the right to deliver opinions publicly"). The legal opinions of jurists not distinguished in this way thus lost the character of sources of law. In the course of time, the jurists were taken into the emperor's privy council, that is, into the inner circle of power, and were thus still more closely connected with the emperor.
Among outstanding jurists, Gaius, who was active in the second half of the 2nd century AD, occupied a particular place. He authored among other works the Institutiones,4 which for centuries formed the basis of legal instruction, and were used by Justinian I as the main source of his own law manual.
In the time of the Severan Dynasty (1st half of the 3rd century AD), Roman legal science experienced its zenith. This is accounted the most productive period of jurisprudence, which is thus termed "classical"; in this epoch the great names of Roman jurisprudence were active: Aemilius Papinianus (140–212), Iulius Paulus and Domitius Ulpianus, together with the less famous Herennius Modestinus (3rd century). The greatness of these jurists consists less in the originality of their opinions than in their systematic exposition and their knowledge of the whole of Roman legal science. It is thanks to their achievements in organizing that Roman jurisprudence acquired the thoroughly structured character that permitted it to last for centuries. When, in late Antiquity, legal science lost its significance as a living source of law, and as a result the figure of the lawyer acquired other contours, the production of these jurists remained a point of reference for all users of the law.
The authority of the above mentioned jurists was even formally sanctioned in the "Law of Citations" of 426 AD. This was a law of the emperor of the Western half of the Empire, Valentinian III (419–455), which determined which works of legal science were allowed to be quoted in court for the decision of a court case. This law refers especially to the works of five jurists: Papinian, Paul, Ulpian, Modestinus and Gaius. The fact that, in the 5th century AD, reference was still made almost exclusively to the Severan jurists shows that contemporary jurisprudence lacked the power to prevail, and that the functions of the jurists had profoundly changed. The most important part was played here by the increasingly absolute character of imperial power, with which the prerogative of law-making was in the hands of the emperor alone.
Imperial Laws and their Collections
With the Principate, some of the traditional sources of law lost their importance or vanished altogether. They were replaced by new forms of law-making. Since the era of Augustus, both the resolutions of the senate (senatus consulta) and the imperial enactments (known under the general heading of "constitutions") began to be regarded as binding for the cives (citizens) and thus recognized as sources of law. Imperial constitutions were classified according to the circumstances of their enactment, their addressees, and their purposes: "edicts" were provisions of general validity; "mandates" were instructions to imperial officials; "rescripts" were the emperor's answers to legal questions submitted by judges, magistrates and other officials, as well as parties; "decrees" were decisions taken within the imperial jurisdiction activity, especially on appeal. In view of the growing importance of the constitutions, the leges publicae increasingly lost importance after the end of the 1st century, as did resolutions of the senate. As to the jurisdiction activity of the praetor, at the instigation of emperor Hadrian (76–138) the list of permitted actions were "frozen" in the Edictum Perpetuum ("perpetual edict") edited by the jurist Salvius Iulianus. The independent law-creating activity of the praetor was thus strictly limited.
Imperial authority grew as the traditional sources of law dwindled. During the period of the Dominate, which begins with Emperor Diocletian (ca. 230–ca. 305), the sources of law became restricted to the imperial constitutions, and the interpretative activity of specialist jurists (as found above all in the writings of the Severan jurists) fused with common law, which did have a marginal role. The distinction between ius civile and ius honorarium gradually disappeared.
Codex Gregorianus and Codex Hermogenianus
At the end of the 3rd century, i.e. coinciding with Diocletian's assumption of power, two collections of imperial constitutions were published, whose compilers are not otherwise attested. The former collection, the Codex Gregorianus, contained rescripts of which the oldest of those preserved goes back to Emperor Hadrian; this work is systematically arranged in (at least) 14 books, which are in turn subdivided into titles arranged according to topics. Within these titles, the constitutions are chronologically ordered. This was followed shortly afterwards by the Codex Hermogenianus, containing mainly rescripts of Diocletian. The presence of constitutions from a later period is ascribed to subsequent textual manipulations. The Codex Hermogenianus is divided only into titles, and forms a kind of continuation of the Gregorianus. Both codices were transmitted only indirectly, namely predominantly through the Lex Romana Visigothorum and the Codex Iustinianus.
In 429 AD Theodosius II (401–450), emperor of the Eastern half of the empire, initiated a collection of imperial constitutions of general content that had been promulgated since Emperor Constantine I (ca. 280–337). The original project was the realization of two separate collections, one to contain also constitutions that had been forgotten, the other only the laws still in force, accompanied by legal works on related topics. This project was revised in 435. The Codex Theodosianus came into force on 1st January 439, for certain in the Eastern half of the Empire, but very probably also in the Western, where the Codex was presented 438 to the Roman senate in the course of a ceremonial session.
The Theodosianus was the first official collection of imperial constitutions, and took its place beside the Gregorianus and the Hermogenianus, which in this way retained their validity. This collection too is arranged in books (16 in all) and titles. The committee selected and revised the texts of the constitutions, which are in chronological order. The legal matters contained in the codex deal with numerous spheres of public and private law. Much space is taken up by the administrative organization of the empire and its officials. Book 16 is to be regarded as a real novelty, being exclusively devoted to religious legislation. We know the Codex Theodosianus also partly through the Lex Romana Visigothorum and the Codex Iustinianus. There are, however, some manuscripts extant that provide their own independent textual tradition which goes back to the original editing.
The constitutions promulgated after 437 by Theodosius II himself and his successors, also known as post-Theodosian Novels, were never compiled in an official codification, but only collected privately. A large part of this legislation was handed down indirectly through the Lex Romana Visigothorum.
The Leges barbarorum
After the West Roman Empire had been succeeded by Germanic kingdoms, the question arose as to the law to be applied to Roman subjects. According to the "personality principle", the Roman part of the population continued to be governed by Roman law. For this purpose, special codifications were created which were to regulate the mutual relations of Roman citizens. These codifications were supported directly by the sources of Roman law. Three of them are of particular importance:
Lex Romana Visigothorum or Breviarium Alarici
This codification5, dating from 506 AD, promulgated by Alarich II (d. 507), king of the Visigoths, is composed of excerpts from the Codices Gregorianus, Hermogenianus and Theodosianus, some post-Theodosian Novels, and the Pauli Sententiae (a postclassical compilation from the works of the jurist Paul), for which it represents the chief source. It furthermore contains an abbreviated version of the Institutes of Gaius (known as the Epitome Gai) and a single fragment of a responsum from Papinian. Almost every text is followed by a brief explanation (interpretatio). Since the Gallic part of the Visigoth kingdom was lost shortly after its coming into force, this codification was only briefly valid. However, the codification acquired considerable and lasting importance on the Iberian peninsula, to which the Visigoths had retreated.
Lex Romana Burgundionum
This codification was composed at the initiative of Gundobad (died ca. 516), King of the Burgundians, for the Roman subjects of his kingdom. It too draws on the Codices Gregorianus, Hermogenianus and Theodosianus, some post-Theodosian Novels, the Institutions of Gaius and the Pauli Sententiae. The work is divided into 47 titles, and also contains Latin interpretationes, which however differ from the Visigothic ones.
This is a codification of unknown date promulgated by Theoderich (453–526), King of the Ostrogoths. In contrast to the leges mentioned so far, the Edictum Theoderici was addressed not only to Roman subjects but also to Ostrogoth ones. This codification too draws on the Roman law sources, including some works of legal science dating from the classical period.
The Corpus Iuris Civilis of Emperor Justinian I
After his accession to the throne in 527, Emperor Justinian I began to collect the whole of the legal material, to edit and systematize it. The totality of his compilation and lawgiving activity has since the Humanist period been known as Corpus Iuris Civilis ("the body of civil law").6 Justinian's Compilation consists of two collections of imperial constitutions (of which the first is not preserved, having been supplanted by a second edition), the Digest, the Institutions, and the Novels.
In 528 AD Justinian I announced in the programmatic constitution Haec Quae Necessario a new collection of imperial constitutions, which was to incorporate the content of the previous collections and include further laws. This new collection was to supplant the previous ones completely. Among the members of the committee entrusted with this task was Tribonian (died ca. 542), by then magister officiorum ("Master of Offices"), whose contribution was decisive for the completion of the project of compilation. The first Codex Iustinianus7 was published already in the year 529 with the constitution Summa Rei Publicae. It was the task of the compilers to make a selection from the constitutions in force, to shorten them, and alter their texts so as to satisfy current practical requirements. The work, which was divided into books and titles, pursued the express goal of rendering the work of the courts easier and shortening the duration of cases.
In his programmatic constitution Deo Auctore (530 AD) Justinian I declared his intention of collecting in one sole codex, to which he gave the name Digesta or Pandectae (from the Greek Πανδέκται), also the totality of the jurisprudence scattered in the writings of the classical Roman jurists. Justinian I invested the committee set up for this task under the chairmanship of Tribonian with comprehensive powers to alter the text in order to remove all ambiguities, repetitions, contradictions and differences of opinion typical of case law.8 The choice of works did not correspond to a hierarchy of particular jurists; all were to be treated equally, as long as they possessed the ius respondendi.
The Digest came into effect in 533 by a constitution that was promulgated in two versions: one Latin (Tanta) and one Greek (Δέδωκεν). It is divided into 50 books, each of which is in turn subdivided into titles (except for books 30–32, which are devoted to the lengthy topics De legatis et fideicommissis (On legacies and fideicommissa) The order of the material, predominantly made by private law, follows that of the praetorian edict. Each title of the Digest is followed, as an anthology of fragments, by excerpts from writings, of which the authors and titles are always indicated (inscriptio). In all, over 200 works by 37 (or 38) jurists were excerpted from, with a clear predominance of the two particularly productive jurists Ulpian and Paul.
The new systematization of the law within the Codex and the Digest rendered necessary a new legal manual, especially since Gaius's Institutes were now no longer up to date. The compilation of this manual, begun during work on the Digest, was carried out by Tribonian together with the law teachers Theophilus and Dorotheus. The work was completed at the same time of that on the Digest and published simultaneously with this in 533 by the imperial decree Imperatoriam Maiestatem. The Institutes are subdivided into four books, devoted to the law of (1) persons, (2) property and testamentary succession, (3) intestate succession and contractual obligations, (4) lawsuits and criminal case procedure. As in the other works of Justinian I, the Institutes were granted by the Emperor the force of law.
In accordance with the intentions of Justinian I, the Codex, Digest and Institutes were to serve not only to reorganize the legal material, but also to form the foundation of the study of law, also reformed by the emperor. The new program of studies was formulated in the constitution Omnem (533).
Second Codex (or Codex Repetitae Praelectionis)
Only a few years after the publication of the first Codex, the new legislation enacted in the years 529–533 in the East, together with the publication of the other compilation works, made a second edition of the Codex necessary. This Codex Repetitae Praelectionis (repetita praelectio meaning "second edition"), whose programmatic constitution has not been preserved, was published in 534 by the constitution Cordi. It is subdivided into 12 books, and was intended to completely replace the old Codex. The latter accordingly became invalid, as did those constitutions that had not been taken up in the second Codex. The most important innovation consisted in the fact that in the second Codex the "Law of Citations" was not included, since it became superfluous with the coming into force of the Digest.
From the time of the publication of the second Codex up to that of his death, Justinian I indulged in much legislative activity, which however was never put together in an official collection. These so-called leges novellae (or Novellae constitutiones) were, however, collected privately. Of particular importance are the following collections:
- the Epitome Iuliani, edited in 555 by Iulianus Constantinopolitanus (ca. 535–555/65), Professor of Law in Constantinople, consisting of an abbreviated Latin version of 124 constitutions, which possibly served for use only in the western half of the empire;
- the Graeca or Marciana, a collection of 168 constitutions which presumably originated during the reign of Tiberius II (ca. 540–582), and also contains constitutions of the successors of Justinian I;
- the Authenticum, a medieval collection of 134 Novels in Latin.
The Validity and Range of Influence of the Justinian Compilation
Only after the re-conquest of Italy from the Ostrogoths in 553 was the Justinianic codification also introduced into some territories in the West. At the petition of Pope Vigilius (ca. 500–555), Justinian I ordained in the constitution Pragmatica sanctio pro petitione Vigilii that his legislation should become valid in Italy as well. This was, however, of brief duration: 14 years later the Langobards occupied the country, with the exception of a few territories that remained Byzantine. The Justinianic compilation was soon translated into Greek, paraphrased and, in abbreviated form, freshly issued by Emperor Leo VI (865–912) as the Basilica. Through this and other later sources, Justinianic law remained valid in Byzantium until the Ottoman conquest in 1453.
With Justinian I, the idea matured of a legal system that promised durability, homogeneity, compactness, that was harmonious and without contradictions. The Justinianic legislation, and in particular the Digest, were to have a decisive influence not only on the origins of the European legal systems, but also on the history of law and civilization in Europe in the following centuries. They thus formed the foundation of the West European Legal tradition.
Roman Law in the Middle Ages
In the Germanic kingdoms that had settled in the territory of the former West Roman empire, Germanic law applied to non-Romans. As customary law, this was not codified. Roman law, in the form of the pre-Justinianic law and imperial legislation, continued to exist, although greatly limited and indirectly, insofar as it had found its way into the Germanic collections of laws. Roman law, by means of this incorporation, influenced the Germanic laws, in particular the Lombard one.
The Justinianic compilation, by contrast, was hardly received in the West. As the MS sources show, it survived only in some parts of Italy (above all in the South), and even there – being limited to the Institutes and the Codex – it was not widespread and little used. In the early Middle Ages, the Codex was known only in the form of an Epitome (in various versions) of the first 9 books. One of these versions is the Summa Perusina. The Digest and thus the classical jurists' law, on the other hand, fell into oblivion, so that the legal culture was lost. Instead, the church remained the custodian of Roman law, especially the Justinianic codification, selecting between the 9th and 11th centuries the texts relevant for itself, incorporating them into its own texts and using them for its own purposes. Thanks to the church, Roman law thus reached even the most remote districts, where – through the medium of canon law – it was taught in cathedral schools and monasteries.9
The Rediscovery of the Digest
In Italy, from the late 11th century, there started to reappear in certain legal works and documents precise references to Roman law, and in particular to the Justinianic codification.10 They demonstrated a renewed interest in these texts and a developed understanding of them. Thus, for instance, legal material taken from the Justinianic sources (particularly the Codex, Institutes and the Epitome Iuliani, as the most accessible texts) were embodied into the Expositio ad Librum Papiensiem (ca. 1070), a collection of legal commentaries and glosses originating from the circle of Pavia on the Liber Papiensis, a source of Lombard law. In the "Judgment of Marturi" (1076) there appears for the first time a quotation from the Digest. A large number of passages from the Digest and Institutes are also to be found in the Collectio Britannica (ca. 1090), a collection of decretals which also partly draws on the Justinianic codification.
The School of Bologna: the Glossators
In the High Middle Ages, the study of Roman law was accounted a component of the study of rhetoric which, together with the two other liberal arts dialectics und grammar (forming the Trivium), was cultivated especially in Rome and Ravenna. It was, however, in Bologna that legal science was founded anew in the 11th century. A school of law was established there11 that far outstripped that of Pavia, and where Justinianic legislation formed the foundation of the study of law. Irnerius Bononiensis (ca. 1050–ca. 1125) is accounted founder of the law school of Bologna (1088) and the legal science for which it became known.
From the law studies there gradually developed a standard edition of the Digest, the Vulgata or Littera Bononiensis, which formed the basis of legal instruction. As later textual criticism has shown, all versions of the Vulgata derived directly or indirectly – through the medium of a lost Codex (Codex Secundus) – from one sole MS, the Littera Florentina or Pisana.12 The interpretations of Irnerius were usually noted between the lines of the text or in the margin; this was the origin of the glossa as typical working method of medieval jurists. On account of this exegetic method, the school of Bologna is also named that of the Glossators.13 The interpretatory activity of the Glossators was based on the scientific principles of the artes liberales of the Trivium. This peculiar direction produced special genres of works such as the summae (summaries of contents of single titles of the Digest), the distinctiones (conceptual distinctions) and the quaestiones (treaties in form of questions-answers). As regards the Codex, work was concentrated mainly on restoring the original text as far as possible.
Among the most important jurists of the School of Bologna, after Pepo and Irnerius, was Johannes Bassianus (died 1197)14, who further refined the method of the Glossators. His pupil Azo (ca. 1150–ca. 1230) arranged in systematic manner all the extant glosses by various scholars that had been written to date, and partially overlapped. His Summa to the Codex Iustinianus, a comprehensive account of various areas of law, became a standard work in practice and in court. Franciscus Accursius (ca. 1185–ca. 1263), a pupil of Azo, put the 96,000 or so glosses between 1220 and 1240 into a self-contained whole, the Glossa Ordinaria or Glossa Accursiana. In the course of time this acquired such authority that users treated it itself as a legal source. It became standard practice to reproduce the texts of the Justinianic compilation together with the Glossa Ordinaria that usually surrounded the text of the Digest, so that the two came to form an inseparable whole. With the Glossa Ordinaria, the School of Bologna became the most important centre of legal studies, attracting students from many European countries. When they returned to their home countries they took with them not only the legal knowledge and methods acquired in Bologna, but also the texts that had formed the basis of the teaching. In this way Roman law and the legal science newly founded by the Bolognese spread throughout Europe.
In the early 14th century there developed in the South of France a new technique of interpretation: that of the Commentators.15 Their method, which was derived from the dialectic method of scholasticism, aimed not so much at harmonizing the texts according to formal logic, but rather to apply their content to the concrete situation of their time.16 This technique, which was soon to supplant that of the Glossators, was no longer connected with the glossa, but rather with the literary genre of the "commentary". Thanks to the Commentators, the legal material underwent a profound systematization. Known as the first Commentator is Cinus de Pistorio (ca. 1270–ca. 1336), who received his training at the school of law in Orleans. In his work Lectura super Codice he made for the first time systematic use of the program of the Commentators.
Apart from Cinus, two jurists among the Commentators occupy a predominant position: Bartolus de Saxoferrato (ca. 1314–1357) (a pupil of Cinus) and Baldus de Ubaldis (ca. 1327–1400). Bartolus, who lectured in the first half of the 14th century in Pisa and Perugia, wrote detailed commentaries on each part of the Corpus Iuris. In his works, he not only presented the opinions of previous jurists, but as a rule developed a position of his own, which frequently broke with tradition and prevailed over the Glossators. Bartolus attempted to find solutions in the Justinianic Compilation for typical problems of his time, and to adapt Roman law to the new conditions. His method, which had numerous followers and established itself in the law schools, was so successful that the Commentators were also termed "Bartolists".
In the 2nd half of the 14th century, Baldus extended the field of application of Bartolus' method to canon law and feudal law. He was also more active in practice, and published a series of commentaries and consilia (opinions on concrete legal questions), from which a literary genre developed. Baldus' work also served to adapt Justinianic law, which was seen as a model of juristic rationality, to the needs of the time. Correspondingly, Roman law, which in any case continued to characterize the training of jurists, remained the basis from which applicable law was derived in a rational manner.
Roman Law and Canon Law
In Bologna, there also studied the monk Gratianus de Clusio (ca. 1158), who systematically organized and published in 1140 as Decretum Gratiani the material of canon law, which was strongly influenced by Roman law. The Decretum was a body of rules derived from various sources of ecclesiastical law, which was later complemented by other collections of decretals (Liber Extra, Liber Sextus, Clementinae). As regards training and science, canon law was closely connected with Roman law and frequently served to transmit it.
Canon law slowly developed into a unified and self-contained system. In the course of the 14th century, clerical and secular jurists began to undergo a training in utroque iure ("in both laws", that is, both Roman and Canon Law), and the two systems came to be regarded as aspects of a unified ius commune (common law), which was widespread across Europe. In legal practice, the principles of the two legal systems helped especially to develop a more rational law of procedure.17
Roman Law in the Modern Period
The Influence of Humanism: Mos Italicus and mos Gallicus
In the course of the Renaissance, in the 15th century jurists in Italy paid increased attention to Antiquity. Following studies of Lorenzo Valla (ca. 1407–1457) and Angelo Poliziano, there arose a new legal school of humanists,18 which made a decisive break with the work of the Glossators and Commentators. With the goal of a renewal of legal science, two methods above all were taken up in the study of Roman legal sources: historization and philological analysis. The founder and most important exponent of this new learned or humanistic school was the Italian jurist Andrea Alciati (1492–1550). This new method fell in the 16th century on fertile ground above all in France, where Alciatus had taught at the universities of Avignon and Bourges. This school, the most important exponents of which were Hugo Doneau (1527–1591) and Jacques Cujas (1522–1590), was distinguished by a strict rejection of the method and the prolixity of medieval jurists, particularly the Commentators.19 Instead, the humanist scholars strove for a clear and systematically self-contained account, and additionally for independence from the judgment of medieval jurists. Their aim was a "return" to Antiquity, with which went a particular esteem for classical law. With the aid of a new philological method, they attempted to recognize the manipulations (called "interpolations" or also "Tribonianisms") of the Justinianic compilers and to restore the purity of the classical legal texts in their original sense.
Since this school was particularly successful in France, its method became known, although it had originated in Italy, as mos Gallicus ("the French style"). In distinction to this, the previous school of Commentators was termed mos Italicus ("Italian style"). This success was contributed to by a growing French self-confidence, which also showed in an increased interest in the history and the institutions of France, together with a growing importance of droit coutumier (customary law). Following the historization process, the practice of Roman law became less important for French jurists. It became general opinion that Roman law had meanwhile lost the character of an eternal and unchangeable model of justice. There developed a resistance, indeed a thorough-going hostility, to Roman law which is reflected in François Hotman's (1524–1590) polemical work Antitribonianus (written 1567)20.
The Reception of Roman Law in Europe: France and Germany
Whereas the study of Roman law continued to be regarded as indispensable for the training of jurists, in the 16th and 17th centuries it lost importance in a number of countries as a source of currently valid law. With a view to the many local particular rights (ius proprium), Roman law increasingly acquired the function of an ancillary legal system of general validity, which applied above all when the ius proprium led to unsatisfactory solutions or showed gaps.21
This applied above all to France, where Roman law increasingly lost authority, retaining its validity as ius commune only insofar as it complemented local rights, namely the coutumes (customs) derived from Germanic laws. When the law of the coutumes was officially collected for use in the courts especially in Northern France, this droit coutumier became the object of scholarly study, and to this extent displaced Roman law. The latter was viewed no longer as a corpus of valid norms, but exclusively as a complex of theories and principles useful for the training of jurists. Roman law, especially the Justinianic codification (with the exception of the Institutes), was criticized as lacking systematic coherence. An exception to this was Southern France, where Roman law remained dominant as droit écrit (written law).
In other countries, particularly Central European, where Roman law was hardly widespread, Canon law in particular, and the adoption of the Romano-canonical form of court procedure by various jurisdictions led to the historical development generally known as "reception of Roman law". The first traces of this (known as "early reception") can be traced already in the late Middle Ages. "Reception" is the name given to the phenomenon whereby Roman law was taken up by court practice in the form of ius commune and applied as a substitute legal system. Here the working method of mos Italicus taught at the Italian universities was particularly adopted. This complex sociocultural phenomenon, which extended through several centuries, expanded to some extent almost throughout Europe, but not to England, where the system of common law had established itself already at an earlier date.
Most significant was the reception in Germany,22 where the principles of Roman law had not become widespread in the course of the Middle Ages. Rather, law in Germany consisted of a mosaic of various customary laws, which were the only ones to be used directly in court. At German universities, which had been founded from the 14th century onwards and were attended primarily by clerics, it was canon law which was mostly taught. Only in some establishments was elementary instruction in Roman law introduced since the middle of 15th century, as it appeared useful for the training of jurists.
Thanks to the activity of the jurists, who constantly increased in number, from the late 15th century onwards a "Romanisation" of the legal system began. There were several reasons for this complex process.23 Intermediaries were, on the one hand, German students, who were long accustomed to attending Italian or French universities. Learned jurists, on the other hand, occupied posts in the administration, including that of justice, as councillors, syndici, judges or lawyers. Additionally, secular courts began to take over the Romano-canonical procedure. The disadvantage of the local rights over against this process consisted in the fact that they were not fixed in writing. A further reason for the reception of Roman law lies in the practice of the courts of requesting legal opinions from the law faculties. In their replies, these had recourse to Romanic doctrine, above all in the field of the law of contracts and other obligations. In the early 16th century, this led to an alignment of theory and practice, and thus to an increased reception of Roman law. This process was accelerated by the creation of the Imperial High Court (1495),24 half of whose members were trained jurists. Its procedure regulation provided expressly for recourse to Roman law, in the form of ius commune, in cases where the application of local rights was not possible.
This rapid development, which was also furthered by the rediscovery of antiquity in the course of the Renaissance, was not free from ideology: within the Holy Roman Empire with its decentralized organization, the Corpus Iuris of Emperor Justinian I was accounted a symbol and guarantee of unity, and an expression of the emperor's claim to sovereignty.
Usus Modernus Pandectarum
With a view to a closer relation to practice, in German legal science in the early 17th century a direction developed that aimed to apply Roman private law, as shaped by Justinian, to the sociocultural conditions in Germany of the time, by using the mos Italicus, the practice of German courts, and the content of local rights. This new direction,25 which was concentrated chiefly on the area of private law, persisted until the early 19th century, when it was succeeded by the so-called Pandectist School. It was supported by jurists who had received a training in Roman law and were active, some as university lecturers, some in practice. Important representatives of this School were Benedict Carpzov (1595–1666) and Johann Gottlieb Heineccius (1681–1741).26 Particularly prominent was Samuel Stryk (1640–1710), whose Usus Modernus Pandectarum (1690–1709), an account in several volumes of the law according to the system of the Pandects, gave its name to this direction.
The Reception of Roman Law in the Netherlands: the "Dutch Elegant School"
In the Netherlands too there took place in the late Middle Ages an "early" reception of Roman law, again via Italian legal science and canon law. This was also contributed to by the founding of the university in Leuven (1427) and the higher courts, such as the "Grote Raad" of Mechelen (1473). In the course of the 16th century there was a flowering of legal science: the works of the jurists Joost de Damhouder (1507–1581), Wigle van Aytta (1507–1577), Jacques de Corte (ca. 1505–ca. 1567) and Jacobus Raevardus (1534–1568), which were chiefly based on Roman law, were widespread in many European countries and left their mark on the development of law there.27
The final division of the Low Countries into the northern (protestant) and southern (catholic) provinces towards the end of the 16th century promoted the process of reception. At the first universities (especially Leyden) that were founded in the northern Netherlands, the teaching of law was based on Roman law sources. The incursion of a "learned" Roman law into practice increased during the following period. To this contributed among other things the coming about of central courts of appeal at which jurists schooled in Roman law were active, and above all the expansion of the influence of Legal Humanism, which was strengthened following the religiously motivated flight of jurists from France. The law teachers, particularly from the University of Leyden, had a decisive influence on the development of a new legal system based on the Justinianic codification. The teaching of the French jurist Doneau at Leyden University (1579-87), which was also passed on by his students, led to the development of a new kind of jurisprudence known as "elegant", which reached its full development only towards the end of the 17th century.28 It was characterized, on the one hand, by antiquarian-humanistic (i.e. historical-philological) traits, and on the other by its closeness to practice, in which it combined harmoniously mos Gallicus, mos Italicus and the pragmatism of the German Usus Modernus Pandectarum, synthesizing the goals of these. To the Dutch School belonged the jurists Gerard Noodt (1647–1725), Henrik Brenkman (1680–1736), Anton Schulting (1659–1734), Cornelius van Bijnkershoek (1673–1743) and, characterized by a more systematic approach, Arnoldus Vinnius (1588–1657), Ulrik Huber (1636–1694) and Johannes Voet (1647–1713). For this School a training in Roman law was accounted indispensable. Thus Dutch legal science became preeminent in Europe towards the end of the 17th century, and experienced a period of flowering up to the mid-18th century. It also had an influence on the Dutch colonies – especially South Africa, where it had validity as Roman-Dutch law – and also achieved great importance in Scotland, since at the time Scottish students attended Dutch universities in large numbers.
The Roman Law Tradition up to the 19th Century
Although the process of development of local legal systems – in the form of both customary and national laws – had long been accomplished in many European countries, the Roman law of the Justinianic Corpus Iuris still functioned as common law in the 17th and 18th centuries. Its application, once the expression of a supranational legal culture, survived only as subsidiary. The teaching of law at universities throughout Europe continued to be based on Roman law. This law was still applied in court, particularly where gaps in the existing law became evident, which was particularly the case in private law. Even those legal systems that had freed themselves most decisively from Roman law, such as the French, continued to show Romanistic influences. In France, the Roman law tradition remained alive in the whole Napoleonic Codification, particularly in the Code Civil (1804), with the norms and principles of Roman law being included. From France, the Code Civil with its foundation on Roman Law extended its influence also to Italy, where it was taken up as a model for the country's own codification – the Statuto Albertino (1865).29
In Germany the new academic direction of the "Historical School of Jurisprudence"30 founded by Carl Friedrich von Savigny (1779–1861) promoted the study of Roman law and its sources, both in its historical dimension (pursuing further the tendency introduced by Gustav Hugo [1764–1844]) and in view of its practical application, especially in the field of private law. By the study of the Roman law sources, it was intended to produce a new German legal science reflecting also the strivings for political unity. From the Historical School, there developed, thanks to Georg Friedrich Puchta (1798–1846), a pupil of Savigny, the so-called "Pandectist School",31 which addressed above all the private law aspects of Roman law. This School, which was characterized by conceptual formalism and found great resonance and influence in Europe, promoted a critical study above all of the Digest. The aim was to develop the formation and organization of a dogmatic construction of private law with elements derived directly from Roman law. It was also intended to create a rational legal system structured in concepts, in order to render possible a practical application of Justinianic law. Among the Pandectists, a special mention should be made of Bernhard Windscheid (1817–1892) and his chief work Lehrbuch des Pandektenrechts (1862 onwards).32
The German civil code, the Bürgerliches Gesetzbuch (BGB),33 underwent a long preparation and was not completed without some friction. The making of its first draft saw the participation of Windscheid. The code came into force on 1st January 1900, and thereby overrode the positive validity of Roman law, although its principles, as interpreted by German legal science, above all by the Pandectists, were integrated into it. The BGB represents the clearest picture of a European legal culture which was – and still is – firmly rooted in its Roman law tradition.