Abstract
With the collapse of the Roman Empire in the West, Europe moved slowly but surely into an era that is generally known as the Middle Ages. This period of transition featured a disintegration of the civilisation and forms of social and cultural life that had been characteristic of the Greco-Roman world. The urban life that had been the ideal of the Greeks and introduced by the Romans throughout the Mediterranean basin declined. Many towns disappeared as new forms of habitation were constructed around fortified manors and small village communities. Although some great urban centres in Italy and Gaul continued to exhibit signs of commercial activity, trade and industry decayed and economic life reverted to an agricultural and pastoral type geared to maintaining local self-sufficiency. As all centralised authority dissolved, political conditions shifted towards the decentralised localism associated with the feudal system and the economically self-sufficient manor became the principal economic and administrative unit. Moreover, general culture in the West declined sharply and illiteracy became widespread. These events derived from the confusion caused by the Germanic invasions and the decay of the cities that had existed for centuries as centres for learning and the propagation of ideas. Nevertheless, vestiges of the classical civilisation remained alive throughout this period and gradually their fusion with the crude culture of the Germanic peoples and the learning of Christianity produced a new cultural synthesis.
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Notes
- 1.
Nov. App. VII, 1 in R. Schoell and G. Kroll, Novellae, Corpus Iuris Civilis III (Berlin 1972), 799.
- 2.
In the late seventh or early eighth century the Code was edited into a compendium, which contained only about one-quarter of the first nine books. The last three books (referred to as Tres Libri), concerned with the public offices of the Roman Empire, were omitted as being of little relevance to contemporary needs, and were not rediscovered until the middle of the twelfth century. The Epitome Iuliani was used until the twelfth century, when it was replaced by a larger collection known as the Authenticum (because Irnerius and other Glossators regarded it as an official compilation). Only Justinian’s Institutes was known in its entirety, as several manuscripts from this period attest. Like the other parts of Justinian’s legislation, these were frequently accompanied by crude and ill-arranged glosses, reflecting the legal ignorance of their authors and the general cultural decadence of the era.
- 3.
The last known citation to the Digest is found in a letter of Pope Gregory I in 603. After that time and until the eleventh century no reference to this work can be found in literary sources, court records or compilations of law.
- 4.
The Byzantine rule in central Italy came to an end in the middle of the eighth century with the capture of Ravenna by the Lombards. Sicily was lost to the Arabs in the ninth century, but parts of it were temporarily re-taken by the Byzantines early in the eleventh century.
- 5.
This compilation contained materials from the Prochiron and the Ecloga Legum, as well as several constitutions of Emperor Leo VI the Wise.
- 6.
The Lex Visigothorum follows the structure of the Theodosian Code. It is based on early legislation (especially on a revised edition of Euric’s Code issued by King Leovigild) and laws issued by the current monarch (King Recceswinth). Alaric’s code continued to be used in southern France, especially in the territory of the Burgundians, and in some countries north of the Alps.
- 7.
The Lombards, like other Germanic peoples, had originally no written law. The first compilation of Lombard law was the Edictum of King Rothari, published in 643. This work is considered to be the most complete statement of the customary law of any of the Germanic peoples in the West. The entire body of Lombard law, consisting of the Edict of Rothari and the additions introduced by his successors, is known as Edictum regum Langobardorum. Even after the annexation of the Lombard kingdom by the Frankish Empire during the reign of Charlemagne, Lombard law continued to be applied in Northern Italy, where it coexisted with Roman law and the customary laws of other Germanic peoples. To deal with the inevitable inconvenience that the presence of diverse legal systems entailed, the Frankish kings of Italy promulgated a large number of laws referred to as capitula or capitularia. A private collection of these laws, known as Capitulare Italicum, was permanently joined to the Lombard Edict in the early eleventh century. This corpus of Lombard-Frankish law, referred to in early sources as Liber Legis Langobardorum, is commonly known today as Liber Papiensis.
- 8.
The author of the Expositio ad Librum Papiensem distinguishes the various legal interpreters into three groups: antiquissimi, antiqui and moderni. Whilst the antiqui very rarely drew on Roman law, the moderni strove to discover the spirit of law by relying of Roman legal sources, especially when they encountered gaps in the Germanic (Lombard-Frankish) law.
- 9.
Charlemagne had been the first to assert that he was in fact heir to the throne of the Western Roman emperors and this claim was again made by Otto when he became German emperor in 962. In the twelfth century, Emperor Frederick Barbarossa employed several Bolognese jurists as his legal advisers in his conflicts with the Italian city-states.
- 10.
By the middle of the twelfth century about ten thousand law students from all over Europe were studying at Bologna. The students had the right to choose their own teachers and to negotiate with them matters such as the place and manner of instruction and the amount of tuition. The students and teachers organized themselves into guilds (societates) for purposes of internal discipline, mutual assistance and defence. The various societates formed a larger body termed universitas scholarium, within which students were grouped by nations.
- 11.
Irnerius’s success is attributed to three principal factors: first, his excellent edition of the Digest, known as Litera Bononiensis or the Vulgata; second, the new approach to the study of Roman law, which viewed the Corpus Iuris Civilis as living law; third, the separation of the study of Roman law not only from the study of rhetoric, but also from the study of canon law and feudal law.
- 12.
The most important part of their work was the reconstruction of Justinian’s Digest. According to tradition, the materials were divided into three parts: the Digestum Vetus, embracing the initial twenty-four books; the Digestum Novum, covering the last twelve books from books 39 to 50; and the Digestum Infortiatum, encompassing books 25 to 38. These three parts of the work were contained in three volumes. A fourth volume comprised the first nine books of Justinian’s Code, and a fifth embodied the Institutes, the last three books of the Code and the Novels as found in the Authenticum. The fifth volume also incorporated several medieval texts, the Libri Feudorum (containing the basic institutions of feudal law), a number of constitutions of the emperors of the Holy Roman Empire and the peace treaty of Constance (1183). These five volumes became known as Corpus Iuris Civilis.
- 13.
Scholasticism as a system of philosophy was based on the belief that reality exists in the world of abstract ideas, generally independent of the external sensual world. Its chief assumption was that truth is discoverable if pursued according to the norms of formal logic. From this point of view, the only path to wisdom was the avoidance of logical fallacies rather than observation of commonplace nature. The formal logic that was applied was largely based on the work Sic et non (‘Yes and No’) of the French philosopher Peter Abelard (1079–1142), composed around 1120. In this work Abelard applies the principles of logic, as laid down by Aristotle, to texts of the Church fathers. The relevant texts are grouped by reference to their similarity (similia), or contrariety (contraria) and reasoning per analogiam or a contrario is applied, while distinctions (distinctiones) are introduced explaining the differences between the texts. This so-called scholastic method, which could be applied to any authoritative text, whether in the field of theology, philosophy, medicine or law, prevailed throughout the Middle Ages and remained influential even after the end of this period.
- 14.
The commentum was rather condensed, whilst the lectura was a full report on the lecture that included all that was said and done in the lecture hall.
- 15.
The summae were similar to the indices composed by the jurists of the law schools in the East during the late imperial era.
- 16.
Of particular importance were works dealing with the law of procedure (ordines iudiciarii). Since the Corpus Iuris Civilis does not contain a comprehensive section on the law of procedure, these works sought to record and compile all the relevant material on legal procedure in general and on specific actions, and to provide guidance on how to initiate a claim in law. One of the best-known works of this kind is the Speculum iudiciale of Wilhelmus Durantis (c. 1270).
- 17.
Bulgarus advocated the view that Roman law should be interpreted according to the strict, literal meaning of the text. From the beginning of the thirteenth century, this approach seems to have prevailed. Among Bulgarus’s followers were Vacarius, who went to teach in England, and Johannes Bassianus, the teacher of Azo.
- 18.
In contrast to Bulgarus, Gosia held that the Roman law texts should be interpreted liberally, that is, according to the demands of equity and the needs of social and commercial life. Bulgarus also recognized the role of equity, which for him pertained to the ‘spirit’ of the law or the intent of the legislator; Gosia, on the other hand, understood equity in the Aristotelian sense, that is as a corrective principle of the law in exceptional cases. Gosia’s followers included Rogerius and Placentinus, who had been students of Bulgarus.
- 19.
The importance of Azo’s Summa Codicis was reflected in the popular saying: ‘Chi non ha Azo, non vada a palazzo’, which means that in some places a man could not be admitted as an advocate unless he possessed a copy of Azo’s Summa.
- 20.
The work comprised about 96,000 glosses.
- 21.
The importance of Accursius’s gloss was manifested in the popular saying: ‘Quod non adgnovit glossa, non adgnoscit curia’, which means that a rule unknown to the Glossa Ordinaria was also not recognized by a court.
- 22.
This is evidenced by the fact that the Glossators added to the Codex constitutions of the German Emperors Frederick Barbarossa and Frederick II.
- 23.
The general attitude of the Glossators was not affected by the fact that their teachings exercised an influence on the statutory law of Italian cities and entered the practice of law through their graduates who were appointed to the royal councils or served as judges in local courts.
- 24.
On the school of the Glossators see O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), 42 ff. P. Vinogradoff, Roman Law in Medieval Europe (Oxford 1929, repr. 2001), 32 ff. J. A. Clarence Smith, Medieval Law Teachers and Writers (Ottawa 1975); R. L. Benson and G. Constable (eds), Renaissance and Renewal in the Twelfth Century (Cambridge Mass. 1982); D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 203–6; P. Stein, Roman Law in European History (Cambridge 1999), 45 ff. E. Cortese, Il rinascimento giuridico medievale (Rome 1992); W. Kunkel and M. Schermaier, Römische Rechtsgeschichte (Cologne 2001), 230 ff. H. Lange, Römisches Recht im Mittelalter,1: Die Glossatoren (Munich 1997); H. Schlosser, Grundzüge der Neueren Privatrechtsgeschichte, Rechtsentwicklungen im europäischen Kontext (Heidelberg 2005), 36–53.
- 25.
The last emperor of this period who was able to maintain a unitary view of the Empire was Frederick II of Swabia (1194–1250). His successors concentrated their efforts on consolidating their rule in Germany rather than on governing the Empire as a universal political entity. The crisis that affected the Church is evidenced by, among other things, the transfer of the papal seat to Avignon, where the Pope remained subject to the control of the French kings for about seventy years (1309–1377).
- 26.
The increased attention to the needs of legal practice is evidenced in the development of the quaestio disputata: from the middle of the thirteenth century onwards, jurists increasingly based their quaestiones on local statute law or even local custom, which were then analysed by means of the methods of the civil law.
- 27.
Cino’s method consisted of several successive stages: (a) the literal rendition of a legislative text (lectio literae); (b) the subdivision of the text into its component provisions (divisio legis); a summary of the content of the text (expositio); examples of practical cases to which the text was relevant (positio casuum); significant observations derived from the law (collectio notabilium); possible counter arguments (oppositiones); and, finally, an exposition of the problems that might arise (quaestiones). By applying this method, Cino sought to subject a legislative enactment to a dialectical process and a systematic analysis that would bring to light the rationale of the relevant law, while being aware that the pursuit of logic could lead to arguments irrelevant to the actual application of the law.
- 28.
In Portugal, his writings were declared to have the force of law in 1446. Moreover, lectures on his work were established at Padua in 1544 and at Ferrara in 1613. The extent of Bartolus’s influence is expressed in the saying: ‘nemo jurista nisi Bartolista’, which means one cannot be a jurist unless one is a follower of Bartolus.
- 29.
His work includes commentaries on the Decretals of Gregory IX and the Libri Feudorum. In this connection, it should be noted that in the time of Baldus there was a closer connection between civil law and canon law. It was customary for a student to engage in the study of both subjects and thus become doctor of both laws (doctor utriusque iuris).
- 30.
The consilium, the advice given by a law professor on a practical problem, evolved as the most important form of legal literature during this period, as judges were often obliged to obtain such advice before delivering their decision. In the consilia problems caused by the interplay between diverse sources of law (local statutes, customs, etc) are tackled through the Roman law jurists’ techniques of interpretation and argumentation.
- 31.
In the words of the German jurist Paul Koschaker, “[the Commentators] drew from the treasures of Roman wisdom and legal technique that could be used at the time and made of it a basic part of the law of their time, thus preparing the unification of Italy in the field of private law; they in addition made of Roman law the substratum of a legal science, which was later to become European legal science.” Europa und das Römische Recht (Munich and Berlin 1953), 93.
- 32.
On the school of the Commentators see O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), 59 ff. P. Stein, Roman Law in European History (Cambridge 1999), 71–74; D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 206–8; F. Wieacker, A History of Private Law in Europe (Oxford 1995), 55 ff. W. Kunkel and M. Schermaier, Römische Rechtsgeschichte (Cologne 2001), 232 ff. N. Horn, “Die Legistische Literatur der Kommentatoren und der Ausbreitung des gelehrten Rechts” in H. Coing (ed.) Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. I: Mittelalter (1100–1500), Die gelehrten Rechte und die Gesetzgebung (Munich 1973), 261–364; G. Wesenberg and G. Wesener, Neuere deutsche Privatrechtsgeschichte (Vienna and Cologne 1985), 28–39; H. Lange and M. Kriechbaum, Römisches Recht im Mittelalter. Band II, Die Kommentatoren (Munich 2007).
- 33.
The jurisdiction of ecclesiastical courts embraced, for example, matrimonial causes and disputes relating to hereditary succession.
- 34.
The Church drew a distinction between two fundamental categories of law: divine and human. Divine law is thought to have its origin in God’s will and is further divided into positive law (embodied in the Bible and in tradition) and natural law (the rules derived from nature, discovered by human reason and applicable equally to all human beings). Human law is divided into canon law, consisting of decretals and canons, and civil law. The earlier collections of Church law were mainly composed of Apostolic and conciliar canons; in the later works, the Papal Decretals comprised the bulk of the material.
- 35.
The principal sources of this work are the Institutes, the Code and, to a greater extent, the Novels of Justinian.
- 36.
The official title of this work (Concordia discordantium canonum) expresses very clearly its purpose: to reconcile apparently conflicting texts so as to form one authoritative whole. This was done with the help of the well-established dialectic method: through arguments per analogiam and a contrario and by devising distinctiones capable of explaining the similarities and differences between the relevant texts.
- 37.
The work is divided into three parts; these, in turn, are subdivided into distinctiones or causae, with the latter again divided into canones.
- 38.
Canonist jurists added an extensive body of glosses and commentaries, which were later synthesized in the glossa perpetua of the canonists Giovanni Teutonico and Bartolomeo da Brescia.
- 39.
In this debate the canonists had one advantage. As F. Tout has observed, “While the civilian’s Empire was a theory, the canonist’s Papacy was a fact. As living head of a living system, the Pope became a constant fountain of new legislation for the canon law, while the civil law remained as it had been in Justinian’s time.” The Empire and the Papacy (London 1921), 220.
- 40.
This was an official collection, in five books, of papal constitutions and decretals, composed by the Spanish Dominican monk Raymond of Peñafort along the lines of Justinian’s compilation. The work was promulgated by the papal bull Rex pacificus on 5 September 1234, and was sent to the Universities of Bologna and Paris to be studied and to be used in the courts.
- 41.
The Liber Sextus was promulgated by the bull Sacrosanctae Romanae Ecclesiae on 3 March 1298.
- 42.
This collection was composed by order of Pope Clement in 1313 and was completed and promulgated (by the bull Quoniam Nulla) under Pope John XXII in 1317.
- 43.
Each body of law retained its distinctive character, content and field of application. Intrinsic to both systems was a claim of universality, a factor that helps to explain their wholesale reception as elements of the common law (ius commune) of Continental Europe.
- 44.
On the development of canon law see O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), 72 ff. P. Stein, Roman Law in European History (Cambridge 1999), 49–52; J. A. Brundage, Medieval Canon Law (London and New York 1995); F. Wieacker, A History of Private Law in Europe (Oxford 1995), 47–54; K. W. Nörr, ‘Die kanonistische Literatur’ in H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. I: Mittelalter (1100–1500), Die gelehrten Rechte und die Gesetzgebung (Munich 1973), 365–382; E. J. H. Schrage, Utrumque Ius. Eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts (Berlin 1992), 90–109.
- 45.
Since international trade was for a long period dominated by such Italian cities as Venice, Florence, Genoa and Pisa, it is unsurprising that most of commercial institutions, if they did not originate in Italy, had their modern development there.
- 46.
The guild was an autonomous corporation with monopolistic powers over a particular trade or craft: only those enrolled (the masters of the crafts, their co-workers and apprentices) could legally practice the trade. Furthermore, it alone had the power to adjudicate commercial disputes among its members. In the course of time guilds became, in many towns, the basic units of the communal government and thus enrolment in a guild was often an important prerequisite to participation in public life.
- 47.
For example, in England, where Roman law was unable to displace the common law, the merchant law was adopted as part of the law of the land because it was better suited to the needs of domestic and international commerce.
- 48.
For a closer look at the development of the Law Merchant see O.F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), 90 ff.; D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 228–30; J. Kirschner (ed.), Business, Banking and Economic Thought in the Late Medieval and Early Modern Europe – Selected studies of Raymond de Roover (Chicago 1974).
- 49.
An important distinction in this area was that between the greater and the lesser right of jurisdiction, depending on whether capital punishment was available as an option or not.
- 50.
‘Tenure’ is derived from the Latin work tenere: to hold.
- 51.
The Norman word for such a breach of faith was ‘felony’. In England the most serious crimes came to be referred to as felonies, because they were considered to involve breaches of the fealty owed by all people to the king as guardian of the peace of the realm.
- 52.
In England after the Norman conquest the local courts came under the control of the kings and thus royal justice was able in a fairly short period of time to supplant feudal justice.
- 53.
The Libri Feudorum was based mainly on imperial legislation in the kingdom of Italy but also embodied other materials, including decisions from various feudal courts.
- 54.
In the later half of the twelfth century, a book attributed to Glanvill appeared in England, which contained the customary feudal law of the realm, with references to the Institutes of Justinian. Nearly half a century after Glanvill, the German Eike von Repgow published an account of feudal law as part of his Sachsenspiegel (1235). Moreover, feudal and common law were often combined, as we can see in the famous Customs of Beauvaisis (a region north of Paris), published by the French jurist Philippe de Beaumanoir in about 1280.
- 55.
On the development of feudal law see O.F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), 26 ff.; D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 199–201; M. Bloch, Feudal Society, 2nd ed. (London 1962); P. Stein, Roman Law in European History (Cambridge 1999), 61–62.
- 56.
The first compilations of city customary law appeared in the second half of the twelfth century in Venice and Bari. These collections were subsequently superseded by statutory enactments, i.e. legislation issued by a local legislative body. An enactment of this kind (statutum) was distinguished from a law of theoretical universal application (lex), which could be promulgated only by the emperor. In principle, a statutum was subordinate and could only supplement but not alter or derogate from a lex. In fact, however, local statutes that were irreconcilable with imperial laws often prevailed in the legal practice of the area or city in which they had been enacted. An important example of legislation issued by a monarch is the Liber Constitutionum Regni Siciliae, also known as Liber Augustalis, a legal code for the Kingdom of Sicily promulgated by Emperor Frederick II in 1231. This code remained the principal body of law in the Southern Kingdom until the eighteenth century. Royal legislation was also enacted in the County (later Duchy) of Savoy, the provinces of Sardinia, the Patriarchate of Aquileia and many other areas. In the domains of the Church, the most important legislative enactment was the Constitutiones Sanctae Matris Ecclesiae, also informally known as Constitutiones Aegidianae, issued in 1357 by Cardinal Gil of Albornoz, the legate to the papal state during Pope’s residence in Avignon.
- 57.
Even in parts of Europe where Roman law was not received in a normative sense, the conceptual structure created by the Glossators and the Commentators was sometimes employed to give a Roman form to indigenous customary rules. Thus, although the ius commune was not adopted in Norway and Hungary, local legislation exhibited a certain Roman influence. For example, the Norwegian Code of 1274 of King Magnus VI, while intended to be a written statement of ancient Viking custom, reflects an influence of Roman-canonical law in its organization and many of its institutions. Similarly, in Hungary the spirit of Roman law exercised an influence on the structure of Hungarian law and the character and development of legal thought. In areas as far off as the Ukraine and Belarus, where there was no reception, doctrines and practices of Roman law were introduced through the influence of Byzantine law.
- 58.
The Ultramontani, as the jurists at Toulouse, Orleans and Montpellier were referred to, employed essentially the same methods and composed the same types of legal work as their Italian colleagues at Bologna. The first professors of these universities were Frenchmen who had studied at Bologna, but later there were some who had received their training in France (such as Jacques de Revigny and Pierre de Belleperche, both of whom taught at Orleans). These later jurists were more interested in legal theory than the Italian Glossators, and adopted a more historical and more liberal approach to the study of the Roman legal sources. Moreover, they made a significant contribution to non-Roman areas of law, such as penal law and international private law.
- 59.
In the course of time, the works of the Parisian advocates formed the basis of an extensive body of jurisprudence that was built upon the comparative study of the diverse local customs – a study that also paid attention to the great tradition of Roman law in France.
- 60.
Domat was the first major academic jurist who challenged the connection between Roman law and its original language, Latin. With respect to the order of the various branches of private law, Domat first treated the general rules of law, then persons, property, obligations and, finally inheritance law. For a closer look at Domat’s work see C. Sarzotti, Jean Domat: Fondamento e metodo della scienza giuridica (Turin 1995).
- 61.
A revised edition of this work was published in 1760.
- 62.
These included his Traité des obligations I et II (1761–1764); Traité du contrat de vente (1762); Traité des retraits (1762); Traité du contrat de constitution de rente (1763); Traité du contrat de louage; (1764); Traité du contrat de société (1764); Traité de cheptels (1765); Traité du contrat de prêt de consomption (1766); Traité du contrat de dépôt et de mandat (1766); Traité du contrat de natissement (1767); Traité du contrat de mariage I et II (1766); Traité du droit de domaine de propriété (1772); and Traité de la possession et de la prescription (1772). Pothier’s works were widely used by jurists and lawyers throughout the eighteenth and nineteenth centuries. An important collection of these works in 11 volumes was published by Dupin in 1824/25.
- 63.
For example, in his treatise on the institution of ownership Pothier shows how, in a feudal system that encompassed several forms of property and related entitlements, the fundamental Roman law concept of property could be employed to overcome, in theory at least, many of the discrepancies of the current system.
- 64.
The Code Civil adopted many of the legal solutions proposed by Pothier, especially in the field of the law of obligations. The drafters of the Code also adopted the systematic structure preferred by Pothier, which goes back to the classical Roman jurist Gaius and was followed by Emperor Justinian: persons; things (including obligations and succession); and actions.
- 65.
The Sachsenspiegel, a work of outstanding quality, achieved great prestige and authority throughout Germany. Modern commentators regard it as the beginning of Germanic legal literature.
- 66.
Both the Mirror of the Germans and the Mirror of the Swabians reflect some influence of Roman law.
- 67.
The Emperor of the Holy Roman Empire was at the same time king of Germany and of Italy.
- 68.
The methods of study and the legal materials used were substantially the same as those employed in Italian universities.
- 69.
German scholars use the phrase ‘Rezeption in complexu’, that is ‘full reception’, to describe this development.
- 70.
Although this approach externally appears to be a continuation of the Bartolist method, under the influence of Legal Humanism (see relevant discussion below) it gave rise to a different doctrine about the sources of law: whereas Roman law continued to be regarded as an important source of law, local law was no longer viewed as an aberration from Roman law but as a further development of Roman law through custom. Thus, the Usus modernus Pandectarum elevated the importance of local law, which now became the subject of systematic scientific study. As far as Roman law is concerned, the term Usus modernus Pandectarum implies that the jurists’ purpose was to apply the Roman legal texts in contemporary legal practice. The representatives of this approach may to some extent have been influenced by the work of the Humanist jurists, but they tended to use the Roman texts ahistorically, as just another source of legal norms. However, there was no general agreement among jurists as to which texts actually applied. It should be noted that the methods of the Usus modernus movement were adopted by many French and Dutch jurists. Leading representatives of this movement include Samuel Stryk (1640–1710), a professor at Frankfurt a.d. Oder, Wittenberg and Halle; Georg Adam Struve (1619–1692); Ulric Huber (1636–1694); Cornelis van Bynkershoek (1673–1743); Arnoldus Vinnius (1588–1657); Gerard Noodt (1647–1725); and Johannes Voet (1647–1713). On the Usus modernus Pandectarum see F. Wieacker, A History of Private Law in Europe (Oxford 1995), 159 ff. D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 225; A. Söllner, “Usus modernus Pandectarum” in H. Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. II: Neuere Zeit (1500–1800), 1. Teilband, Wissenschaft (Munich 1977), 501–516; R. Voppel, Der Einfluß des Naturrechts auf den Usus modernus (Cologne 1996); H. Schlosser, Grundzüge der Neueren Privatrechtsgeschichte, Rechtsentwicklungen im europäischen Kontext (Heidelberg 2005), 76–83.
- 71.
These included Siena, Ferrara and Mantua.
- 72.
As already noted, the local laws were not necessarily in conflict with the universal ones: many laws born out of the need to address situations not provided for by the ius commune were formulated and interpreted in accordance with concepts devised by jurists of the ius commune.
- 73.
The ABGB combined natural law ideas, especially in the fields of the law of persons and family law, with Roman law concepts and principles.
- 74.
The capital of the Visigothic kingdom was Toledo.
- 75.
So numerous were the students from Spain studying at Bologna that in 1346 a special college was set up for them there by the Spanish Cardinal Gil of Albornoz.
- 76.
These sources include the Corpus Iuris of Justinian, the Decretum of Gratian, the Decretales of Gregory IX, and the works of some of the most famous of the Glossators, especially Azo and Accursius on civil law, and Goffredo of Trani and Raymond of Peñafort on canon law.
- 77.
To avoid confusion, in 1427 John II, King of Castile and León, ordained that the courts should not follow, as authorities, the opinions of jurists later that Johannes Andreae (Giovanni d’Andrea) on canon law and Bartolus on Roman law. Later, by a law of 1499, Baldo was also included.
- 78.
The term ‘Roman-Dutch law’ was introduced in the seventeenth century by the jurist Simon van Leeuwen, who used it as a title in his principal work, Roomsch Hollandsch Recht (1664).
- 79.
The greatest product of the Leyden law faculty was Hugo Grotius, author of the famous work De iure belli ac pacis (1625). Grotius also published a work entitled an Introduction to the Jurisprudence of Holland (Inleidinge tot de Hollandsche Rechtsgeleerdheid, 1631), in which he treats the law of Holland as a unique amalgam of Germanic custom and Roman law. Reference should also be made here to Arnold Vinnius (1588–1657), a law professor at Leyden, who established Dutch legal science as a mixture of Roman, customary and natural law elements; Johannes Voet (1647–1714), another Leyden professor, author of the influential Commentarius ad Pandectas, published in two volumes in 1698 and 1704; and Ulrich Huber (1636–1694), a professor at the University of Franeker, whose works De iure civitatis libri tres (1672) and Paelectiones iuris civilis (1678–1690) are built up largely from Roman materials. The widespread influence of the Dutch masters throughout Europe is attested by the large numbers of foreign editions of their principal works in the seventeenth and eighteenth centuries.
- 80.
It should be noted here that unlike the Continental European legal systems, but like the English common law, Roman-Dutch law in South Africa has not been codified. It is thus unsurprising that law courts and commentators have to grapple, even today, with the historical sources of the ius commune and its Dutch variant. Special attention is given to seventeenth and eighteenth century Dutch authorities, such as Grotius, Voet and Vinnius, although other works from the entire body of learned literature from Bartolus to the German Pandectists, and even the sources of Roman law itself, are regularly consulted in areas like property, contract and succession.
- 81.
This code, as preserved, contains ninety brief sections dealing with punishments for various wrongs.
- 82.
This code consisted of seventy-six sections in the form of ‘dooms’ or penal judgments.
- 83.
This compilation, known as ‘The Laws of King Alfred’, contained about 125 sections in all. It draws on earlier Saxon laws as well as on various biblical sources.
- 84.
King Henry II organized the judicial work of the Curia Regis. His judges sat to administer the law on a regular basis, and the practice of sending out itinerant judges, which had been initiated by King Henry I, was re-established and made systematic.
- 85.
A writ was an order by a court in the king’s name directing some act or forbearance. Writs were at first issued only in special cases to meet exceptional circumstances. Something took place that led the king to give a command in writing to a royal official or to some lord who held a franchise court, and this command in writing was a writ. Some of these writs were used to initiate proceedings before a court of law (there were referred to as original writs). The use of such writs appears to have become common by the end of the twelfth century. From that time until the nineteenth century, writs were technical statements of the plaintiff’s complaint. There were different writs for different claims: e.g., the writ of right to recover land; the writ of debt, to recover money owing; and the writ of trespass, to complain of a breach of peace. The clerks of the chancery (the secretarial office of the Crown) kept precedents of the writs they issued, and it was not long before it was recognized that unless a man could bring his complaint within one of the forms of writ recorded in the Register of Writs, he could have no remedy. Since an action could not be brought without a writ, it became established that the only kinds of harm for which one could seek compensation in law were those that could be described within the narrow and unyielding language of some recognized writ. In later times, attempts were made by Parliament to introduce some flexibility to the law by permitting the issue of new forms of writ, but these were only partially successful.
- 86.
See F. de Zulueta (ed), The Liber Pauperum of Vacarius, Publications of the Selden Society 44 (London 1927).
- 87.
Glanvill was at various times Sheriff of Lancashire and of Yorkshire, Justice in Eyre and a general in Henry’s army. In 1180 he became Justiciar of England, or Chief Minister of the Crown.
- 88.
W. S. Holdsworth, Some Makers of English Law (Cambridge 1938), 15.
- 89.
Bracton became a Justice in Eyre in 1245 and, three years later, one of the judges of the Curia Regis. Like many other royal judges of that time, he was an ecclesiastic and at the time of his death in 1268 he was Chancellor of the Exeter Cathedral.
- 90.
As S. E. Thorne observes, “[Bracton] was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind, using them throughout his work, wherever they could be used, to rationalize and reduce to order the results reached in English courts.” See Bracton on the Laws and Customs of England (Cambridge Mass. 1968), 33.
- 91.
The Inns of Court were self-governing legal societies, products of the medieval spirit of corporate organization that had manifested itself in the trade guilds. Much about their origins is unclear, but they probably began as hostels in which those who practiced in the common law courts lived. These hostels gradually evolved a corporate life in which benchers, barristers and students lived together as a self-regulating body. The student members were required to take part in moots, attend lectures and study law under the supervision of their seniors.
- 92.
F. W. Maitland has brilliantly related the story of the sixteenth century pressure of Roman law in England in his English Law and the Renaissance (London 1901).
- 93.
This may be explained by the fact that the principles of the common law constituted at the same time principles of the constitution, and to abolish them entirely would have amounted to a revolution rather than a resettlement.
- 94.
When, in the fourteenth century, the common law courts were separated from the Curia Regis, the judicial power of the monarch and his council was not exhausted. The king continued to receive complaints of wrongdoing and petitions for justice. The king often referred these requests for help to the Chancellor, his chief secretary, who was usually an ecclesiastic. In the course of time, it became customary for petitioners to go directly to the Chancellor, who dealt with cases on a flexible basis: he was more concerned with arriving at a fair result than with the rigid principles of law. As the common law courts became more formalistic and thus more inaccessible, pleas to the Chancellor increased and eventually resulted in the emergence of a special court constituted to deliver ‘equitable’ or ‘fair’ decisions in cases that the common law could not address. In a Statute of 1340 (14 Ed III St 1 c 5) a Court of Chancery was mentioned alongside other courts of the age and, by Tudor times, the Chancellor’s Court was a firmly established institution whose jurisdiction was expanding and its work was increasing. The term ‘equity’ came to denote the part of English law administered by the Court of Chancery, as distinct from that administered by the courts of common law. In the seventeenth century conflict arose between the common-law judges and the Chancellor as to who should prevail. King James I, acting on the advice of Bacon and other experts in the law, resolved the dispute in favour of the Chancellor. Whilst the role of equity remained unchallenged, its application became increasingly regulated through a system of rules and principles based on precedent and gradually developed by a series of Lord Chancellors, all of whom were lawyers as opposed to the ecclesiastics of the earlier era. The Court of Chancery was abolished under the Judicature Acts of 1873–75, which established the High Court of Justice to administer both common law and equity. The Judicature Acts also provided that in cases in which there was a conflict between law and equity, the rules of equity should prevail.
- 95.
The Court of Star Chamber evolved from the king’s Council. In 1487, during the reign of Henry VII, this court was established as a judicial body separate from the Council. The court, as structured under Henry VII, had a mandate to hear petitions of redress. Although initially the court only heard cases on appeal, Henry VIII’s Chancellor Thomas Wolsey and, later, Thomas Cranmer encouraged suitors to appeal to it straight away, and not wait until the case had been heard in the common law courts. In the Court of Star Chamber (as in the Court of Chancery) all questions were decided by the court itself, and the granting or withholding of relief was in the discretion of the court and not regulated by rigid rules of law. The Court of Star Chamber was abolished in 1641, but its better rules were taken over by the King’s Bench and became a permanent part of the law of England.
- 96.
As F. W. Maitland noted, “were we to say that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth.” The Collected Papers of F.W. Maitland (Cambridge 1911), 496.
- 97.
As H. E. Holdsworth has remarked: “We have received Roman law; but we have received it in small homoeopathic doses, at different periods, and as and when required. It has acted as a tonic to our native legal system, and not as a drug or poison. When received it has never been continuously developed on Roman lines. It has been naturalized and assimilated; and with its assistance, our wholly independent system has, like the Roman law itself, been gradually and continuously built up by the development of old and the creation of new rules to meet the needs of a changing civilization and an expanding empire.” A History of English Law, 7th ed. (London 1956–1966), Vol. IV, p. 293.
- 98.
The first Scottish university, the University of St Andrews, was founded in 1413, followed by the University of Glasgow in 1451 and the University of Aberdeen in 1495. However, most Scottish students preferred to resort to universities in Continental Europe, especially in France, Germany and, after the Reformation, the Netherlands.
- 99.
An important factor in this development has been the appellate jurisdiction of the House of Lords.
- 100.
Lorenzo Valla, a fifteenth-century Italian Humanist, criticized the inelegant Latin of the Commentators, arguing that this was proof of their shortcomings as jurists. See P. Stein, Roman Law in European History (Cambridge 1999), 75. Stein relates that the French Humanist Guillaume Budé described the earlier jurists' glosses and commentaries as “a malignant cancer on the texts, which had to be cut away.” Ibid., at 76.
- 101.
The Legal Humanists were responsible for the beginnings of what is known as palingenesia: the reconstruction of legal texts that have been altered by editors after they were first issued. With respect to the works of the classical Roman jurists, palingenesia profited from the fact that every fragment in the Digest is accompanied by an inscriptio containing the name of the original author and the title and part of the work from which the fragment was taken. This made it possible for scholars to separate all the fragments contained in the Digest, sort them by jurist and then, for each jurist, sort them by work and then by book (e.g., Ulpianus, libro octavo decimo ad edictum). This approach was begun by Jacobus Labittus, a sixteenth century Legal Humanist, in his Index legum omnium quae in Pandectis continentur […], published in 1557. In this work Labittus listed: the texts of the Digest according to their authors, the works in which they appeared, and the books of those works from which they were excerpted; other Digest texts which cited that jurist; those jurists who were not themselves excerpted in the Digest but who were referred to by other jurists therein; and finally those texts in the Codex and Novels which mentioned specific jurists. However, he did not try to restore the original order in the works of individual Roman jurists – this was done in the nineteenth century by Lenel, author of the more extensive Palingenesia iuris civilis, I–II (1889). It should be noted here that, as the compilers of Justinian’s Corpus retained only about 5 per cent of the available texts, a complete reconstruction of the original works was impossible. Nevertheless, with respect to those jurists whose works were extensively used, it is possible to gain a good impression of the scope and structure of a particular work.
- 102.
In this connection, reference should be made to the French Humanist Franciscus Connanus (Francois de Connan, 1508–1551), who in his Commentaria iuris civilis libri decem attempted to re-order legal material in a more rational way under the tripartite division of law into persons, things and actions derived from the Institutes. Hugues Doneau (Donellus), a sixteenth century French Humanist, in his Commentarii de iure civili libri viginti octo (Frankfurt 1595–1597), departed from the traditional approach to law that gave priority to actions and procedure and regarded the rights of the individual as being of greater importance than the methods by which these rights could be defended. This new approach is clearly reflected in the structure of his work. Moreover, Donellus separated the law of obligations from the law of property, both originally considered to constitute aspects of the law of things. See P. Garnsey, Thinking about Property: From Antiquity to the Age of Revolution (Cambridge 2007), 202; P. Stein, “Donellus and the origins of the modern civil law”, in J.A. Ankum et al (eds) Mélanges F. Wubbe, (Fribourg 1993), 448–452.
- 103.
Alciatus was born at Alzano near Milan and studied in Pavia under the master Jason de Mayno, a prominent member of the Bartolist school. He taught civil law at Avignon and Bourges, which became the principal centre of Legal Humanism in France. Moreover, he established the so-called ‘School of the Cultured Men’ or ‘Cultured Jurisprudence’ (Scuola dei Culti), which reached its apex with Jacques Cujas in the later sixteenth century.
- 104.
Cujas was born and studied in Toulouse and taught at Cahors, Valence, Paris and Bourges. Probably the greatest of the French Humanists, he applied his immense knowledge of ancient classical literature and social and political history to elucidating the development of Roman law within its general context. His principal interest was directed at textual exegesis and the doctrinal contributions of individual Roman jurists.
- 105.
Donellus studied at Toulouse and Bourges, where he taught until the St. Bartholomew’s massacre of 24th August 1572, when he fled to Heidelberg. In 1579 he went to Leiden, where he taught law until 1587. He is best known for his extensive commentary on the civil law: the Commentariorum de iure civili libri viginti octo.
- 106.
Budaeus was born in Paris and his university education at his home city and at Orléans centered on the study of law and the classics, especially Greek. His work on Roman law Annotationes in XXIV Pandectarum libros (1508) was a milestone in the Humanist challenge on medieval jurisprudence.
- 107.
Zasius was professor at Freiburg and a member of Erasmus’ circle at Basel.
- 108.
Faber was born at Bourg-en-Bresse and served for some years as president of the Court of Savoy. His most important works include the Codex Fabrianus (1606), De erroribus pragmaticorum (1598) and Rationalia in Pandectas (1604–1626).
- 109.
Fabrotus was born in Aix en Provence, where he served as advocate to the local parliament and university professor. He is best known for his translation of the Basilica, published in 1647. He also edited the works of several Byzantine historians and composed a number of antiquarian treatises.
- 110.
Godofredus was born in Geneva, where he was appointed professor of law (1619) and, later, councilor of state. His principal work, on which he laboured for thirty years and which was published after his death (1665), is his edition of the Theodosian Code (Codex Theodosianus cum perpetuis commentariis).
- 111.
Among the leading representatives of this School are Gerard Noodt (1647–1725) and Henrik Brenkman (1681–1736).
- 112.
In Italy the Bartolist method prevailed in legal education throughout the sixteenth and seventeenth centuries. However, this method appears to have lost much of its earlier scientific rigour and was confined mainly to the training of practitioners.
- 113.
On the Humanist movement see P. Stein, Roman Law in European Legal History (Cambridge 1999), 75ff; D. Maffei, Gli inizi dell’umanesimo giuridico (Milan 1956); D. R. Kelley, Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance (New York 1970); O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), ch. 10; M. P. Gilmore, Humanists and Jurists (Cambridge Mass. 1963); F. Wieacker, A History of Private Law in Europe (Oxford 1995), 120 ff. W. Kunkel and M. Schermaier, Römische Rechtsgeschichte (Cologne 2001), 237–8; G. Kisch, Humanismus und Jurisprudenz. Der Kampf zwischen mos italicus und mos gallicus an der Universität Basel (Basel 1955).
- 114.
See relevant discussion in Chap. 2 above.
- 115.
Aquinas was able to draw on recently made translations of the works of Aristotle by Willem van Moerbeke (c. 1215–c. 1286), which had made available works that had not been in circulation until that time.
- 116.
Aquinas answers the question of why human laws are necessary by drawing on Cicero and suggesting that human laws must be necessary to ensure the fulfillment of the divine plan because of humankind’s limited participation in both natural and eternal law.
- 117.
The secularism of the natural law of this era accounts for its relative lack of popularity in Italy, where, especially in the seventeenth century, the cultural environment of the Counter-Reformation tended to stifle new ideas. It is thus unsurprising that the famous Italian scholar Alberico Gentili (1552–1608), regarded as one of the founders of the Natural Law School, came under suspicion for heresy and had to seek refuge in England, where he became regius professor of civil law at the University of Oxford.
- 118.
This work was partly inspired by a desire to devise rules that might lessen the horrors of war, although Grotius sought to formulate a system of law for peacetime as well.
- 119.
De iure belli ac pacis, Prolegomena 11.
- 120.
De iure belli ac pacis, Prolegomena, 6.
- 121.
De iure belli ac pacis, Prolegomena, 8.
- 122.
According to Grotius, one of the rights derived from the law of nature is the right of self-defence. De iure belli ac pacis, 2. 1. 3. Furthermore, a natural right to punish a wrongdoer must be assumed, for otherwise such a right could not be possessed by the state by cession from its subjects. De iure belli ac pacis, 2. 20. 1–2. The law of nature is also the source of validity of various forms of acquisition, and underpins rights emerging through promises and contractual agreements. De iure belli ac pacis, 2. 3. 4 f. and 2. 11. 4.
- 123.
De iure belli ac pacis, Prolegomena, 11–12.
- 124.
De iure belli ac pacis, 1. 1. 10. 1–2.
- 125.
Elementa jurisprudentiae, 2. 4. 4.
- 126.
De officio hominis et civis, 1. 3. 9. 6–9.
- 127.
Pufendorf is best known for his book De iure naturae et gentium (on the Law of Nature and Nations, 1672). His earlier work Elementa iurisprudentiae universalis (Elements of a Universal Jurisprudence, 1660) led to his being appointed to a chair in the Law of Nature and Nations especially created for him at the University of Heidelberg. As E. Wolf remarks, in his work “Pufendorf combines the attitude of a rationalist who describes and systematizes the law in the geometrical manner with that of the historian who rummages through the archives and who explores historical facts and personalities.” Grosse Rechtsdenker der deutschen Geistesgeschichte, 2nd ed. (Tübingen 1944), 298.
- 128.
Other important representatives of the Natural Law School include Gottfried Wilhelm Leibniz (1646–1716) and Jean Domat (1625–1696).
- 129.
On the rise and influence of the School of Natural law see A. P. D’Entreves, Natural Law: An Introduction to Legal Philosophy, 2nd ed. (London 1970); O. F. Robinson, T. D. Fergus and W. M. Gordon, European Legal History (London 1994), ch. 13; F. Wieacker, A History of Private Law in Europe (Oxford 1995), ch. 15; P. Stein, Roman Law in European History (Cambridge 1999), 107–10; D. Tamm, Roman Law and European Legal History (Copenhagen 1997), 231 ff. C. von Kaltenborn, Die Vorläufer des Hugo Grotius auf dem Gebiete des Ius naturae et gentium, sowie der Politik im Reformationszeitalter (Leipzig 1848, reprint Frankfurt 1965); H. Thieme, Das Naturrecht und die europäische Privatrechtsgeschichte, 2nd ed. (Basel 1954); H. Welzel, Naturrecht und materiale Gerechtigkeit, 4th ed. (Göttingen 1962).
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Mousourakis, G. (2015). The Survival and Resurgence of Roman Law in Western Europe. In: Roman Law and the Origins of the Civil Law Tradition. Springer, Cham. https://doi.org/10.1007/978-3-319-12268-7_7
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