Abstract
The civil law tradition is the oldest and most prevalent legal tradition in the world today, embracing the legal systems of Continental Europe, Latin America and those of many African and Asian countries. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. The civil law tradition was the product of the interaction among three principal forces: Roman law, as transmitted through the sixth century codification of Emperor Justinian; Germanic customary law; and the canon law of the Church, which in many respects derived from Roman law, but nevertheless constituted a distinct system. Particularly important in this process was the work of the medieval jurists who systematically studied, interpreted and adapted Roman law to the conditions and needs of their own era. From the fifteenth century onwards, the relationship between the received Roman law, Germanic customary law and canon law was affected in varying degrees by the rise of the nation-state and the increasing consolidation of centralized political administrations. The present chapter traces the common history of European civil law from its beginning in the High Middle Ages to the emergence of national codifications in the eighteenth and nineteenth centuries. A significant part of the work is devoted to the discussion of the historical factors that facilitated the preservation, resurgence and subsequent reception of Roman law as the basis of the ‘common law’ (ius commune) of Continental Europe.
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Notes
- 1.
Some modern Romanist scholars consider Justinian’s age to constitute a distinct phase in the history of Roman law in its own right.
- 2.
According to jurist Gaius, “the rules enacted by a given state for its own members are peculiar to itself and are called civil law.” (G. 1. 1.)
- 3.
The first law school was probably founded in Rome in the late second century and a second such school was later established in Beirut during the third century. As the administrative needs of the Empire grew (especially after Diocletian’s reorganisation of the administration), new law schools were established in places such as Alexandria, Caesaria, Athens and Constantinople in the East; and Carthage and Augustodunum in the West.
- 4.
The term ‘Corpus Iuris Civilis’ did not originate in Justinian’s time; it was introduced in the late sixteenth century by Dionysius Godofredus, author of the first scholarly edition of Justinian’s work, in contradistinction to the codification of the canon law (referred to as Corpus Iuris Canonici).
- 5.
The social conditions and intellectual climate of the Byzantine world required the simplification and popularization of the intricate legal heritage of Justinian’s law books. This inspired the development of a whole new genre of legal literature that included several important legislative works and was designed to adapt the Roman law of Justinian to the prevailing conditions. The most important of these works encompassed: the Ecloga Legum, a collection of extracts from Justinian’s law codes produced by Emperor Leo III the Isaurian and published in 740 AD; the Eisagoge or Epanagoge, a formulation of law from a historical and practical perspective devised as an introduction to a new law code under Emperor Basil I (867–886 AD); the Basilica (basilica nomima), an extensive compilation of legal materials from Greek translations of Justinian’s Corpus in sixty books that was enacted at the beginning of the tenth century by Emperor Leo VI the Wise; the Epitome Legum composed in 913, a legal abridgment based on the legislation of Justinian and various post-Justinianic works; the Synopsis Basilicorum Maior, a collection of excerpts from the above-mentioned Basilica that was published in the late tenth century; and the Hexabiblos, a comprehensive legal manual in six books compiled around 1345 by Constantine Harmenopoulos (a judge in Thessalonica). Some of these works, such as the Hexabiblos, were habitually used throughout the Ottoman period and played an important part in the preservation of the Roman legal tradition in countries formerly within the orbit of the Byzantine civilization.
- 6.
In AD 506, the King of the Visigoths Alaric II promulgated the Lex Romana Visigothorum—hence, it is also known as the Breviary of Alaric (Breviarium Alarici). It contains extracts from the Gregorian, Hermogenian and Theodosian Codes; a number of post-Theodosian constitutions; an abbreviated version of Gaius’ Institutes (Epitome Gai); sections of the Sententiae by Paulus; and a short responsum of Papinianus as a conclusion. Some of the texts are accompanied by interpretations (in the form of paraphrases or explanatory notes) aimed at facilitating their understanding and application. The Lex Romana Visigothorum remained in force in Spain until the seventh century; in Southern France, its application prevailed (even though no longer as an official code) until the twelfth century.
The Lex Romana Burgundionum was composed during the reign of King Gundobad of the Burgundians and was promulgated by his son Sigismund in AD 517 for use by the Roman inhabitants of his kingdom. It is based on the Gregorian, Hermogenian and Theodosian Codes; a shortened version of the Institutes of Gaius; and the Sententiae of Paulus. Unlike the Visigothic Code mentioned above, it does not contain any extracts from the original Roman sources. Instead, the materials are incorporated into a set of newly formulated rules that are systematically arranged and distributed over forty-seven titles.
In the late fifth century, King Theodoric II (AD 453–466), ruler of the Visigothic kingdom of Southern France, enacted the Edictum Theodorici that was applicable to both Romans and Visigoths. It has 154 titles and contains materials distilled from the Sententiae of Paulus; the Gregorian, Hermogenian and Theodosian Codes; and post-Theodosian legislation.
- 7.
The most important Germanic codes embrace the Codex Euricinianus, enacted about 480 by Euric the Visigothic king and drafted with the help of Roman jurists; the Salic Code (Pactus legis Salicae or Lex Salica) of the Franks, composed in the early sixth century; the Lex Ribuaria, promulgated in the late sixth century for the Franks of the lower and middle Rhine region; and the Lex Burgundionum, issued in the early sixth century for the inhabitants of the Burgundian kingdom. Of the above codes, the Visigothic and Burgundian Codes reflect a stronger Roman influence than the Salic and Ripuarian Codes. Other law codes that exhibited a Roman influence include the Lombard Edict (643), the Alammanic Code (c. 720), the Bavarian Code (c. 750), the Frisian Code (c. 750) and the Saxon Code (c. 800).
- 8.
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.
- 9.
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.
- 10.
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.
- 11.
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.
- 12.
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.
- 13.
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.
- 14.
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.
- 15.
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.
- 16.
The summae were similar to the indices composed by the jurists of the law schools in the East during the late Roman imperial era.
- 17.
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).
- 18.
Bulgarusadvocated 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.
- 19.
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.
- 20.
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.
- 21.
See de Zulueta (1927).
- 22.
The work comprised about 96,000 glosses.
- 23.
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.
- 24.
This is evidenced by the fact that the Glossators added to the Codex constitutions of the German Emperors Frederick Barbarossa and Frederick II.
- 25.
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.
- 26.
On the school of the Glossators see Robinson et al. (1994), p. 42 ff; Vinogradoff (1929), p. 32 ff; Clarence Smith (1975), Benson and Constable (1982), Tamm (1997), pp. 203–206; Stein (1999), p. 45 ff; Cortese (1992), Kunkel and Schermaier (2001), p. 230 ff; Lange (1997), Schlosser (2005), pp. 36–53. Consider also Mather (2002), p. 323.
- 27.
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).
- 28.
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.
- 29.
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.
- 30.
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.
- 31.
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).
- 32.
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 interplay between diverse sources of law (local statutes, customs, etc) are tackled through the Roman law jurists’ techniques of interpretation and argumentation.
- 33.
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.
- 34.
- 35.
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 ConstitutionumRegni 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.
- 36.
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.
- 37.
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.
- 38.
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.
- 39.
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 Sarzotti (1995).
- 40.
A revised edition of this work was published in 1760.
- 41.
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.
- 42.
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.
- 43.
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.
- 44.
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.
- 45.
Both the Mirror of the Germans and the Mirror of the Swabians reflect some influence of Roman law.
- 46.
The Emperor of the Holy Roman Empire was at the same time king of Germany and of Italy.
- 47.
The methods of study and the legal materials used were substantially the same as in those employed in Italian universities.
- 48.
German scholars use the phrase ‘Rezeption in complexu’, that is ‘full reception’, to describe this development.
- 49.
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 Wieacker (1995), p. 159 ff; Tamm (1997), p. 225; Söllner (1977), pp. 501–516; Voppel (1996), Schlosser (2005), pp. 76–83.
- 50.
These included Siena, Ferrara and Mantua.
- 51.
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.
- 52.
The ABGB combined natural law ideas, especially in the fields of the law of persons and family law, with Roman law concepts and principles.
- 53.
The capital of the Visigothic kingdom was Toledo.
- 54.
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.
- 55.
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.
- 56.
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.
- 57.
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).
- 58.
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.
- 59.
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.
- 60.
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 Stein (1999), p. 75. Stein relates that the French Humanist Guillaume Budédescribed the earlier jurists’ glosses and commentaries as “a malignant cancer on the texts, which had to be cut away.” Idem., at 76.
- 61.
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 JacobusLabittus, 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.
- 62.
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 Garnsey (2007), p. 202; Stein (1993), pp. 448–452.
- 63.
The centre of the Humanist School was the University of Bourges in France. Among the most important representatives of this school, which included not only jurists but also historians and philologists, were Jacques Cujas (Cuiacius, 1522–1590), Hugues Doneau (Donellus, 1527–1591), Guillaume Bude (Budaeus, 1467–1540), Ulrich Zasius (1461–1535), Antoine Favre (Faber, 1557–1624), Charles Annibal Fabrot (Fabrotus, 1580–1659) and Jacques Godefroy (Godofredus, 1587–1652). From the late seventeenth to the mid-eighteenth century Legal Humanism also flourished in the Netherlands, where it engendered a highly advanced approach to the study of Roman legal sources, referred to as the Dutch Elegant School. Among the leading representatives of this School are Gerard Noodt (1647–1725) and Henrik Brenkman (1681–1736).
- 64.
- 65.
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.
- 66.
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 fulfilment of the divine plan because of humankind’s limited participation in both natural and eternal law.
- 67.
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.
- 68.
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.
- 69.
De iure belli ac pacis, Prolegomena 11.
- 70.
De iure belli ac pacis, Prolegomena, 6.
- 71.
De iure belli ac pacis, Prolegomena, 8.
- 72.
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 ff and 2. 11. 4.
- 73.
De iure belli ac pacis, Prolegomena, 11–12.
- 74.
De iure belli ac pacis, 1. 1. 10. 1–2.
- 75.
Elementa jurisprudentiae, 2. 4. 4.
- 76.
De officio hominis et civis, 1. 3. 9. 6–9.
- 77.
Pufendorf is best known for his book De jure naturae et gentium (on the Law of Nature and Nations, 1672). His earlier work Elementa jurisprudentiae 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.
- 78.
Other important representatives of the Natural Law School include Gottfried Wilhelm Leibniz (1646–1716) and Jean Domat (1625–1696).
- 79.
- 80.
- 81.
See von Mehren and Gordley (1977), p. 54.
- 82.
Thibaut (1814), pp. 1–32; and see: Ueber die Nothwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland (Heidelberg 1814).
- 83.
The rise of the Historical School was one manifestation of the general reaction to the rationalism of the School of Natural Law and the political philosophy associated with the French Revolution and the regime of Napoleon. Savigny officially founded the School in 1815, together with his Berlin colleague Karl Friedrich Eichhorn (1781–1854). They edited the programmatic journal of the School, the Zeitschrift für geschichtliche Rechtswissenschaft—the predecessor of the modern Savigny-Zeitschrift.
- 84.
Savigny was born in Frankfurt am Main and became professor in Marburg University in 1803. After a brief period in Landshut (predecessor of the University of Munich), he became one of the founders of the University of Berlin (1810), where he taught until 1842. Furthermore, he was named Counselor of the state (Staatsrat) in 1829 and held the position of legislative minister in the Prussian cabinet from 1842 to 1848. Notwithstanding his impressive professional career, Savigny’s reputation is mainly derived from his academic achievements and the influence they had on nineteenth century German legal and political thought. The focus of his work was Roman law, as preserved in the codification of Justinian. From 1815 to 1831, he dedicated himself to an extensive and in-depth study of Roman law in the Middle Ages with the view to elucidating the process through which Roman law formed the basis of European legal culture. In his work special attention is given to the contribution of the glossators of the twelfth and thirteenth centuries to the reception of Roman law as the common law of Continental Europe.
- 85.
von Savigny (1814).
- 86.
Leading representatives of the Pandectists were Georg Puchta, Adolf Friedrich Rudorff, Ernst Immanuel Bekker, Alois Brinz, Heinrich Dernburg, Rudolf von Ihering and Bernhard Windscheid.
- 87.
- 88.
See on this Ghisalberti (1979), p. 223.
- 89.
Even after the Congress of Vienna (1815), the French Civil Code remained in effect in German territories on the left bank of River Rhine and also in parts of the Prussian Rhine Province.
- 90.
The Mexican state of Oaxaca promulgated the first Latin American civil code in 1827, following the French Code Civil. Bolivia enacted a civil law code in 1830, also modelled on the French Code. This code remained in force until a new code, based on the Italian Civil Code of 1942, was introduced in 1975. The Chilean Civil Code of 1855 was strongly influenced by the French Civil Code, although its principal drafter, Andrés Bello, was also familiar with the work of the German Historical School. Bello’s Código Civil was adopted by Ecuador (1860), Colombia (1873), Nicaragua (1867), Honduras (1880) and El Salvador (1859), and had an impact on the relevant Venezuelan (1862) and Uruguayan (1868) legislation. The Argentinean Civil Code of 1871 (adopted by Paraguay in 1876) and the Brazilian Civil Code of 1916 (completed by Clóvis Beviláqua in 1899) also reflect the concurrent influence of the Napoleonic Civil Code, French nineteenth century jurisprudence and the German Historical School. See in general Stoetzer (1966) and Guzmán Brito (2000).
- 91.
Although the local population in some of these territories was initially promised that they could retain their French-inspired law, Anglo-American law gradually gained greater importance, largely due to the isolation from legal developments in France, the introduction of numerous English-inspired legal amendments and the transition to English as the language of the courts and the everyday language of the population. This is particularly the case with respect to the US state of Louisiana, where the position of both the French language and French law has become significantly weakened. On the other hand, the legal system of the Canadian province of Québec, where French language continues to be used by the overwhelming majority of the population, has significant legal resources of its own, based on the French legal heritage, which have made it resistant to common-law influence.
- 92.
This group includes Morocco, Algeria and Tunisia in North Africa; Senegal, Togo, Ivory Coast, the Republic of Congo, Cameroon, Guinea, Gabon, Benin and Burkina Faso in West Africa; Mauritania, Mali, Niger, the Central African Republic and Chad in Central Africa; Madagascar and Djibouti in Eastern Africa; as well as the former Belgian colonies of Congo and Rwanda and Burundi. The language of legal education in such countries is French and many members of the local ‘legal elites’ have been trained in France.
- 93.
In combination with Islamic law, French-inspired civil law and jurisprudence remain influential in most North African countries as well as in many Middle Eastern countries.
- 94.
The BGB was drawn upon by the drafters of the Italian Civil Code of 1942.
- 95.
The Greek Civil Code of 1940, which came into effect in 1946, was shaped substantially according to the German model.
- 96.
The drafters of the Portuguese Civil Code of 1967 closely followed the system of the BGB, although individual provisions also reflect French and Italian legal influences.
- 97.
- 98.
The Korean Civil Code, enacted in 1960, was drafted by jurists who had studied at universities in Japan and Germany. See Cho (1980).
- 99.
German legal science and the various forerunners of the German Civil Code (e.g. the Dresden Draft and the Saxon Civil Code), as well as the BGB itself exerted a strong influence on Chinese jurists. This influence is reflected in the Civil Code of 1930, parts of which are still applicable in Taiwan.
- 100.
Many of the ideas of the German Civil Code found their way into Austrian civil law via the so-called Third Partial Amendment, concerning largely the law of obligations, which came into effect in 1916.
- 101.
Even the first codifications of the civil law in the Soviet Union in the 1920s exhibit similarities to the German Civil Code. Both via Soviet Union and directly, German jurisprudence influenced the legal systems in formerly socialist countries in Central and Eastern Europe. German legal science had a particularly strong influence in the Baltic states of Lithuania, Latvia and Estonia, where a system of private law written by F. von Bunge, a professor at the University of Dorpat in Estonia, in the late nineteenth century was adopted by the independent states in 1918. In the period following WWII, the civil law influence in Central and Eastern Europe subsided when socialist countries adopted new civil codes. Although these codes embodied several traditional civil law features, the fundamentally different public law plus significant private law reforms caused most contemporary comparative law scholars to classify the relevant legal systems as part of a new, socialist, legal family. With the demise of the socialist regimes, however, Central and East European nations are once again showing strong affinities to the civil law family.
- 102.
In 1926, the Swiss Civil Code was adopted, almost word for word, as the Civil Code of the newly formed Republic of Turkey.
- 103.
The private law of Scotland still reflects a Roman law influence, although contract law, under the influence of the House of Lords jurisprudence, has borrowed much from English law. It should be noted that in Scotland, just like in South Africa, Roman-based civil law survived in uncodified form.
- 104.
Zweigert and Kötz (1987), p. 74. Civil law is also one of the many elements in the legal systems of Israel and Lebanon.
- 105.
An Introduction to Comparative Law, 2nd ed., (Oxford 1987), 68 ff.
- 106.
- 107.
In common law the difference between private and public law is traditionally regarded as a matter pertaining to the type of remedies available when one of the parties to a dispute is a public body. In other words, the common law is seen as indivisible in the sense that it applies to both the government and the individual citizen, and the same courts deal with matters of both private and public law. The idea of a separate system of public law was developed in England in the latter half of the twentieth century and is associated with the development of the action for judicial review, which is the method for challenging the decisions of public bodies.
- 108.
It should be noted in this connection that in civil law systems the term ‘civil law’ is also used to denote the substantive body of private law in contradistinction to commercial law, which is not regulated by a civil code. Commercial law is treated as a distinct body of law that is usually contained in a separate code and administered by a separate court system. It governs, among other things, companies, partnerships, negotiable instruments, trademarks, patents and bankruptcy. In common law systems, on the other hand, no distinction is drawn between civil law and commercial law, the latter being defined in English law as that part of the civil (as opposed to criminal) law that is concerned with rights and duties arising from the supply of goods and services in the way of trade.
- 109.
In the common law system, on the other hand, legal development focused on remedies rather than rights, on forms of action rather than causes of action. As often said, it was with writs and not with rights that the older English law was concerned. The difference is mainly one of emphasis, but it has the important practical consequence that the agent who controls the grant of remedies also controls the development of the law, for by creating new forms of action or extending existing forms to deal with new facts that agent could in fact create new rights. And see Chap. 9 below.
- 110.
See Stein (1992), pp. 1598–1599.
- 111.
The adversarial system of legal procedure is a system in which the truth emerges through a formal contest between the parties, while the judge acts as an impartial umpire.
- 112.
Consider on this Langbein (1985), p. 823.
- 113.
Damaska (1975), p. 480.
- 114.
By contrast, in common law what is authoritative is what is decided. Law, in this system, is seen as open-ended in the sense that new extensions to existing rules can be revealed at any time by the courts. The common law lawyer adopts as his or her starting-point the examination of facts with a view to identifying the precise legal issue raised by the case and the legal rules that should be applied. He or she does not view law as a set of given rules that can be applied with inexorable logic. When a common law lawyer queries the nature of a case he or she contemplates facts with a view to identifying the material circumstances of the case and showing that these fall within the scope of one rule rather than another. By contrast, when a civil law lawyer explores the nature of a case, he or she refers to the legal issues defined in a general and abstract way. See Stein (1992), pp. 1596–1597.
- 115.
Gonthier (1993), p. 323.
- 116.
As P. G. Stein remarks, “Traditionally the civil-law judge is a fungible person, one of a group of anonymous, almost colorless, individuals who hide their personality behind the collegiate responsibility of their court. Their duty is to apply the written law, and the meaning of that law is to be discovered from the writings of its academic exponents.” “Roman Law, Common Law, and Civil Law”, (1992) 66 Tulane Law Review, 1591, 1597.
- 117.
See Dawson (1968), p. 231.
- 118.
As J. H. Merryman remarks, if the Common law is the law of the judges, the Civil law is the ofthe law professors. The Civil Law Tradition, An Introduction to the Legal Systems of Western Europe andLatin America (Stanford, Calif., 1969), 59–60. On the differences between the civil law and common law models of legal education see Merryman (1975), p. 859.
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Mousourakis, G. (2019). Roman Law, Medieval Legal Science and the Rise of the Civil Law Tradition. In: Comparative Law and Legal Traditions. Springer, Cham. https://doi.org/10.1007/978-3-030-28281-3_8
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