THE FALL AND RISE OF ROMAN LAW
Roman Law and the Dark Ages
Justinian’s Corpus Iuris Civilis was created in the second quarter of the sixth century:
the 12 books of the Codex in 529/534, the 50 books of the Digest in 533, the Institutes
in 533, and the Novels in 556.
Already by this time the Western Roman Empire had fallen, and the sophisticated
legal thinking of the third century had been replaced by a simplified ‘vulgar’ form of
law. Already by the end of the fifth century written ‘codes’ had begun to appear, eg:
The Visigothic Code of Euric (479) and the Breviary of Alaric (506)
The Burgundian Law (501)
The Law of the Salian Franks (507-511)
All these are in Latin; the earliest vernacular text is the English Laws of Ethelbert
(c600), described by Bede as following the example of Rome. Later texts of different
groups follow, most importantly the Lombard laws from 643-755. Some of these
(most clearly the Visigothic laws and probably the Lombard laws) were used in
practice; some may well have been little more than symbolic indicia of kingship.
In some of these texts, but only some, we can see evidence of continuation of Roman
rules; but crucially there was no continuation of Roman legal science.
Law was not seen (primarily) as territorial, but as personal – showing perhaps the
centrality of the law relating to the family and to inheritance. Consequently Roman
law, whatever that meant, retained some relevance for those who would have defined
themselves as Romans; charters therefore contain evidence of “Roman law”, but
without much of substance.
Justinian’s compilation could have brought about a classical legal revival in the
Eastern Empire, centred on Constantinople. What look to be mid-C6 lectures based on
the Institutes, by Theophilus, survive, and we know there was a substantial course on
the Digest given by Stephanus and one on the Code by Thaleleus. Serious work was
still being done in the early C7, but it died out soon after that. Legal writing continued
after that, but the Ecloga (741) testify to a lowering of legal quality. There was
something of a revival in the C9: an expansion of the Ecloga into the Procheiros
Nomos, and a reworking of the Greek versions of Digest and Code into the Basilica.
But again the revival seems to have been short-lived.
The Rediscovery of Roman Law in the West
Knowledge of Roman Law did not completely die out in the west, at least not in Italy.
There may have some knowledge of the Theodosian Code, if we can go by surviving
manuscripts ascribed to the ninth century. However, we can be sure of only one part
of the Corpus Iuris being known after the seventh century, the Novels, and that only
in an abbreviated form known as the Epitome Juliani. The continued use of this is
probably attributed to its relevance to the Church.
The rest of the Corpus Iuris did not completely disappear, but we have only the tiniest
evidence that anyone took notice of it before the eleventh century: occasional
references to the Institutes and Code in letters (in an ecclesiastical context) in the late
ninth century, a fragment of the end of the Institutes and the beginning of the Digest
(clearly originally part of a larger whole) dating from the late eighth or early ninth
century.
The traditional history has it that the Institutes and the first nine books of the Code
were (just) known in Italy, but that it was the rediscovery of the Digest towards the
end of the eleventh century, and its study in Bologna and elsewhere, that really
brought about the revival of Roman legal learning. This probably overestimates the
extent to which the Institutes and Code were known before the eleventh century, but
rightly puts the Digest into the foreground.
A more modern version (Radding and Ciaralli, The Corpus Iuris Civilis in the Middle
Ages) adds detail to the picture, and may be putting forward a significant variation to
it. They argue that the real revival of Roman law thinking began just after 1000,
perhaps around Rome and the area just to the south. From this time we have a
summary of the chapter headings of the Codex (the Summa Perusina), our first
complete manuscript of the Institutes, and the Collectio Gaudenziana (a collection of
texts culled from, amongst other places, the Institutes and the Codex). This was also
the period of the growth of serious study of Lombard law. An early manuscript,
entitled Quaestiones ac Monitae, brings together Lombard and Frankish law with
some extracts from Roman law, and in the third quarter of the eleventh century there
are two substantial collections of glosses on the Lombard laws themselves, the
Expositio to the Liber Papiensis and the so-called Walcausina. From these latter texts
it is possible to pick out an early stratum of glosses, probably from the second quarter
of the century, in which detailed Roman law (from the Institutes) is cited to elucidate
Lombard law: according to Willelmus, Roman law is a/the general law for all, lex
omnium generalis. The later stratum of glosses, from the third quarter of the century,
has more Roman references, including two to the Digest.
The early history of the revival of interest in the Codex again suggests a practical
context. It circulated first as an Epitome, plucking out constitutions which were
probably thought to be practically useful; there was a separate text, seemingly, of
constitutions which had been omitted from the Epitome, and the full Codex was then
reconstituted by amalgamating these two texts.
A small number of glosses in the Florentine manuscript of the Digest are generally
treated as dating from the early years of the eleventh century, evidence that the text
was known at this time. By the end of the eleventh century we have our first evidence
that the Digest was being recopied, in a version derived from the Florentine but
distinct from it (the so-called Codex Secundus); and from 1076 we have a report of a
case from Marturi in Tuscany where the Digest was explicitly cited by one Pepo legis
doctor.
Irnerius and the Glossators
From the beginning of the twelfth century we have evidence that Roman law was
being studied and taught at Bologna. The first serious teacher was Irnerius (though
there is a tradition that Pepo taught here too). His primary method was the gloss,
explaining what the text said. This method was taken up by the next generation of
teachers, the “four doctors” Bulgarus, Martinus, Jacobus and Hugo, and legal
education spread eg to Montpellier and Oxford. The work of this school, the
glossators, came to a head with the glossa ordinaria of Accursius, c1240.
Although we think of the gloss as the primary form of literature produced by the
glossators, it was not the only form. As well as this we find, for example, lectures on
particular topics, summae (abridged versions of certain texts; especially important was
the Summa Codicis of Azo), discussions of hypothetical cases and disputable
questions, and collections of brocards or maxims.
The aim of the glossators was to harmonise all the texts of the Corpus Iuris; they used
the techniques of dialectic to show how all the pieces fitted together. One of the “four
doctors”, Martinus (Martinus Gosia) took a rather individual line, stressing the
importance of aequitas (“equity”) in the interpretation of texts. This was probably
more influential outside Italy, but was to have a very long future ahead of it.
ROMAN LAW AND LEGAL PRACTICE
Canon Law
The Catholic Church had long been legislating for itself and its members; in a world
where law was personal rather than territorial this would not have seemed in any way
special.
The first major collection of this legislation was the Decretum of Bishop Burchard of
Worms (c1010). Other collections were brought together in the second half of the
eleventh century, in the context of the move for church reform of that period. Most
important of these was the Decretum of Ivo of Chartres (c1100), together with its
abbreviated form, the Panormia. Ivo’s Decretum consists largely of church
legislation, but intersperses this with some Roman law texts, including texts from the
Digest (including D.9.2.52.2, in his title On Homicide). This was superseded c1140
by the Decretum of Gratian, the Concordantia Discordantium Canonum, which
attempted not only to state the rules but also to use dialectic methods to reconcile the
apparent conflicts between them. This was used as a text from which to teach,
probably from very soon after its compilation. Gratian’s Decretum was supplemented
by decretals, collected together by Gregory IX in the Liber Extra (1234), followed by
the Liber Sextus (1298), the Clementines (1317) and the Extravagantes of John XXII
(1325). Together these came to constitute the Corpus Iuris Canonici, which grew its
own standard gloss parallel to that of the Corpus Iuris Civilis. Alongside this there
began to appear collections of decisions of the Rota.
Canon law was of obvious practical importance. Although there were local variants
stemming from provincial synods (the English tort of defamation, for example, can be
traced back to ecclesiastical legislation passed at Oxford in 1222), the existence of an
accepted body of legislation, a single final appellate court on which there sat
representatives from all around Christendom, and reports of cases meant that the
Canon law of the later Middle Ages held together as a unitary system of law right
across western Europe.
Particularly significant was canonist legal procedure, derived from Roman law and
hence known as Romano-canonical procedure, since this came to be adopted as the
procedure in superior courts across continental Europe. It was a written procedure, in
which the plaintiff had from the start to state the legal basis of the claim; contrast
English law, where the plaintiff stated what remedy he wanted. The procedure
developed through the twelfth century; it led to the production of a centrally important
manual, the Speculum Judiciale of Durandus (1271). Simpler guides existed, such as
the fourteenth-century Action between the Devil and Christ.
Secular Law in Practice: Ius Commune and Ius Proprium
If we call the law as taught in the universities the ius commune, we need to look at its
relationship with ius proprium, the law of any particular place. This is very complex.
Compare:
North Italy, eg Pisa: “Roman law is the law of our city.” Strong evidence
of influence of Martinus in drafting the written law.
Spain: influence of Roman law via Visigothic law into local fueros and the
Siete Partidas of Alfonso X (c1260).
Germany: infiltration of Roman rules, a “pre-Reception”.
England: infiltration of Roman rules, an “inoculation”:
The Assize of Novel Disseisin and possessory interdicts
Crystallisation of feudal rules along lines of Libri Feudorum
Use of Roman law in Glanvill (c1187) to describe contract law
Heavy use of Roman law in Bracton
Division of writ of detinue in terms of property and obligation
in C14
The Ius Commune
From the late 12th century onwards we begin to find the language of ius commune or
lex communis being used, seemingly at very much the same time in England as in
Italy. This means simply ‘common law’, and can at this time only be understood in
terms of a contrast with ‘particular law’, ius proprium (see P Glenn, On Common
Laws). By the 1200s therefore, in Italy, we may see the idea at work that there was a
body of law which was in some sense common to all. This came to be reflected in the
constitutions of city states:
Novara 1277: a judge should judge according to the form of the statute where
there are statutes, and in the absence of statutes according to Roman law.
Modena 1327: a judge should act according to the words which are contained
in the statutes of Modena, and where there are no statutes according to iura
and leges (ie Roman law).
Roman law, as described in the works of the glossators, was a subsidiary source in
these places. More generally, it has been described as a ‘stable point of reference’
(Bellomo, The Common Legal Past of Europe (English translation of L’Europa del
Diritto Commune)).
In the 14th century we see a number of related developments:
o The ius commune became more complex. Instead of looking to Roman law as
explained by the glossators, this medieval Roman law came to be linked with
Canon law. This is very visible in the works of the great commentators,
Bartolus and Baldus. Hence, as just one example, we find steps towards a
general remedy for breach of contract by ‘double pact’, something that was
wholly absent from Roman law.
A bare agreement was regarded as binding by Canon law and was
therefore binding in conscience.
An agreement to do what you were already bound to do was
actionable in Roman law.
Hence an agreement to do what you had agreed to do was binding.
o Professors began to play a greater role in legal practice, especially by giving
consilia. Baldus in particular was famed for this, and the practice became
very widespread in the 15th century. Through this the ius commune fed more
and more into legal practice as a tool of positive law. Even outside Italy,
where the consilia were of practical importance, these practical writings
wielded considerable influence.
o Bartolus developed a theory of statutory interpretation which involved
narrow and literalist readings of legislation and arguing that it should be
interpreted so far as possible consistently with the ius commune. This
decreased the practical scope of legislation, giving greater weight to the ius
commune.
o Custom came to be controlled by the ius commune.
The place of custom was problematical in the time of the glossators. Some texts treat
it as something that would be applied before Roman law (statute – custom – Roman
law) while others treat it as something that would be applied only if neither statute nor
Roman law provided a solution (statute – Roman law – custom). However, the Digest
had its own rules about what customs should be regarded as valid, essentially
requiring that they should be evidenced and should be reasonable. One text suggested
that there should have been past practice evidenced by two decisions of courts –
probably the origin of what we think of as the doctrine of precedent. In France we
find juries – turbes – certifying local customs. But in so far as the ius commune
regulated the application of customs, customary law can be said to have been
jurisprudentialised. Where Roman law or the ius commune was less strong, as in the
German territories, customary courts – the schöffen – were more dominant, not merely
identifying customs but deciding cases in the light of them.
A further feature which strengthened the ius commune in practice, especially in Italy,
was the way in which the commentators’s writings might become authoritative. The
important feature here, by the end of the 14th century, was the idea that where there
was a generally held view of the law – a communis opinio doctorum – it ought to be
followed in legal practice, whether in a consilium or in a judgment. The professor
giving advice might be expected to do so, and judges were inclined to do so as a way
of protecting themselves from liability for giving a false judgment.
The idea of the ius commune and its relation to iura propria is very complex. Our
present understanding derives largely from the work of Calasso in the 1950s, an
analysis in which Italian law takes centre stage. How much wider than this was it in
the Middle Ages?
Alongside it there lies the whole idea of European legal history. The important
starting point for this was Paul Koschaker’s Europa und das römische Recht (1947),
seeing Roman law as the uniting force which held together Europe as a political and
intellectual entity. It raises the fundamental question whether the ius commune was at
this (or any) time a force which knitted together Europe. And, if it did, what was
Europe?