Changes in the Perception of Roman Law
The university is regarded as ‘the European institution par excellence’.99 It does not date back to classical antiquity but originated as a manifestation of the great occidental educational revolution towards the end of the twelfth century, first in Bologna, then in Paris, Oxford, and in an everincreasing number of places in western, central, and southern Europe.100 Law in Rome can be described as a jurisprudence without, however, having been an academic discipline taught at the university.
But when in the high middle ages law was caught up in the educational revolution just mentioned, it was Roman law that lent itself like none of the other contemporary laws (with one exception closely linked to Roman law, namely Canon law) to scholastic analysis and hence to the type of scholarship appropriate to a university. 1O1 Roman legal texts therefore immediately occupied the central position in the study of the secular law. That applied to all universities founded on the model of Bologna throughout Europe, and it remained the case down to the era of codification - that is, in Germany until the end of the nineteenth century. Yet the approach towards the Roman texts was subject to considerable change.102 Medieval jurisprudence predominantly regarded these texts as a logically consistent whole, and attempted to demonstrate how apparent divergences could be overcome. That way of proceeding provoked a reaction in the form of the legal humanism of the Renaissance period. The humanist lawyers were concerned, in the first place, to establish what the texts had originally been intended to mean by their ancient authors. That, essentially, marked the beginning of the history of legal history. But since the humanist lawyers took the Roman texts to embody not only a model of justice and fairness for classical antiquity, but also for contemporary society, they were confronted once again with the problem that some sources contradicted others, that there were questions to which they clearly did not provide an answer, and that some of the answers provided were obviously based on outdated ideas. These problems were tackled by the representatives of a school known programmatically as usus modernus pandectarum (modern usage of the Digest). Since they had gone through the humanist enlightenment, unlike the medieval lawyers they no longer regarded the texts of the Corpus iuris civilis as absolutely binding authority: one could generalize and further develop the ideas contained in them, critically examine them, or even declare them abrogated by disuse.103At about the same time, another school of thought gained influence which also acknowledged that Roman law had many shortcomings and often merely hinted in the direction of what was just and fair: this school therefore endeavoured to bring out the fundamental truths hidden in the Roman texts by philosophical analysis: the late scholastic, and subsequently secular, Natural law. In the nineteenth century, legal scholarship in Germany was dominated by Savigny’s Historical School, which, however, also had considerable appeal and influence in other European countries.104 With the Historical School, an approach gained ascendancy that tended to look at Roman law from the point of view of contemporary law and so in a way made the analysis of historical texts once again serve present needs. The interpretation of the texts was largely inspired by the consideration of how they could be applied in modern practice. It was only the advent of the BGB that ultimately freed the ‘Romanists’ (that is, scholars dealing with the sources of Roman law) from the overwhelming weight of that concern and, in the process, converted them from legal doctrinalists into pure legal historians, studying Roman law as a manifestation of classical antiquity.105