2. Custom and Law
Twelfth-century eface=Arial>fforts to extract from Justinian a coherent lesson on the locus of legislative power exhibit this time and again, with especial clarity in relation to how popular custom related to imperial law.
A title in the Code devoted to ‘What long-established custom is’26 contains an excerpt from a constitution issued by Constantine the Great establishing that, although the force of long-observed custom and usage is not negligible, it can never overcome law or reason.27 Constantine’s words chimed with statements such as Ulpian’s declaration in D. 1.4.1 that what pleased the prince had the force oflaw, and against Julian’s assertion in D. 1.3.32.2 of a popular capacity to abrogate law by custom.28 The solution which would command broad assent was provided by another pupil of Irnerius, Bulgarus, around the middle of the twelfth century. A custom observed by the entire Roman people abrogated a contrary law. A custom observed by a smaller community did not, but it was to be preferred in that locality without formally abrogating the contrary law, as long as the people of that community were aware of the existence of that law.29 The specific derogated from the general, in other words. Where a people was ignorant that in its behaviour it was contradicting a law, no custom could arise and take the place of the law because error impedes consent, a necessary component of will (voluntas), without which law is nothing.30 This resolution of the difficulty of clashing texts in the Corpus iuris civilis might appear to attribute to the entire Roman people a power to legislate superior to that of the emperor, and it is possible that this was Bulgarus’ intention. However, Bulgarus’ solution did not lead inevitably in this direction, because a generation later Johannes Bassianus, as reported by his pupil Azo, defined a universal custom as a custom observed by the Roman people or the emperor.31 According to a further, anonymous, report, Bassianus’ argument contained an additional element: custom overcame law unless the law concerned had been promulgated after the people committed its imperium to the emperor.32 Bassianus appears to have transmitted two differing accounts to posterity, in one of which Irnerius’ solution lived on. Bassianus’ slightly older contemporary Albericus even specified that such a general custom was the custom of the emperor, who now took the place of the Roman people.33 As this summary shows, in the twelfth-century theory of custom the fragment of Julian in D. 1.3.32 was interpreted as a commentary on the relations between the Roman people and the Roman emperor.An opposing theory interpreted the passage as a reference to what happened at the level of cities within the Roman empire. Placentinus, who died in 1192, followed Irnerius in maintaining that the Roman people had transferred its legislative powers to the emperor by the lex regia and could no longer abrogate imperial law by forming a contrary custom.34 His own solution to the conundrum was that the word ‘law’ (lex) in Julianus’ dictum should be interpreted widely to mean custom as well as written law. For him, then, the passage meant that the people could by a new custom abrogate a preceding custom but not a written law, which was now the exclusive domain of the prince thanks to the lex regia.35 It is noteworthy that this and Bulgarus’ theory of locally specific custom allowed for the existence of peoples within the Roman people, which is already suggestive and was to become extremely important later on. For the moment it is important merely to register that the peoples concerned were all conceived as being within the Roman people, which therefore remained the all-encompassing unit presupposed by all contributors to these debates about custom and law. The reminder is salutary because scholars have occasionally interpreted early, seemingly definitive, statements by the glossators in a contrary sense. In the second volume of A History of Mediaeval Political Theory in the West, a book which still offers the most richly-illustrated English-language account of pre-fourteenthcentury law-based political theory, the Carlyles quoted a fragment ‘On equity’ (De aequitate), inaccurately attributed to Irnerius, and a further authentic gloss by Irnerius to D.
1.3.1 as evidence that for Irnerius, a people was a corporation or universitas, in which capacity it commanded and legislated. They read these sources as expositions of a principle about ‘the natural relation between a society and its members’, a general principle which was then applied to the Roman people in the earliest surviving full-length work on Justinian’s Code, the Summa Trecensis.36 The Summa Trecensis, written a generation or so after Irnerius, does indeed focus entirely on the Roman people and the Roman emperor.37 The first of these two opinions is not by Irnerius but emanates from the school of Martinus a generation later; the second is still thought to be Irnerian in inspiration. Misattributions apart, this entire manner of presenting the twelfth-century evidence is misleading. Neither passage mentions the people of a given city, still less the people of any imaginable city, as if it were already a general principle that the corporation of a city was its people and the legislative capacity in any civitas lodged in the people or its representative. In fact, the two opinions should be taken as referring to the Roman people and the Roman city, as the Summa Trecensis specifies. As Ulrich Meier observes in implicit correction of the Carlyles, to the glossators ‘people’ meant ‘Roman people’.38In the most theoretically challenging and politically tense scenario of a general custom of the entire Roman people abrogating a law passed by the emperor, the consent established by D. 1.3.32 as one of the poles of discussion tended to mutate from popular to imperial consent. This occurs in Johannes Bassianus’ gloss to the effect that a general custom was as much the custom of the emperor as of the people, and Albericus’ suggestion would fit very snugly with this. Crucially, however, for the shape of jurisprudence for generations and indeed centuries to come, Accursius embraced this solution which, enshrined in his Glossa ordinaria, became a central concept in jurisprudence.
In his gloss to D. 1.3.32 and the claim made there that the only difference between laws and customs is their form — since the binding power of both arose from the consent of the people - he briefly referred to Irnerius’ solution based on the lex regia, a solution which he also associated with Placentinus. But Accursius himself saw the solution in Bassianus’ and Azo’s distinction between general custom and the custom of a specific locality. Accursius explained the capacity of general custom to overcome law by reference to the emperor, who was deemed to have full knowledge of such a custom and therefore by not explicitly annulling it to ratify it implicitly. Whenever we seem to be spectators at a debate about disembodied, universal principles of political jurisprudence, as unspecified peoples take control of their destiny by exercising their respective collective wills, the glossators quickly reveal that they have only the Roman people in mind, and, behind the Roman people, the shadow of the emperor.3.