INTRODUCTION

Most of the world’s legal systems fall into one of two families. Some, largely those of countries formerly part of the British Empire, are based on English law. Examples include (most of) the United States, (most of) Canada, Australia, New Zealand and so forth.

The other major family oflegal systems is the “Civil Law” family, made up of systems based on Roman law. Broadly speaking, this family comprises the Continental jurisdictions (including some, such as Germany, covering areas that did not form part of the Roman Empire) and their former colonies, such as the countries of South America.

There is also an intermediate group of legal systems, called the “mixed systems”, containing elements of both. Typically, these have received Roman law, but then have come under Common Law influence. Thus, of this group, South Africa and Sri Lanka were both Dutch possessions before becoming part of the British Empire. Likewise, Louisiana was a French, then Spanish, colony before becoming one of the United States. Quebec was a French colony before becoming part of the British Empire. Scotland also falls into this group, having received Roman law before coming under English influence following the Union of 1707.

It will be seen that those countries that received Roman law during the medieval period were not necessarily those that formed part of the Roman Empire.

GLOSSATORS

For the most part, direct knowledge of Roman sources disappeared from Western Europe following the fall of the Western Empire. There was naturally some survival, for conquerors normally left intact the laws of the peoples they conquered. Thus those left behind by the retreat of Rome from the west continued to be governed by a form of Roman law. Of the Justinianic sources, parts of the Codex and the Novels were still in use, and the Institutes continued to be known. The survival ofJustinianic works was, however, often in the form of later summaries or with later modifications. There was thus some continuity in legal practice following the fall of the Western Empire. The largest part of the Corpus Iuris Civilis, the Digest, was not however known.

There was certainly teaching of law, and teaching of Roman law, during this period. But such work is overshadowed by the emergence of a movement of scholars collectively known as “Glossators”. The Glossators, beginning with Irnerius, a grammarian at Bologna in the eleventh century, began to study the Roman texts. This was part of a general renaissance in culture and commerce as Europe emerged from the Dark Ages. Urbanisa­tion and developments in trade demanded greater legal sophistication, for which the written Roman law was a natural candidate. The stimulus for this development must have been the search for legal authorities for use in practice. It may be said, though, that the story that Irnerius turned to the study of Roman law in search of material for his researches as a grammar­ian suggests that his interests were academic rather than practical. This is not to say, though, that the Glossators were wholly uninterested in practical matters. Irnerius himself is known to have acted in a judicial capacity.

In any case, what made this revival possible was the rediscovery of the full text of the Digest in the late eleventh century.

The Glossators produced various forms of literature. However, their characteristic approach was the addition to the text of marginal “glosses” (from which the Glossators take their name). The purpose of these glosses was to explain difficult points and cross-refer to other texts dealing with similar subject matter. They believed Justinian’s claim that no contradic­tions were to be found in the texts, and devoted much energy to explaining apparent contradictions. Roman sources were updated and adapted to meet contemporary needs. Thus, what emerges from the Glossators’ hands is not the law as understood in Justinian’s day, and still less the classical Roman law.

The culmination of the Glossators’ work was the Accursian Gloss, or Glossa Ordinaria (Standard Gloss), compiled by Accursius in the mid­thirteenth century. This was a compilation of almost 97,000 glosses on the texts of the Corpus Iuris Civilis. It was quickly accepted as the standard com­mentary on the Roman texts, both for the practice of the law and as a basis for further development. It did, though, represent the limit to which the Glossators’ approach could fruitfully be taken.