Revival and Reception

There was, then, some continuity in legal practice after the fall of the Western Empire, although its extent is not always clear. Certainly it varied from place to place in Western Europe, but everywhere it was patchy and partial.

(1) Glossators

Compared with what had come before, the centuries following the fall of the West­ern Empire had been a Dark Age. Where there had been (relative) order, there was political instability. Economic activity declined, so people were poorer, and literacy levels were lower. An additional point that must be made, because it is contrary to modern assumptions, and that is the general absence at this time of national legal systems. In the modern world, we tend to assume that each nation or state will have its own unified legal system. This assumption is not fully justified even in the mod­ern world, but certainly in the Middle Ages such a thing as a national legal system is not generally to be looked for. Instead, there was a greater role to be played by the customary rules of a locality than we would nowadays expect. A national legal system takes time to develop, and that could only happen once the political situa­tion began to stabilise. This began to happen after the turn of the first millennium, and there can be identified an eleventh-century renaissance.

It was in this setting that the study of Roman law was revived in Bologna, in the late eleventh and early twelfth centuries. Credit for this is traditionally given to a grammarian called Irnerius, who turned to the Corpus luris Civilis in search of material for his linguistic studies.

This was only made possible by the rediscovery in the eleventh century of the full text of the Corpus luris Civilis, which had previously been lost. Earlier medieval lawyers, as we have seen, only had access to abridgements and sum­maries of Roman legal materials. There were, however, other factors that were friendly to this revival of the study of Roman law. One was the disputes of the day between the Church and secular authorities over the right to appoint bishops and abbots (the ‘Investiture Contest'), which led to people on both sides search­ing the Roman sources — authoritative because of their antiquity — for texts to support their respective positions. More generally, there was in this period an increase in commerce, which is always likely to give rise to legal disputes. Most important, however, was the simple fact that the contents of the Corpus luris Civilis were superior to anything else that was available. The Corpus luris Civilis· was a treasury of texts that could be used — or adapted to use — in almost any legal dis­pute that could be imagined, and it had simply fallen into the hands of lawyers. It was inevitable that they would make use of such a gift.

The first task was to make the texts usable. The Corpus luris Civilis·, and espe­cially the Digest, is a very large, ill-arranged collection, which was very difficult to use even at the time of its compilation. This was the work of the first major group of medieval scholars of Roman law. They were known as the Glossators, because their characteristic form of literature was the gloss, a marginal or interlinear note explaining a word, phrase or longer passage, including cross-references to other texts dealing with the same or similar issues. This was rather like a modern

annotated statute. The term ‘gloss' can also be used for a collection (apparatus) of individual glosses, and the most famous of these was a mid-thirteenth-century collection compiled by Accursius, and known variously as the Great Gloss, Glossa Ordinaria or Accursian Gloss.

The Glossators did produce other forms of literature as well, though. For example, the Summa Codicis of Azo (died 1220) was a comprehensive commentary in the order of the Codex. This was so widely used by practitioners that it was said ‘nobody can go to court without Azo'. In addition, the Glossators taught, first at Bologna but later also at the other law schools that were founded in this period, especially in Italy. Their typical approach to teaching reflected their typi­cal approach to writing. They would go through the texts in order, explaining each in turn and referring to other passages dealing with the same issue, and resolving apparent conflicts in the texts.

It should not be thought, though, that the Glossators were simply academ­ics, isolated from practical issues. On the contrary, many prominent Glossators were active in legal practice and administration, and they undoubtedly used the new legal learning in those activities. Their great contribution was to make the Roman texts manageable. At the same time, however, the Glossators were guilty of believing Justinian when he said that his compilation contained no contra­dictory material.^[297] The harmony that the Glossators sought in the texts had to be imposed. It is important to understand that the law that the Glossators and later writers presented, although based on the Roman texts, was not in fact the Roman law of Justinian's time. Still less was it classical Roman law. We shall see examples of this throughout this book.^[298] For now, though, one will suffice. In a text in the Codex, Justinian pronounces that quod omnes tangit ab omnibus comprobetur (‘what touches all must be approved by all').^[299] In its original context, it is nothing more than thejustification for the rule that, where a child has more than one guardian, any act dissolving the guardianship must be approved by all if it is to be valid.

(2) Commentators

The next major tradition to develop was that of the Commentators, from the fourteenth century onwards, by which time there were other law schools with a prominence to rival Bologna, beyond Italy as well as inside it. For example, the law school at Orleans is known to have existed in the thirteenth century.^[301] There was, though, no clear break between the Commentators and earlier writers. They worked with essentially the same material as the Glossators did, they had similar teaching methods, and they wrote many of the same kinds of literature. The dif­ference is more one of emphasis: ‘To distinguish, perhaps over-simply, the former school laid a foundation for the study of Roman law; the latter developed the application of Roman law in practical affairs.'^[302] At this period, basic mastery of the texts had been achieved through the work of the Glossators, so more focused literature was possible, discussing and developing specific topics. In the writings of the Commentators, there is greater emphasis on adaptation of the texts to the needs of legal practice. For this reason, it has been said that the period during which the Commentators were working ‘saw the true beginning of the reception of Roman law'.^[303]

The best known of the Commentators is Bartolus of Sassoferrato (1314—57). He produced a massive Commentary on the whole Corpus Iuris Civilis·. This became so much the standard reference work that it came to be said nemo iurista nisi Bartolista (‘nobody is a jurist except a Bartolist').

(3) Canon Law

We saw in Chapter 1 that, in the early fourth century, under Constantine, Christi­anity became the official religion of the Roman Empire.^[304] From this point onwards, the Church played a key political role. Even after the fall of the Western Empire, the Western (Roman Catholic)^[305] Church survived as a major political player.

Canon law is the law of the Church. Medieval canon law, however, was more than just the internal rules and doctrine of the Church as an organisation. The medieval Church was powerful enough to assert authority in its own right, sepa­rate from the secular authorities:

from the twelfth to the sixteenth century there was throughout western Europe a relatively uniform structure of ecclesiastical courts, administering a fairly regular system, and staffed by men who had undertaken a reasonably common education in canon, and frequently in civil, law. There were local variations... Nevertheless, there was one international system.^[306]

These courts had direct jurisdiction and, where this jurisdiction extended, it excluded that of the secular courts. Thus, for example, a dispute over the validity of a marriage would be determined, not by the secular courts applying local or national law, but by the courts of the Church applying universal canon law.

The starting point of developed canon law is the Decretum or Concordia Discor­dantium Canonum (‘Harmonisation of Discordant Texts'), a collection of canon law materials, with discussion, made around 1140. The compiler of the Decretum was an individual named Gratian, about whom little is known except that he worked at Bologna and was possibly a monk. In origin, the Decretum was an unofficial col­lection, but its value was such that it was quickly accepted in practice as authori­tative. Together with three later official collections of papal decisions (decretals) from 1234,^[310] 1298^[311] and 1317,^[312] it formed the Corpus luris Canonici (‘Body of the Canon Law'), a canon law counterpart to the Corpus luris Civilis·.

The importance of all of this for our purposes here is in the heavy use made of Roman law by the canon lawyers. Roman influence on canon law procedure has already been mentioned, but there was extensive use of Roman texts on substantive law. Indeed, so much was canon law permeated by Roman law, that it was said that one could not be understood without the other. Moreover, where the canon law adopted a Roman rule, the status of canon law meant that that rule was then directly effective, binding law. Canon lawyers' use of Roman legal ideas was, however, never simply slavish copying. Canon lawyers' emphasis on conscience, for example, was the major impetus behind the law's adoption of the general principle that any seriously intended agreement should be considered binding.^[313] As we shall see in Chapter 17,^[314] this allowed the law to break out of the Romans' rigid categories of binding contract. Equally, where a Roman rule con­flicted with Church doctrine, the canon lawyers felt quite free to reject it. A major example of this will be seen in Chapter 8: canon law adopted Roman principles on the formation of marriage; the Roman position on divorce, by contrast, was not acceptable to the Church, and so canon law rejected it.^{[315] [316]}

(4) The Ius Commune

It is common among legal historians to talk of the Reception of Roman law (meaning, as we have seen, Roman law as interpreted by the medievaljurists rather than the Roman law of Justinian's time). This is the process which has been described, by which there developed a European ‘common law', a phrase which is usually given in Latin as ius commune.²'¹

Why did the ius commune develop? The main reason, really, was the inade­quacy of the other legal resources that were available. We have already seen that, following the Dark Ages, factors such as economic growth resulted in greater demands being placed on lawyers to find solutions to legal problems. Lawyers turned to the Roman sources, if for no other reason than that there was no adequate alternative. Local law was fragmentary and underdeveloped. It could hardly be otherwise: it is hard to see how a national legal system can develop to a high level of sophistication without a national system of courts or advanced legal education in the national law. Generally speaking, state authority in this period was too weak to be able readily to establish national systems of justice, and uni­versity legal education meant education in Roman law. At the same time, state authorities were often themselves keen to support Roman law, as it could be used to support the state's claims of authority. Finally, in those areas falling within the jurisdiction of the canon law courts, there really was a common European legal system, and we have seen that that was strongly influenced by Roman law.

Talk of a ius commune, common law, of Europe is, however, potentially mislead­ing. To speak in this way is perhaps to imply that there was a single system of law applying across all of those countries that experienced Reception. Ius commune should not, though, be understood in this way. It should be seen rather as a com­mon stock of legal ideas, a shared resource, that could be drawn on to fill gaps in local law and using which local law could be interpreted and developed. Ius commune is a common legal culture rather than a common legal system.

(5) The Exception: England

Something must be said at this point about England. Although medieval English law was not completely unaffected by developments on the Continent, England never experienced a full Reception of Roman law. The main reason for this is that, at much the same time that the Glossators were carrying out their work, the comparative strength and stability of the English state allowed it to establish a nationwide system of royal justice. From the work of these royal courts, there emerged a single, national legal system, known for this reason as a common law. By the time that the ius commune emerged, English lawyers had a relatively highly developed system of law of their own. They also had developed their own, non­university based, system of legal education. For these reasons, medieval English lawyers by and large saw little use for the ius commune learning, which in any case most of them did not have the educational background necessary to make the most of. English law tended (and still tends, to some extent) to be developed on a case by case basis, rather than by application of general principles. As part of Western Christendom, of course, England was subject to the jurisdiction of the canon law courts, but there was resistance even to this influence. For example, in the Statute of Merton 1235, a different rule on legitimacy of children was applied from that in the canon law.^[317]

These developments are the source of the second major family of legal sys­tems in the world today, the Common Law family. The British Empire carried English law around the world,^[318] and it provides the basis of the legal systems of the United States (except for Louisiana), Canada (except for Quebec), Australia, New Zealand and more.

C.