Roman Law and European Legal Tradition
The tension between unity and diversity is characteristic of European culture in general.120 As will have become apparent by now, it is of central significance also for the European legal tradition.
121 That tradition was shaped by the ius commune, which in turn was largely based on Roman law. If one attempts to specify further features characterizing the European legal tradition in comparison with others in the world (that is, the chthonic, Talmudic, Islamic, Hindu, and East Asian),122 the influence of Roman law can be shown in every instance. There is the element of writing.123 One of the reasons why Roman law was so influential in medieval Europe is that it was a law that had been laid down in writing. It was ratio scripta. This is not only demonstrated by the process of reception itself, but also by the many endeavours to provide written documentation of customary laws prevailing in Europe from the end of the twelfth century (Glanvill and Bracton in England, the coutumes in France, the fueros in Spain, Sachsenspiegel and Schwabenspiegel in Germany). This remarkable development was inspired by the learned laws.124Apart from that, Roman law was also for centuries regarded as ratio scripta: it was the model of a law that was reasonable - that is, in conformity with human reason. Roman law, therefore, was an expression of, and stimulated the quest for, a law that was rational and scholarly, intellectually coherent, and systematic.125style='font-size:9.5pt;line-height:115%;font-family:"Arial",sans-serif'> At the same time, the specific nature of the Roman sources prevented that system from becoming inflexible and static. For European law has always been characterized by an inherent ability to develop. Or, in the words of HaroldJ.
Berman: ‘The concept of a... system of law depended for its vitality on the belief in the ongoing character of law, its capacity for growth over generations and centuries - a belief which is uniquely Western. The body of law only survives because it contains a built-in mechanism for organic change.’126 European law is subject to constant adaptation; it is able to react to changed circumstances and new situations, and it has always displayed an extraordinary capacity for integration. Medieval Roman law was no longer the Roman law of classical antiquity, the usus modernus pandectarum no longer corresponded to the usus medii aevi, and pandectist legal doctrine was a far cry from the usus modernus. The development moved, to use a famous phrase coined by Rudolf von Jhering,127 beyond Roman law by means of Roman law. In the days of the Roman republic and imperial Rome, legal experts had fashioned a Roman ‘legal science’.128 The medieval lawyers turned it into an academic discipline, a learned law that had to be studied at a university.That is yet another characteristic of European law and also one that originates in Roman law. Law is a learned profession, and the application and development of the law is the task of learned jurists.129 Closely related is the fact that law is an autonomous discipline and that as a result it is conceived as a system of rules that is separate, in principle, from other normative systems seeking to guide human conduct and to regulate society, such as religion.130
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