The Legacy of Roman Law

Laurent Mayali

Standing on one side of the entrance to the city hall of Saint Antonin, Justinian holds his book of the Institutes open, with the statement Imperatoriam maiestatem non solum armis decoratam sed etiam legibus oportet esse armatam.1 Facing Justinian, on the other side, Adam and Eve stand next to the tree of knowledge.

By this time, on the other side of the Alps, the study of Roman law already attracted widespread interest.⁴ As early as 1127, a Benedictine monk from Saint Victor of Marseille, who was on his way to Rome on his monastery’s business, described in a letter to his abbot the ‘crowds of students’ who were ‘hurrying’ to Bologna for the sole purpose of studying law.⁵ Seeking his abbot’s consent, our monk was keen to outline the multiple advantages of this legal knowledge and its great benefits to the monastery in the endless disputes that opposed it to its quarrelsome feudal neighbours.

Barely half a century earlier, the first confirmed reference to Roman law was made in a trial held at Marturi in northern Tuscany. It is generally agreed among legal historians that, with the collapse of the western empire in the fifth century, Roman law almost disappeared from the emerging European legal landscape. A handful of Germanic legislation maintained for a while a piecemeal assortment of Roman legal provisions for their newly conquered Gallo-Roman subjects. Sporadic evidence nevertheless suggests that with the collapse of the western empire most of its legal institutions eventually fell into desuetude. A few centuries later, the short­lived Carolingian episode revitalized the imperial ideal but contributed little to structuring these ideas into a coherent legal system. Under these circumstances the resurgence of Roman law in northern Italy by the end of the eleventh century remains as remarkable as it is mysterious. Such obscure beginnings for the use of Roman law in legal practice point, in the absence of public support, to the role of private initiatives on a case-by- case basis. These timid attempts did not hinder a subsequent expansion that set up the conditions for the defining influence of Roman law on emerging European legal systems.⁶ By the end of the twelfth century, knowledge of Roman law was widespread among governing elites.⁷ Emperors and popes, princes and bishops, lords and merchants often relied upon legal experts for advice and assistance. Medieval towns witnessed the ascension of these legum doctores or iuris periti, judges, lawyers and notaries, who enjoyed a monopoly in the exercise of the legal profession.

The appeal of Roman law was even more remarkable in a static society where innovations were considered with suspicion and long- established customs regulated conservative ways of life.

When Roman legal rules took roots on these new grounds, more than six centuries after the collapse of the western Roman empire, their rapid growth sprang from a combination of seemingly conflicting factors. On the one hand, historical reference to a long-forgotten past had a strong symbolic dimension that resonated in the classical culture of the social and political elites as a model of civism and governance.

The transformation of ancient practices into juridical rules resulted from the emergence of new concepts of law and the development of a juridical language that provided different forms of narrative and models of representation. Law was not simply the consequence of human experiences and practices. It was also the result of a cognitive process. This process perhaps reached its apex in the first decades of the thirteenth century when Accursius, the renowned author of the ordinary gloss to the Corpus iuris civilis, asserted that to know the law meant to know everything, since there was nothing outside the corpus of the law. This forceful statement did not accurately describe the reality of the contemporaneous legal order, but it does demonstrate the perceived significance of a legal system that had come to life barely a century earlier. Accursius justified his claim by quoting Ulpian’s definition of jurisprudence as the knowledge of both divine and human affairs.

This juridical acculturation produced at least two consequences. First, as observed by Andre Gouron, it sanctioned the development of a normative culture firmly based on reference to the law (jus).11 Second, the so-called renaissance of Roman law was less the rebirth of a long-forgotten romanitas than the dawn of a new legal system where the interpretation and application of Roman rules did not always follow the reasoning of former Roman jurisconsults or the pronouncements of emperors. Medieval jurists and their successors were less concerned with recovering the essence of Roman law than with making sense of diverse legal techniques and asserting their relevance for their times. In so doing, they not only focused on the meaning of obscure terms and their accurate translation but also assessed the authority of the legal reasoning that they encountered accord­ing to their own logical conclusions.

One should not assume, however, that the rediscovered Roman texts were considered a sort of ready-made handbook for finding solutions to life’s legal problems.

At the same time, in academic circles, the varying approaches to Roman legal sources initially stemmed from a combination of cultural shortcomings and intellectual choices. In the contemporary world of medieval scholasticism, jurists’ reasoning followed the distinct patterns of scientia and prudentia that reflected the awareness of the dual function of law as abstract knowledge and a functional system of rules. But this division was not construed as an opposition between two clearly distinct methods in which the limits of legal reasoning were circumscribed by the necessities of legal practice. It was, on the contrary, the continuous interplay of scientia and prudentia that expressed the perceived plasticity of a legal system which combined — more or less harmoniously — diverse normative sources and traditions. Consequently, attempts to outline or interpret this dichotomy by drawing a distinction between theory and practice remain largely unsatisfactory in the historical assessment of the impact of Roman law on western legal culture.

The extent of Roman law’s influence over time is thus measured by the emergence of new forms of legal consciousness that gradually expanded to whole communities - not just intellectual elites - in both public and private matters. In this perspective, the local resistance to Roman law rules which was emphasized by chauvinistic historiography in the first half of the twentieth century did not always imply rejection of the entire legal model. It focused instead on selective applications. For instance, it is worth noting that the affirmation of community norms versus alien Roman rules often relied on the legal technique of renunciation that was itself borrowed from Roman law, as illustrated in the widespread use of contractual provisions rejecting the application of Roman legal exceptions in contractual trans­actions.¹² Resistance to ius scriptum was thus more pragmatic than ideo­logical. Local customs and feudal law did not constitute a monolithic and bottomless reservoir of static rules. As society changed, customs evolved and Roman legal technology quietly found its way into the reconstructed legal heritage that defilang=EN-US>ned community tradition. The novelty of Roman rules was often hidden behind rhetorical reference to ancient local tradi­tions. In the late middle ages, for every explicit denunciation of unwel­come Roman legal influence, we often count several discreet adoptions of rules that represented a significant departure from the earliest social prac­tices. Although this process of domestic assimilation forces us to reconsider the old-fashioned history of the civil law tradition, its broader consequen­ces for the dissemination of Roman law across Europe should nonetheless be carefully appraised.

Perhaps the main source of contention among legal scholars lies with the ambiguity surrounding the concept of ius commune. Historians and jurists have long referred to the period defined by the last centuries of the middle ages as the ‘age of ius commune’. This expression conveniently fitted within the description of medieval legal pluralism. It represented an overarching system of rules that elevated Roman law to the status of a unifying model when state nationalism was still in its infancy. The inter­pretation of the term as a synonym for Roman law is often misleading. Its definition is at best elusive and its use subject to diverse interpretations. Although Roman law was never enforced as the common law of con­tinental Europe, its academic status as the archetype of a legal system made it an obvious common reference. From the twelfth century onwards, multiple mentions of the ius commune suggest a broader meaning than the description of Roman law, since ius commune rules were not always viewed as having a Roman origin. Outside the writings of learned jurists (who held it as a synonym for the written law, including canon law), in legal documents from various parts of Europe the expression might equally have described local customs or legislation - the general customs of the kingdom - that defined, in people’s minds, a shared legal tradi­tion.¹³ On the whole, medieval and early modern mentions of the ius commune instead expressed belief in the existence of a common legal language. It exemplified a form of legal reasoning that governed the under­standing of the purpose of law in a given society. The romanization of European legal traditions, from the middle ages to modern times, did not rest only on the strict adoption of rules and procedures that can be traced back to a particular section of Justinian’s compilations.

Ultimately, the development of this legal patchwork resulted from three main historical factors. It started as an intellectual movement that was promptly supported by political powers, both secular and ecclesias­tical. It was also fuelled by pressing social demands and aided by the concomitant development of the legal profession. The cumulative effects of these underlying forces fashioned over a period of several centuries the main features of the civil law tradition. 1⁴

Its intellectual foundations defined the conditions for its successful adoption. The emergence of Roman law in northern Italy and its rapid expansion in continental Europe resulted in the gradual and permanent transformation of legal thinking. Its influence is perhaps nowhere more significant than in the conception of a legal system, the definition of a law-making process that clearly defines the validity and authority of legal norms and their implementation into a cohesive system of rules. From this perspective, it is not inappropriate to consider the vast legal literature of the last centuries of the middle ages and the modern period as the result of a unique European experience.

First, the success of the intellectual movement that led to the birth of medieval jurisprudence rested upon the creation of new centres of learn­ing. These communities of masters and students (universitas magistrorum et scholarium) departed from the ancient model of the cathedral schools. Their open structure and larger size transformed educational standards and teaching practices. Where cathedral schools had relied upon small groups of pupils and teachers studying together a finite number of texts, the new universities grew with the expansion of groups of doctors and students who engaged in a variety of textual inquiries and topics. Legal education profited doubly from the development of these new institutions. On the one hand, they provided a stable and controlled environment for the members of the academic community. Newly founded colleges endowed by rich patrons offered free and convenient housing to numerous students from out of town. The development of copyists’ workshops ensured the continuous production of copies of the texts studied. Jurists also benefited from the vicinity of adjoining disciplines that formed the curriculum of the trivium and quadrivium. Legal pedagogy initially used most of the intellec­tual tools acquired during the jurists’ previous training in fields where scholars enjoyed longer experience in textual exegesis and in teaching its different outcomes.

The sheer mass of texts that composedJustinian’s compilations, as well as their diverse origins, imposed the use of adequate heuristic methods on readers who were hardly versed in the details of Rome’s legal history. The compilations’ lack of a systematic arrangement added to the confusion induced by multiple repetitions and contradictory statements attributed to diverse jurisconsults or emperors. Indexing, cross-referencing, grouping, and annotating proved to be essential procedures in the gradual assimilation of this legal treasure trove. As rightly observed by Giuseppe Speciale, Accursius’ ordinary gloss and the apparatus that preceded it represented the medieval equivalents of contemporary hypertexts.¹⁵ They served iden­tical purposes and provided their users with the necessary tools to access Justinian’s data banks and retrieve basic information. Ultimately, data processing included a succession of steps that defined the content of the lectures from simple retrieval of facts to the presentation of principles and from the classification of arguments to the resolution of contradictions. Besides their obvious practical purpose, these methodological choices also reflected a distinct conception of law’s function that eventually defined legal scholasticism. This particular approach to the textual tradition shaped the perception of civil law for the following centuries, up to the nineteenth­century codification movements.

The significance of the written support was further compounded by its rarity. Attempts at providing a comprehensive exegesis of Roman legal sources were constrained by the difficulty of securing reliable and com­plete versions of the texts. The philological challenge could not be easily solved and raised multiple unanswered questions, both theoretical and practical, about the authenticity of the texts and the authority of their provisions. A defective process of transmission of Justinian’s corpus produced different consequences for the structure and content of legal education. Unreliable manuscript traditions governed access to the separate parts of the Corpus iuris civilis. There are reasons to believe that this break­down caused the division of the Digest into three parts (Vetus, Infortiatum, and Novum). On the whole, this arbitrary textual distribution did not reflect any substantive preferences, nor was it motivated by a patent pedagogic strategy. The partition of the last three books of the Code (Tres Libri) seems, on the other hand, to have been the consequence of a deliberate decision to treat public law issues separately.¹⁶ These last three books were collected separately in the Volumen, together with the Institutes, a version of the Novels known as the Authenticum, and a compilation of feudal law, the Libri feudorum. It is worth mentioning that this subdivision remained in use until the end of the middle ages despite the more fluent use of the various segments of this monumental work. The fact that it was still maintained in the sixteenth-century printed editions of the Corpus iuris civilis, notwithstanding the humanists’ critical editions, is evidence of its significance in understanding the civilists’ attachment to the fundamental function of the text in defining law’s authority. Let us observe, however, that this textual formalism did not preclude a more systematic arrangement of legal rules. First attempts at systematization had already taken place in the last decade of the twelfth century, but this change had occurred in the neighbouring field of canon law with the composition of the first compi­lation of pontifical law decretals, the Compilatio Prima authored by Bernard of Pavia. Despite the canonists’ broad reliance on Roman law in the elaboration of the laws of the Church, the new format did not influence the civilists’ traditional lectures and commentaries on the Corpus iuris, but it certainly opened the door to more thematic expositions of distinct legal topics in numerous separate treatises of varying length.

While the tripartite arrangement of the Digest and the partition of the Code determined the structure of the lectures, the medieval fortune of the Institutes followed a different path. Initially written for the education of students, the four books of the Institutes purported to give a shorter and clearer version of the main legal issues addressed in the Code and the Digest. Its simplified structure in four books provided medieval readers with a more accessible and practical introduction to Roman law. Its availability explains its popularity among smaller academic circles outside Bologna where the scarcity of copyist’s workshops made it almost impossible for students and Faculty alike to acquire samples of the necessary parts of the Digest or Code.1⁷ The scarcity of legal manuscripts undoubtedly explains the production of second-hand works and partial summaries that bear witness to the existence of small pockets of intellectual activity outside Bologna. In most cases, however, the fact that they had no durable institutional support led to their disappearance, while Bologna remained for a time a unique model. While Bologna was witnessing the rise of academic dynasties and the steady growth of its student population, else­where in Catalonia, Languedoc, and England a handful of centres attemp­ted to satisfy a local demand for the new ius scriptum. From Placentinus in Montpellier to Vacarius in Oxford,¹⁸ former members of the Bolognese studium tended to the growing local interest in the law. 19 For a brief period, these short-lived schools succeeded in spreading the lessons of the Bolognese masters to a small audience of students, clerics, and public authorities who might have first encountered the new law through con­tact with merchants from Italian cities such as Genoa or Pisa who opened trading posts in their cities. Roman law came in these merchants’ bags or in those of the clerics. Its progression followed the trading routes and the pilgrims’ pathways that connected northern Italy towards the east to southern France and northern Spain and towards the north, past the Parisian schools, the fairgrounds of Champagne, and across the Channel on to religious and commercial centres. England was not immune from this intellectual epidemic. Local schools in Oxford and elsewhere served as relays for the circulation of the Bolognese teaching. At the turn of the thirteenth century, this knowledge commanded the attention of local jurists who used it as a functional reference in the consolidation of the laws of the realm.²⁰ Here, as elsewhere, the extent of this influence depended on the perceived usefulness of peripheral rules in the expansion of the indigenous system. From this perspective, legal transplants did not inevitably displace existing rules so much as they adjusted the scope of their application. This initial pattern of diffusion of Roman law by way of periodic interactions in academic, religious, or commercial centres remained constant for several centuries until the nation-states finally took over the legal systems of the various countries. This cultural pattern was largely responsible for the patchwork nature of romanization in western Europe, in both form and content, where practical concerns were mixed with doctrinal pursuits.

In Bologna, the situation was different. The teaching of Roman law was the cornerstone of a prosperous institution that assumed a central position in the city’s affairs. Its fame was founded on the reputation of a handful of professors who asserted their command of the legal sources and advanced their authoritative opinions to enraptured audiences. Academic tradition preserved the names of these pioneers and conveyed the memory of their opinions from one generation of students to the other. Following the first lectures ofIrnerius, two schools soon came into being, around 1130. Each one expressed a distinct conception of the legal order. Disciples following the teaching of Bulgarus took pride in adopting a strict interpre­tation of the sources and endorsed an orthodox definition of law. Others known as the Gosiani — taking their name from the family name of their master, Martinus - chose to pay more attention to different normative sources such as equity and customs.²¹ The former eventually succeeded, at least in Bologna, in imposing their academic supremacy, thus cementing the fame of their master. Its dominance reached its apex with Accursius’ ordinary gloss to the entire corpus in the first third of the thirteenth century. Martinus’ views, on the other hand, found more attentive ears in small centres where some former students or those cast out from Bologna had chosen to settle, such as Placentinus in Montpellier. From the very first lectures of Pepo and Irnerius, on to Bulgarus and Martinus and then Placentinus, Johannes Bassianus, and Azo, academic genealogies were forged from masters to disciples.²² Knowledge of Roman law established standing in social and political circles which profited from the prominence of academia and bolstered its prestige and the authority of its members. It is sometimes difficult to distinguish scholarly dissension from institutional jockeying and academic gossip in these academic quarrels. Competition for students’ attention and for the support of public authorities, secular and ecclesiastical, was no doubt heightened by a political environment which saw the two main powers, imperial and pontifical, vie for the control of Italian cities and political hegemony over various parts of Europe. Since Savigny’s lang=EN-US style='font-size: 8.0pt;line-height:115%;font-family:"Arial",sans-serif'>first history of medieval Roman law, much has been written about the rivalry of these schools. Beyond the well-publicized differences and mutual criticisms, we observe the remarkable success of a rather small intellectual community and its capacity to impose its views on society as a whole — thus reinforcing Roman law’s broad authority in public affairs. For instance, Justinian’s declaration on the significance of the laws as weapons in the service of imperial power in times of both war and peace was under­stood to confer a kind of knighthood on lawyers who were expert in the use of these arms. Likewise, Ulpian’s definition ofjurisprudence as the knowl­edge of both human and divine causes was understood as vindicating the jurists’ claims to equal mastery of law and theology. The new jurisprudence was born in the vigour of these intellectual exchanges. It forged the scholarly tradition of the civil law for many centuries to come. The success of the university of Bologna and its contribution to the city’s fame inspired new establishments. The thirteenth and fourteenth centuries witnessed the foundation of various law schools in Italian and European cities.

To name a few, representative of the geographical expansion, we should mention Naples, Perugia, Orleans, Montpellier, Toulouse, Salamanca, Coimbra, and Heidelberg. The significance of legal studies grew with the foundation of each new university. It assumed a broader purpose than the mere training of lawyers and it projected a template of governance that combined iurisdictio with potestas.²³ In 1406, the victorious Florentines solemnly transferred to their city a precious war trophy seized from the defeated Pisans. In many ways, Florence’s possession of the oldest known manuscript of the Digest - the Littera Pisana, afterwards known as the Fiorentina - was an assertion of the triumphant political power’s claim to legal knowledge and its desire to be associated with a tradition that reinforced its historical legitimacy.

In this political environment and with the support of local elites and public authorities, each law school attempted to attract prominent scholars who added to the city’s renown and often took some part in its gover­nance. Newly anointed doctors were hired from one city to the other; some returned to the school of their hometown after years of studying and teaching in Bologna; while others alternated teaching positions with the exercise of diplomatic charges or judicial functions. In any event, academic reputation warranted the value of legal opinions and consulta­tions that increasingly represented an important aspect of the doctors’ professional responsibilities. This practical activity gave rise to a new type of legal literature that eventually influenced the teaching of law and provided a theoretical model for discussing its practical points. By then, in most of these cities, Roman legal principles were seamlessly woven into the fabric of the community’s law. Manuscripts of different parts of the Corpus iuris civilis found their way into private libraries as legal studies were viewed as the foundation of a good education. In Paris, however, Roman law was no longer welcome. In 1219, bowing to royal pressure and out of concern for the declining study of theology, pope Honorius III forbade the teaching of Roman law. But Roman law did not disappear from the French kingdom. A few decades later, the rise of the Orleans school injected new energy into a stagnant and complacent legal scholarship.²⁴ Combining a refreshed methodology with a critical appraisal of Accursius’ glossa ordinaria, Orleans masters such as Jacques de Revigny²⁵ and Pierre de Belleperche challenged existing doctrines and proposed new interpreta­tions. Their opinions did not go unnoticed across the Alps. They soon found their way back to Italian schools, with the help of professors such as Cinus de Pistoia - lang=EN-US>jurist, poet, and close friend of Dante - who passed them on to their students. Standing pre-eminent among this new gen­eration of civilists, Bartolus de Sassoferato - professor in Pisa and Perugia and Cinus’ former student - epitomized the civil-law academic tradition in the first half of the fourteenth century. His authoritative commentaries on the Corpus iuris civilis, combined with a series of works and treatises on diverse legal matters, dominated legal doctrine until the end of the middle ages. The lasting influence of Bartolus’ works, blending Roman legal doctrine with the analysis and interpretation of local laws, remains perma­nently associated with the fortune of the civilists’ theories in the develop­ment of modern legal systems. The academic momentum stimulated by the intellectual legacy of Bartolus and his disciple Baldus de Ubaldis carried the traditional teaching of Roman law up to the end of the middle ages.

For over a period of four centuries, from Irnerius’ first lectures to the doctors of the early fifteen hundreds, the teaching of Roman law had enjoyed a remarkable period of institutional stability. It rarely deviated from the original Bolognese model that was still the source of authority for the intellectual tradition of the mos italicus. This conservative attitude was supported by the repetitive character of commentaries which, for the most part, barely added new meaning to the opinions of preceding generations of teachers. The initial exegetic methodology favoured by the glossators had given way to the more text-independent form of the commentary. But emancipation from the confines of strict textual exegesis was limited by the time-honoured reliance on the opinions of predecessors. A narrow rigidity in the form and content of lectures was maintained, following the original structure circumscribed by the early partitions of Justinian’s compilations. Apart from a few new insights authored by a handful of doctors, legal scholarship was marred by uncritical repetition of previous opinions and an absence of innovative ideas. It seemed that the initial intellectual impetus that had promoted the renewal of jurisprudence and the growth of legal knowledge had finally run its course. Institutional decline quickly followed this intellectual drought. It badly affected the universities that remained committed to the traditional treatment of the legal sources. But as student attendance and the authority of professors declined in these older centres, emerging schools explored a different path and begun to attract larger audiences. By the end of the middle ages, Europe’s enduring affair with Roman law was taking a new turn.

Renaissance humanism opened up intellectual perspectives and made the study of law a challenging pursuit.²⁶ Philological interest in Roman and Greek authors of the classical tradition placed the emphasis on the primary value of the text. The need to produce accurate editions became a priority.²⁷ The humanists’ scorn for the medieval jurists’ poor treatment of Latin and Greek sources did not significantly challenge the substance of established civilist doctrine, but it directed the jurists’ atten­tion to the limitations of a defective manuscript tradition. This erudite approach introduced a higher level of scrutiny of legal codes while aiming to restore their original structure and essential meaning. It raised doubts about the linguistic soundness of sources that had been taken for granted and prompted a thorough re-evaluation of their textual foundations. One of the pioneering attempts at this critical evaluation came with the publication of Guillaume Budelang=EN-US style='font-size:11.0pt;line-height:115%;font-family:"Arial",sans-serif'>’s Adnotationes ad Pandectas in 1508. This work set new editorial standards and offered a methodology that changed the longstanding medieval treatment of legal sources. Bude’s administra­tive and diplomatic responsibilities placed him at the junction of the worlds of politics and law - outside the university, but within the appa­ratus of the nascent early modern state. This unique position gave him the freedom to treat the Digest without the constraints of an ossified teaching method, thus broadening its value in a system of education that sought to instil the new values of a humanistic vision of man and nature. In Bourges, where Alciatus and Cujas introduced students to the innovative legal science, as in Freiburg with Zasius and soon in Leiden, sixteenth-century continental Europe witnessed the rise of universities which welcomed this combination of philological erudition and legal criticism. Using their academic perches in a transnational forum of ideas, legal humanists reshaped the teaching of Roman law while expanding its scope into the various corners of early modern political culture at a time when religious conflicts challenged alternative forms of normative guidance and social control. In doing so, these legum doctores secured the enduring success of Roman law within the mainstream expansion of national legal systems in continental Europe.²⁸ Away from the first medieval schools, academic law continued to enjoy lasting influence in spite of the rise of state-sponsored teaching of domestic laws.²⁹ This literary-juridical movement stimulated the study of Justinian’s sources and restored the historical significance of his laws in the development of European culture.

From its foundation in 1575, the university of Leiden assumed a central role in the diffusion of these legal ideas.³⁰ For the following century, the Dutch university remained the European hub of Roman jurisprudence which, like Bologna four hundred years earlier, attracted students from all parts Europe. Following the success of their promptly published lectures, scholars such as Doneau, Noodt,³¹ Vinnius, and Voet³² personified a generation of doctors who updated the Romanist tradition in accordance with the demands of their turbulent times without stripping it of its essence. The broad availability of printing ensured the wide diffusion of their works.³³ Multiple editions placated the public demand for constant updating, thus encouraging the perception of a continuous doctrinal production.³⁴ The names of these legal stars were associated with the fame of the institution they served and with the conception of a systematic and practically oriented legal science. This scholarly course paved the way for the further actualization of Roman law that was eventually promoted by the seventeenth-century Usus modernus Pandectarum. The modernism of Justinian’s compilation did not spring from an antiquarian interest in its idealized past, nor did it result from a conformist wish to reassert long lost values of imperial romanity. In this late and final stage of the European reception of the legal legacy of Rome, German jurists such as Stryck promoted the growth of a mixed legal system attentive to the requirements of domestic institutions and social order.

Reborn out of centuries of painstaking exegesis, literal interpreta­tion, and historical criticism, Roman law was well adapted to these changing times. In the eyes of the bureaucrats who were now in charge of concocting the mixtures of the state’s legal order, transplanting Roman legal principles satisfied the need for innovation without carrying the risk of uncertainty. It conferred credibility on the claim of legal stability that legitimized the power of the modern ruler. This active integration of norms from diverse legal orders represented a significant departure from the medieval model of legal pluralism that had governed the insertion of Roman rules into existing systems.³⁵ Now in various countries the tradi­tional process of juxtaposition and harmonization was subsumed into a rationally structured unifying plan.

From the pioneering contributions of the glossators, through the institutional hegemony of the commentators, to the sweeping transforma­tions introduced by the humanists, the teaching of Roman law remained for several centuries the defining component of legal education in continental Europe. Legal texts and doctrinal treatises upheld the status of Roman law both as a source of knowledge and as a normative reference for legal trans­plants at a time when the authority and the status of major universities transcended contested state boundaries. The subsequent introduction of lectures on national law and the creation of professorial chairs dedicated to its teaching did not result in the exclusion of Roman law from the univer­sity’s stage. On the contrary, it underscored the perennial value of a legal science that combined a rigorous method of analytical reasoning and textual criticism with a systematic conception of the legal order. It also represented a reliable point of reference for fragmented domestic legal systems.

The intellectual effervescence born of the humanist impulse nur­tured early modern jurisprudence. It breathed new life into the civilist tradition and placed the study of the Roman jurists’ works at the core of the political process leading to the establishment of national legal systems. Balancing its status between historical representation and contemporary relevance, the renowned architects of elegant jurisprudence permanently

set civil law on a doctrinal course that eventually led to the codification movement of the nineteenth century.³⁶ With codification, the form and the substance of the law were once again combined according to a structural model that symbolized the osmosis of the legal system with the natural order of society. Beyond the influence of natural law theory and its appeal to the significance of a rational legal order, codification promoted a model of legislation that enhanced the overall authority of law while facilitating its access and use. For this purpose, the choice of the code as a vessel for organizing and presenting successive legal provisions was more than a historical coincidence. Apart from its symbolic value, it expressed the commonly shared view that the strength of all legal rules represented more than the arithmetical sum of their diverse provisions.

Much has been written about this last phase of Europe’s juridical growth. Attempts at distinguishing what was Roman from what was domestic, sorting out the imported seeds from the native plants, and eventually piecing together the asymmetrical parts of the European legal puzzle produced uneven results. Part of the fault lies with the nationalist essence of legal history which, from the second half of the nineteenth century, went through great efforts to assert its pro domo legitimacy and to distance itself from the history of Roman law. This enduring distinction continues to shape law-school curricula in many European countries. But the other part of the responsibility for this confusing outcome lies with eighteenth-century jurists’ attempts to circumvent the side effects of legal transplants. By dissociating the transplanted organs from their functions, they focused their attention on the consequences of the imported rules. Their intellectual fine-tuning was also facilitated by the rise of a state administrative apparatus that placed the imperatives of social management above ideological contentions. The final reception of the ius civile in northern Europe undoubtedly benefited from previous centuries of development of an autonomous legal science, however hesitant or imper­fect it may have been compared with the standards of these new times. The reception process had come full circle. The codification movement accomplished what earlier generations of jurists and scholars had not been able to achieve: the normalization of Roman law and, with the uneasy assistance of the historical school, its insertion into a legal tradition. To be sure, the integration of Roman law into national legal systems had already taken place in various European countries with various consequences. But with codification the dichotomy distinguishing Roman law from local usage was replaced by the distinction between legislation and custom.

Intellectual prowess, however remarkable, was not the sole reason for the permanence of the Romanist legal tradition through the turbulent periods of European legal history. Political considerations certainly played a great role in the effective development of national legal systems. In addition to the strategies pursued by determined popes and emperors³⁷ in their attempts to define the greater scope of their powers, ambitious rulers of nascent kingdoms promptly seized opportunities to assert their claims to sovereignty.³⁸ In doing so, they paid particular attention to the legal theories expounded by the glossators and later commentators of Roman law. Beginning with Frederic Barbarossa’s Constitutio Habita of 1158, extending protection and forum privileges to professors and students in Bologna,³⁹ imperial interest in Roman legal thought reflected the ruler’s dual ambitions to base his power on a combination of historical legitimacy and legal authority. In this regard, Frederic’s decision to expand an earlier privilege in the form of an imperial constitution which was to be inserted as a Novel in Justinian’s Code, reflected the influence of civilist doctrine on the conception of his legislative power. The four Bolognese law professors present at the Diet of Roncaglia where a belligerent Frederic met repre­sentatives of the northern Italian cities undoubtedly drew his attention to the political advantages of this legal filiation. In their solemn harangue, they compared him to the ‘living law on earth’, thus applying to Frederic Justinian’s self-professed description of his imperial majestas. The use of such a formula carried profound consequences. The transition from de facto power brought by the recent success of his army to de iure authority changed Frederic’s political status. Arriving in Roncaglia as little more than a powerful feudal warlord, Frederic left as a universal statesman.⁴⁰

It is not difficult to understand why public authorities turned a favourable ear to the lessons of Roman legal doctrine which, when applied efficiently, could contribute to redefining the scope of their powers and justifying their claim to political supremacy. In this context the influence of Roman law proved decisive in providing the much-needed juridical tem­plate for political ambitions. Medieval jurists were skilled at using their knowledge to the benefit of their rulers and redefining the princes’ power in legal terms.⁴¹ The first glossators’ interpretation of the quasi mythical lex regia transferring legislative power from the people to their ruler provided a most opportune explanation for the concentration of powers in the emper­or’s hands.⁴² The people’s willing relinquishment of their law-making power in favour of the emperor was deemed to be irreversible. The jurists concluded that the emperor did not act as the mere representative of the people’s will but as a legislator sui iuris. This medieval interpretation was further supported by the reference to Ulpian’s declaration that whatever pleased the prince had the force of law.⁴³ The combination of these two excerpts became one of the cornerstones of the juridical reinterpretation of medieval political reality. The subsequent objectification of the will of the sovereign placed law (lex) at the heart of the body politic. It gave new meaning to the concept of plena potestas that best described the prince’s normative authority.

A century later, in 1231, a few years after founding the University of Naples,⁴⁴ Frederic II’s promulgation of the Liber Constitutionum (also known as Liber Augustalis) completed the recent military conquest of Sicily. It also attested to the substantial influence of Justinian’s precedents in legislative matters. We can observe a similar evolution in Spain, where the composi­tion in 1265 of the Siete Partidas at the request of Alfonso X confirmed the significance of Romanist doctrines in the conception of royal legislation. In 1348, the adoption of the Partidas as the law of the kingdom validated the romanizing inclinations of the monarchy. In England, from the second half of the twelfth century, the influence of Roman rules was not limited to the few teaching centres, but spread to both ecclesiastical and royal adminis­tration. Its academic culture might not have been as emphatic in promoting the new law, but its spirit freely permeated public expressions of political symbols.⁴⁵ As observed by Gaines Post, the terminology of royal charters borrowed its concepts from the Roman law known to the king’s advisors. They used it in defining the status of the crown.⁴⁶ Around the same time, in France the royal endorsement of the kingdom’s partition into northern countries ruled by customary law and southern regions governed by the written law (that is, Roman law) acknowledged the significance of this legal tradition for a large number of the king’s subjects. The presence in the king’s councils of jurists trained in the school of Orleans shaped the formation of the royal administration and defined the essence of its jurisdiction.⁴⁷ We can observe, everywhere in the public sphere, the weaving of Roman legal principles⁴⁸ into the feudal thread of social solidarity and dominance that governed the relationships between vassals and suzerains and defined their respective rights and obligations.

The process of giving a juridical framework to feudal culture did not simply consist in renaming existing forms of governance. It profoundly changed the perspectives of a political philosophy that had initially relied on the ancient biblical model of kingship to outline the duties of the prince.⁴⁹ The Roman imperial ideal that was made up from the civilists’ selective interpretation of Justinian’s prerogatives nurtured a more prag­matic conception of the royal function and the status of the crown. On the one hand, the statement boldly asserting that the king was emperor in his kingdom captured the essence of the royal claim to sovereignty. On the other, the debate on whether the prince was bound by the laws attested first and foremost the fundamental relevance of the legal standard in evaluating the prince’s powers. By the end of the middle ages, these prevailing theories were firmly established in the institutional structures that were a prelude to the emergence of the modern state and its con­ception of the respublica.⁵⁰ It would be naive, however, to discern in these efforts the proof of early attempts at enforcing a system based on the rule of law. Juridical terminology and legalistic theories of sovereignty did not translate directly into a vision of society based on protected rights and due process of law, nor does it reflect the uniquely pluralistic character of its legal order.

A similar process took place in the Church, where Modestinus’ formula defining Rome as the communis patria was reinterpreted for the benefit of pontifical authority.⁵¹ By the end of the twelfth century, canon law had absorbed various Roman legal principles, thus assuring their con­tinuous presence in the Church’s legal tradition. But, contrary to what has often been incorrectly assumed, this widespread transplantation did not entirely result in the systematic romanization of the Church’s law. The canonist’s selective use of Roman law contributed instead to its assimilation into a broader normative domain that facilitated its reception in daily social practice. The resulting utrumque ius expressed the concept of a harmonious government of Christian society where pontifical supremacy was the source and the warrant of right governance. This legal process transformed the population of faithful to legal subjects. Ecclesiastical courts played a signifi­cant role in the effectiveness of this model of legal integration, thanks in large part to the reliability of the romano-canonical procedure which constituted the backbone of its judicial system.⁵²

Finally, the adoption of the institutions of Roman public law was nowhere more apparent than in the growth of urban legislation which resulted from the movement towards political autonomy spearheaded by town councils. By the end of the twelfth century in southern France, members of city councils proudly bore the title of ‘consul’.⁵³ The devel­opment of intercity commerce and the remarkable expansion of urban communities created numerous legal challenges in the regulation of collective and individual human behaviour. In this thriving environment, the lessons of the Digest and the Code introduced a much desired alter­native to the rigid and ineffective feudal practices that hindered the political expectations of urban elites impatient to translate their economic power into a political status corresponding to their recent achievements. In these cities, the traditional balance of power was shifting in favour of a more entrepreneurial bourgeoisie that asserted its social ascent. From a theoretical perspective, Gaius’ remarks excerpted in the Digest conven­iently fitted their ambitions.⁵⁴ The idea that each town or community could abide by its own distinct laws resonated in the minds of the residents of towns who were seeking a change of legal status from being the lord’s subjects to becoming free citizens of a self-governing community. It is in these dynamic urban environments that we find the social and economic ferment for legal change. The medieval interpretation of Gaius’ statement set the legal context for the people’s efforts to carve out municipal autonomy from feudal lords. The exercise of public prerogatives included the power to legislate. The enactment of statutes proclaimed each town’s legal distinctiveness and supplemented its local customs with various imported additions.⁵⁵ Their learned terminology reflected the growing influence of up-and-coming legal professionals who were often counted among the towns’ leadership.⁵⁶ Their legal expertise made them indis­pensable to the effective running of cities’ public affairs as well as to the planning of more personal and familial matters. As attested by their presence as witnesses in numerous legal transactions and public documents which often followed Roman legal patterns, these lawyers exercised such diverse functions as notaries, advocates, judges, or administrators.⁵⁷ Their personal experience as former students and practising lawyers constituted an essential link between legal abstraction and social reality, thus redefin­ing the essence of legal knowledge while contributing effectively to the diffusion of Roman legal rules in the regulation and management of community affairs.⁵⁸ In the private sphere, marriage contracts and testa­ments formed the new legal reality of family life, while the availability of various forms of Roman contracts introduced legal options better adapted to the needs of economic transactions. At the same time, resolution of private disputes was facilitated by the adoption of procedures and a system of proof that met people’s expectations of predictability and rationality.

In conclusion, we should be careful not to overstate the influence of the legacy of Roman law in European legal culture, even in the countries where it represented the main source of the national tradition.⁵⁹ The civil law systems that govern states in continental Europe grew out of a complex and diverse set of normative sources that included customs, religious beliefs, judicial decisions, administrative regulations, and royal and local legislation.⁶⁰ Besides its symbolic value as one classical model of civilizing culture,⁶¹ Roman law’s success resided less in its technical superiority as a legal anthology than in its ability to provide a normative environment for the combination of distinct legal sources into unified national systems. In this perspective, the common European legal expe­rience did not reside in the existence of the system of the ius commune but instead in the opportunity to assert distinct legal identities, using concepts and procedures outlined in the Romans’ idea of ius civile.

Notes

1.      P. Ourliac, ‘Une statue deJustinien en Rouergue, vers 1140’, in P. Ourliac, Les pays de Garonne vers l'an mil. La societe et le droit (Toulouse, 1993), 167—171.

2.                    A. Gouron, La science du droit dans le Midi de la France au Moyen Age (London, 1984).

3.      G. Giordanengo, Le droit feodal dans les pays de droit ecrit. L'exemple de la Provence et du Dauphine, XIIe -debut XIVe siecle (Rome, 1988).

4.      G. Dolezalek and L. Mayali, Repertorium manuscriptorum Codicis Justiniani (Frankfurt, 1985)·

5.      ‘I see constantly through almost whole Italy students most of whom are from Provence, not only from my order but from many others who come in large groups to study the laws.’ A. Gouron, G. Giordanengo, and J. Dufour, ‘L’attrait des leges: note sur la lettre d’un moine victorin (vers 1124—1127)’, SDHI45 (1979): 504—529.

6.      H. Coing, ‘Das Recht als Element der europäischen Kultur’, Historische Zeitschrift 238 (1984): 1—15; P. Grossi, L'europa del diritto (Rome, 2007).

7.      H. Coing, Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. I: Mittlelalter (1100-1500) (Munich, 1973); E. Cortese, Il rinascimento giuridico medievale (Rome, 1992); H. Kantorowicz and W. Buckland, Studies in the Glossators of the Roman Law (Cambridge, 1938; repr. with addenda and corrigenda Aalen, 1969).

8.      P. Stein, Roman Law in European History (Cambridge, 1999), 2: ‘It has indelibly impressed its character on European legal and political thought.’

9.      A. Gouron, ‘Un assaut en deux vagues: La diffusion du droit romain’. In L'Europe du XIIeme siecle, El Dret Cornu i Catalunya, ed. A. Iglesia Ferreiros (Barcelona, 1991), 47—63.

10.    E. Kantorowicz, ‘The Sovereignty of the Artist. A Note on Legal Maxims and Renaissance Theories of Art’, in De Artibus Opuscula XL. Essays in Honor of Erwin Panofsky (New York, 1961), 267—279, reprinted in Selected Studies (New York, 1965), 352-365.

11.    A. Gouron, ‘Aux origines de l’emergence du droit: glossateurs et coutumes meridionales (XIIe-milieu du XIIIe siecle)’, in Gouron (n. 2).

12.    L. Mayali, ‘Mythes et realites de la renaissancejuridique au douzieme siecle’, in El dret comu i Catalunya III (Barcelona, 1993), 187-202.

13.    G. Giordanengo, ‘Jus commune et droit commun en France duXIIIe auXVe siecle’, in Droit romain, ius civile et droitfran^ais, ed. Jacques Krynen (Toulouse, 1999), 219-247.

14.    R. van Caenegem, European Law in the Past and the Future: Unity and Diversity over Two Millennia (Cambridge, 2002), esp. 73-89.

15.    G. Speciale, La memoria del diritto comune: sulle tracce d'uso del Codex di Giustiniano (secoli XII-XV) (Rome, 1994).

name=bookmark1946>16.    E. Conte, Tres libri Codicis: la ricomparsa del testo e l'esegesi scolastica prima di Accursio (Frankfurt, 1990).

17.    F. Soetermeer, Utrumque ius inpeciis: die Produktion juristischer Bücher an italienischen und französischen Universitäten des 13. und 14. Jahrhunderts, trans. G. Hillner (Frankfurt, 2002).

18.    P. Landau, ‘The origins of legal science in England in the twelfth century: Lincoln, Oxford and the career ofVacarius’, in Readers, Texts and Compilers in the EarlierMiddle Ages. Studies in Honour of Linda Fowler-Magerl, ed. M. Brett and K. Cushing (Aldershot - Burlington, 2009), 165-182.

19.    A. Gouron, ‘La science juridique franchise aux XIe et XIIe siecles: Diffusion du droit deJustinien et influences canoniques jusqu’a Gratien’, Ius Romanum Medii Aevi, part I.4.d-e (Milan, 1978).

20.    P. Stein and F. de Zulueta, The Teaching of Roman Law in England around 1200 (London, 1990), esp. xxii—xliii.

21.                Kantorowicz and Buckland (n. 7).

22.    G. Speciale, ‘Garnerius Theutonicus’ Nuove fonti su Irnerio e i quattro dottori’, Rivista internazionale di diritto comune 2 (1991): 123—133.

23.    P. Costa, lurisdictio. Semantica del potere politica nella pubblicistica medievale, 1100—1433, 2nd edn. (Milan, 2002); J. Vallejo, Ruda equidad, ley consumada: concepcion de lapotestad normativa (1250-1350) (Madrid, 1992).

24.    M. Bassano, ‘Dominus domini mei dixit’. Enseignement du droit etconstruction d’une identité autour des juristes et de la science juridique au studium d’Orléans (1230—1320). (Thesis, University of Paris II, 2008), Leiden, 2013.

25.    K. Bezemer, What Jacques Saw: Thirteenth Century France through the Eyes of Jacques de Révigny Professor of Law at Orléans (Frankfurt, 1997); K. Bezemer, Pierre de Belleperche: Portrait of a Legal Puritan (Frankfurt, 2005).

size=1 color=black face=Garamond>26.                D. Maffei, Gli inizi dell’umanesimo giuridico (Milan, 1964).

27.                H. E. Troje, Crisis Digestorum: Studien zur historia pandectarum (Frankfurt, 2011).

28.    H. E. Troje, Humanistische Jurisprudenz: Studien zur europaischen Rechtswissenschaft unter dem Einfluss des Humanismus (Goldbach, 1993).

29.                C. Chene, L’enseignement du droitfran^ais en pays de droit écrit (1679—1793) (Geneva, 1982).

30.    G. C.J.J. van den Bergh, Die hollandische elegante Schule: ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500—1800 (Frankfurt, 2002).

31.    G. C.J.J. van den Bergh, The Life and Work of Gerard Noodt, 1647—1725: Dutch Legal Scholarship between Humanism and Enlightenment (Oxford, 1988).

32.    R. Feenstra and C.J.D. Waal, Seventeenth-Century Leyden Law Professors and their Influence on the Development of the Civil Law: a Study of Bronchorst, Vinnius and Voet (Amsterdam, 1975).

33.    M. Ahsmann, Collegium und Kolleg: der juristische Unterricht an der Universität Leiden 1575—1630 unter besonderer Berücksichtigung der Disputationen (Frankfurt, 2000).

34.    For an appraisal of legal publications from the beginning ofprinting up to 1800, see the fundamental work by D. Osler, Bibliographica iuridica, 6 vols. (Frankfurt, 2000—2009).

35.    A. Wijffels, Qui millies allegatur: les allegations du droit savant dans les dossiers du Grand Conseil de Malines (causes septentrionales, ca. 1460—1580) (Leiden, 1985).

36.    R. Feenstra and R. Zimmermann, eds., Das Römisch-hollandische Recht: Fortschritte des Zivilrechts im 17. und 18. Jahrhundert (Berlin, 1992).

37.                D. Maffei, La donazione di Costantino nei giuristi medievali (Milan, 1964).

name=bookmark1968>38.    G. Giordanengo, ‘Le pouvoir legislatif du roi de France, (XIe—XlIIe siecles) Travaux recents et hypothèses de recherche’, Bibliothèque de l’Ecole des Chartes 147 (1989): 283—310.

39.    W. Ullmann, ‘The Medieval Interpretation of Frederick I’s Authentic Habita’, in W. Ullmann, Scholarship and Politics in the Middle Ages (London, 1978); W. Stelzer, Deutsches Archiv für Erforschung des Mittelalters: Monumenta Germaniae Historica, 34 (1978): 153-162.

40.    L. Mayali, ‘Lex animata. Rationalisation du pouvoir politique et science juridique (XIIè-XIVè siècles)’, in Renaissance du pouvoir législatif et genèse de l’Etat, ed. A. Gouron and A. Rigaudière (Montpellier 1988), 155-164.

41.    E. Conte and S. Menzinger, La Summa Trium Librorum di Rolando da Lucca (1195—1234): Fisco, Politica, Scientia iuris (Rome, 2012).

42.    E. Cortese, La Norma giuridica: spunti teorici nel diritto comune classico, 2 vols. (Milan, 1962-1964), esp. vol. 2, 126ff.

43.    D. 1.4.1: Quod principi placuit legis habet vigorem, utpote cum lex regia quae de imperio eius lata est populus ei et in eum omne suum imperium et potestatem conferat.

44.    M. Bellomo, ‘Federico II, lo “Studium” a Napoli e il diritto comune nel “Regnum” ’, Rivista internazionale di diritto comune 2 (1991): 135—151.

45.    R. Helmholz, ‘Magna Carta and the ius commune’, University of Chicago Law Review 66 (1999) 297-371.

46.    G. Post, ‘Status regni: Lestat du roialme in the statute of York 1322’, in G. Post, Studies in Medieval Legal Thought: Public Law and the State (Princeton, 1964), 310—332.

48.    J.M. Cauchies, ‘Selon la disposition du droit escript... Na dispositie van het beschreve regt... ou l’ombre naissante du droit romain dans la legislation des Pays Bas bourguignons (1488)’ in Le droit romain d’hier à aujourd’hui. Collationes et oblations. Liber amicorum en l’honneur du professeur Gilbert Hanard, ed. Annette Ruelle and M. Berlingin (Brussels, 2009), 29—77.

49.    J. Krynen, L’empire du roi. Idées et croyances politiques en France. XIIè—XVème siècle (Paris, 1993).

50.    G. Post, ‘Ratio publicae utilitatis, ratio status and ‘reason of state’, 100—1300’, in Post (n. 46), 241—309.

51.                  D. 50. 1.33.

52.    G. Le Bras, ‘Le droit romain au service de la domination pontificale’, RHDFE 27 (1949): 377—398.

53.    A. Gouron, ‘Diffusion des Consulats Méridionaux et Expansion du droit romain aux XlIe etXIIIe siècles’, Bibliothèque de l’Ecole des Chartes (1963): 26—76.

54.    D. 1.1.8, Gaius 1 inst.: Nam quod quisque populus ipse sibijus constituit, id ipsius proprium civitatis est: vocaturque jus civile, quasi jus proprium ipsius civitatis.

55.    M. Sbriccoli, L’interpretazione dello statuto. Contributo allo studio della funzione dei giuristi nell’età comunale (Milan, 1969).

56.    The Politics of Law in Late Medieval and Renaissance Italy. Essays in honor of Lauro Martines, ed. L. Armstrong and J. Kirshner (Toronto, 2011).

57.    E. Cortese, ‘Legisti, canonisti e feudisti: la formazione di un ceto medievale’, in Università e Società nei secoli XII—XVI (Pistoia, 1982), 195—281.

58.    S. Stelling-Michaud, ‘La diffusion du droit romain en Suisse: étudiants suisses à l’étranger et leur activité professionnelle ultérieure’, Ius Romanum Medii Aevi, part V.12b (Milan, 1977).

59.    P. Tisset, ‘Mythes et réalités du droit romain’, Etudes d’histoire du droitprivé offertes à P. Petot (Paris 1959), 553—560.

60.    See, e.g., P. Stein, ‘Roman Law in Scotland’, Ius Romanum Medii Aevi, part V.13b (Milan, 1968); J. Barton, ‘Roman Law in England’, Ius Romanum Medii Aevi, part V.13a (Milan, 1971); R. van Caenegem, ‘Le droit romain en Belgique’, Ius Romanum Medii Aevi, part V.5b (Milan, 1966).

61.     ‘Dieu a manifestement fait naìtre et perfectionner le droit romain afin de servir de modèle à tout ce que la prudence et la diligence humaine peut faire de mieux pour le gouvernement du monde et l’administration de la justice.’ Guillaume de Maran (d. 1621), Discours politique de l’établissement et conservation des lois et de la justice (Toulouse, 1628), 534—535 cited by Giordanengo (n. 47), 394 n. 7.

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