The Roman law tradition

David Ibbetson and Andrew Lewis

Roman law was first the local law of a small central Italian city-state.^[1] As the political boundaries of that state expanded, so did its law, until by the early centuries of our era its influence was widespread over and beyond the Mediterranean basin.

The Roman legal tradition was characterised not so much by its substantive rules as by its intellectual methodology. Between about 100 BC and AD 250 the Roman jurists developed techniques of analogical and deductive reasoning which produced a jurisprudence of enormous refinement and sophistication.^[2] When the Emperor Justinian caused the substantial extracts from the writings of these classical jurists to be collected together in the early sixth century AD, he ensured the survival of their thought into subsequent ages. His Digest remains the finest monument of any legal culture.

As the political fortunes of the Roman state waned, so did its direct legal influences. Nevertheless, albeit in Greek dress, it continued to apply within the limits of the Eastern Empire until the fall of Constantinople in 1453.

The western successor states of the fifth and sixth centuries continued an administrative pattern modelled on that of the previous local Roman government, and this involved a commitment to Roman law, applied side-by-side with Germanic custom. Unsurprisingly, the law codes of these Germanic states reveal some infiltration of Roman legal ideas, though these survivals became progressively more corrupt. Still, the Christian Church continued to keep alive Roman ideas and solutions, even in such unpromising territory as Anglo-Saxon England, and the most fundamental ideas of Roman law were sustained in scholarly environments familiar with such works as Isidore of Seville’s Etymologia.

The revival of the Roman law tradition stemmed from the concurrence of two conditions. First was the intellectual renaissance of the eleventh and twelfth centuries. While there may have been a continuous, if sparse, acquaintance with the Institutes, Code and Novels of Justinian from the time of their promulgation in the sixth century, there is no trace of the most important of the Justinianic tetralogy, the Digest, until the eleventh century, when two copies come to light. One, now known as the Littera Pisana or Fiorentina from the two Italian cities which successively pre­served it, was a copy made within a generation of the original production. The other, known since Mommsen as the Codex Secundus, disappeared in the mediaeval period, though its contents were preserved in very many copies. All mediaeval scholarship was based on this text; the Florentine, treated almost as a sacred relic, was little studied before the Renaissance.

This intellectual resurgence provided no more than the launching-pad for the revival of Roman law. Setting it off were the political circum­stances of the dispute between Pope and Emperor known as the Investi­ture Crisis, the question by whom and at what moment bishops and lesser clergy were to be invested with the symbols of their sacred and secular functions. The heat of this dispute lasted between 1075 and 1122, and for a long period both the imperial and papal powers encouraged their supporters to seek for any and every argument to support their cause. Amongst the sources culled for this purpose were the written remains of Roman law preserved in the Digest, Code and Institutes of Justinian. Foremost amongst the scholars who applied this learning to the new political uses was the imperial apologist Peter Crassus. Significantly, Crassus was a citizen of Ravenna, the Byzantine capital of reconquered Italy; here the Roman traditions were most obviously retained, and it may be surmised that it was here that Justinian’s texts had been preserved.

The first century of scholarly work on the Roman texts was largely devoted to teasing out the meanings of the very heterogeneous opinions and materials contained in Justinian’s Corpus luris Civilis. Four gener­ations of students link Imerius, through the Four Doctors, their students Rogerius, Placentinus, Pillius and the student of these in turn, Johannes Bassianus, with Azo and Accursius in the early thirteenth century.³ Whilst these teachers produced a great variety of literature in their exploration of the understanding of their texts, they are chiefly remem­bered (and were in due course execrated) for their glosses to the text.

Later generations criticised the glossators for their narrow-minded literalness and absence of a wider cultural context, but the very narrow­ness imposed upon them by their task gave them an unrivalled knowledge of the Roman law texts on which their successors could build. Moreover, it is as well to remember that the Bolognese school did not come into being as a research institute, but as a teaching institution for immediate practical need: it needs to be constantly re-emphasised that Roman law at this time was not a dry university subject, but a matter of everyday utility throughout Europe. The law school at Bologna became the centre for the scholarly study of the Roman law texts, and all who wished to advance themselves in literate employment outside the church obtained their training there. The link between law and public administration which remains strong in the continental European tradition began here.

This first wave of reception of Roman law into the European legal tradition had many, intertwined, aspects. Three principal lines stand out. Most obvious is the infiltration of Roman law into written texts; behind this lies a widespread acceptance of Roman law as a subsidiary source of ³ See further William M. Gordon, ‘Going to the Fair - Jacques de Revigny on Possession’, below, pp. 73-97.

law, filling in the gaps left by customary law; and finally there is the general adoption of the refined Roman techniques of legal reasoning.

As the general rate of literacy increased, there was a consequent rise in the respect accorded to written text and a tendency to reduce law into writing.

The use which had been made of the Roman legal texts in the Investi­ture controversy gave Roman law a status as essentially a supranational body of legal principles.

Just as importantly, the activities of the mediaeval Roman lawyers had ensured the survival of the rigorous analytical method of the classical jurists. Treating the Corpus luris as an authoritative text, they attempted to harmonise the arguments found there; while this essentially quixotic task ultimately led to much criticism, it did require the development of increasingly refined techniques of analysis. Moreover, because of the work of the academic lawyers called on to apply Roman law in the courts, these techniques which had been developed within the universities became a ubiquitous feature of European legal practice.

This general infiltration of Roman legal ideas and practices in the thirteenth and fourteenth centuries can be regarded as the first wave of the reception of Roman law. It marked, most crucially, the absorption of the methodological aspects of the Roman tradition into mediaeval Europe, and thence into the modern world.

The second wave of the reception of Roman legal ideas occurred in the sixteenth century. At an academic level, this was a product of the human­ist scholars’ perception of antiquity, an important dimension of which was provided by Roman legal sources. Exploration of the juristic texts transmitted from the Middle Ages, alongside recently recovered inscrip- tional evidence, led Antonio Agustin, Alciatus and their contemporaries to the earliest understandings of the historical dimension of Roman law.⁴ It was on the basis of these explanations that later generations of Roman law scholars like Cujas (1522-90) and Donellus (d. 1591), working in northern Europe, were able to establish more critical and reliable editions of the basic texts.

As well as this academic aspect there was, most notably in Germany, a practical side to the second wave of reception. At the beginning of the

See Michael H. Crawford, ‘Bembo giureconsulto?’, below, pp. 98-103. sixteenth century there was a large range of local customary jurisdictions, reflecting Germany’s notorious political fragmentation. In 1495 the remodelled imperial Supreme Court, the Reichskammergericht, adopted a written procedure. This written procedure was modelled on that found in the ecclesiastical courts, akin to that of the late Roman legal sources (as the common term ‘Romano-canonical’ implies). Moreover, just as the ecclesiastical practitioners had naturally looked to Roman law for solu­tions to substantive legal problems, so too the Reichskammergericht applied the ‘common law of the Empire’, i.e. the Roman Empire, which naturally meant Roman law. While the ground had been prepared to some extent by the Roman ideas present in the urban codes of the thirteenth century, it was only in the sixteenth that there was any wholesale or conscious Romanisation of German law. The direct import­ance of this was at first limited as large portions of the Empire were in practice privileged from its jurisdiction, but under its influence the independent princes began in the course of the century to remodel their own high courts along the same lines. It was not, however, until it became general practice to give reasons for decisions and to report these that Roman law scholarship and the practice of the courts came together.

Elsewhere in Europe, too, this second wave of the reception of the Roman legal tradition was significant. The humanist scholars of the fifteenth and sixteenth centuries had introduced a more historical criti­cism of the Roman texts, associated with a weakening of the belief in the Roman texts as revealing a near-authoritative supranational law. There was, in consequence, a greater influence on the harmonisation of Roman law with national and local laws. Paramount in this regard was Hugo Grotius’ Introduction to the Jurisprudence of Holland (Inleidinge tot de Hollandsche Rechtsgeleertheyd), published in 1631. Writing in the ver­nacular rather than in Latin, he laid down the foundations of Roman­Dutch law which could be built on by his successors Vinnius, van Leeuwen, Voet and Noodt. A similar harmonisation was brought about in France by the works of Coquille and Dumoulin, for example, and in parts of Germany by Ulrich Zasius. But even where there was a move away from the traditional reverence for the Roman text, there was no such departure from the ideals of the Roman legal method: the practical dominance of reasoning by deduction and analogy was so deeply embedded that it was easily detachable from its roots in the writings of the Roman jurists.

This harmonisation of Roman law and customary laws reached its peak with the codification movement in continental Europe, beginning with the Prussian Code of 1794. Most important of these codes by far was the French Code civil, dating back to 1804, in part at least because it was widely adopted in other countries. The heavy Roman influence - stem­ming from the pre-existing Roman substrate as well as from the university training of their draftsmen and of those writers such as Pothier on whom the draftsmen relied - is visible in all of these codes. At the same time, though, they introduced a formal diversity into the Romanised systems. Although as a matter of history it could be recognised that French law and German law, for example, had common roots in Roman law, as a matter of legal practice they were clearly distinct systems. No longer were the learned opinions of the professors of Roman law of any direct relevance to the determination of disputes in the courts; no longer was legal practice anchored on the rock of a common legal culture.

While legal humanism had its part to play in the balancing of Roman law and customary law, the older methods of textual analysis continued to play their part too. Such analytical jurisprudence reached its high point in the writings of the Spanish neo-scholastics such as Molina and Covar- ruvias in the sixteenth century. Their writings, and the shorter but no less profound works of Grotius, provided the base for two separate traditions of considerable importance. Most notable was the growth of international law; the influence of Grotius’ De lure Belli ac Pads was of paramount importance in the formulation of this common law of nations, but behind lay a tradition of writers and practitioners including Oxford’s Regius Professor of Civil Law, Alberico Gentili (1552-1608).^[3]

The second tradition flowing from the De lure Belli ac Pads was that of secular Natural law. St Thomas Aquinas, writing in the thirteenth century, had laid down a firm framework of Natural law, but this was strongly anchored in the theology of the Roman Catholic Church. This was hardly congenial to the post-Reformation Protestants, and still less so to the thinkers of the Enlightenment. Basing themselves firmly on a perception of human reason, such writers as Wolff and Thomasius expanded Grotius’ systematic analysis into an all-embracing framework of ideal law. The paternity of the substantial categories of Roman law is transparent, as is the theoretical rooting of their position in the implicit belief of the mediaeval civil lawyers that Roman law represented a universally valid supranational system of legal principles. The close paral­lel between this form of Natural law and Roman law is clearly shown by the ease with which the ideas of the Natural lawyers flowed into the writings of the German Pandectists, culminating with Windscheid’s very influential Lehrbuch des Pandektenrechts in 1862.

Though it may not be so easily visible, Roman influence was none the less important in shaping the legal consciousness away from the principal centres of Roman law studies in continental Europe. In Scotland, for example, local customary and feudal law were dominant in the mediaeval period, though these owed much more to the Anglo-Norman influence introduced in the twelfth century than to native Celtic tradition. The constant interference of the more powerful state of England in its affairs, coupled with its less favourable commercial and agricultural base, pre­vented the emergence of a strong central government. Reforms and development of the judicature in the sixteenth century led to the intro­duction of Romano-canonical procedures into Scottish courts, which led in turn, as elsewhere, to the adoption of substantive Roman solutions.^[4] The first universities had been founded in Scotland in the course of the fifteenth century, but they seem not to have flourished, and it became the recognised practice for young Scots lawyers to travel to the continent for their legal education. This ensured that there was a steady supply of lawyers versed in the latest civilian scholarship to staff the Scottish courts. No system of instruction in local law existed to maintain the defences against the Roman encroachment; so much so that when the Faculty of Advocates, who controlled admission to legal practice before the courts, reformed their admission procedures in 1610 to include an examination, a considerable part was devoted to Roman law. As happened elsewhere in Europe, though, the tension between Roman law and customary law was satisfactorily resolved, though in the case of Scotland this did not lead to any written code. The proximity and continued influence of the avowedly non-Roman English legal system, and the survival of a strong native feudal tradition, led to the establishment of a distinctly Scottish legal tradition founded on the institutional writings of the seventeenth and eighteenth centuries.^[5]

England provides another variation on the theme of the infiltration of the Roman legal tradition into European legal culture. While there may have been some limited acquaintance with Roman legal ideas in the Anglo-Saxon period, it is not until the middle of the twelfth century that we begin to find evidence of detailed study of the Roman texts. At this time there was no gulf between the study and practice of law in England and the rest of Europe; and, as happened elsewhere in Europe, Roman ideas filtered into the English legal consciousness principally through written commentaries (Glanvill in the late twelfth century, Bracton in the mid thirteenth). Yet, again as occurred elsewhere, there may have been a more direct influence on actual legislation. The creation of new proprie­tary remedies closely resembling the possessory interdicts of the Romans in the middle of the twelfth century has been considered by many scholars to indicate both knowledge of the Roman law and perhaps conscious borrowing from it. And when in the fourteenth century the royal courts articulate the custom of the realm that an innkeeper should be strictly liable for the loss of his guest’s goods, it is not easy to avoid the conclusion that at some stage in the past the quasi-delictual liability of the Roman caupo had found its way into accepted English practice.

This strong Roman influence on the Common law did not last beyond the end of the thirteenth century. Until the sixteenth century, English legal history is largely the story of the development of remedies based on indigenous procedures. There was little, if any, room for the use of Roman learning in such a context, and the vitality and apparent suffi­ciency of the local procedures prevented for some time the development of Romano-canonical alternatives in secular contexts. Moreover, the strong position of Roman law in continental universities was not mirrored in England, where its study was intermittently forbidden; advanced legal study (and education) in England took place in the Inns of Court rather than the universities, and was the study of the Common law rather than the Roman, of local procedure rather than general substance. Behind this, too, lay a strongly held ideological commitment to the insularity of the Common law and its separateness from the Civil law, which was seen to be at the base of continental systems. Those courts which did operate according to Civil law procedures - the ecclesiastical courts, the univer­sity courts of Oxford and Cambridge, and the Court of Admiralty⁸ - were marginalised by the courts of Common law notwithstanding their import­ance in practice. A potentially greater channel for the infiltration of Roman procedures and substantive law was the Court of Chancery, which crystallised in the late fourteenth century, whose procedure was never forced into the rigorous straitjacket of the Common law, and whose judges - the masters - had frequently received a university education. Even here, though, there is little real evidence of the direct borrowing of Roman legal ideas.

The strength of the belief in the insularity of the Common law has protected it from wholesale supersession by Roman legal ideas. Neverthe­less, from the later Middle Ages there have been several pulses of infilt­ration of Roman law into Common law. The first, rather ragged, move­ment occurred in the sixteenth and early seventeenth centuries. Most obviously there was a revival of the study of Bracton and of the use of his ⁸ See Alain Wijffels, 7us Gentium in the Practice of the Court of Admiralty around 1600’, below, pp. 119-34.

text in Common law contexts in the wake of its printing in 1560; since Bracton had been a judge, the work attributed to him could be cited freely without any fear of being accused of trying to import Romanism into England. Less obviously, but more importantly, English lawyers seem to have had an increasing familiarity with the Roman texts. It was not merely that humanists like Thomas More were closely in touch with the principal currents in contemporary European culture, or even that schol­arly lawyers at the end of the century - Thomas Egerton and Francis Bacon, for example - are known to have studied the Digest; the dearth of easily comprehensible texts on English law meant that reliance was increasingly placed on the basic literature of Roman law. Justinian’s Institutes were widely recommended as an introductory legal text, and John Cowell transparently based his Institutiones luris Anglicani on them; the introduction to such a severely practical book as William West’s Symbolaeography is a crude, and unacknowledged, translation of a con­temporary civilian text.^[6] A second pulse, briefer but sharper in its focus, occurred around 1700, when the Roman ideas contained in Bracton and in the seventeenth-century Natural lawyers’ writings enjoyed a brief vogue. The best-known product of this movement is the adoption by the Common law of the Roman rules relating to the standard of care demanded of bailees; but it can hardly be coincidental that much of the articulation of the Common law of torts at this time closely followed the lines laid down by the Roman jurists.^[7] After a period of relative quie­scence, the Roman texts move into the light again in the first half of the nineteenth century.^{New Roman",serif;color:black'>[8]} Ambiguities in the law of contract were resolved by reference to Roman law, often mediated through the works of Pothier; the law of easements was transformed from a cumbersome mediaeval structure (itself with a Roman base imported from Bracton) into one more in keeping with an urbanised society by direct borrowings from Roman and contemporary civilian texts. It may be that each of these pulses should be regarded as no more than a brief fashion; but each time the fashion died out, it left its legacy in the form of rules embedded in English law.

In terms of substantive rules, one legacy of Roman law has been a considerable measure of uniformity throughout the legal systems of western Europe, stretching beyond this area into regions which adopted European-based codes. Most obviously, the Roman conceptual cate­gories underpin both the structure of modem codified Civil law systems and the structure of the contemporary uncodified Common law. The institutional division of the law into persons, things and actions, with the law of things further subdivided into property and obligations, is so familiar to students of the modern law that it is hard to recognise it for what it is, as an invention of the Roman jurists.

At a more abstract level the Roman law tradition embodies not merely this common core of rules, but a common way of thinking about law. In the perception of the Roman jurists law was a discrete field of knowledge, conceptually disembedded from the society in which it operated, yet very much a part of the heritage of that society. Legal learning was artificial learning; and lawyers were a distinct body of experts who had - or who claimed to have - mastered this learning. The post-Roman western legal tradition is underpinned by an identical commitment to the discreteness of law and to the professionalisation of lawyers. There is an enormous gulf between this conception and the more integrated social conception, where law is essentially indistinct from custom and practice, and where the nearest approach to a lawyer is the tribal elder who is perceived as remembering and articulating this custom.

Treating law as a system of rules separate from social practice, the Roman jurists were forced to develop new forms of reasoning to enable them to identify valid rules. Following the model of the grammarians they used arguments of analogy and contrariety in order to demonstrate the essential similarity or dissimilarity of a new case to an established one, and developed techniques of induction and deduction in order to generate abstract principles from concrete cases and then to reason outwards from these principles to new situations, though invariably tempering these results with a sense of pragmatism. These techniques - not always coupled with pragmatism, it must be said - were used to great effect by the mediaeval jurists in their attempts to harmonise the apparently conflicting texts of the Justinianic corpus. Although the onset of humanism, with its stress on the accurate interpretation of texts, to a large degree undermined this particular form of very close legal analysis and exegesis, the essential principles of legal reasoning survived among both academic and practical lawyers.

In the contemporary legal world their presence is most clearly marked in those states whose law has not undergone comprehensive codification, and where there has remained a strong commitment to the positivist thesis that law is a discrete field of rules and principles. Despite their denun­ciation as a sham by a range of legal theorists, the Roman jurists’ techniques clearly continue to underpin the grammar of the modem Common law. Judges still use arguments by analogy identical to those used by the Roman jurists in order to distinguish one case from another; and the same basic methods of induction and deduction enable the courts to generate principles and definitions from a set of specific cases and then to apply them to new situations.¹²

The same principles of reasoning form a part of the lawyers’ armoury in codified legal systems too. In some places, such as Germany, they have remained powerful tools; in France their importance has been to some extent eroded in the twentieth century as a result of the increasing practical recognition of the quasi-legislative function of the judge, while in places like Switzerland the Code itself expressly authorises the judiciary to take into account extra-legal factors in order to mould the law to changing circumstances. Such a freedom to depart from previous prac­tice, releasing judges from the shackles of strict legal reasoning, has inevitably diminished the centrality of formal canons of legal thinking. Even in these states, though, the Roman law method has been fully integrated into the whole structure of legal thought, and the widening of the scope of judicial discretion has done nothing to disturb the duality of legislation and interpretation which has characterised the post-Roman legal tradition.

The influence of Roman law has not been confined to purely legal contexts; it has had a profound influence on the development of western political theory.

Roman ideas lie at the basis of the mediaeval theory of the state. Already in the twelfth century, as has been seen, one significant reason for the revival of study of the Digest was its political utility in the hands of imperial apologists like Peter Crassus, who were able to cull from its texts support for a theocratic, absolutist conception of the state: ‘quod principi placuit, legis habet vigorem’ and ‘princeps legibus solutus’. The prince himself is beyond the reach of the law; his will has the force of law. Such notions of regal supremacy were subsequently upheld at the start of the sixteenth century by Zasius and Bude, in Germany and France respectively; a century later English writers like John Cowell, who openly argued for the adoption of Roman legal categories as a means of imposing some structure on the mass of the Common law, were vilified for attempt­ing to import such absolutist doctrines into England.

On the other hand, a more ‘democratic’, conciliarist position was advanced by such writers as Azo and Hugolinus, stressing the origin of the prince’s authority in the people’s concession of authority - a concess­ion which might in some circumstances be withdrawn. This approach is to be found, for example, in Bracton, and appears to have been the domi­nant one in the Middle Ages. Aquinas drew from the fact that the prince ¹²lang=EN-US style='font-size:8.0pt;line-height:107%'> For an example, see David Ibbetson, ‘The Danger of Definition: Contrectatio and

Appropriation’, below, pp. 54-72.

was said to be above the law the conclusion that this was because he could not in fact be brought before a court, but went on to argue that this in no way relieved him from the duty of voluntary obedience to its demands, citing in support a rescript of Theodosius from the Code: ‘It is a saying worthy of the majesty of the ruler, if the prince professes himself bound by the laws; for even our own authority depends on that of the law.’ These ideas, coupled with ideas drawn from the Roman civil law, formed the base of the social contractarianism that came to dominate political thinking in the seventeenth century, and whose influence is still strongly felt in twentieth-century political theory.

A second feature of modern thought whose source can be traced back into the Roman texts is the idea of the Law of Nations, its name taken from the Latin ius gentium (the term commonly used before Bentham invented the phrase ‘International Law’). International law has its roots in two principles. First was the realisation that nation-states had independent legal capacity or, to put it in Baldus’ terms, ‘The King is emperor in his kingdom’, with all the legislative capacity and political independence of the Roman Emperor. The second principle, articulated by William of Ockham in the context of arguments seeking to limit the universalist claims of the Pope or Emperor, was of the equality of these states. The Roman notion of ius gentium was an attempt to express the apparent universality of legal ideas observed by the Romans in the legal systems of other peoples. In the hands of some sixteenth-century writers expressing the interests of the inhabitants of the newly discovered American continent, it came to signal the relationship between groups or nations, limiting the exploitation of the New by the Old World. Nations came to be seen as entities with legal rights and obligations, and their relationships with other nations were subjected to regulation in treatises like Gentili’s De Legationibus, treating of the duties of ambassadors, and De lure Belli, on war. Channelled through Grotius’ De lure Belli ac Pads, these ideas have formed the basis of the theory and practice of international law, the most substantial flowering of the Roman legal tradition in the twentieth century.

Equally important in the twentieth century has been the revival and growth of theories of natural, or fundamental, rights. Some credit is due to William of Ockham, for his use of the subjective sense of ius, but again it was Grotius who laid down the essential groundwork for this in his Introduction to the Jurisprudence of Holland. Here Grotius expounded a national legal system based upon ideas of private rights; at many points his arguments are underpinned by concepts drawn straight from the Roman texts, as in the derivation of the modes of acquisition of property from the law of nature. It has been shown that his work (together with that of Samuel Pufendorf) lies behind Thomas Hobbes and John Locke, linking the ideas of private property and individual civic rights developed by the political theorists of the seventeenth and eighteenth centuries firmly into the Roman legal tradition. In the same way the basic moral values which form the classical principles of natural justice, the maxims audi alteram partem and nemo iudex in causa sua, form a part of this tradition, mediated through the Natural law writings of Grotius and his successors.^[9]

The Roman law tradition has produced many and varied effects on the legal and intellectual map of the world. Its influences upon the legal systems of western Europe resulted in the age of colonialism in its being spread from Holland to South Africa, Sri Lanka and Indonesia; from France to Quebec, Louisiana and francophone Africa; and from Spain to Texas, South America and the Philippines. Post-colonial export of the tradition has been most marked in Japan and Turkey, though China has also been influenced to a certain extent. Everywhere it has had an influence through the western tradition of political thought. Codification and the influence of subsequent legal orders has modified but not funda­mentally altered the importance of this living cultural tradition, so that it remains to the present day the most widely flung and all-pervasive legal tradition, challenged only by the economic competitiveness of the Anglo- American Common law. The maintenance of critical scholarly study of the roots and consequences of the tradition would scarcely need justi­fication in an age more imaginative and less materialistic than our own. Those who have contributed to this volume hope thereby to have fur­thered each in his way the exposition of the Roman Law Tradition so fruitfully explored by its dedicatee.