The Study of Roman Law in Its Intellectual Context
It is possible to distinguish at least three different ways of studying Roman law today. A first approach starts with actual legal problems.
One can certainly ask about the historical background of these problems, but the actual problems remain the centre of attention. So Roman law is a kind of auxiliary tool for the understanding of modern private law. It is a treasury of legal ideas that can be put to use in solving today’s legal problems. Institutions of Roman law are detached from their original context and so take on an air of timelessness. Examples are the clauses that accompany the contract of personal security: the beneficium divisionis or the beneficium excussionis. The lex commissoria in the law of sale and of pledge is another example. This is the timeless and the ‘infallible’ part of private law, useful for understanding modern private law.5 This approach has its roots in the Historical School of German jurisprudence of the nineteenth century and appears to be totally ahistorical. But that is not necessarily so: see, for example, the impressive book by Reinhard Zimmermann.6 He deals with the general structure of the law of obligations and explains clearly its historical roots, starting with the elliptical texts of the Roman jurists and going on to the legal scholars of the nineteenth century, the German Pandectists, who built complex dogmatic structures on the basis of Roman legal texts. For real rights there is now a comparable work by Willem Zwalve.7 It explains the law of ownership and other real rights using examples from historical sources and comparative law.There is a second approach to Roman law.8 In it the emphasis is also on matters of private law, but there is a far greater sensibility to legal evolution within Roman law itself.
This approach began as early as the nineteenth century, when Roman law gradually ceased to be a direct source of current (private) law. Early representatives of the approach are Alfred Pernice (1841-1901)9 and Otto Lenel (1849-1935).1OWe owe to Lenel two of the most important modern tools for the study of classical Roman law: first, the reconstruction of the writings of classical jurists in the so-called Palingenesia11 by using the inscriptions at the beginning of each fragment of the Digest. These are carefully preserved in the most important manuscript of the Digest, the Littera Florentina, which is the point of reference for all modern editions. 12 The second tool is in a sense a continuation of the Palingenesia. Here Lenel collected quotations from the Edictum Perpetuum set out in the commentaries written by the classical Roman jurists and rearranged them so far as possible in their original order. 13
This neo-humanistic approach only had its true breakthrough in the seventies of the last century. In the initial period of historical studies of Roman law, the trend was to identify massive changes to the classical texts (‘interpolations’) attributed to the law-making process in the time of Justinian. 14 That trend began in the second half of the nineteenth century.15 Only a century later was this approach at last fundamentally questioned; in retrospect the assumption of interpolations was found to be totally unfounded. With some justification, these first attempts at a historical approach to Roman law were criticized, on the grounds that they dealt in legal phenomena which were a construction and which never existed in reality. That was to a certain degree true in the heyday of interpolationism: Romanists16 developed all kinds of ideal concepts, such as the notion that the jurists wrote Ciceronian Latin, which is nowadays regarded as untenable.
Today the approach to interpolations is far more prudent. The great majority of Romanists think that the only unquestionable interpolations are to be found in the substitution of words referring to institutions abolished by Justinian (for example, the informal transfer of ownership by way of traditio replaces the references to the formal mancipatio; fiducia as an older form of security is replaced by pignus). For other interpolations one has to look first at the Justinianic constitutions in the Code, which contain much information on Justinian’s legal policy. This source of evidence had long been neglected, as Lokin has rightly argued.17 The definitive turning point came in 1967 at the conference ‘La critica del testo’ organized by the Società Italiana di Storia del Diritto. There the leading Austro-German Romanist Max Kaser developed for the first time an explicit, coherent, and modern methodology for the study of the texts of the Corpus iuris civilis.18Scholars adhering to this approach distinguish between earlier and later generations of Roman jurists; they take the individual qualities and opinions of the Roman jurists into account; and they are aware (far more than the earlier group of Romanists was) that Roman law had its roots in legal practice and concrete cases. They do not aim to diminish the differences within the Digest. On the contrary, these differences are discussed at length and explained by identifying differences between individual Roman jurists, generations of jurists, or schools of jurists. Classical Roman law rather than Justinianic law is the main focus. The reason for this is the fascinating diversity of legal opinions in the period before Justinian, to which only Justinian himself put an end.19
This is the approach of Franz Wieacker (1908-94),20 Max Kaser (1906—97), and many other Romanists. Together they form the neo- humanistic school which had its roots in late nineteenth-century Germany.
This does not mean that in their works there are no surviving signs of the Pandectism which prevailed earlier. In student textbooks in particular, but also in the structure of Kaser’s Handbuch, it is a systematic rather than historical approach that prevails. So, there would still be room for distancing this approach further from nineteenth-century Pandectism (‘Entpandektisierung’).21 It might be wise in the future to follow the example of J. C. van Oven, who in his post-war student manual of Roman law (1945/1948) closely followed the structure of Gaius’s Institutes.22Now there is a third approach to Roman law. This approach agrees in many respects with the second, neo-humanistic one, but it has a much wider scope. I propose to call it the contextual approach to Roman law. Scholars adhering to this approach are not only concerned with legal sources but also consider these sources as a part of intellectual history. They try to understand Roman law not only as a legal phenomenon but also as a part of the history of ideas in general. They are interested in how far the Roman jurists, when searching for solutions to the legal problems they encountered, made use of concepts derived from other non-legal domains like philosophy, rhetoric,23 physics, or theology. This approach is practised by scholars such as Dieter Norr,24 Wolfgang Waldstein,25 and - somewhat differently - by Okko Behrends.26 In Italy it is favoured by Mario Talamanca,27 Aldo Schiavone,28 and Antonio Mantello.29 Other adherents are Alfons Bürge,30 Giuliano Crifo,31 David Johnston,32 and Ulrike Babusiaux.33 This new approach, however, is not entirely without its dangers: most Romanists are only jurists and they are not necessarily familiar with philosophy, rhetoric, or theology. They may also lack expertise in the difficult domain of the history of textual transmission of the writings of antiquity.34 In other words, a prerequisite for this group of scholars is a preliminary, thorough study of non-legal primary sources and reliable secondary literature.
Otherwise there are new threats of unprofessionalism, just as in the period prior to 1970 when Romanists without a sound philological knowledge criticized what they regarded as the non- Ciceronian Latin of the Roman jurists of the first centuries AD.Nevertheless, it is possible to develop modest, effective strategies.35 One of the main questions here might be, considering the history of the textual transmission of a non-legal text, is it possible that a particular Roman jurist would have been aware of the text? And is there any circumstantial evidence of such knowledge elsewhere in his work?
Within these three schools the relationship between the historical and the systematic approach to Roman legal texts differs greatly. The school which is primarily interested in legal doctrine considers the texts of the Roman jurists as containing traces of legal dogmatic principles which have yet to be clearly formulated, while the second group of scholars is more concerned with the inscription of the text and with its palingenetic context. The third group goes still further in the contextual approach and considers the jurists as intellectuals amongst other contemporary intellectuals in Roman society. The ‘dogmatic’ and the ‘contextual’ approaches can be found in earlier periods of legal history. In the sixteenth century, for instance, we find, on the one hand, jurists who continued the medieval, mostly ahistorical tradition of Bartolus and, on the other, legal humanists like Hugo Donellus (1527-91),36 who chose a systematic approach, and still others, such as Franciscus Connanus (1508-51)37 and Jacobus Cujacius (1522-90),38 lang=EN-US>who took a historical, antiquarian approach.39 This last group of humanists, in explaining texts of the Corpus iuris civilis, quoted extensively from the non-legal literature of antiquity. Much work could still be done to investigate these quotations.
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