Chapter 1 The Roman Heritage

Lawrence M. Friedman has analysed the problem of a modern legal culture in detail (Friedmann 1994, 117). The doctrinal study of law (later, DSL) is part of that cul­ture, especially in the so-called Continental legal systems.

The Continental tradition of DSL does not come from nothing. DSL has been at the core of all legal sciences for centuries. Its history is at least as long as the European university tradition, which actually began in Bologna, Northern Italy, in about 1000 AD. As the 11th century was drawing to its end, the great spirits of grammar, rhetoric and logic started up a systematic study of law.

One of the leading figures was Irnerius, “the lantern of science”, who was a master of exact reasoning and cleared the way for higher teaching and study of law, independent of the catholic church. However, Irnerius and his companions in Bologna were not those who actually developed legal thinking toward the modern DSL. The wise men of Bologna were too practical for that task. The real develop­ment was secured in the monasteries, where monks continued to translate the ancient texts into the Latin language.

Little by little, the Middle Ages left four significant institutions for the following generations (Van Caenegem 2006, 109). Two of them were born on the British Isles and two on the continent. England gave birth to the idea of parliament: the things that concern everyone need to be commonly accepted. The first traces of this line of thinking, which broke through on the continent much later, can be seen in the verdicts of local courts in 13th century England (e.g., the verdict Lecestershire 1285 Prior ofLaunde vs. Ralph Basset). Yet England was also the birthplace of the idea of common law; they created law that was common, royal and shared by professional judges.

These two ideas, parliament and common law, later gained a footing in the United States, and the idea of parliament also in Europe - after many diverse phases. Nonetheless, it is interesting that these medieval forms of law have also provided the seeds for the modern constitutional state. Obviously it is true that the modern forms of constitutional state only started to shape up after the French revolution, but when looking for the sources of the ideas, one should not underestimate the role of England and its medieval thought. The differences between the two traditions - that is, continental and common law - will not be dealt with in this study, which lays the focus only on the statutory law system and the role DSL has in it (Van Caenegem 2006, 110).

The two big ideas of continental Europe are of a different kind. The Middle Ages saw the development of general law (ius commune), which covered the whole of Western Europe (Mohnhaupt 2000, 657). One should, however, be cautious with this term. Apart from its apparent similarity, we are not talking about common, but literally general law. It was used broadly on the continent, especially in the areas where the Roman Empire had spread its influence, but it can't be called specifically common since there was local law in practice alongside it, sometimes even bypass­ing it. The basis for the later ius commune was found in the law created by the great jurists of the Roman Empire. After western Rome was destroyed in the whirlpool of migrating peoples, it was the fate of Roman law to fall into oblivion in the West.

Luckily, the saviour of the Roman line of thought was found in Byzantium. In 500 AD the emperor Justinian called together a skilled group of lawyers, who assem­bled, arranged and interpreted the central principles and concepts of Roman law for him. In some cases certain new additions were made, concerning the times. In any case, this event launched a lengthy era in which it was the appointed task of the legal professionals to keep law alive.

As was mentioned earlier, half a millennium after the creation of the laws of Byzantium, a group of talented legal thinkers emerged from the law schools of northern Italy (initially from Bologna), led by Irnerius. From their work, Continental Europe's dominating line of thinking began to take form. The schol­ars of Bologna separated law from the bonds of the church, once again creating secular law on the basis of Roman law. This is how Roman law saw its third coming in the early 11th century, once again shaped to fit the needs of the times (Stromholm 1986, 97).

As a matter of fact, all the tools of thought used by a modern Continental European lawyer have their roots in that age. The European conceptual heritage lies in Rome. We are full-scale heirs of Roman thought, which is the source of many self-explanatory and everyday concepts, such as contract, debt, commerce, trade, gift, real estate and personal property.

Gradually, Continental Europe began to acquire its “general” law, ius commune, which was a grammar shared by Continental lawyers that enabled them to interact regardless of their home or the language they spoke. The ius commune was also the foundation for other great legal codes, such as Napoleon's codification (in the early 1800s) and the German statute book on civil law (BGB).

The fourth part of the medieval legacy is natural law, although it is far from a medieval invention. The basic parts of natural law were already set up in Ancient Greece, especially by Aristotle. Nevertheless, the Middle Ages lifted it to a new level of prosperity, not least because of the work of St. Thomas Aquinas. Simplifying the point, the question is about a “natural” law, eternal, unchanging, binding all ages and peoples, and existing above secular laws. For St. Thomas, the natural law was passed by God (Stromholm 1986, 109). The following generations have “rationalised” nat­ural law and moved God away from the throne of law.

Examples of this can be found in the UN's declaration of human rights and the European human rights agreement. Those documents contain many central prin­ciples of natural law. As it happens, the Middle Ages are once again among us. The brand new constitutions have resurrected a tradition of natural law that is centuries old.

The doctrinal study of law has had a central role in times of exceptionally strong centralised power (the centuries of Rome's flourishing, the age of Justinian and the Napoleonic era). Those times have witnessed the birth of the great legal codes, such as the Corpus Iuris Civilis, the Code Civil and the Code Penal. Paradoxically, legal scholarship, especially the analytic study of law (Rechtsdogmatik in German), has also found its place in times of weak centralised power. The status of the doctrinal study of law in those specific times has been exceptionally interesting. Its societal task was to carry justice, to take it over the crises of the era. This was the case, for instance, in the times preceding the German unification. Universities and academics had to fulfil the lack of legislative authority.

A good example of this is the historicist school in early 19th century Germany. Carl Friedrich von Savigny rose to a leading position when shaping general German law before the actual process of unification. von Savigny thought that law is cre­ated by people, springing forth like an organism or a plant. The spirit of people, Volksgeist, is the basis for all law, and the task of DSL is to shape that spirit into rule of law. Therefore, von Savigny advocated an idea that the meaning of the content of legal norms should be analysed through research into their historical origins as well as the modes of their transformation.

Despite all this, von Savigny's own thinking ran into a paradox. Since the era's German, the doctrinal study of law was not original and the necessary concepts and instruments of thought had to be pursued elsewhere. Assistance was found in Roman law, especially in the form of Justinian's legal code. Thus the paradox was complete: it was the task of legal scholars to form the legal consciousness of the German people, using the concepts of Roman law as their tools. This is how the school of von Savigny and their followers once again came to preserve and renew the main principles and core contents of Roman law. The result was the so-called Pandect law, which was used as the foundation for the subsequent statute book on civil law (BGB), and, through this, as the building blocks of Finnish thought on civil law as well.

Considering the doctrinal study of law, von Savigny's work, despite its para­doxes, is important. When the centralised power was forceless and unable to produce general law for the numerous German kingdoms, the creation of law was left in the hands of the universities. The process was everything but democratic, but it also transformed the ancient inheritance of European thought into the modern age.

As much as scholars in the 18th century, modern European scholars are in need of the “ius gentium” of our time - i.e., elements that bind together the European thought on law, or legal thinking in general. This is one lesson of the past. It does, however, leave some core issues open. According to the traditional definition, the task of DSL is to produce knowledge about (valid) legal norms, as well as to sys­tematise them.

This is the reason why this contribution begins with a topic to which I will return at the end of the book. The problem as such is simple to formulate: Does legal think­ing, especially DSL (in German: Rechtswissenschaft), change or progress in some reasonable sense of the term, or, slightly in other words, what is actually changing and which is permanent in legal thinking and in DSL? Is DSL actually the same in our times as it was, let us say, in the 18th century? When it comes to its core and methods, some legal historians either deny the changes altogether, or say that DSL has not changed all that much - as is often believed - after it began to take its present form. What was the doctrinal study for centuries ago can still be discussed under the same heading. The legal order, the statutes, as well as the society, have changed, while DSL has not.

A glance through some of the early writings on law seems to provide support to this invariability. On the other hand, however, a 300-year-old textbook on civil law and an interpretative work on modern law do not seem to share any other common feature bar the fact that they belong to the same branch of study. Nevertheless, both impressions are deceptive.

To prove that doubt, I have singled out a few older studies for closer inspection, consciously choosing my examples from the Nordic countries. This decision carries weight, especially due to the fact that the significance of the Nordic tradition (as well as the Continental one, which provides its background) seems to be fading to the point of even being forgotten. This is partially so due to the process of “anglo- americanisation” legal theory Ronald Dworkin or Joseph Ratz, not to mention H. L. A. Hart, have gained, and, of course, with strong merits, a superior status when compared to the classics of the German-speaking world, such as Georg Simmel, Max Weber and Joseph Esser, or the Italian classic Norberto Bobbio.

However, all Nordic, and especially Finnish, legal thinking historically “comes” from Germany, or from the German-speaking world, the background to which is strongly based on Roman law (Aarnio 1983d, 9). One would not have to mention anything other than the receipt of Roman law in the 17th century, German pandect law and the movement of the conceptual doctrinal study of law (Begriffsjurisprudenz).

The significance of this influence in Nordic legal thought cannot be underesti­mated. Bypassing the classic Continental tradition is at least partly based on the absence of historical consciousness. The fact that the influence of Roman law in the British Isles ended in the 13th century has not been taken into account to a sufficient degree. The paths of the European legal thinking on the Continent and in England went in different ways. Therefore, speaking about DSL (Rechtswissenschaft) in the Continental sense, we have to give the Nordic classics a chance.