Revivals of Roman Law

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Revivals of Roman LawAuthor(s): H. F. JolowiczSource: Journal of the Warburg and Courtauld Institutes, Vol. 15, No. 1/2 (1952), pp. 88-98Published by: Warburg InstituteStable URL: http://www.jstor.org/stable/750115

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2/12

REVIVALS

OF

ROMAN

LAW

By

H.

F.

Jolowicz

t may

not be

immediately

obvious

by

what

right

law-any

law-can

claim to be included in a series of lectures on revivals of learning.' Most

laymen,

and

indeed

many

lawyers,

especially

in

this

country,

think

of

the

law

simply

as a

practical

matter,

and

would

never

dream

of

classing

it with

art

or literature.

They

know indeed that barristers refer

to

each

other

in

court as

"my

learned

friend,"

but

they

regard

this as

slightly

funny,

and,

though

they

realize that their

lawyer,

like their

doctor,

cannot

well have

learnt his

job

without

reading

some

books,

they

expect,

not

book-learning,

but

effectual action from

their

legal,

as from their

medical,

attendant.

Now

I

am far

from

saying

that

such

a

purely practical

view

is not tenable.

On

the

contrary

I

believe

it to

represent

the normal

human

attitude.

Even

the

Greeks,

for

instance,

though

they

had

plenty

of

law,

had

no

legal

learning

as we understand it, and no lawyers. There is no classical Greek word for

lawyer;

voLx6q

as a

noun

is

late,

and

in

any

case refers

to a subordinate

sort

of

person.

But the

Romans

were

peculiar

in this

respect.

To them

belongs

the honour

of

having

invented,

not

law,

but

lawyers,

and I believe it

would

be

true

to

say

that no

other

people, except

directly

or

indirectly

under

their

influence,

has ever taken

up

the attitude

that

law was a definite

branch

of

study,

and that

it

was

separated

both

from

religion

and

from

government

generally.

Even of

the

Romans

it

would

not

be correct

to

say

that

they

developed

a

legal

profession

in the

modern sense

of the

term,

but

they

did

have

a

number of

specialists

to whom

the term iuris

periti

or

iuris

prudentes

could be

applied,

and these

men,

as Cicero

notes,2

were not

like the

petti-

fogging

Greek

scribes,

but drawn from the

higher,

sometimes the

highest,

ranks of

society,

or,

to

use

Max Weber's

term,

Rechtshonoratioren.3

Not that

Greece

was

without

influence

in

the matter.

The

isolation

of

jurisprudence

as a

separate

activity

was indeed

peculiar

to

Rome,

conditioned

by

her

unique

constitutional

development,

but towards

the

end of the

Republic,

Greek

thought

came

in

to

fructify

the native

material.

Rhetoric

and

dialectic,

by

bringing

in

logical

classifications,

"introduced

Roman

juris-

prudence

to

the

circle

of Hellenistic

professional

sciences,"4

but,

be

it

noted,

such a

science

had not

existed

in

Greece

itself,

even

in

Hellenistic

times.

The

phase

of

intense,

perhaps

excessive,

attention to dialectical

methods

soon passed, but it is of importance because it rendered possible the growth

of

a

technical

literature which

reached

its

zenith

in

what

lawyers

call the

"classical

age."

This,

I

should

add,

is not the

same as the classical

age

of

literature,

but

later,

comprising

about the

first

two and

a half

centuries

of

the

Empire.

You

will

not,

I

hope,

be led to

imagine

that

the classical

lawyers

were

professors.

Far

from

it-most

of them had their

eyes

as

firmly

fixed

on the

1

This

lecture

was

given

at

the

Warburg

Institute in

February

1951

in

a series on

"Revivals

of

Learning."

2De

Or.,

1.45.198.

3

Grundrissder Sozial-Oekonomik,III. Abt.

Wirtschaft

u.

Gesellschaft,

3.

Lieferung,

? 4,

p.

465.

F.

Schulz,

Historyof

Roman

Legal

Science,

I946, p.

67.

88

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3/12

REVIVALS OF

ROMAN

LAW

89

courts

as

our

own

judges,

and

the literature

they

produced

had

a

practical

effect

comparable

to

that

of our

own

literature of

reported

cases. But it was

different

in

form,

not

so

strictly

tied

to

the

actual

instance,

and

probably

because

of the

elements

of

Greek

learning

that had

entered into

it,

suitable

for academic study when, in later ages, conditions for such study became

favourable.

It

consequently

provided

the

opportunity

for

revivals

parallel

to

other revivals

in

which

the art or literature of a

past

age

is made

the basis

of a new

intellectual

movement.

There

remains

of

course

the

difference

that

legal

literature

has a

more

immediate

concern

with

worldly

affairs

than

art

or

literature,

so

that

we feel

compelled

to

ask of

any

revival what effect it

had on

the actual

administration of

justice.

But

the

lawyer's

cry

of

"back

to

the texts"

was

never

a mere

demand

for

practical changes;

as

in similar

literary

movements

there was a

striving

for

the

purity

of

a

classical

age,

or

at

least a

professional

desire to

regain

the

technical

excellence of the

past.

Of

all

the

legal

revivals

the most

famous

is that

which

took

place

at

Bologna

about A.D.

I

IOO,

but I do not want to

speak

of that alone. Indeed

I

expressly

used the

plural

in

the

title of

my

lecture

for

two

reasons,

partly

because

I

did

not

want

to

have too

much

time

at

my

disposal

for

the discussion

of

the

eleventh and twelfth

centuries

before

an

audience

consisting

largely

of

experts

in

mediaeval

culture,

but

partly

also

because

I

wanted to

emphasize

that the

phenomenon

which

goes

by

the name of

Bologna,

is but

one

of a

number

of

re-starts that Roman

law

ideas have

had. A

considerable

part

of

European

legal history

might

indeed

be

recounted

in

terms of

such

restarts.

But

they

have not even been

confined to mediaeval

or

modern

times. The

phenomenon

occurred in

Antiquity

itself,

and

to

make

my

point

clear

I

must

go

back

to

the

moment

when

the

classical

age

came to an end.

It

ended,

rather

suddenly,

with

the

beginning

of the

period

of

political

turmoil

in the

middle

of the

third

century

A.D.,

and

when order was restored

by

Diocletian towards the

close of the

century,

the

legal

picture

had

altered

considerably.

In

particular,

the

race of

jurists

and

their

peculiar

function in

the

development

of the law

had vanished.

A first

revival

may

indeed be said

to

have

taken

place

at

this

point.

For

the literature

that

the

classical

jurists

had

created was not

discarded.

On the

contrary,

it

became

gradually

a

closed

body

of

authoritative

texts to which reference

might

be

made

as

to

a

statute,

and

so much so that as

early

as Constantine's

reign,

the

government

found

it

necessary

to

take a

hand

in

deciding

which books

did,

and

which

did

not, belong to the authoritative canon.' According to ProfessorSchulz2 we

must,

in

the later

empire, distinguish

between two

periods

of

"juristic

classi-

cism."

In

the

earlier,

that

is

in the

period

up

to

Constantine,

the old texts

were,

he

thinks,

thoroughly

overhauled

and

brought

up

to

date;

in

the later

(into

which would fall

the Theodosian Code of

438)

changes

in

the

law

were

recorded

in

different

ways

and the

texts left unaltered because

they

were of

interest

only

for

theoretical and historical

purposes.

This

distinction,

though

of

great

interest and

highly

controversial,

is

perhaps

not vital for our

present

discussion.

In

both

periods

there

is

certainly

evidence of a

spirit

which

SIn

321

Paul's and

Ulpian's

Notae

on

Papinian

were

"abolished"

(C.

Th.

1.4.I.-),but on the other hand Paul's Sententiae (now

known to

be

a

post-classical

compilation)

were "confirmed"

in

327 (C.

Th.

1.4.2.).

2 Op.cit., pp.

280

ff.



4/12

90

H. F.

JOLOWICZ

regards

the

great

age

as

past,

and

it must

not in

any

case be

imagined

that

Theodosius

II

entirely

discarded

the old

writings.

He had intended to

include

a selection from

them in

his

Code,

and

though

his

object

may

have

been

rpainly

historical,

some

practical

importance

no doubt continued

to

attach

to them. Their use in court was regulated by the "Law of Citations" in 426,1

and

this

law,

though

unsatisfactory,

remained

in

force

until

the time

of

Justinian.

With

Justinian

we

come to

what

is

certainly

the chief

revival

in

Antiquity.

His

legal

reforms

began

shortly

after

he had

become

sole

emperor

in

527.

To

all

subsequent

ages

his

compilation-the

Corpus

uris

Civilis,

to

use

a mediaeval

but

indispensable

term-is the

foundation

of the Roman law.

But the

Corpus

Juris

itself consists

mainly

of

materials

which

were old-some

very

old-in

Justinian's

own

day,

and one

of his

objects

was,

by

purging

them

and

render-

ing

them

accessible,

to

restore

in

law,

as in other

respects,

the

ancient

glory

of

the

Roman

name.

The constituent

parts

of the Corpus uris are four in number, viz. the

Institutes,

he

Digest

or

Pandects,

he Code

and

the

Novels.

Of

these

the first

pair

consist of

what was sometimes

called

ius,

i.e.

juristic

law,

the second

pair

of

leges,

in

the sense

of

imperial

enactments.2 But

the

Novels,

though always

included

in

the

Corpus

by

later

ages,

were

not

part

of

the

consolidating

or

tidying-up

scheme

itself.

They

were

the "new

laws" which

Justinian

promulgated

at

various

times

after that

scheme

was

completed

in

534,

and

they

were never collected

together

in

his lifetime.

These

were thus not "old

material,"

and

there

is

no

doubt

whatever

about

their immediate

practical

aim,

which

is

shown,

for

instance,

by

the fact

that

they

were

nearly

all

issued

in

Greek, the practical language

in

which

to address

most

of

the

inhabitants

of

the

Empire.

The

Code,

oo,

is

mainly

forward-looking

and

practical.

By

no

means

entirely

so,

for

many

early

imperial

constitutions

were

included,

especially rescripts

of the

third

century

which,

since

they

were

originally

intended to decide

specific

cases,

were more

like

the

casuistic

writings

of

the

jurists

than the

bulk of

later

enactments.

Further,

almost

the whole of the

Code

s

in

Latin. But

the

greater

part

of

it

consists

of enactments

which

are

in direct

legislative

form,

intended

by

the

emperors

from

whom

they

emanated

for immediate

application,

and

it includes

a

large

number

of

Justinian's

own

constitutions.

For

these

reasons

subsequent

ages

found

it

easier

to

deal

with

than

the

Digest.

To

us the

rhetorical

style

often

adopted

makes

its

language

obscure and sometimes repellent when compared with the straight-forward

writing

of

the

jurists,

but

it is much

easier

to

apply

a law-book

that

uses the

form of

direct

command

than

one

which

consists

of the

discussion

of

principles

and

cases,

and the result

is

that

the

Codenever

fell into

the

complete

oblivion

that

overwhelmed the

Digest

in the

Dark

Ages.

The

Digest

was,

of

course,

intended,

like the

Code,

or

practical

use

in

the

courts,

but it is

very

different.

It

is in fact

an

immense

scrap-book

in

which

there

are

collected

a

great

many

fragments

of

juristic

writings,

some

running

1 C. Th.

1.4-3.

2

This

phraseology

is retained

for the

sake

of

convenience,

but

J.

Gaudemet

has

shown

that, though imperial enactments are often

called

leges,

the

use of

ius in contrast

is

not

only

late,

but

very

rare.

Jura

I,

1950,

pp.

223-252.



5/12

REVIVALS

OF

ROMAN

LAW

91

into

pages,

others

only

a few

words

long.

And

the

writings

concerned are

still those

of the

classical

period,

now

a

century

older even than

when

Theodosius

II had intended to use them for a similar

purpose.

Once the

Digest

had

come into force no text

might

be

quoted

unless it had been

included

in the collection, or in any form except that given to it in the collection. One

result of this rule

was that the

original

works were no

longer

re-Copied,

and

have

nearly

all

perished,

so that

what we know

of

them

comes

almost

ex-

clusively

through

the

Digest,

but this

information

is better

than

might

be

expected

because

of

one

curious

point.

In

accordance

with

Justinian's

express

orders'

there was

prefixed

to

each

fragment

what we call

an

"inscription,"

i.e.

a

statement

of

the author and the name of

the

work from

which

it

had

been

taken-e.g.

Ulpianus,

ibro

primo

ad edictum edilium

urulium;

Paulus,

libro

secundo ententiarum-and

t

is

thus

possible

by re-assembling

all

the

fragments

from

the same

book to

get

some idea of what the

original

work

looked

like.

Under

the

heading

ius,

can also

be

put

the

Institutes,

much

shorter

work,

intended as a manual for first-year students. It is really no more

original

than the

Digest,

being

based

mainly

on

the

Institutes,

r

Commentarii,

f

Gaius,

a

second-century

jurist,

and

a

few similar

works,

but it differs

from the

Digest

in that the whole is

put

into the

emperor's

mouth

and made

to

read

like

a

lecture

by

him

to his

freshmen-the

Justiniani

novi

as

they

were

to be

called.

There are

no

"inscriptions."

But it was

not

only

a

student's

manual;

it

was

expressly given

legal

validity

also and was as

quotable

in

the

courts

as

any

other

part

of

the

compilation.

Now,

as

many

of

you

are

no doubt

aware,

there has

been,

especially

in

the

last

half-century

or

so,

much

controversy

about

"interpolations"

in

Justinian's

Corpus uris,

i.e. about alterations made

in the

old texts

before

they

were

put

into

the

compilation.

Not that

anyone

doubts

that there are

many-Justinian

himself

tells

us

that

in

the

Digest they

were multa

et

maxima,2

ut some

scholars

think there were enormous

numbers,

and there is

a

yet

more

important

dispute

about their nature. Were

they

comparatively unimportant,

merely

register-

ing

changes

which

were the

result

of

organic

Roman

development,

or were

they

legislative

in

character,

introducing

substantially

new

rules,

derived

in

part

from

Hellenistic and Oriental

civilizations, and,

as

some

think,

due in

considerable

measure to

the law

schools,

especially

the

famous

one at

Berytus,

the

modern

Beirut,

in

Syria?

This

had,

we

know,

enjoyed

a

particularly

flourishing

period

in

the

generation

before

Justinian.

I myself tend rather more than is fashionable at the moment to the latter

view,

and

though

some of

the academic influence

was

superficial,

and some

even

introduced harmful rhetorical notions into the

sober

legal

texts,

I

think

that

truly

fruitful

ideas also came

from such

classification

and

generalization

as have

distinguished

schools of

all

ages.

If

this

is

right,

we

have

something

like

an echo of

what

occurred

at the

end of the

Republic,

when

the native

Roman

legal

material

was

fructified

by

Greek theoretical

learning.

And we

certainly

have

an

anticipation

of

what

was to

take

place

at

Bologna,

when

the old texts were to be

again

revivified

by

academic work

on them.

But even

if we do not rate

the effect of the schools on the actual law

at

all

high,

there is no doubt that the

didactic

element in

Justinian's

compila-

1 C.

Tanta,

?

xo.

2

C. Tanta,? xo.



6/12

92

H. F.

JOLOWICZ

tion

is

strong-and

this

is

important

for

its

effects

on

future

ages.

The

Institutes,

as

the name

implies,

have an educational

purpose,

and the

Digest

was,

from

the

very

first,

conceived of as a basis

of

academic

studies. One of the

imperial

constitutions

which serve to introduce it

(C.

Omnem)

s addressed to

the

professorsat the two law universities, Berytus and Constantinople, and gives

them

detailed instructions

(which

they

had no

doubt drafted

themselves)

about

the

parts

to be lectured

on

by

them and

studied

by

their

pupils

in

the

different

years

of the

five-year

course. I have

already

referred to the

"inscrip-

tions" to

the

fragments

in the

Digest.

Since no citation of the

original

works

might

be

made

in

court,

these references serve

no

practical

purpose.

But

Justinian

was

not

out for

practical purposes

only,

and the

inscriptions

were

included,

he

says,

out of

reverence for

antiquity.

There is

no

reason

to

dis-

believe

him,

and

it is indeed

probable

that

this academic interest in the

past

caused

the

compilers

to

retain,

or even

revive,

rules and institutions which

would have

been better

dead. But whether this is

so or

not,

the

amazing

method of compiling a law-book, intended for use in the courts, from ancient

writings,

is

enough

proof

of

an

archaising tendency.

So indeed is the retention

of

Latin

for

nearly

the whole of the

compilation, though

its authors knew

quite

well that translations

would be

needed to make

it usable

by

the bulk

of

the

population.

How far

Justinian's

codification was

actually

applied

in

the

Eastern

Empire

it is difficult

to

say.

It

certainly

cannot have been

fully

effective,

at

any

rate

for

long,

because its

learned

nature

makes it

incapable

of

application

without

a

supply

of

trained

lawyers

such as

did not

always

continue

to

exist,

even in the

East.

Berytus

was

overwhelmed

by

an earth-

quake

in

551,

and the school

there

seems

hardly

to have

survived

the

disaster.1

Thereafter

Byzantine legal history

consists

largely

in

cutting

down the

Corpus

Juris

to more

manageable

proportions

by

selections and

epitomes.

There

were

indeed learned

men at

times;

there

were

periods

of

reform;

in

the

eleyenth

century

there

was even

something

of an

academic

revival

when

Constantine Monomachus

re-established the

chair of

legal

studies at Con-

stantinople.

But

this

did

not amount

to

much, and,

as

is

now

generally

agreed,

did

not,

in

spite

of

its

date,

have

any

connection with

the

events

of

the eleventh

century

in

the West.

And

now,

what

of

the

West?

In

France

and

Spain Justinian's

legislation

was

never

introduced.

There

the chief

document

preserving

the Roman

tradition

was

the

Lex

Romana

Visigothorum,

r

Breviarium

Alaricianum,

code

of sortswhich Alaric II promulgated in 506 for the governance of his Roman

subjects.

It

was

deprived

of

its

validity

so far as

the

Gothic

kingdom

was

concerned

by

Recesswind

in

654,

but

with

the

express

reservation of

its

use

for

teaching

purposes,

and

in

fact

it

continued to

be

of

great

practical

im-

portance

in

France until

the

rebirth

of the

Justinianian

law in

the eleventh

century.

In

Italy

the

position

was

different in

so far as

Justinian's legislation,

including

the

Novels,

was

given

official

validity

there

by

him after his

generals

had

reconquered

the

peninsula. Byzantine

law

was even

imported

a

second

time into the

Southern

regions

when

they

were

again

reconquered

in

the

late ninth

century.

But with

the

decay

of

imperial

power

and the

gradual

1 P. Collinet, Histoire de l'e'colede droit de Beyrouth,

925,

PP. 54-58.



7/12

REVIVALS OF ROMAN

LAW

93

barbarization

it was

impossible

that the full

Corpus

uris

should remain

long

in

use.

Some

theoretical

validity

of the Roman law no

doubt

continued.

Apart

from

the

South,

one

can

distinguish

between two main

regions,

the

Lombardic,

where

the

flood of the

barbarian

law was

almost

overwhelming,

and the districts dominated by Ravenna, where Roman juristic culture

remained

on a

higher

level.'

But

the

Digest

everywhere

falls

irito

oblivion

for

nearly

five

centuries.

It

is

not heard of between

603,

when

Pope

Gregory

the Great mentions

it in

one

of

his

letters,2

and the

second

half of

the

eleventh

century.

The

less difficult

volumes are indeed not

forgotten,

but

they

are

represented

chiefly by

selections.

The Code

s

abbreviated,

and

the

Novels

are

known

only

in

the

Latin

collection called

EpitomeJuliani.

As

regards

academic

learning,

it

was indeed

generally

asserted

until

recently

that

there

had

been a

continuous

tradition

from ancient to mediaeval

times.3

Odofredus,

a late

Glossator

of the

thirteenth

century, says

that the school at

Rome was

moved

first

to

Ravenna,

on account of

wars,

and

thence

to

Bologna,

and it

was

supposed

both that the school at Rome was the original one and that the

wars

in

question

were those

which

led to the sack

of

the

city

in

Io84.

On

the

assumption

of

continuity,

search

was

then made

by

scholars

for

"predeces-

sors

of Irnerius"

(the

founder

of

the

Glossatorial

school),

and

various

works

were attributed to such

predecessors

in

the

period

between

the

end of

the

ancient

world

and the

Glossatorial revival.

But this

view

is now

given

up

by

most

competent

scholars.

Odofredus

is

not

a

trustworthy

witness,

and he seems in

any

case

to

have

referred to wars

earlier

than

those

of

the eleventh

century.4

At that time

Rome

had no

higher

learning

which she

could

have transmitted

to

Ravenna. As

regards

Ravenna

itself,

there

is

indeed evidence

that learned

lawyers

existed

there as

early

as the

tenth

century,5

and one

passage

from St. Peter Damiani has

been

thought

to

refer

to

actual academic instruction. But

it

addresses the teachers

concerned as

"you

who

bear the

rod

in

the

gymnasium,"6

a

phrase

which

points

rather

to instruction

of

an

elementary

type.

And

this is

significant.

Such

continuity

as existed between the ancient schools

and.

Bologna

was

through

elementary

education.

The

alleged

pre-Irnerian

works of

scholarship

have been shown

to be

really

products

of the Glossatorial

school

itself,'

but

some

legal

phrases-

and

conceptions

had

continued

to be

taught

throughout

by

instructors

in dialectic and

rhetoric,

so that

a

trickle

of

legal

learning

had

continued. These instructors

were,

however,

more

familiar

with

the

literary

than with the juristic discussion of legal topics, and one of their favourite

1

Cf. S.

Leicht,

Il

diritto

privato preirneriano,

1933, 3,

and "Ravenna e

Bologna,"

Atti del

Congresso

nternazionale

di

Diritto

Romano,

1933,

Bologna,

I,

pp.

277-290

at

pp.

281

ff.

2

E.

Genzmer,

"Die

Justinianische

Kodifi-

kation und die

Glossatoren,"

Atti

(supra,

n.

I),

Bologna,

I,

pp.

347-430

at

p.

356. Migne,

Patrol.

Lat.

77, 1299.

3

See

e.g. quotations,

Holdsworth,

History

of

English

Law,

II,

p. 136.

4

H.

Kantorowicz,

Studies in

the

Glossators

of

the RomanLaw, 1938, p. 196. Cf. against the

continuity

view, Genzmer,

op.

cit.,

p.

365-

5

Leicht,

Atti

(supra,

n.

i),

p.

284.

6

Vos

...

qui

inter

clientum urbas

enetis

n

gymnasio

ferulam, quoted

by

Leicht,

Atti

.

. .

(supra,

n.

I),

p. 285.

He, however,

thinks

more advanced

instruction

is meant.

7

Kantorowicz,

op.

cit.,

p.

145;

"Tber

die

Entstehung

der

Digestenvulgata,"

?

4,

Zeit-

schrift

der

Savigny-Stiftung far Rechtgeschichte

(Romanistische

Abteilung),

XXX,

I909,

p.

196;

Genzmer,

op.

cit.,

p. 365

with

further

literature.



8/12

94

H.

F.

JOLOWICZ

sources

of information

was

St.

Isidore

of

Seville,

who also knew more of

Cicero than

he did of

Justinian.

How low their

legal knowledge

might

sink

is

shown,

for

instance,

by

one note on

the

Institutes,

which

explains

the

com-

mentaries

of Gaius

mentioned

by

Justinian

as

the commentariif

Gaius

Julius

Caesar.' There was in fact nothing approaching a university standard of

education,

and,

so far as the instruction

necessary

for

practice

was

concerned,

this was

provided

by

apprenticing

boys

to a

notary,

"as,"

remarks

Kantoro-

wicz

(alluding

no doubt to

the

system

of solicitors'

articled

clerks),

"is

still

done

in

England."2

The work

begun

at

Bologna

about

I Ioo

was

thus

something

really

new,

a

product

of the new

spirit,

the

"Renaissance

of the twelfth

century."

Not

indeed

that it

was

quite

unheralded.

Something

was

probably

due

to

the

superior

legal

culture

of

Ravenna,

if not

to

any

law school

there,

and

some-

thing perhaps

to

the

example

of Pavia

where

for about

a

century

the Lombard

texts

had

been

the

subject

of learned

glossing.

There

too

the Roman law

itself had already been

recognized

as of

general

validity, so that it could be

used

to

supplement

the

native

system.3

It

is also

entirely

credible,

though

our

authority

is

again

Odofredus,

that

Irnerius

was

a

teacher of

the liberal

arts

before

he

became

a

jurist,

for

he

may

well have

had his interest

aroused

by

legal

texts4

which he came

across

in that

profession.

But he was a

pioneer

none

the less.

The

school

that

he

founded

lasted

more

than

a

century

and

a

half,

and

when the seal

had

been

put

on

its

work

by

Accursius'

vast

compila-

tion

in the thirteenth

century,

it

only

gave

way

to

another

which

depended

in

large

measure

on

its

work.

It did

not,

of

course,

remain

confined to

Bologna,

but

spread

especially

to other

cities

of Northern

Italy

and

Southern

France.

Even

England

is

not without

its

representative,

for

Vacarius was

brought

to

this

country

at the instance of

Archbishop

Theobald about

I

I45

and

taught

here,

probably

at

Oxford.5

If we

ask

about the

Glossators the

question

which

perhaps

interests

this

audience

most,

i.e. what was

the relation

between

their activities and the

other

studies

of

the

period,

part

of the

answer

is

easy.

Their

activities,

like

the

more

general

movement of

which

they

formed

part,

were

based

on a

revival

of

ancient

learning.

Thus,

like

their

contemporaries,

they

were

imbued

with the formal

rules of

rhetoric

and

tended,

for

instance,

according

to

those

rules,

to

prefix

a

disquisition

with

a

prologue,

which

would render

the

reader

"attentive,

docile

and

benevolent,"6

but

might

have

precious

little

to do with the subject. They used not only their special legal authorities, but

ancient

literary

writers,

quoting,

for

instance,

Cicero's

works

when it

came

to

definitions

of law

or

equity,

and

like

their

contemporaries

they

seasoned

their

classical

learning

with

references

to the

Bible.

Great elaboration

of

form

and

complex

symbolism

can

sometimes

be

found,

for

instance,

when

the

aithor

of one

legal dialogue

sets

the scene

by

explaining

how

he

entered

the

temple

of

Justice

and

saw her

surrounded

by Religion,

Piety,

Grace

and

1

Genzmer,

op.

cit.,

p.

36o.

2

"Ober

die

Entstehung

.. ."

(supra,

p.

93,

n.

7)

?

4

n.

4

(Zeitschrift

er

Savigny-Stiftungfiir

Rechtsgeschichte,

XX,

p.

I99).

SGenzmer, op. cit., pp. 374-6.

4

Genzmer,

op.

cit.,

p. 364.

5De

Zulueta,

The

Liber

Pauperum

of

Vacarius,

ntrod.

XXI.

6

Cf.

Quintilian.

Inst.

Or. IV,

I,

5.



9/12

REVIVALS OF ROMAN LAW

95

others,

Reason

being

"gloriously

but

uncomfortably"

seated

on

her

head.1

Even

greater

elaboration can be

seen in

the

delightful

"Poetic

Sermon

of

a

Mediaeval

Jurist,"

edited

by

Kantorowicz and

published

in

the

Journal

of

this

Institute.2

More fundamentally, to say that the Glossators' movement was part of

a

revival

implies

in itself

that

with

them,

as

with other

scholars,

authoritative

texts,

not direct

observation or

cerebration,

formed

the basis of

thought.

And it is obvious

that

their methods

had much

in

common

with

those

of

early

scholasticism

as

displayed

in

other branches of

learning.

But in

this

connection

I would make two

points:

First,

with

respect

to

dependence

on

authority,

it

may

be that some

of

the

faults

commonly

attributed to

scholasticism come

from

the

extension

of

methods

justifiable

enough

in

law to

other

subjects

to which

they

are not

appropriate.

The

lawyer

has

to abide

by

authority;

what the

legislator

has

said binds

him

however

mistaken

he

may

think

it,

and to

apply

his

text

he

must analyse the meaning of the words that the legislator has used. But the

same attitude

towards

a medical text

shocks the modern

mind.

Secondly,

t is a mistake to

assume,

as

some have

done-led

astray

perhaps

by

the word

"gloss"-that

the work of the Glossators was

purely

explanatory

and

thus of

little

independent

intellectual

value.3

Not

only,

as

just

indicated,

is

exegesis

always necessary

for a

lawyer,

but

in

the

circumstances

of the

time

it had

a

special

function to

perform.

Of

the four

volumes

of the

Corpus

uris

only

the

smallest,

the

Institutes,

s

arranged

on

any

easily

intelligible

plan,

and

consequently

to

find

the law on

any

given subject you

may

have to

search

in

many

places.

The

key

to

the

maze

was

in

the

tradition

of Roman

legal

learning.

If

you

had

been

brought up

as a

lawyer

in

the

Roman

empire you

knew

how

the

thing

worked,

and would

not have

experienced

great

difficulty

in

finding

your way

about

Justinian's

adaptation

of

the

system

to

his

pur-

poses.

But the

Glossators had not

got

that

key.

They

had

to

approach

the

texts

direct,

puzzle

out a

system

for

themselves

and,

in the course of

their

work,

col-

lect

together

from different

parts

texts which

illustrated

and

confirmed

each

other-or,

on the other

hand,

seemed to be

contradictory.

"Seemed"

of

course

only,

for

had not

Justinian

himself

said that

no

antinomy

was to be

found

in

his

work,

and that

if a

man

searched with

subtlety

he

would

find

a

reason for

the

apparent

contradiction?4

Hence

much

of the

glossing

consists

in

collecting

and

explaining

the texts

in

relation

to each

other.

Such

explana-

tion involves elaborating a system which is indeed not always the original

one-for various

reasons,

of

which

one

is

that

what

Justinian

says

about

antinomies

is not

true-and

the

harmonizing

of

discordant

texts

thus

requires

subtlety

indeed,

but

of

a creative

rather than

a

purely

perceptive

order.

Further,

though

Irnerius

himself

probably only

wrote

glosses,5

these

did

not remain

the

only

type

of

literature.

Out of

them

developed

summulae,

n

the sense of

epitomes

of

a

whole title

(with

other relevant

texts),

and these

1

Kantorowicz,

Studies

in the

Glossators,

p.

I85.

2

Journal

of

the

Warburg

&

Courtauld

nstitutes,

II,

I938,

pp.

22 ff.

a "C'est le rkgne d'une m6thode purement

exegetique,"

Pare-Brunet-Tremblay,

La

Re-

naissance du

XIliime

Sikcle,

1933,

P-

229.

4

C.

Tanta,

?

15.

5

Kantorowicz,

op.

cit.,

p.

36.



10/12

96

H. F.

JOLOWICZ

again

could be

collected

into a

summa,

covering

all the

titles of

a

volume

of

the

Corpus.

One

of

the most

influential

law-books

ever written is

Azo's Summa

Codicis,

which

brings

together,

in the

order of

the

Code,

he relevant material

from

all

sources,

including

the

Digest.

It was

indispensable

to the

practitioner

-chi nonha Azzo non vadaa palazzo-but it is also the ancestor of the modern

text-book.

Other forms

of

literature

develop

the

characteristically

scholastic

method

of

investigation by

antithesis.

Such are the

various sorts

of

quaestiones

r

dialogues

and such are the

quare

n

which

apparently

conflicting

texts are

marshalled

and a

reason

given why

they

co-exist.1

Even the famous

brocards,

types

of

generalization

or

maxim,

are

put

together

in

opposing pairs,

some-

times with

a solutio

of the

opposition.

There are also the collections of

distinctiones

hich

may

be

regarded

as a

separate

form of

literature,

though

distinctiones

ccur in

various

sorts of work. What is meant is the

elucidation

of some

matter

by

subdivision,

sometimes

in

tabular

form,

e.g.:

"If

a

man

lends money he may lend his own or some-one else'smoney. If he lends some-

one

else's

money

he

may

lend it on his

own

account

or on

the

account

of

the

person

to

whom it

belongs,

etc."2

The

similarity

of

this sort

of

thing

to

contemporary

work

in

other fields

is

obvious,

and it

may

be that there was some direct

borrowing.

Abelard's

Sic

et non

distinguishes

texts

"for"

and

"against"

as

do the

Glossators,

and

may

have been the model for some

juristic

literature.

Sic at

any

rate

Genzmer,3

though

non

Kantorowicz.4

But in

general

there was

no

need for the Glossators

to borrow their

technique

from

contemporary

scholasticism.

Their

own

specifically

legal

texts

showed

plenty

of traces of those ancient influences

which affected also workers

in

other fields.

Greek

dialectic

had,

as we

have

seen,

played

an

important part

towards

the end

of

the

Republic

in

making

Roman

law a technical

subject,

and

the

Corpus

uris

was

influenced-not

always

to

its

advantage-by

rhetoric

and

by

the

natural

professorial

instinct

for

classification.

In

a

work with the

significant

title

of

Beryt

und

Bologna,5

Professor

Pringsheim

has

even

sought

to show that

it was

especially

from

the

interpolated

parts

that the

Glossators drew

their

inspiration,

because

it

was

there

that

they

found the

didactic features

which

appealed

to them as teachers.

He

points

out,

for

instance,

that

the Gloss's

word for

contradiction,

contrarietas,

is

unknown

in

classical

Latin,

but occurs

in

Byzantine

texts known to the

Glossators,

where it is a

translation of the

Greek

&hvvTL6-Te.6

But

perhaps

for

our purposes it is hardly relevant to inquire whether he is right or not, for

whether

interpolated

or

not,

it is

certain

that

the

Corpus uris

provides

models

for

"distinguishing"

and

similar

methods.

In other

words,

the ancient

methods

which reached

their

contemporaries

by

other channels could

reach

the

Glossators

also

through

their

own

special

material.

1

Schulz holds

that

these are

derived,

not

from

juristic

work,

but from

Greek

collections

of

Problemata,

a

Latin translation

of one

such

collection

being

available

from

the

early

Middle

Ages,

v.

"Die

Quare-Sammlungen

der

Bologneser

Glossatoren

und

die

Prob-

lemata des Aristoteles," Atti del congressonter-

nazionale

di diritto romano

e di storia

del

diritto,

Verona,

I948,

I,

pp.

297-306,

I95

.

2

Kantorowicz,

op.

cit.,

p.

214.

3

Op.

cit.,

p. 427-

4

Op.

cit.,

p.

82.

5

Festschrift

ir

O.

Lenel,

1921,

pp.

204-285.

6

pp.

212-213.



11/12

REVIVALS OF ROMAN LAW

97

If

the Glossators

make use of scholastic

methods,

they

also

appear

scholastic in

spirit

in that

they

seem sometimes

to live in a closed world of

their

own

learning.

Not

that

they

conceive themselves to be

studying

an

obsolete

system

for

its historical

interest. On the

contrary, they

write as if

Justinian were still on the throne, and hodie n their mouths means the latest

stage

of

his

legislation.

But

they

could not

help

knowing,

in their earlier

period,

that the

various

sorts of

law

applied

by

contemporary

courts

were all

different

from

Justinian's.

That,

however,

did not make

them

compromise

with

modernity.

In their view

Justinian's

law should

prevail,

and so

effective

was

their

work

that it came to

prevail

to

a much

greater

extent than it had

before

them.'

There

is all the difference between the

early

academic

period

and that in which

Azo's SummaCodicis

had

become

a

necessity

to

the

prac-

titioner.

Even

so, however,

the

glossatorial

method

remained

too

academic,

and

that is

why

it was

superseded

by

that

of

the

Post-glossators

or

Commentators.

The feature of this school is

precisely

that it does not revive the texts, but

attempts

to

build

on them-and indeed

sometimes

with

very

little real

support

from them-a

system

which

will

be

adequate

to

meet

the

needs

of con-

temporary

society

in

a

way

in which the ancient

texts

alone cannot. The

greatest figure

is

Bartolus,

I314-1357-not

the

Don

Bartolo

of

Seville known

to

opera-goers,

but of Sassoferrato. He

was

a

great lawyer-nemo jurista

nisi

Bartolista-but

no

classicist. It

may

give

you

some

idea

of

the

work

he

and

his

school did

if

I

say

that he is

sometimes

called the "father of

Private

International

Law."

Justinian,

ruler of

a

world-wide

empire,

had not

had

to

bother about

the

sort of

difficulty

which

arises

to-day

when,

say,

an

Italian

man marries

a

Greek

woman

in

Yugoslavia

and the

matrimonial domicile is

in

New

York.

But

that

sort of

problem

did arise in

relation

to

the

"statutes"

of

the Italian

city-states,

and

Bartolus,

though

not

the

first

to

attack

it,

did

a

good

deal towards

producing

a

system

which

was

certainly

not

to

be

found

on

the face of the

Roman

texts.

Work

of

this

sort

was

quite indispensable,

and

its

practical

effect

enormous,

but

it

did

not

please

the

enthusiasts

of

the

New

Learning.

The

Post-glossators'

Latin

was

barbarous;

they

were

ignorant

of

history; they

developed

all

the

vices of

late

scholasticism,

and

they

buried

the

Corpus

uris

under

such

a

mound

of

commentary

that the

text was

almost

forgotten.

In

opposition

to

their mos

Italicus

the Humanist

lawyers

proclaimed

the

mosGallicus, he motto of which might again have been "back to the texts."

Scholars

such as

Cujas (1522-1590)

unearthed

the texts and examined them

with

all

the

aids that the new

historical and

philological

learning

could

supply,

for

the

purpose

of

ascertaining

what their

original

meaning

had been in

the

circumstances

of the

ancient

civilization for

which

they

had

been

written.

I

do not

wish to

imply

that

the

Humanist movement

was without

practical

effect-on

the

contrary

in

many

different

ways

and

in

different countries it

had

great

effect-but

what I

want to

emphasize

here is that

it

was

again

a

learned

revival of

ancient

texts studied

now

because

of

the attraction even

1

E.

Seckel,

Das

rimische

Recht u.

seine

Wissenschaft

m

Wandel

der

Jahrhunderte

(Rektoratsrede

I920), p. 17-



12/12

98

H.

F.

JOLOWICZ

aestheticattraction-of the

greatest

of

Roman,

as

opposed

to

Greek,

intellectual

creations.

The

Humanists, too,

with their

knowledge

of

history,

were

not

content

as

mediaeval

scholars had

almost

always

been,

to

lump

all

Roman

lam

together, but could distinguish as we do, following in their footsteps, between

the

classical

period

when,

say,

Ulpian

wrote and the

age

of

Justinian

when

fragments

of his

work were inserted

in

the

Digest,

and

perhaps

altered

in

the

process.

And,

though

the

practical

importance

of

Justinian's

compilation

was

very

great,

the

aesthetic

appeal

of the

highly

articulated

classical law was

greater.

Emphasis

began

to be

laid on

it,

and as

early

as

1567

Frangois

Hotman

wrote

his

Antitribonian,

n which

he accused

Tribonian,

Justinian's

chief technical

adviser,

of

having

deformed and falsified the

original

texts.

Another

strange

revival

took

place

at the

beginning

of

the

nineteenth

century

under

the

influence of

the

Historical School

and

particularly

of

Savigny.

Savigny's

faith

too

might

be

summarized

as "back to

the

texts,"

for he

sought

to

replace

the ususmodernus andectarumhat had

grown up

in

Germany,

by

the

pure

doctrine

of the

Roman

jurists,

or

at

least

that

doctrine

as

interpreted

by

his own

incredibly

fertile

and

ingenious

mind.

The

adoption

of

a

Civil

Code

for

the

whole

of

Germany

in

1900

did

away

with

the

last

traces of

the formal

validity

of

the

Corpus

uris

in

the

Empire.

The

struggle

between

native

and

foreign

ideas

indeed

went

on,

for there

was the

question

of the

amount

of Romanism

in the

Code,

but the

study

of

the

Roman texts became

now

necessarily

historical,

and this

fact

in

itself

brought

about

another

revival of sorts. It

was as if

those scholars who

remained interested

said

"Ouf

Now we

needn't

bother about

practical

implications any more. We can go back to the texts with a quiet mind and

see

what

they really

meant."

And

of course

when

you

ask

what

a text in

the

Digest

"really

meant,"

you

inevitably

want to

ask

what its

original

author

meant,

not what

Justinian

meant

when he

put

it

in

the

Digest.

And

so it

came

to the

"hunt

for

interpolations"

which characterized

academic Roman

law

in the first

half of this

century.

Most

people

now

think it has

gone

too

far,

and I

myself

believe

that too

great

concentration

on

the classical

period

is

likely

to

impair

the educational usefulness of

the

subject.

It will

also,

I

believe,

damage

our

historical

perspective,

for it is

the

Corpus

uris

itself

which,

as I

have tried to

show,

played

the

enormously

important

r6le

in

European

legal

history.

But

I

must

not

weary you

with these

domestic

disputes

of the

Romanists. All I need say is that these texts have probably not finished

with

revivals

yet.

Documents

Revivals of Roman Law