Roman Law and Reception - d-nb.info

Roman Law and Receptionby Lorena Atzeri

This contribution offers an overview of the origin, development and persistence of Roman law from its origins in the 8th century BC tothe 19th century AD. Roman law and its sources, above all the Justinianic Codification – the so called Corpus Iuris Civilis – have left anindelible imprint on the development of law in Europe and laid the foundation of many European legal systems. The role of Roman lawwithin the legal science in the Middle Ages and the modern period will therefore also be treated here. Moreover, this article will discussthe fundamental relationship between Roman and Canon law and the reception of Roman law in many countries in Europe.

TABLE OF CONTENTS1. Introduction and Periodisation2. Public Law and Private Law3. Legal Sources in the Republican Period

1. Lex and mos2. The Law of the Twelve Tables3. Jurisprudence and its Origins4. The Stratification of the Legal System: Magisterial Law

4. Roman Legal Science1. The End of a Legal Monopoly2. The Formation of a Secular Jurisprudence3. Jurists during the Imperial Period

5. Imperial Laws and their Collections1. Codex Gregorianus and Codex Hermogenianus2. Codex Theodosianus3. Post-Theodosian Novels4. The Leges barbarorum5. Lex Romana Visigothorum or Breviarium Alarici6. Lex Romana Burgundionum7. Edictum Theoderici

6. The Corpus Iuris Civilis of Emperor Justinian I1. First Codex2. Digest3. Institutes4. Second Codex (or Codex Repetitae Praelectionis)5. Novels

7. The Validity and Range of Influence of the Justinian Compilation8. Roman Law in the Middle Ages

1. The Rediscovery of the Digest2. The School of Bologna: the Glossators3. The Commentators

9. Roman Law in the Modern Period1. The Influence of Humanism: Mos Italicus and mos Gallicus2. The Reception of Roman Law in Europe: France and Germany3. Usus Modernus Pandectarum4. The Reception of Roman Law in the Netherlands: the "Dutch Elegant School"5. The Roman Law Tradition up to the 19th Century

10. Appendix1. Links2. Literature3. Notes

Indices Citation

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Introduction and Periodisation

The concept "Roman Law"1 has assumed various meanings in the course of time. Thus it refers to the Roman legal system in itshistorical aspect, the Roman law tradition, that is, the persistence of Roman law in the various European legal systems (➔ Media Link#ab), the Common Law (➔ Media Link #ac), German Pandectism, and finally today's Roman law studies. The subject of the latter isRoman law in its content and history. It is not possible to treat Roman law here in the last-named respect. This account will thereforerelate mainly to Roman law in the sense of the legal system of ancient Rome, the rediscovery of Roman law in the Middle Ages, and itsspread in the single European countries up to the 19th century. Particular attention is paid to the rise and development of this law, tothose involved in its creation, and to its sources.

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The development of Roman law begins, in the traditional view, with the origins of Rome in 753 BC, and ends with the death of EmperorJustinian I (482–565) (➔ Media Link #ad). Justinian had had Roman law codified in its entirety, thus decisively influencing thesubsequent development of law in Europe. These 14 centuries have been periodised variously by modern historiography and Romanlaw studies. The following is based on the most common division to be found in Roman law manuals: Monarchy (753–509 BC), Republic(509–27 BC), Principate (27 BC–284 AD) and Dominate (284–565 AD).

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Public Law and Private Law

The Romans themselves made the distinction between public law and private law. The most famous formulation of this distinctionstems from the jurist Domitius Ulpianus (ca. 170–ca. 228 AD) (➔ Media Link #ae): "Ius publicum est quod ad statum rei romanaespectat, privatum quod ad singulorum utilitatem" (Public law is that which relates to the system of the Roman state, and private lawthat which relates to the interests of the individual: Digest 1.1.1.2). Thus public law relates to the organizational structure of society, andprivate law, by contrast, to its individual members and their relations with one another. Within public law, the Roman jurist Ulpiandistinguished several sub-areas: "Publicum ius in sacris, in sacerdotibus, in magistratibus consistit" (Public law regulates the state cult,the priesthood and the magistrates: Digest 1.1.1.2).

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Roman private law was based on various factors, and passed through a number of stages of development. The tripartite division of thissphere of law into personae, res, actiones (persons, things, lawsuits) was introduced by the Roman jurist Gaius (➔ Media Link #af) in hisInstitutes (an introductory textbook for law students). This division, upon which the emperor Justinian I also based his own Institutes,still builds the basic structure of many modern codifications (➔ Media Link #ag). Roman private law includes obligations and contracts,possession and property, relationships, marriage and marital property law, guardianship, legal and testamentary inheritance etc. It alsoincludes delicta (delicts, unlawful acts, wrongs against an individual) such as furtum (theft) or iniuria (personal injury). Principles such as"good faith", "obligational relationship", and "liability" were introduced and further developed by the Romans. These institutions stillserve as the basis of modern legal systems. They will not, however, be dealt with here because of their complexity.

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Legal Sources in the Republican Period

The succession of the different forms of government in the course of Roman history had a considerable influence on the ways in whichlaw is created. The individual legal sources, as to their development and significance, underwent correspondingly great changes.

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LexLex and and mosmos

In the beginning, the king alone possessed the public powers, including that of law-making. Thus the leges regiae (royal laws)sanctioned by the king were, together with the mores (customs), the sole legal source. After the introduction of the Republic theselaws lost their validity.

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During the Republican era, which is characterized by the office of the consules, and the considerable weight of the popular assemblies,the leges populi Romani (laws of the Roman people, also called leges publicae) acquired increasing importance. The most importantrepublican institutions and offices – consuls, popular assemblies and the senate – participated in the law-giving procedure. Theplebeians also had their own magistrates and popular assemblies (the concilia plebis), whose resolutions were valid only for theplebeians themselves. At the latest from the 3rd century BC, however, the resolutions of the plebeian popular assembly were madeequal to the leges publicae, and thus gained binding power for the whole community.

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The Law of the Twelve Tables

In the early republican period, matters between private individuals were settled by customary law rather than by leges. This situationonly changed with the Lex XII Tabularum (Law of the Twelve Tables) (➔ Media Link #ah), which, according to tradition, was drawn up in451–450 BC by two different committees of ten men each (decemviri legibus scribundis). The reason for this was, in the framework ofthe social struggle between classes, the growing complaints of the plebeians at the arbitrary application of the unwritten law by theruling elite of patricians. This codification was preceded by direct contacts with the Greek world (including the Greek colonies inSouthern Italy), where there were already important models such as the codification of Solon (ca. 640–ca. 560 BC) (➔ Media Link #ai).The Twelve Tables, the original text of which has not been preserved, regulated among other things the law of civil procedure includingforeclosure, the law of inheritance, power relations, guardianship and trusteeship, property and its delimitation, obligations arisingfrom delict, and the funeral system.

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The codification of the previous customary law in a written form in the Twelve Tables rendered the misuse of power by the patricianstowards the plebeians more difficult. The Twelve Tables remained the "cradle" of the law of the city of Rome, the "source of all publicand private law"2 (until Justinian I) according to Titus Livius (59 BC–17 AD) (➔ Media Link #aj), and furthermore the only codificationwith a comprehensive claim to validity. It was on the basis of the Twelve Tables that the first legis actiones ("actions based on the law")and other legal institutions were developed; they also served as a basis for the first of all works of legal science, the Tripertita of thejurist Sextus Aelius Paetus Catus (2nd century BC) (➔ Media Link #ak), which was at the same time the first literary version of theTwelve Tables.

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Jurisprudence and its Origins

Within the Roman legal system, legal science (or jurisprudence) was also a recognized source of law. Having been founded by thepontifices, legal knowledge was from the beginning a prerogative of the elite. Beside the augurs and fetials, the pontiffs (pontifices)were indeed members of one of the most important Roman colleges of priests.

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The legal knowledge of the pontiffs, together with their control of the calendar and therefore of the days on which, from thestandpoint of religion, business might be done and lawsuits pursued, made the pontiffs themselves irreplaceable for the discussion andtreatment of legal questions. Only they were in a position, not only to interpret existing norms and apply them to concrete cases, butalso to create new law. Accordingly, knowledge of the formulae for lawsuits was their prerogative. Thus their collaboration wasindispensable to both the magistrates and the parties for carrying out a case correctly (the principle of agere = to act, to manage alawsuit). The pontiffs were accordingly asked by office-holders and private persons for legal information concerning concrete lawsuits,which they then decided by means of responsa (the principle of respondere = to answer, to give a legal advice). They possessed, finally,the necessary formulae for drawing up legal documents correctly (the principle of cavere = to take precautions, to draft legaldocuments, to suggest the right formula for the purpose). The knowledge and the advisory function of these first jurists werefundamental for the coming about and development of a ius civile (civil law), above all through its interpretation.

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The Stratification of the Legal System: Magisterial Law


Leges, mores and the advice (responsa) of legal experts made up civil law (ius civile), which by its nature applied solely to the citizens(cives) of the city of Rome. The Roman legal system was, however, also characterized by the fact that there existed several interactinglayers of law. Thus there came into being a parallel ius honorarium (magisterial law), also called ius praetorium (praetorian law), whichdeveloped from the continued jurisdictional activity of the praetor and from the publication, on taking office, of the edict. Thiscontained a list of permitted actions (edicts) written on an album (a white table). Furthermore, from the activity of the praetorperegrinus, a new praetor with civil jurisdiction in disputes concerning non-Romans, there developed a special kind of magisterial law,the ius gentium, a body of legal institutions and principles common to all people, also to non-Romans. This law was characterized by thefact that it lacked formalities of traditional law, so that it was well suited to regulate the interests of the parties in a sensible and justmanner.

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Roman Legal Science

The End of a Legal Monopoly

The legal knowledge that had accumulated within the colleges of priests remained for a long time the monopoly of the pontiffs. Thislapsed however owing to a series of decisive events. To this contributed the publication of the Law of the Twelve Tables, as well as thepublication of the calendar and case formulas by Gnaeus Flavius (ca. 4th century) (➔ Media Link #al) – scribe of the censor AppiusClaudius (ca. 340–273 BC) (➔ Media Link #am) –, as well as the Lex Ogulnia dating from 300 BC, which opened the colleges of priests tothe plebeians. It was thus the first plebeian Pontifex Maximus, Tiberius Coruncanius (ca. 254–ca. 243 BC) (➔ Media Link #an) who,around the middle of the 3rd century BC, for the first time gave legal opinions in public, and also informed his audience of hispreliminary considerations.

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The Formation of a Secular Jurisprudence

As a result of the teaching activity of Coruncanius, legal knowledge and techniques of interpretation and argumentation were madeavailable to everyone who was interested in learning these activities, enabling the formation of a "secular" class of lawyers. Thefunctions of agere, respondere and cavere now passed to the secular jurists. The influence of Greek philosophy and rhetorical theory ledto a deeper systematic construction of the subject-matter, so that "legal knowledge" could become "legal science". The jurists, whowere usually patricians, began to record their legal decisions in writing, thus giving rise to a special legal literature, which became moreand more differentiated in the course of time. The work of the jurist Sextus Aelius on the Law of the Twelve Tables, the Tripertita, wasthe first written record of the interpretative activity of the jurists (interpretatio prudentium), deposited above all in the responsa (legalopinions), and became an independent source of law.

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The auctoritas (reputation/dignity/authority) of the individual jurist lent assertiveness to his opinions, but many questions remainedcontroversial. Thus there came about the special character of Roman law as a ius controversum (controversial law) which, on the onehand, could not be tied down to clear rules, but on the other was not speculative. Instead, the focus was always on the concrete case,and the decision, once arrived at, could be applied per analogiam (by analogy) to similar cases. For this reason, Roman law tends to becompared with Anglo-American case law. This evolution of the law found its limit in the opinions of the individual jurists, who regardedthemselves as true guardians of justice and legality.

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Jurists during the Imperial Period

From the beginning of the Principate, the emperors attempted more and more frequently to link the activity of jurists to themselves inorder to control them.3 Emperor Augustus (63 BC–14 AD) (➔ Media Link #ao) replaced the auctoritas of the jurists, which up to thenhad been based on their personal prestige, by his own auctoritas, by awarding only to selected jurists the ius respondendi ex auctoritateprincipis ("the right to deliver opinions by the emperor's authority"), a kind of stamp of approval. The emperor Tiberius (42 BC–37AD) (➔ Media Link #ap) continued this line with the ius publice respondendi ("the right to deliver opinions publicly"). The legal opinionsof jurists not distinguished in this way thus lost the character of sources of law. In the course of time, the jurists were taken into theemperor's privy council, that is, into the inner circle of power, and were thus still more closely connected with the emperor.

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Among outstanding jurists, Gaius, who was active in the second half of the 2nd century AD, occupied a particular place. He authoredamong other works the Institutiones,4 which for centuries formed the basis of legal instruction, and were used by Justinian I as themain source of his own law manual.

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In the time of the Severan Dynasty (1st half of the 3rd century AD), Roman legal science experienced its zenith. This is accounted themost productive period of jurisprudence, which is thus termed "classical"; in this epoch the great names of Roman jurisprudence wereactive: Aemilius Papinianus (140–212) (➔ Media Link #aq), Iulius Paulus (➔ Media Link #ar) and Domitius Ulpianus, together with theless famous Herennius Modestinus (3rd century) (➔ Media Link #as). The greatness of these jurists consists less in the originality oftheir opinions than in their systematic exposition and their knowledge of the whole of Roman legal science. It is thanks to theirachievements in organizing that Roman jurisprudence acquired the thoroughly structured character that permitted it to last forcenturies. When, in late Antiquity, legal science lost its significance as a living source of law, and as a result the figure of the lawyeracquired other contours, the production of these jurists remained a point of reference for all users of the law.

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The authority of the above mentioned jurists was even formally sanctioned in the "Law of Citations" of 426 AD. This was a law of theemperor of the Western half of the Empire, Valentinian III (419–455) (➔ Media Link #at), which determined which works of legalscience were allowed to be quoted in court for the decision of a court case. This law refers especially to the works of five jurists:Papinian, Paul, Ulpian, Modestinus and Gaius. The fact that, in the 5th century AD, reference was still made almost exclusively to theSeveran jurists shows that contemporary jurisprudence lacked the power to prevail, and that the functions of the jurists had profoundlychanged. The most important part was played here by the increasingly absolute character of imperial power, with which theprerogative of law-making was in the hands of the emperor alone.

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Imperial Laws and their Collections

With the Principate, some of the traditional sources of law lost their importance or vanished altogether. They were replaced by newforms of law-making. Since the era of Augustus, both the resolutions of the senate (senatus consulta) and the imperial enactments(known under the general heading of "constitutions") began to be regarded as binding for the cives (citizens) and thus recognized assources of law. Imperial constitutions were classified according to the circumstances of their enactment, their addressees, and theirpurposes: "edicts" were provisions of general validity; "mandates" were instructions to imperial officials; "rescripts" were theemperor's answers to legal questions submitted by judges, magistrates and other officials, as well as parties; "decrees" were decisionstaken within the imperial jurisdiction activity, especially on appeal. In view of the growing importance of the constitutions, the legespublicae increasingly lost importance after the end of the 1st century, as did resolutions of the senate. As to the jurisdiction activity ofthe praetor, at the instigation of emperor Hadrian (76–138) (➔ Media Link #au) the list of permitted actions were "frozen" in theEdictum Perpetuum ("perpetual edict") edited by the jurist Salvius Iulianus. The independent law-creating activity of the praetor wasthus strictly limited.

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Imperial authority grew as the traditional sources of law dwindled. During the period of the Dominate, which begins with EmperorDiocletian (ca. 230–ca. 305) (➔ Media Link #av), the sources of law became restricted to the imperial constitutions, and theinterpretative activity of specialist jurists (as found above all in the writings of the Severan jurists) fused with common law, which didhave a marginal role. The distinction between ius civile and ius honorarium gradually disappeared.

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Codex Gregorianus and Codex Hermogenianus

At the end of the 3rd century, i.e. coinciding with Diocletian's assumption of power, two collections of imperial constitutions werepublished, whose compilers are not otherwise attested. The former collection, the Codex Gregorianus, contained rescripts of which theoldest of those preserved goes back to Emperor Hadrian; this work is systematically arranged in (at least) 14 books, which are in turnsubdivided into titles arranged according to topics. Within these titles, the constitutions are chronologically ordered. This was followedshortly afterwards by the Codex Hermogenianus, containing mainly rescripts of Diocletian. The presence of constitutions from a laterperiod is ascribed to subsequent textual manipulations. The Codex Hermogenianus is divided only into titles, and forms a kind ofcontinuation of the Gregorianus. Both codices were transmitted only indirectly, namely predominantly through the Lex RomanaVisigothorum (➔ Media Link #aw) and the Codex Iustinianus.

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Codex Theodosianus

In 429 AD Theodosius II (401–450) (➔ Media Link #ax), emperor of the Eastern half of the empire, initiated a collection of imperialconstitutions of general content that had been promulgated since Emperor Constantine I (ca. 280–337) (➔ Media Link #ay). Theoriginal project was the realization of two separate collections, one to contain also constitutions that had been forgotten, the otheronly the laws still in force, accompanied by legal works on related topics. This project was revised in 435. The Codex Theodosianus cameinto force on 1st January 439, for certain in the Eastern half of the Empire, but very probably also in the Western, where the Codex waspresented 438 to the Roman senate in the course of a ceremonial session.

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The Theodosianus was the first official collection of imperial constitutions, and took its place beside the Gregorianus and theHermogenianus, which in this way retained their validity. This collection too is arranged in books (16 in all) and titles. The committeeselected and revised the texts of the constitutions, which are in chronological order. The legal matters contained in the codex deal withnumerous spheres of public and private law. Much space is taken up by the administrative organization of the empire and its officials.Book 16 is to be regarded as a real novelty, being exclusively devoted to religious legislation. We know the Codex Theodosianus alsopartly through the Lex Romana Visigothorum and the Codex Iustinianus. There are, however, some manuscripts extant that provide theirown independent textual tradition which goes back to the original editing.

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Post-Theodosian Novels

The constitutions promulgated after 437 by Theodosius II himself and his successors, also known as post-Theodosian Novels, werenever compiled in an official codification, but only collected privately. A large part of this legislation was handed down indirectlythrough the Lex Romana Visigothorum.

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The Leges barbarorum

After the West Roman Empire had been succeeded by Germanic kingdoms, the question arose as to the law to be applied to Romansubjects. According to the "personality principle", the Roman part of the population continued to be governed by Roman law. For thispurpose, special codifications were created which were to regulate the mutual relations of Roman citizens. These codifications weresupported directly by the sources of Roman law. Three of them are of particular importance:

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Lex Romana Visigothorum or Breviarium Alarici


This codification5, dating from 506 AD, promulgated by Alarich II (d. 507) (➔ Media Link #az), king of the Visigoths, is composed ofexcerpts from the Codices Gregorianus, Hermogenianus and Theodosianus, some post-Theodosian Novels, and the Pauli Sententiae (apostclassical compilation from the works of the jurist Paul), for which it represents the chief source. It furthermore contains anabbreviated version of the Institutes of Gaius (known as the Epitome Gai) and a single fragment of a responsum from Papinian. Almostevery text is followed by a brief explanation (interpretatio). Since the Gallic part of the Visigoth kingdom was lost shortly after itscoming into force, this codification was only briefly valid. However, the codification acquired considerable and lasting importance onthe Iberian peninsula, to which the Visigoths had retreated.

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Lex Romana Burgundionum

This codification (➔ Media Link #b0) was composed at the initiative of Gundobad (died ca. 516) (➔ Media Link #b1), King of theBurgundians, for the Roman subjects of his kingdom. It too draws on the Codices Gregorianus, Hermogenianus and Theodosianus, somepost-Theodosian Novels, the Institutions of Gaius and the Pauli Sententiae. The work is divided into 47 titles, and also contains Latininterpretationes, which however differ from the Visigothic ones.

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Edictum Theoderici

This is a codification of unknown date promulgated by Theoderich (453–526) (➔ Media Link #b2), King of the Ostrogoths. In contrast tothe leges mentioned so far, the Edictum Theoderici was addressed not only to Roman subjects but also to Ostrogoth ones. Thiscodification too draws on the Roman law sources, including some works of legal science dating from the classical period.

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The Corpus Iuris Civilis of Emperor Justinian I

After his accession to the throne in 527, Emperor Justinian I began to collect the whole of the legal material, to edit and systematize it.The totality of his compilation and lawgiving activity has since the Humanist period been known as Corpus Iuris Civilis ("the body of civillaw").6 Justinian's Compilation consists of two collections of imperial constitutions (of which the first is not preserved, having beensupplanted by a second edition), the Digest, the Institutions, and the Novels.

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First Codex

In 528 AD Justinian I announced in the programmatic constitution Haec Quae Necessario a new collection of imperial constitutions,which was to incorporate the content of the previous collections and include further laws. This new collection was to supplant theprevious ones completely. Among the members of the committee entrusted with this task was Tribonian (died ca. 542) (➔ Media Link#b3), by then magister officiorum ("Master of Offices"), whose contribution was decisive for the completion of the project ofcompilation. The first Codex Iustinianus7 was published already in the year 529 with the constitution Summa Rei Publicae. It was the taskof the compilers to make a selection from the constitutions in force, to shorten them, and alter their texts so as to satisfy currentpractical requirements. The work, which was divided into books and titles, pursued the express goal of rendering the work of thecourts easier and shortening the duration of cases.

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Digest

In his programmatic constitution Deo Auctore (530 AD) Justinian I declared his intention of collecting in one sole codex, to which hegave the name Digesta or Pandectae (from the Greek Πανδέκται), also the totality of the jurisprudence scattered in the writings of theclassical Roman jurists. Justinian I invested the committee set up for this task under the chairmanship of Tribonian with comprehensive





powers to alter the text in order to remove all ambiguities, repetitions, contradictions and differences of opinion typical of case law.8

The choice of works did not correspond to a hierarchy of particular jurists; all were to be treated equally, as long as they possessed theius respondendi.

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The Digest came into effect in 533 by a constitution that was promulgated in two versions: one Latin (Tanta) and one Greek (Δέδωκεν).It is divided into 50 books, each of which is in turn subdivided into titles (except for books 30–32, which are devoted to the lengthytopics De legatis et fideicommissis (On legacies and fideicommissa) The order of the material, predominantly made by private law,follows that of the praetorian edict. Each title of the Digest is followed, as an anthology of fragments, by excerpts from writings, ofwhich the authors and titles are always indicated (inscriptio). In all, over 200 works by 37 (or 38) jurists were excerpted from, with aclear predominance of the two particularly productive jurists Ulpian and Paul.

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Institutes

The new systematization of the law within the Codex and the Digest rendered necessary a new legal manual, especially since Gaius'sInstitutes were now no longer up to date. The compilation of this manual, begun during work on the Digest, was carried out byTribonian together with the law teachers Theophilus (➔ Media Link #b4) and Dorotheus (➔ Media Link #b5). The work was completedat the same time of that on the Digest and published simultaneously with this in 533 by the imperial decree Imperatoriam Maiestatem.The Institutes are subdivided into four books, devoted to the law of (1) persons, (2) property and testamentary succession, (3) intestatesuccession and contractual obligations, (4) lawsuits and criminal case procedure. As in the other works of Justinian I, the Instituteswere granted by the Emperor the force of law.

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In accordance with the intentions of Justinian I, the Codex, Digest and Institutes were to serve not only to reorganize the legal material,but also to form the foundation of the study of law, also reformed by the emperor. The new program of studies was formulated in theconstitution Omnem (533).

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Second Codex (or Codex Repetitae Praelectionis)

Only a few years after the publication of the first Codex, the new legislation enacted in the years 529–533 in the East, together with thepublication of the other compilation works, made a second edition of the Codex necessary. This Codex Repetitae Praelectionis (repetitapraelectio meaning "second edition"), whose programmatic constitution has not been preserved, was published in 534 by theconstitution Cordi. It is subdivided into 12 books, and was intended to completely replace the old Codex. The latter accordingly becameinvalid, as did those constitutions that had not been taken up in the second Codex. The most important innovation consisted in the factthat in the second Codex the "Law of Citations" was not included, since it became superfluous with the coming into force of the Digest.

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Novels

From the time of the publication of the second Codex up to that of his death, Justinian I indulged in much legislative activity, whichhowever was never put together in an official collection. These so-called leges novellae (➔ Media Link #b6) (or Novellae constitutiones)were, however, collected privately. Of particular importance are the following collections:

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1. the Epitome Iuliani, edited in 555 by Iulianus Constantinopolitanus (ca. 535–555/65) (➔ Media Link #b7), Professor of Law inConstantinople, consisting of an abbreviated Latin version of 124 constitutions, which possibly served for use only in thewestern half of the empire;

2. the Graeca or Marciana, a collection of 168 constitutions which presumably originated during the reign of Tiberius II (ca. 540–582) (➔ Media Link #b8), and also contains constitutions of the successors of Justinian I;


3. the Authenticum, a medieval collection of 134 Novels in Latin.▲40

The Validity and Range of Influence of the Justinian Compilation

Only after the re-conquest of Italy from the Ostrogoths in 553 was the Justinianic codification also introduced into some territories inthe West. At the petition of Pope Vigilius (ca. 500–555) (➔ Media Link #b9), Justinian I ordained in the constitution Pragmatica sanctiopro petitione Vigilii that his legislation should become valid in Italy as well. This was, however, of brief duration: 14 years later theLangobards occupied the country, with the exception of a few territories that remained Byzantine. The Justinianic compilation wassoon translated into Greek, paraphrased and, in abbreviated form, freshly issued by Emperor Leo VI (865–912) (➔ Media Link #ba) asthe Basilica. Through this and other later sources, Justinianic law remained valid in Byzantium until the Ottoman conquest in 1453.

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With Justinian I, the idea matured of a legal system that promised durability, homogeneity, compactness, that was harmonious andwithout contradictions. The Justinianic legislation, and in particular the Digest, were to have a decisive influence not only on the originsof the European legal systems, but also on the history of law and civilization in Europe in the following centuries. They thus formed thefoundation of the West European Legal tradition.

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Roman Law in the Middle Ages

In the Germanic kingdoms that had settled in the territory of the former West Roman empire, Germanic law applied to non-Romans. Ascustomary law, this was not codified. Roman law, in the form of the pre-Justinianic law and imperial legislation, continued to exist,although greatly limited and indirectly, insofar as it had found its way into the Germanic collections of laws. Roman law, by means ofthis incorporation, influenced the Germanic laws, in particular the Lombard one.

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The Justinianic compilation, by contrast, was hardly received in the West. As the MS sources show, it survived only in some parts of Italy(above all in the South), and even there – being limited to the Institutes and the Codex – it was not widespread and little used. In theearly Middle Ages, the Codex was known only in the form of an Epitome (in various versions) of the first 9 books. One of these versionsis the Summa Perusina. The Digest and thus the classical jurists' law, on the other hand, fell into oblivion, so that the legal culture waslost. Instead, the church remained the custodian of Roman law, especially the Justinianic codification, selecting between the 9th and 11th

centuries the texts relevant for itself, incorporating them into its own texts and using them for its own purposes. Thanks to the church,Roman law thus reached even the most remote districts, where – through the medium of canon law – it was taught in cathedralschools and monasteries.9

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The Rediscovery of the Digest

In Italy, from the late 11th century, there started to reappear in certain legal works and documents precise references to Roman law,and in particular to the Justinianic codification.10 They demonstrated a renewed interest in these texts and a developed understandingof them. Thus, for instance, legal material taken from the Justinianic sources (particularly the Codex, Institutes and the Epitome Iuliani,as the most accessible texts) were embodied into the Expositio ad Librum Papiensiem (ca. 1070), a collection of legal commentaries andglosses originating from the circle of Pavia on the Liber Papiensis, a source of Lombard law. In the "Judgment of Marturi" (1076) thereappears for the first time a quotation from the Digest. A large number of passages from the Digest and Institutes are also to be found inthe Collectio Britannica (ca. 1090), a collection of decretals which also partly draws on the Justinianic codification.

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The School of Bologna: the Glossators



In the High Middle Ages, the study of Roman law was accounted a component of the study of rhetoric which, together with the twoother liberal arts (➔ Media Link #bb) dialectics und grammar (forming the Trivium), was cultivated especially in Rome and Ravenna. Itwas, however, in Bologna that legal science was founded anew in the 11th century. A school of law was established there11 that faroutstripped that of Pavia, and where Justinianic legislation formed the foundation of the study of law. Irnerius Bononiensis (ca. 1050–ca. 1125) (➔ Media Link #bc) is accounted founder of the law school of Bologna (1088) and the legal science for which it becameknown.

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From the law studies there gradually developed a standard edition of the Digest, the Vulgata or Littera Bononiensis, which formed thebasis of legal instruction. As later textual criticism has shown, all versions of the Vulgata derived directly or indirectly – through themedium of a lost Codex (Codex Secundus) – from one sole MS, the Littera Florentina or Pisana.12 The interpretations of Irnerius wereusually noted between the lines of the text or in the margin; this was the origin of the glossa as typical working method of medievaljurists. On account of this exegetic method, the school of Bologna is also named that of the Glossators.13 The interpretatory activity ofthe Glossators was based on the scientific principles of the artes liberales of the Trivium. This peculiar direction produced special genresof works such as the summae (summaries of contents of single titles of the Digest), the distinctiones (conceptual distinctions) and thequaestiones (treaties in form of questions-answers). As regards the Codex, work was concentrated mainly on restoring the original textas far as possible.

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Among the most important jurists of the School of Bologna, after Pepo and Irnerius, was Johannes Bassianus (died 1197) (➔ Media Link#bd)14, who further refined the method of the Glossators. His pupil Azo (ca. 1150–ca. 1230) (➔ Media Link #be) arranged in systematicmanner all the extant glosses by various scholars that had been written to date, and partially overlapped. His Summa to the CodexIustinianus, a comprehensive account of various areas of law, became a standard work in practice and in court. Franciscus Accursius (ca.1185–ca. 1263) (➔ Media Link #bf), a pupil of Azo, put the 96,000 or so glosses between 1220 and 1240 into a self-contained whole, theGlossa Ordinaria or Glossa Accursiana. In the course of time this acquired such authority that users treated it itself as a legal source. Itbecame standard practice to reproduce the texts of the Justinianic compilation together with the Glossa Ordinaria that usuallysurrounded the text of the Digest, so that the two came to form an inseparable whole. With the Glossa Ordinaria, the School of Bolognabecame the most important centre of legal studies, attracting students from many European countries. When they returned to theirhome countries they took with them not only the legal knowledge and methods acquired in Bologna, but also the texts that hadformed the basis of the teaching. In this way Roman law and the legal science newly founded by the Bolognese spread throughoutEurope.

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The Commentators

In the early 14th century there developed in the South of France a new technique of interpretation: that of the Commentators.15 Theirmethod, which was derived from the dialectic method of scholasticism, aimed not so much at harmonizing the texts according toformal logic, but rather to apply their content to the concrete situation of their time.16 This technique, which was soon to supplant thatof the Glossators, was no longer connected with the glossa, but rather with the literary genre of the "commentary". Thanks to theCommentators, the legal material underwent a profound systematization. Known as the first Commentator is Cinus de Pistorio (ca.1270–ca. 1336) (➔ Media Link #bg), who received his training at the school of law in Orleans. In his work Lectura super Codice he madefor the first time systematic use of the program of the Commentators.

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Apart from Cinus, two jurists among the Commentators occupy a predominant position: Bartolus de Saxoferrato (ca. 1314–1357) (➔Media Link #bh) (a pupil of Cinus) and Baldus de Ubaldis (ca. 1327–1400) (➔ Media Link #bi). Bartolus, who lectured in the first half ofthe 14th century in Pisa and Perugia, wrote detailed commentaries on each part of the Corpus Iuris. In his works, he not only presentedthe opinions of previous jurists, but as a rule developed a position of his own, which frequently broke with tradition and prevailed overthe Glossators. Bartolus attempted to find solutions in the Justinianic Compilation for typical problems of his time, and to adapt Romanlaw to the new conditions. His method, which had numerous followers and established itself in the law schools, was so successful thatthe Commentators were also termed "Bartolists".

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In the 2nd half of the 14th century, Baldus extended the field of application of Bartolus' method to canon law and feudal law. He wasalso more active in practice, and published a series of commentaries and consilia (opinions on concrete legal questions), from which aliterary genre developed. Baldus' work also served to adapt Justinianic law, which was seen as a model of juristic rationality, to theneeds of the time. Correspondingly, Roman law, which in any case continued to characterize the training of jurists, remained the basisfrom which applicable law was derived in a rational manner.

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Roman Law and Canon Law▲52

In Bologna, there also studied the monk Gratianus de Clusio (ca. 1158) (➔ Media Link #bj), who systematically organized and publishedin 1140 as Decretum Gratiani the material of canon law, which was strongly influenced by Roman law. The Decretum was a body of rulesderived from various sources of ecclesiastical law, which was later complemented by other collections of decretals (Liber Extra, LiberSextus, Clementinae). As regards training and science, canon law was closely connected with Roman law and frequently served totransmit it.

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Canon law slowly developed into a unified and self-contained system. In the course of the 14th century, clerical and secular juristsbegan to undergo a training in utroque iure ("in both laws", that is, both Roman and Canon Law), and the two systems came to beregarded as aspects of a unified ius commune (common law), which was widespread across Europe. In legal practice, the principles ofthe two legal systems helped especially to develop a more rational law of procedure.17

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Roman Law in the Modern Period

The Influence of Humanism: Mos Italicus and mos Gallicus

In the course of the Renaissance, in the 15th century jurists in Italy paid increased attention to Antiquity (➔ Media Link #bk). Followingstudies of Lorenzo Valla (ca. 1407–1457) (➔ Media Link #bl) and Angelo Poliziano, there arose a new legal school of humanists,18 whichmade a decisive break with the work of the Glossators and Commentators. With the goal of a renewal of legal science, two methodsabove all were taken up in the study of Roman legal sources: historization and philological analysis. The founder and most importantexponent of this new learned or humanistic school was the Italian jurist Andrea Alciati (1492–1550) (➔ Media Link #bm). This newmethod fell in the 16th century on fertile ground above all in France, where Alciatus had taught at the universities of Avignon andBourges. This school, the most important exponents of which were Hugo Doneau (1527–1591) (➔ Media Link #bn) and Jacques Cujas(1522–1590) (➔ Media Link #bo), was distinguished by a strict rejection of the method and the prolixity of medieval jurists, particularlythe Commentators.19 Instead, the humanist scholars strove for a clear and systematically self-contained account, and additionally forindependence from the judgment of medieval jurists. Their aim was a "return" to Antiquity, with which went a particular esteem forclassical law. With the aid of a new philological method, they attempted to recognize the manipulations (called "interpolations" or also"Tribonianisms") of the Justinianic compilers and to restore the purity of the classical legal texts in their original sense.

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Since this school was particularly successful in France, its method became known, although it had originated in Italy, as mos Gallicus("the French style"). In distinction to this, the previous school of Commentators was termed mos Italicus ("Italian style"). This successwas contributed to by a growing French self-confidence, which also showed in an increased interest in the history and the institutionsof France, together with a growing importance of droit coutumier (customary law). Following the historization process, the practice ofRoman law became less important for French jurists. It became general opinion that Roman law had meanwhile lost the character of aneternal and unchangeable model of justice. There developed a resistance, indeed a thorough-going hostility, to Roman law which isreflected in François Hotman's (1524–1590) (➔ Media Link #bp) polemical work Antitribonianus (written 1567)20.

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The Reception of Roman Law in Europe: France and Germany





Whereas the study of Roman law continued to be regarded as indispensable for the training of jurists, in the 16th and 17th centuries itlost importance in a number of countries as a source of currently valid law. With a view to the many local particular rights (iusproprium), Roman law increasingly acquired the function of an ancillary legal system of general validity, which applied above all whenthe ius proprium led to unsatisfactory solutions or showed gaps.21

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This applied above all to France, where Roman law increasingly lost authority, retaining its validity as ius commune only insofar as itcomplemented local rights, namely the coutumes (customs) derived from Germanic laws. When the law of the coutumes was officiallycollected for use in the courts especially in Northern France, this droit coutumier became the object of scholarly study, and to thisextent displaced Roman law. The latter was viewed no longer as a corpus of valid norms, but exclusively as a complex of theories andprinciples useful for the training of jurists. Roman law, especially the Justinianic codification (with the exception of the Institutes), wascriticized as lacking systematic coherence. An exception to this was Southern France, where Roman law remained dominant as droitécrit (written law).

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In other countries, particularly Central European, where Roman law was hardly widespread, Canon law in particular, and the adoptionof the Romano-canonical form of court procedure by various jurisdictions led to the historical development generally known as"reception of Roman law". The first traces of this (known as "early reception") can be traced already in the late Middle Ages."Reception" is the name given to the phenomenon whereby Roman law was taken up by court practice in the form of ius commune andapplied as a substitute legal system. Here the working method of mos Italicus taught at the Italian universities was particularly adopted.This complex sociocultural phenomenon, which extended through several centuries, expanded to some extent almost throughoutEurope, but not to England, where the system of common law had established itself already at an earlier date.

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Most significant was the reception in Germany,22 where the principles of Roman law had not become widespread in the course of theMiddle Ages. Rather, law in Germany consisted of a mosaic of various customary laws, which were the only ones to be used directly incourt. At German universities, which had been founded from the 14th century onwards and were attended primarily by clerics, it wascanon law which was mostly taught. Only in some establishments was elementary instruction in Roman law introduced since themiddle of 15th century, as it appeared useful for the training of jurists.

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Thanks to the activity of the jurists, who constantly increased in number, from the late 15th century onwards a "Romanisation" of thelegal system began. There were several reasons for this complex process.23 Intermediaries were, on the one hand, German students,who were long accustomed to attending Italian or French universities. Learned jurists, on the other hand, occupied posts in theadministration, including that of justice, as councillors, syndici, judges or lawyers. Additionally, secular courts began to take over theRomano-canonical procedure. The disadvantage of the local rights over against this process consisted in the fact that they were notfixed in writing. A further reason for the reception of Roman law lies in the practice of the courts of requesting legal opinions from thelaw faculties. In their replies, these had recourse to Romanic doctrine, above all in the field of the law of contracts and otherobligations. In the early 16th century, this led to an alignment of theory and practice, and thus to an increased reception of Roman law.This process was accelerated by the creation of the Imperial High Court (1495),24 half of whose members were trained jurists. Itsprocedure regulation provided expressly for recourse to Roman law, in the form of ius commune, in cases where the application of localrights was not possible.

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This rapid development, which was also furthered by the rediscovery of antiquity in the course of the Renaissance, was not free fromideology: within the Holy Roman Empire with its decentralized organization, the Corpus Iuris of Emperor Justinian I was accounted asymbol and guarantee of unity, and an expression of the emperor's claim to sovereignty.

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Usus Modernus Pandectarum





With a view to a closer relation to practice, in German legal science in the early 17th century a direction developed that aimed to applyRoman private law, as shaped by Justinian, to the sociocultural conditions in Germany of the time, by using the mos Italicus, thepractice of German courts, and the content of local rights. This new direction,25 which was concentrated chiefly on the area of privatelaw, persisted until the early 19th century, when it was succeeded by the so-called Pandectist School. It was supported by jurists whohad received a training in Roman law and were active, some as university lecturers, some in practice. Important representatives of thisSchool were Benedict Carpzov (1595–1666) (➔ Media Link #bq) and Johann Gottlieb Heineccius (1681–1741) (➔ Media Link #br).26

Particularly prominent was Samuel Stryk (1640–1710) (➔ Media Link #bs), whose Usus Modernus Pandectarum (1690–1709), an accountin several volumes of the law according to the system of the Pandects, gave its name to this direction.

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The Reception of Roman Law in the Netherlands: the ""Dutch Elegant School""

In the Netherlands too there took place in the late Middle Ages an "early" reception of Roman law, again via Italian legal science andcanon law. This was also contributed to by the founding of the university in Leuven (1427) and the higher courts, such as the "GroteRaad" of Mechelen (1473) (➔ Media Link #bt). In the course of the 16th century there was a flowering of legal science: the works of thejurists Joost de Damhouder (1507–1581) (➔ Media Link #bu), Wigle van Aytta (1507–1577) (➔ Media Link #bv), Jacques de Corte (ca.1505–ca. 1567) (➔ Media Link #bw) and Jacobus Raevardus (1534–1568) (➔ Media Link #bx), which were chiefly based on Roman law,were widespread in many European countries and left their mark on the development of law there.27

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The final division of the Low Countries into the northern (protestant) and southern (catholic) provinces towards the end of the 16thcentury promoted the process of reception (➔ Media Link #by). At the first universities (especially Leyden) that were founded in thenorthern Netherlands, the teaching of law was based on Roman law sources. The incursion of a "learned" Roman law into practiceincreased during the following period. To this contributed among other things the coming about of central courts of appeal at whichjurists schooled in Roman law were active, and above all the expansion of the influence of Legal Humanism, which was strengthenedfollowing the religiously motivated flight of jurists from France. The law teachers, particularly from the University of Leyden, had adecisive influence on the development of a new legal system based on the Justinianic codification. The teaching of the French juristDoneau at Leyden University (1579-87), which was also passed on by his students, led to the development of a new kind ofjurisprudence known as "elegant", which reached its full development only towards the end of the 17th century.28 It was characterized,on the one hand, by antiquarian-humanistic (i.e. historical-philological) traits, and on the other by its closeness to practice, in which itcombined harmoniously mos Gallicus, mos Italicus and the pragmatism of the German Usus Modernus Pandectarum, synthesizing thegoals of these. To the Dutch School belonged the jurists Gerard Noodt (1647–1725) (➔ Media Link #bz), Henrik Brenkman (1680–1736) (➔ Media Link #c0), Anton Schulting (1659–1734) (➔ Media Link #c1), Cornelius van Bijnkershoek (1673–1743) (➔ Media Link #c2)and, characterized by a more systematic approach, Arnoldus Vinnius (1588–1657) (➔ Media Link #c3), Ulrik Huber (1636–1694) (➔Media Link #c4) and Johannes Voet (1647–1713) (➔ Media Link #c5). For this School a training in Roman law was accountedindispensable. Thus Dutch legal science became preeminent in Europe towards the end of the 17th century, and experienced a periodof flowering up to the mid-18th century. It also had an influence on the Dutch colonies (➔ Media Link #c6) – especially South Africa,where it had validity as Roman-Dutch law – and also achieved great importance in Scotland, since at the time Scottish studentsattended Dutch universities in large numbers.

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The Roman Law Tradition up to the 19th Century

Although the process of development of local legal systems – in the form of both customary and national laws – had long beenaccomplished in many European countries, the Roman law of the Justinianic Corpus Iuris still functioned as common law in the 17th and18th centuries. Its application, once the expression of a supranational legal culture, survived only as subsidiary. The teaching of law atuniversities throughout Europe continued to be based on Roman law. This law was still applied in court, particularly where gaps in theexisting law became evident, which was particularly the case in private law. Even those legal systems that had freed themselves mostdecisively from Roman law, such as the French, continued to show Romanistic influences (➔ Media Link #c7). In France, the Roman lawtradition remained alive in the whole Napoleonic Codification, particularly in the Code Civil (1804) (➔ Media Link #c8), with the normsand principles of Roman law being included. From France, the Code Civil with its foundation on Roman Law extended its influence alsoto Italy, where it was taken up as a model for the country's own codification – the Statuto Albertino (1865).29

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In Germany (➔ Media Link #c9) the new academic direction of the "Historical School of Jurisprudence"30 founded by Carl Friedrich vonSavigny (1779–1861) (➔ Media Link #ca) promoted the study of Roman law and its sources, both in its historical dimension (pursuingfurther the tendency introduced by Gustav Hugo [1764–1844] (➔ Media Link #cb)) and in view of its practical application, especially inthe field of private law. By the study of the Roman law sources, it was intended to produce a new German legal science reflecting alsothe strivings for political unity. From the Historical School, there developed, thanks to Georg Friedrich Puchta (1798–1846) (➔ MediaLink #cc), a pupil of Savigny, the so-called "Pandectist School",31 which addressed above all the private law aspects of Roman law. ThisSchool, which was characterized by conceptual formalism and found great resonance and influence in Europe, promoted a criticalstudy above all of the Digest. The aim was to develop the formation and organization of a dogmatic construction of private law withelements derived directly from Roman law. It was also intended to create a rational legal system structured in concepts, in order torender possible a practical application of Justinianic law. Among the Pandectists, a special mention should be made of BernhardWindscheid (1817–1892) (➔ Media Link #cd) and his chief work Lehrbuch des Pandektenrechts (1862 onwards).32

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The German civil code, the Bürgerliches Gesetzbuch (BGB) (➔ Media Link #ce),33 underwent a long preparation and was not completedwithout some friction. The making of its first draft saw the participation of Windscheid. The code came into force on 1st January 1900,and thereby overrode the positive validity of Roman law, although its principles, as interpreted by German legal science, above all bythe Pandectists, were integrated into it. The BGB represents the clearest picture of a European legal culture which was – and still is –firmly rooted in its Roman law tradition.

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Lorena Atzeri (➔ Media Link #cf)

Appendix

Links

Accursius, Franciscus (ed.): Corpus iuris civilis: Digesta Justiniani, Venedig 1495, Digitalisat Universitäts- und LandesbibliothekDüsseldorf: http://digital.ub.uni-duesseldorf.de/urn/urn:nbn:de:hbz:061:1-108713 [13/10/2017].

Gaius: Institutiones Iustiniani, Moguntia 1529; Digitalisat Bayrische Staatsbibliothek: http://www.mdz-nbn-resolving.de/urn/resolver.pl?urn=urn:nbn:de:bvb:12-bsb10182266-7 [13/10/2017].

Haenel, Gustav Friedrich (ed.): Lex Romana Visigothorum, Lipsiae 1849; Digitalisat Bayrische Staatsbibliothek: http://www.mdz-nbn-resolving.de/urn/resolver.pl?urn=urn:nbn:de:bvb:12-bsb10520137-1 [13/10/2017].

Hotman, François: Antitribonianus, Leipzig 1704; digital copy SLUB: http://digital.slub-dresden.de/werkansicht/dlf/23454/1/ [13/10/2017].

Literature

Below, Georg von: Die Ursachen der Rezeption des römischen Rechts in Deutschland, Neudruck der Ausgabe München 1905, Aalen1964 (Historische Bibliothek 19).

Bergh, Govaert C. J. J. van den: Die holländische elegante Schule: Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaftin den Niederlanden 1500–1800, Frankfurt am Main 2002 (Studien zur europäischen Rechtsgeschichte 148).

Bretone, Mario: Geschichte des römischen Rechts: Von den Anfängen bis zu Justinian, 2nd ed. Munich 1998.

Calasso, Francesco: Medio evo del diritto, Milan 1954, vol. 1: Le fonti.

Feenstra, Robert: Zur Rezeption in den Niederlanden, in: L'Europa e il diritto romano: Studi in memoria di Paolo Koschaker, Milan 1954,vol. 1, p. 243–268.

Hamza, Gábor: Entstehung und Entwicklung der modernen Privatrechtsordnungen und die römischrechtliche Tradition, Budapest 2009.

Kaser, Max / Knütel, Rolf: Römisches Privatrecht, 17th ed., Munich 2003.

Kiefner, H.: Art. "Rezeption (privatrechtlich)", in: Handwörterbuch zur deutschen Rechtsgeschichte 4 (1990), Col. 970–984.

Koschaker, Paul: Europa und das römische Recht, 4th ed., Munich 1966.





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Kroeschell, Karl: Deutsche Rechtsgeschichte, 13th ed., Cologne et al. 2008, vol. 1: Bis 1250.

Kroeschell, Karl / Cordes, Albrecht / Nehlsen-von Stryk, Karin: Deutsche Rechtsgeschichte, 9th ed., Cologne et al. 2008, vol. 2: 1250–1650.

Kroeschell, Karl: Deutsche Rechtsgeschichte, 5th ed. Cologne et al. 2008, vol. 3: Since 1650.

Kunkel, Wolfgang / Schermaier, Martin Josef: Römische Rechtsgeschichte, 13th ed., Cologne et al. 2001.

Lange, Hermann: Römisches Recht im Mittelalter, Munich 1997, vol. 1: Die Glossatoren.

Lange, Hermann / Kriechbaum, Maximiliane: Römisches Recht im Mittelalter, Munich 2007, vol. 2: Die Kommentatoren.

Liebs, Detlef: Römisches Recht: Ein Studienbuch, 6. ed., Göttingen 2004.

Meder, Stephan: Rechtsgeschichte: Eine Einführung, 3rd ed., Cologne et al. 2008.

Orestano, Riccardo: Introduzione allo studio del diritto romano, Bologna 1987.

Paricio, Javier / Fernández Barreiro, Alejandrino: Historia del derecho romano y su recepción europea, 9th ed., Madrid etc 2010.

Savigny, Friedrich Karl von: Geschichte des römischen Rechts im Mittelalter, unveränderter fotomechanischer Nachdruck der 2.Ausgabe von 1834–1851, Bad Homburg 1961, vol. 1–7.

Schlosser, Hans: Grundzüge der neueren Privatrechtsgeschichte: Rechtsentwicklungen im europäischen Kontext, 10th ed., Heidelberg2005.

Stein, Peter G.: Römisches Recht und Europa: Die Geschichte einer Rechtskultur, Frankfurt am Main 1996.

Waldstein, Wolfgang / Rainer, Johannes Michael: Römische Rechtsgeschichte: Ein Studienbuch, 10th ed., Munich 2005.

Wesel, Uwe: Geschichte des Rechts in Europa: Von den Griechen bis zum Vertrag von Lissabon, Munich 2010.

Wesenberg, Gerhard / Wesener, Gunter: Neuere deutsche Privatrechtsgeschichte im Rahmen der europäischen Rechtsentwicklung, 4thed., Vienna et al. 1985.

Wieacker, Franz: Privatrechtsgeschichte der Neuzeit (PGN): Unter besonderer Berücksichtigung der deutschen Entwicklung, 2ndreprint of the 2nd ed. (1967), Göttingen 1996.

Wieacker, Franz: Römische Rechtsgeschichte: Quellenkunde, Rechtsbildung, Jurisprudenz und Rechtsliteratur, in: Handbuch derAltertumswissenschaft, Abt. 10: Rechtsgeschichte des Altertums, part 3, vol. 1, sections 1–2, Munich 1988–2006.

Notes

1. ^ From the voluminous literature in German: Wieacker, Römische Rechtsgeschichte 1998–2006 (with further bibliography);Kaser / Knütel, Römisches Privatrecht 2003; Liebs, Römisches Recht 2004; Kunkel / Schermaier, Römische Rechtsgeschichte2001; Waldstein / Rainer, Römische Rechtsgeschichte 2005; Bretone, Geschichte 1998.

2. ^ Titus Livius, Ab Urbe Condita Libri 3.34 "centuriatis comitiis decem tabularum leges perlatae sunt, qui nunc quoque … fonsomnis publici privatique est iuris".

3. ^ The most prominent jurists of this period are, together with Marcus Antistius Labeo (54 BC–10/11 AD) and Gaius Ateius Capito(died ca. 22 AD), Masurius Sabinus (first half of the 1st century AD) and Sempronius Proculus (ca. 20 BC–ca. 50 AD), GaiusCassius Longinus (died ca. 69 AD) and Pegasus, Iavolenus Priscus (ca. 60 BC–12 AD) and Iuventius Celsus with his homonymousson, Salvius Iulianus (ca. 100–ca169 AD). Sabinus was the author of an important work on civil law which became a standardand from which developed the genre of the "Commentaries ad Sabinum".

4. ^ Gaius, Institutiones Iustiniani 1529 [13/10/2017].5. ^ Haenel, Lex Romana Visigothorum 1849 [13/10/2017].6. ^ Accursius, Corpus iuris civilis 1495 [13/10/2017].7. ^ Of this first Codex there exists only a papyrus fragment preserving a list of the constitutions contained in the first book.

Thanks to this fragment, it can be traced how the legislation on religious questions had been already placed in the first book,and no longer, as with the CodexTheodosianus, only in the last.

8. ^ Since the time of Humanism, scholars have dealt with the question of interpolations, i.e. changes made in the legal texts(above all the Digest) by the members of the commission appointed by Justinian. From the aim to liberate the works of

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classical jurisprudence from interpolations (also called "Tribonianisms", from the head of the commission Tribonian) in orderthus to discover the "true" original text, there developed a veritable "hunt" for interpolations, which was carried on above allby German and Italian jurists. After the First World War, the extreme criticism towards Roman sources gave way to anincreasingly more conservative attitude.

9. ^ Calasso, Medio evo del diritto 1954, vol. 1; Hamza, Entstehung und Entwicklung 2009, p. 38ff. (with further refs.); Stein,Römisches Recht und Europa 1996, p. 68ff.

10. ^ Stein 1996, p. 76ff.11. ^ The first teacher was said to be a certain Pepo, author of the placitum (a judicial document) of Marturi. Kroeschell, Deutsche

Rechtsgeschichte 2008, vol. 1, p. 252ff. (§ 20); Lange, Römisches Recht im Mittelalter 1997, vol. 1; Meder, Rechtsgeschichte2008, p. 172ff.; Stein, Römisches Recht und Europa 1996, p. 80ff., 91ff.; Hamza, Entstehung und Entwicklung 2009, p. 78ff. (withfurther refs.).

12. ^ This MS, whose origin is unknown, was preserved in Pisa around the year 1050, and found its way to Florence in the early 15thcentury as booty of war. The text of the Vulgate of the Digest occasionally diverges from the Florentina and is also incompletein some places; in accordance with a medieval tradition, the Vulgate of the Digest is sub-divided into three parts: the DigestumVetus (books 1–24.2), the Digestum Novum (books 39–50) and the Digestum Infortiatum (books 24.3–38).

13. ^ Meder, Rechtsgeschichte 2008, p. 178ff.; Koschaker, Europa 1966, p. 55ff.14. ^ Bulgarus (died ca. 1167), Martinus Gosia (died ca. 1166), Hugo de Porta Ravennate (died ca. 1168) und Jacobus de Voragine (ca.

1228–1298) (the so-called "four doctors") are also among the important law teachers from Bologna.15. ^ Forerunners of this new direction were Petrus Placentinus (ca. 1135–ca. 1192),who was trained in Bologna and taught in

Montpellier, and the French jurists Jacobus de Ravanis (Jacques de Révigny, ca. 1230–1296) and Petrus de Bellapertica (Pierrede Belleperche, died 1308), both at the law school of Orleans.

16. ^ Meder, Rechtsgeschichte 2008, p. 184ff.; Lange / Kriechbaum, Römisches Recht im Mittelalter 2007, vol. 2; Koschaker, Europa1966, p. 87ff.; Stein, Römisches Recht und Europa 1996, p. 117ff.; Hamza, Entstehung und Entwicklung 2009, p. 89ff. (withfurther refs.).

17. ^ The definition of this procedure as Romano-canonical reflects this origin. Wieacker, PGN 1996, p. 71ff. (§ 4); Wesel, Geschichtedes Rechts 2010, p. 232ff.; Meder, Rechtsgeschichte 2008, p. 191ff.; Stein, Römisches Recht und Europa 1996, p. 86ff.; Hamza,Entstehung und Entwicklung 2009, p. 63ff. (with further refs.).

18. ^ Kroeschell / Cordes / Nehlsen-von Stryk, Deutsche Rechtsgeschichte 2008, vol. 2, p. 246ff.; Koschaker, Europa 1966, p. 105ff.;Stein, Römisches Recht und Europa 1996, p. 123ff.

19. ^ Other representatives are Guillaume Budé (Budaeus, ca. 1468–1540), François Douaren (Duarenus, 1509–1559), FrançoisHotman (Hotomanus, 1524–1590), François de Connan (Connanus, 1508–1551).

20. ^ Hotman, Antitribonianus 1704.21. ^ Meder, Rechtsgeschichte 2008, p. 223ff.; Kiefner, Art. "Rezeption" 1990; Koschaker, Europa 1966, p. 124ff., 141ff.; Stein,

Römisches Recht und Europa 1996, p. 137ff.22. ^ Wieacker, PGN 1996, p. 114ff. (§§ 6–10).23. ^ Below, Die Ursachen 1964.24. ^ Kroeschell / Cordes / Nehlsen-von Stryk, Deutsche Rechtsgeschichte 2008, vol. 2, p. 277ff.25. ^ Other significant jurists were Georg Adam Struve (Struvius, 1619–1692) and Justus Henning Böhmer (1674–1749).26. ^ Wieacker, PGN 1996, p. 204ff. (§§ 12–14); Meder, Rechtsgeschichte 2008, p. 232ff.; Kroeschell, Deutsche Rechtsgeschichte

2008, vol. 3, p. 2ff.; Hamza, Entstehung und Entwicklung 2009, p. 175ff. (with further refs.).27. ^ Particularly active in Germany were also the jurists Hubert van Giffen (Giphanius, 1534–1604) and Petrus Wesenbeck (1546-

1603).28. ^ Stein, Römisches Recht und Europa 1996, p. 160ff.; Feenstra, Zur Rezeption 1954, 243ff.; Bergh, Die holländische elegante

Schule 2002; Hamza, Entstehung und Entwicklung 2009, p. 114ff. (with further refs.).29. ^ On the codification movement: Kroeschell, Deutsche Rechtsgeschichte 2008, vol. 3, p. 66ff.; Stein, Römisches Recht und

Europa 1996, p. 181ff.30. ^ Wieacker, PGN 1996, p. 348ff. (§§ 20–22); Wesel, Geschichte des Rechts 2010, p. 509ff.; Meder, Rechtsgeschichte 2008, p.

270ff., 288ff., 297ff.; Kroeschell, Deutsche Rechtsgeschichte 2008, vol. 3, p. 128ff.; Koschaker, Europa 1966, p. 254ff.; Stein,Römisches Recht und Europa 1996, p. 189ff.; Hamza, Entstehung und Entwicklung 2009, p. 189ff.

31. ^ Wieacker, PGN 1996, p. 430ff. (§ 23); Meder, Rechtsgeschichte 2008, p. 289ff.; Stein, Römisches Recht und Europa 1996, p.194ff.

32. ^ Karl Adolph von Vangerow (1808–1870), Karl Ludwig Arndts von Arnesberg (1803–1878) and Heinrich Dernburg (1829–1907)are also to be mentioned.

33. ^ Wieacker, PGN 1996, p. 468ff. (§ 25); Meder, Rechtsgeschichte 2008, p. 313ff.; Kroeschell, Deutsche Rechtsgeschichte 2008,vol. 3, p. 189ff.; Hamza, Entstehung und Entwicklung 2009, p. 209ff.

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Translated by: Colin Boone Editor: Barbara Dölemeyer Copy Editor: Claudia Falk

Eingeordnet unter:Models and Stereotypes › Model Classical Antiquity › Roman Law and Reception

Indices

DDC: 340

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Citation

Atzeri, Lorena: Roman Law and Reception, in: European History Online (EGO), published by the Leibniz Institute of European History(IEG), Mainz 2017-11-20. URL: http://www.ieg-ego.eu/atzeril-2017-en URN: urn:nbn:de:0159-2017082215 [YYYY-MM-DD].

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Link #awLex Romana Visigothorum (http://www.leges.uni-koeln.de/lex/lex-romana-visigothorum/)

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Link #b0Lex Romana Burgundionum (http://www.leges.uni-koeln.de/lex/lex-romana-burgundionum/)

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Link #b2Theoderich (453–526) VIAF (http://viaf.org/viaf/89539084) DNB (http://d-nb.info/gnd/11862167X) ADB/NDB (http://www.deutsche-biographie.de/pnd11862167X.html)

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Link #c0Henrik Brenkman (1680–1736) VIAF (http://viaf.org/viaf/64758970) DNB (http://d-nb.info/gnd/116485108) ADB/NDB (http://www.deutsche-biographie.de/pnd116485108.html)

Link #c1Anton Schulting (1659–1734) VIAF (http://viaf.org/viaf/42620476) DNB (http://d-nb.info/gnd/117647187) ADB/NDB (http://www.deutsche-biographie.de/pnd117647187.html)

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Link #c3Arnoldus Vinnius (1588–1657) VIAF (http://viaf.org/viaf/27341023) DNB (http://d-nb.info/gnd/124408281) ADB/NDB (http://www.deutsche-biographie.de/pnd124408281.html)

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Link #c7Romance Legal Family (http://www.ieg-ego.eu/en/threads/crossroads/legal-families/claudia-lydorf-romance-legal-family)

Link #c8

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Link #c9Deutscher Rechtskreis (http://www.ieg-ego.eu/de/threads/crossroads/rechtsraeume-rechtskreise/elisabeth-berger-deutscher-rechtskreis)

Link #ca






http://ieg-ego.eu/en/threads/models-and-stereotypes/the-dutch-century/dagmar-freist-the-dutch-century






















http://ieg-ego.eu/en/threads/europe-and-the-world/european-overseas-rule/luigi-nuzzo-colonial-law

http://ieg-ego.eu/en/threads/crossroads/legal-families/claudia-lydorf-romance-legal-family

http://gallica.bnf.fr/ark:/12148/bpt6k1061517/f2

http://ieg-ego.eu/de/threads/crossroads/rechtsraeume-rechtskreise/elisabeth-berger-deutscher-rechtskreis

Carl Friedrich von Savigny (1779–1861) VIAF (http://viaf.org/viaf/76377829) DNB (http://d-nb.info/gnd/118605909)ADB/NDB (http://www.deutsche-biographie.de/pnd118605909.html)

Link #cbGustav Hugo (1764–1844) VIAF (http://viaf.org/viaf/24668261) DNB (http://d-nb.info/gnd/118707965) ADB/NDB (http://www.deutsche-biographie.de/pnd118707965.html)

Link #ccGeorg Friedrich Puchta (1798–1846) VIAF (http://viaf.org/viaf/5007047) DNB (http://d-nb.info/gnd/118596969)ADB/NDB (http://www.deutsche-biographie.de/pnd118596969.html)

Link #cdBernhard Windscheid (1817–1892) VIAF (http://viaf.org/viaf/41930305) DNB (http://d-nb.info/gnd/11880751X) ADB/NDB

(http://www.deutsche-biographie.de/pnd11880751X.html)

Link #ce

(http://www.ieg-ego.eu/en/mediainfo/promulgation-of-the-german-civil-code-1896)Promulgation of the German Civil Code, 1896

Link #cfLorena Atzeri VIAF (http://viaf.org/viaf/36711699)

http://www.ieg-ego.eu ISSN 2192-7405













http://ieg-ego.eu/en/mediainfo/promulgation-of-the-german-civil-code-1896


Documents

Roman Law and Reception - d-nb.info