revivals of roman law
Post on 22-Feb-2018
233 Views
Preview:
TRANSCRIPT
-
7/24/2019 Revivals of Roman Law
1/12
Warburg Instituteis collaborating with JSTOR to digitize, preserve and extend access to Journal of the Warburg and
Courtauld Institutes.
http://www.jstor.org
Warburg nstitute
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
Accessed: 30-10-2015 09:45 UTC
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of contentin a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship.For more information about JSTOR, please contact support@jstor.org.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/http://www.jstor.org/action/showPublisher?publisherCode=warburghttp://www.jstor.org/stable/750115http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/750115http://www.jstor.org/action/showPublisher?publisherCode=warburghttp://www.jstor.org/ -
7/24/2019 Revivals of Roman Law
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
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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-
This content downloaded from 203.131.219.179 on Fri, 30 Oct 2015 09:45:52 UTCAll use subject to JSTOR Terms and Conditions
http://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp -
7/24/2019 Revivals of Roman Law
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.
top related