Учебный год 22-23 / Watson - The Evolution of Western Private Law

government, it should carry more weight than others. In a developed society, legislation has authority over all other sources of law, being constrained only by political reality.

But first we must consider the pivotal fact in the evolution of Western law, Justinian’s Corpus Juris Civilis. It marks the end of the great Roman law tradition and the starting point for the subsequent Reception of Roman law. As we shall see later in the chapter, the compilation itself corresponds to one of the standard patterns of legislation.

Justinian became coemperor of the Byzantine Empire with his uncle Justin in . Later that year, when his uncle died, he became sole emperor. Probably even while Justin had been sole ruler, Justinian was contemplating a legal codification of some kind. He issued a constitution dated February , establishing a commission to prepare a new collection, a Codex, of imperial constitutions. The word constitution here is a general term to include all kinds of imperial legal rulings. The compilers were given extensive powers to collect the constitutions, to omit any, in whole or in part, that were obsolete or unnecessary, and to remove contradictions and repetitions. They were not given power to make alterations in substance. The constitutions were then to be arranged by subject matter in titles, or named chapters, and within each title the constitutions were to be given in chronological order. The Code, which was published on April , has not survived, but it was replaced by a second revised Code, which came into effect on December . The revised Code, which has survived and is one of the four constituent elements of what came to be called the Corpus Juris Civilis, is divided into twelve books, subdivided into titles in which the constitutions appear chronologically. The constitutions range in date from Hadrian in the early second century to Justinian himself. A considerable proportion of the texts— , as against , —come from the time after the empire became Christian; in fact, the bulk of the Christian rescripts is much greater.

On December , Justinian ordered the compilation of a collection of juristic texts, the Digest, and the work came into force on December . This massive work, twice the size of the Code, is in fifty books, virtually all of which are subdivided into titles. Each title consists of fragments from the writings of jurists who lived between the first century B.C. and the third century A.D. About one-third of the whole

work is taken from the jurist and civil servant Ulpian, who was murdered before the middle of ; a further one-sixth comes from his contemporary Paul. In the opinion of some modern scholars, one jurist, Hermogenianus, was active in the fourth century, but otherwise no Digest text is attributable to any jurist who lived after the third century except for the rather obscure Arcadius Charisius.1 The texts of the jurists include statements of principles, discussions of rules, commentary on the scope or interpretation of edicts and statutes, qualification of other juristic opinion, and the treatment of problem cases, real or hypothetical.

The compilers were instructed to cut out all that was superfluous or imperfect, all contradictions and repetitions, anything that was obsolete, and anything that was already in the Code.2 Contrary, though, to a frequently expressed view, the compilers of the Digest were not given power to alter the substance of the law or to bring it up to date.3 Indeed, any such alteration as occurred would have been contrary to the spirit of the instructions. There was very little juristic writing after, say, , and there are very few texts after that period in the Digest. Changes in the law after that date were almost entirely the result of imperial constitutions. But these constitutions were collected in the Code, and the Digest commissioners were expressly instructed not to repeat in the Digest what was contained in the Code. Significantly, the commissioners were to exclude from the Digest what was obsolete, meaning in large measure the rules that had been replaced by imperial constitutions, which were now collected in the Code.

This exclusion is one of the major differences of the Digest from the Code. The difference is not just that the Digest is a patchwork made out of juristic commentary and the Code a patchwork from imperial laws, or that the Digest is composed wholly of pagan originals and, unlike the Code, can be regarded as a Christian work only in a very limited sense. Even more, the two works stand at different points of legal and social evolution. The Digest presents a picture of law and of relevant social conditions as they were in Rome at the height of the empire; insofar as the picture of law at that time is inexact, this is because of excisions, not of later superimpositions, though some few of the alterations of the Digest texts do result in the presentation of postclassical law. The Code, on the contrary, mainly presents the postclassical world, where Rome was no longer the heart of the empire, and early Byzantium. Because of this difference between the two works, in subsequent history the Code was at times more emphasized, at other times the Digest. The Corpus Juris could speak with more than one voice.

The third part of the compilation is the Institutes, an elementary textbook for first-year students, which was planned from and was published on November . It is structured on the Institutes of Gaius, a work written about A.D. , and appears in four books, though, unlike Gaius’s Institutes, the books are further subdivided into titles. The arrangements of topics—sources of law, persons, property, succession, obligations, law of actions—for which the credit should probably be given to Gaius, was the result of planning, and it differs markedly from the arrangement found in the Digest, which seems haphazard and is largely the unplanned result of the gradual growth of topics as they were rather unsystematically set out annually by the praetor in the later Roman Republic and early Roman Empire. The absence of a satisfactory arrangement in the Digest has long been a matter for unfavorable comment. Like the other parts of the Corpus Juris, the Institutes is statute law.

With the second Code, Justinian’s work of codifying Roman law was complete. But he continued to legislate, and this subsequent legislation is now known as the Novels. No official collection of these constitutions was made, but there is considerable knowledge of three unofficial collections. Most of the constitutions were in Greek, some in both Greek and Latin, but translations of most of them into Latin also appeared. The bulk of the Novels relate to public or ecclesiastical affairs, although private law is by no means absent. Thus, Novels and reform the whole law of intestate succession, and Novel sets out the Christian marriage law.

In the main part of this chapter I wish to establish, through examples, two propositions. Both are at first sight startling, but both are, I believe, firmly based in history. First, at most times, in most states, governments have been little interested in legislating on national law, especially private law but also much of criminal law; and, second, great lawmakers have had little interest in promoting a detailed political, social, or economic message.

Law is power. Law is politics. Law is politics in the sense that persons who have political power determine which persons or bodies create law, how the validity of law is to be assessed, and how the legal order is to operate. But one cannot simply deduce from that, as is frequently as-

sumed, that the holders of political power determine what the rules are and what the sources of law are to be. The lesson of history, in fact, is that over most of the field of law, and especially of private law, in most political and economic circumstances, political rulers need have no interest in determining what the rules of law are or should be—provided always, of course, that revenues roll in and that the public peace is kept. Rulers and their immediate underlings can be, and often have been and are, indifferent to the nature of the legal rules in operation. This simple fact is not only overlooked; it is habitually denied. But failure to accept it is the greatest cause of misunderstanding the nature of law, the relationship of law and society, and the course of legal development.4

Yet, for Europe, the general accuracy of the proposition that the government is usually unconcerned with the precise nature of most of the legal rules in operation is easily demonstrated by facts that, I think, no serious legal scholar would consider denying, but which are not usually considered together. 5 I offer some examples.

First, ancient Rome’s system of private law is regarded as the most innovative (and influential) that the world has ever known. But during its most formative time—the last two centuries of the republic and the first two and a half centuries of the empire—it was mainly the work of the jurists, private individuals who, in that capacity, had no ties to government.6

The last two centuries of the Roman Republic, until Octavius (later to be Augustus) was given tribunician power in perpetuum in B.C., seem to have produced the greatest advances in private law that the world has known. But what role did statute law play in this?7 If we begin earlier and rather arbitrarily at B.C., we can take account of the lex Aquilia, whose final formulation is traditionally dated around B.C.8 This, the most important of all Roman statutes on private law, with the exception of the early codification, the Twelve Tables, is in three chapters. Chapter deals with the killing of slaves and four-footed herd animals, chapter with a small technical point of contract law, and chapter (at least eventually—its original scope is disputed) with the wounding of slaves and four-footed herd animals, the killing or wounding of other animate property, and damage to all kinds of inanimate property.

There were various statutes covering personal guarantors, which should be taken together. By the lex Furia, of perhaps around B.C., which applied only to Italy, the sponsor and fidepromissor (two kinds of guarantors) were relieved of liability after two years, and each was li-

able only for an aliquot share. The earlier lex Appuleia introduced a kind of partnership between sponsores and fidepromissores, and anyone who paid more than his share could recover from the others. The lex Cicereia, whose date cannot be established, declared that anyone about to take sponsores or fidepromissores had to give prior notice and declare both the matter and the number of guarantors. The lex Cornelia, of around B.C., forbade the same person to be guarantor for the same debtor in the same year for more than , sesterces of loaned money.9

The lex Cincia of B.C. forbade gifts in return for defense in court and gifts in general above a certain (unknown) amount to anyone outside of a specified relationship. Very shortly thereafter came the lex Plaetoria (or Laetoria), which gave an action against one who defrauded a minor and a defense to the minor if he were sued on the transaction.10 The lex Atilia of uncertain date, but is usually thought likeliest, allowed at Rome the praetor and a majority of the tribunes of the plebs to appoint a tutor to a person who had none.11 The lex Titia of aroundB.C. extended similar powers to magistrates in provinces.

There were four statutes concerning testate succession. The lex Furia testamentaria of somewhere between and B.C. enacted that no one, apart from certain classes of persons, could take more than ,

asses by way of legacy. The lex Voconia of B.C. declared that a person in the first class of citizens according to the latest census could not appoint a woman as heir, and that no one could take, by legacy or mortis causa gift, more than the heirs took. The lex Falcidia of B.C. enacted that a testator could not leave more than three-quarters of his estate in legacies.12 The lex Cornelia, probably of B.C., confirmed the validity of testaments made by those who, captured by the enemy, died in captivity.

The lex Atinia of the first half of the last century B.C. prohibited prescription of stolen property until it had first been returned to its owner. The lex Minicia of before B.C. declared that children born of parents who did not have the right of civil-law marriage took the lower status. The lex Scribonia of around B.C. prevented the prescription of servitudes.

These constitute all the statutes on private law at the time when Roman law was most inventive. Other governmental devices by the officials in charge of the courts introduced contracts such as sale, hire, mandate, and the modern form of partnership; good faith came to play an important role in legal thought; and a very great deal of the law of succession was made afresh by the Edict of the praetor. The higher Roman elected public officials had the right to issue edicts on how they

saw their tasks. Those magistrates in charge of the courts, notably the praetors and curule aediles, issued edicts setting out the circumstances in which they would grant an action. Thus, though they did not technically have law-making powers, they had an enormous impact on legal change. But the innovations in the Edict were really the creation of the jurists.13 The only statute of outstanding importance from the period, even for the Romans, was the lex Aquilia; some of the others, as we have seen, appear in groups, on guarantors or on testate succession.14 Yet legislation on public law or on political matters was abundant. There areknown statutes on private law, at least on political, criminal, or procedural matters.15 The great majority of the latter are concerned with transient, particular issues; these cannot wait, but the broad eternal issues of private law can. The disproportion between private law and other legislation for this period can stand as an example—not extreme—of the typical interests of legislatures.

Second, from the eleventh century until the modern era of codification, the main feature of legal development in continental Europe was the Reception of Roman law. This could only occur, as it did, in the absence of legislation introducing much new law. It resulted above all from the work, the interpretation, of professors who again, as such, had no (necessary) ties to government. The Reception was seldom imposed by rulers; when it was, it was usually a recognition of the status quo. Moreover, what was imposed was the Corpus Juris Civilis as a whole or as glossed, not merely the rules favorable to princes.16 But in general the Reception occurred at a lower level because the courts accepted Roman rules. The major part of Chapters and indicates both something of the scope of the Reception and the role of jurists in it.

Third, there was, as I just implied, a paucity of legislation on private law during the same period. This cannot be, as some will have it, because of lack of power or authority to legislate, because the same times and places saw much legislation on other matters.

Fourth, feudalism as a social and military system was coming to an end in the twelfth century or not much later, but it was only then that the feudal law (as set out in the Libri Feudorum), which was to be so influential, was coming into being.17 Yet, despite a great degree of decentralization, feudalism, of all social systems, should be the one that most reaches from the highest level of authority downward because of the intense personal fealty it involves. The Libri Feudorum, which forms the basis of developed feudal law, was a private compilation, though it contains some statute law.

Fifth, European rulers have often been indifferent to communicating clearly the substance of law, even of criminal law, to their subjects, which explains the common scarcity of legislation and the consequent difficulty of finding or deducing the law from a mass of precedents or juristic writings. This indifference is incomprehensible if the rulers had much interest in the actual substance of the law.18

Sixth, even when great codifiers of private law emerge, they often are, like Justinian and Frederick the Great, much more motivated by a desire to make law more accessible than to make it conform to a particular political or social ideal. In their turn, with the civil codes prepared for their countries, Napoleon most wanted one law for all of France, and Atatürk in the s wanted to modernize Turkey. The precise content of the law was generally of less concern to them.19

Last (for the moment), in England from the origins of the common law until the second half of the nineteenth century, law was left to be developed mainly by judicial precedent.20 This made legal growth haphazard, slow, unresponsive to social and political conditions, incomprehensible to nonlawyers, and unsystematic.

Even great lawmakers, famous for their legislation, have not been particularly interested in setting forth a detailed political, social, or economic message. Although legal historians, looking at an individual civil code, claim to find in it very specific relations with the political and economic order, the claims often lack substance. Examples of legislators’ disinterest in giving a particular message can be chosen from Justinian, through Frederick the Great of Prussia and Napoleon, even to Atatürk. I am not, of course, claiming that these figures of history did not have precise political and other aims, but rather only that one cannot, at least in many contexts, uncover in their private law legislation a dominant concern to find the substantive law most suited for the conditions of their time. Massive legislation is itself a highly political act, but the legislators’ main aim may be to clarify existing law and make it more readily available, to unify the legal rules within the state, or to modernize the law in order to help modernize the state. Such aims may fall far short of seeking the rules “most suitable” for the society.

For Justinian and his advisers one can discount, almost a priori, the notion that the substantive rules in the Code, Digest, and Institutes were in general geared to a precise societal ordering. If such had been his in-

tention, then he would not have chosen to construct the Code and Digest on the basis of quotations of earlier law from emperors and jurists. No doubt the quotations are selective and reflect to some extent the concerns of the age, but to select statements from the past to give effect to conditions of the present is scarcely the way to set about providing legal rules precisely adapted to the contemporary world. Moreover, the Digest and, to a lesser extent, the Code reflect the pagan world of Rome, one of diverse economic conditions, not the Christian world of Constantinople. Indeed, the Digest and the Code to a considerable extent represent different worlds. Virtually no Digest text can be ascribed to the period after the death of the emperor Alexander Severus in A.D. , but by far the greater part of the Code belongs to the time after that date. Therefore, the former, unlike the latter, cannot reflect the economic collapse of the half century before Diocletian, the autocracy of that and subsequent rulers, the move to Constantinople, the rise of Christianity, and the absence of independent creative jurists.

These differences between the Digest and the Code become even more significant in the present context when we recall that the two works were prepared independently of each other. The surviving evidence indicates that when Justinian ordered the preparation of the first Code, he did not yet have the intention of collecting, abridging, and promulgating as law the writings of the classical jurists. Only if the Digest represents a second stage of his thinking on replacing the prior law can one explain the promulgation of the Fifty Decisions—to settle old, yet still existing, juristic disputes—after the completion of the first Code of , and their subsequent incorporation into the second Code of . But two such different works as the Code and Digest, conceived independently under the auspices of the same emperor, belie the notion that either of them, or both together, offered substantive legal rules that as a whole contained a precise political, social, or economic message. In addition, Justinian’s instructions to his compilers and the other prefaces for the first Code, the second Code, and the Digest contain nothing to warrant the conclusion that he wanted the excerpted texts to maintain or bring about any particular image of society. Yet we have extensive information regarding what he stated he wanted in two prefaces to the first Code, one setting up the commission, the other confirming the completed work— a preface confirming the second Code; and in two prefaces to the Digest, one setting up the commission for it and the other confirming it.

So little does the massive Digest reflect early Christian Byzantium that astonishingly in the body of the work there is not a single reference to

Jesus, the apostles, or saints, and no arguments are drawn from the fathers of the church. The same is true of the Institutes, which introduced students to the law. Indeed, in the body of the Digest the word deus (god) occurs only twelve times, and apart from our other knowledge of Byzantium we could not tell if they concern a pagan god or the Christian God.21 The position is rather different in the Code, but students began to study the Code only in their fifth and final year when their attitudes to law would be fixed.

For Frederick the Great of Prussia it is enough to call attention to the firstfruits of his attempts to codify the law, Das Project des Corpus juris Fredericiani, d.h. S.M. in der Vernunft und Landes verfassungen gegründetes Landrecht, worin das Römisches Recht in eine natürliche Ordnung und richtiges Systema nach denen dreyen Objectis juris gebracht, which was published at Halle between and . The very title is instructive: “The Project for the Corpus juris Fredericiani, that is, the Territorial Law of His Majesty, Founded in Reason and the Territorial Constitutions, in which Roman Law Is Brought into a Natural Order and Right System in Accordance with Its Three Objects of Law.” That is to say, it gives the ius commune, and it is in fact arranged in the order of Justinian’s Institutes. No attempt is made to compose afresh a law peculiarly suited to the Prussian territories. Indeed, some paragraphs of the preface, particularly , , , and , make it plain that for the drafters the impetus for the Project was not dissatisfaction with the substantive ius commune but with the difficulty of ascertaining the law because of the poor arrangement of Justinian’s Corpus Juris Civilis (apart from the Institutes) and of the multitude of writings by subsequent jurists. In the second section of part , book , Frederick claims it is only to be regretted that the German emperors when they received Roman law did not always systematize it. Frederick’s primary intentions—at least as they were perceived by his famous chancellor, Samuel Cocceji—ought best to be revealed by the main thrust of this first production. The fact that, because of the Seven Years’ War, it never came into force (which is regarded, for instance, by Franz Wieacker as rather fortunate) is not of consequence here. For later attempts at codification, ultimately crowned with success, with rather different aims, Frederick was indebted to a new generation of lawyers and philosophers.22

Indeed, even before, in the late fifteenth and sixteenth centuries, many German cities, towns, and even villages received reformed statements of their law. As Gerald Strauss has pointed out: “If one is to believe their preambles, municipal and territorial ‘reformations’ were un-

dertaken in Germany for one overriding reason: to end the uncertainty affecting all areas of law by replacing the old rules with a single code combining the virtues of clarity and uniformity.”23 The main intention was not to incorporate particular political and social messages in the law, but to render intelligible the substance of the law. The fact that many “reformations” were Romanizing is not in conflict with this.

Napoleon, as is continually stressed, took a strong personal interest in the preparation of the Code civil.24 In Chapter I examine the construction of the articles on delict, which betray a French response to the Roman rules and show no sign of any particular political, social, or economic message. The same is true in other fields. Here we should examine a branch of the law in which customary law predominated and in which we should expect to find the impact of new ideas. What effect, one might wonder, did revolutionary and Napoleonic fervor have on the law of matrimonial property? And what growth of awareness is shown by the legislative history?

Article of the Code civil declares that the law does not regulate the conjugal association with regard to property except in the absence of special agreements that spouses can make as they judge fit, provided they are not contrary to good morals. This freedom to contract on matrimonial property is not ancient. Until the sixteenth century, the choice of matrimonial regime was unknown. Only one regime operated in each region in France: in the pays de droit coutumier this was community of property, and the precise arrangements varied from place to place; in the pays de droit écrit and also in Normandy, this was a system of dowry.25 Article of the Code civil forbade spouses to stipulate in a general manner that their association would be regulated by one of the customs or other law that previously governed the different parts of French soil and that were declared abolished by the Code civil. Article states that the parties could declare in a general manner that they were marrying under the regime of community of property or under the dotal regime. In the first alternative, the arrangement was said to be governed by articles to of the Code civil (though actually it was governed by articles to , the first part of the second chapter), and in the second alternative by articles to of the Code civil. Article enacts that, in the absence of special arrangements for the property of the spouses, articles to formed the common law of France.

Thus by the Code civil of , spouses could make their own arrangements governing their property, but if they failed to do so, the