Intro_continental_legal_science [Unlocked]

The revival of the 12th century. (p. 30–31)

21. At the end of the eleventh century, western European society finally left behind the archaic feudal and agrarian structures which had characterized the early Middle Ages…

The closed and essentially agricultural manorial economy was replaced by a market economy. This was sustained by the development of international commerce and industry, an intense circulation of capital, and the development of a banking system: in other words, a renewal and transformation of economic activity in general, assisted by the rise of numerous cities.

There was also a profound intellectual development. The general cultural level rose markedly, and this is reflected particularly in increased literacy and increased written use of the vernacular languages; rational thought also continued to gain ground. It was at this time too that universities came into being and spread throughout Europe. They carried with them an intellectual discipline based on the great philosophical and legal works of Greco-Roman Antiquity. Ancient thought was the object of intense study…

Bellomo M. The common legal past of Europe (1000-1800). p. 52–54.

The revival of Roman law studies in the Middle Ages.

11. A century of Great Crisis and Radical Reforms: 1000-1100.

Around the mid-11th century, sings of change were everywhere.

–the ‘Gregorian’ reform of the Church (launched under Pope Gregory VII)

–the political struggle of the Empire and the Papacy

–reform of canonical life by defining new ‘orders’ of reformed

canons

A historical reconstruction of the precise relationships between

40

parallel phenomena is a difficult… task. It is even more difficult to state that one particular event was the determining cause of another. Nonetheless, one thing seems evident: in every field of human activity sings could be seen of a will for renewal…

Historiography usually calls the centuries of this new era the ‘Renaissance of the twelfth century’ (Charles Haskins) or, more generally, the ‘Medieval Renaissance’ (Francesco Calasso).

<...>

12. Sings of a New Legal Science in the Roman Tradition.

… A number of circumstances during roughly the same period (the 11th and early 12th centuries) show proof of a return to the study and the use of Roman law in the form it had assumed in the compilations of Justinian. In some areas of <Central and Northern Italy>…. the technical quality of notarial acts showed a clear improvement…. Furthermore, legal concepts began to reappear, not only in the theoretical works of jurists… but also as essential working tools to enable practitioners to define adequately the terms in a legal act, conflicting interests, or situations that required surveillance…

The 11th century ended and the 12th century began in a new cultural climate. More and more concentrated thought was devoted to legal norms and the behavior they regulated. At the same time, juridical theory helped to give a new quality and a new dignity to the work of practitioners…

Lopez P. Comparative Law in a Changing World. p. 54–56.

The revival of Roman law studies in the Middle Ages

Over the 11th and 12th centuries, in keeping with the Renaissance in philosophy, canon law and theology, Roman law studies also experienced a rebirth and revival, or a ‘Second Life’ (Nicholas). It is difficult to assign a single reason for this event, but some writers place central importance on the lectures given by Irnerius (c 1055–1130), in

the late 11th century, who gave the first university lectures on the 41

Digest at Bologna, the first modern European university where law was a major subject. The crucial point is that it was Justinian’s Corpus Juris that was being studied, not the vulgarised Germanic versions, nor customary law derived from the law of the fairs (lex mercatoria), nor laws devised by local townships or minor rulers. Various reasons can be found for the success and popularity of Roman law at that time:

(a)The political and economic conditions of the time were conducive to the study and acceptance of works like the Digest. In political terms, there was a great need for a legal system that could unify and organise the social conditions of that era. Governmental power required centralisation so as to prevent its fragmentation. Economically, a society that saw the emergence of centres of commerce, trade and industry needed a law that could cope with the rapidly changing commercial trade, revival of maritime commerce and the decline of feudalism. Roman law could provide the legal techniques that could promote and strengthen commercial life.

(b)The Digest possessed a sense of authority because it was in book form, written in Latin and a relic of the old imperium romanum, Rome in its heyday, all conquering, glorious and supreme and a symbol of unity, offering a hope for a unified law. These images of Rome had never quite left people’s minds. A book was a rare entity in the Middle Ages, so that almost any book had an aura of authority, particularly to the average citizen. Latin remained the lingua franca in the civilised world and had become the language of communication for the Western Church, intelligible to the clergy as well as the language of educated and cultured people.

(c)The Corpus Juris was also the product of Justinian who was regarded by many as a Holy Roman Emperor and, therefore, his work carried the authority of the Pope and the Emperor, and was really a form of imperial legislation. Italian lawyers therefore almost had a special duty to study the Digest.

(d)The Digest was an intellectually challenging compilation to

42

the lawyers of the Middle Ages, difficult to follow in its language and the order in which it treated various topics, as well as in its unfamiliarity of legal treatment, being based on an ancient system of remedies, yet often merely listing decided cases with no guiding concepts. Its study attracted men of high intellectual ability who later became specialists in its study and acquired a professional skill in its interpretation. This ensured that they guarded their knowledge jealously and trained others only in a professional capacity, but also created a tradition of scholarship.

(e)Roman law as contained in the Corpus Juris also provided detailed solutions and approaches to practical problems. It also possessed a conceptually powerful structure, with clear distinctions which could be adapted to almost any situation or problem with simplicity and clarity. Property and obligation were distinguished, the former being indefeasible against the world, the latter merely a bond between two persons, whose legal effects varied according to whether the parties wished to create rights against one another, or on a reciprocal basis.

(f)Finally, it has been said that it was the ‘rational character of Roman law and its freedom from relativity to any particular time or place’ (Lawson (1977)) that also accounts for the huge success of Roman law.

Irnerius’ lectures at Bologna heralded the study of the Corpus Juris in Western Europe as a coherent, systematic, body of law. By the middle of the 12th century, there were about 10,000 students in Bologna. The Italian universities became the centre of learning for scholars all over Europe, from whence it spread. There later ensued a succession of schools of thought (most prominently, the groups of scholars known as the Glossators and the Commentators) about the correct way to study and interpret the Corpus Juris. Scholars of Roman law acquired such tremendous prestige that university doctors of law were appointed to the royal councils and were made judges in many local courts. Those who had studied in Bologna returned to their

43

homelands where they promoted the study of the Corpus Juris according to the interpretations and approaches of the Glossators and, subsequently, the Commentators. This really laid the foundations for a common law of Europe.

The Glossators were a group of scholars, who were apparently founded by Irnerius, who initiated the systematic study of Roman law by analysing the individual texts of the Corpus Juris and attempting to reconcile them in a logical manner with other texts. The development of the law, from the 12th century onwards, was determined by the manner in which the Glossators used the Justinian texts, not Roman law as Justinian might have intended, or as it might have existed in classical Rome. Their style is, therefore, characterised by the short notes or glosses which they appended to particular passages, for purposes of comparison with each other, in order to pose a question or suggest a solution. As time passed, the work of the later Glossators developed from gloss to commentary.

Bellomo M. The common legal past of Europe (1000–1800). p.

58.

2. From the Feudal (Rural) World to Urban Civilization.

In 12th century towns and cities, which were growing rapidly as their permanent population increased and their inhabited space was enlarged, economic growth, market specialization, an intensification of interpersonal relations, and new forms of political power produced new needs. Among these needs were theoretical models and practical instruments more adequate to new conditions than the models and means of the seigniorial, feudal, and rural world…

<...>

Its abstract and reiterated legal concepts made Roman law (which, incidentally, had strongly urban connotations) a mine of precious materials that jurists, as specialists arrogating to themselves a monopoly

44

on the theorization of social relations, could recuperate and re-utilize. With Irnerius they began to do just that.

Irnerius headed a school in which the task of reviving and reconstituting Justinian’s texts was carried out enthusiastically and with the participation of young and brilliant students. They worked with a sense of urgency to provide theoretical responses, and with them collaboration and aid, to political movements and economic trends that were restructuring the city internally, refashioning its ties with the surrounding territory, and weaving a network of profitable connections between one and another.

Van Caenegem R.C. An historical introduction to private law, p. 24–27.

The rediscovery of the ‘Corpus iuris' (p. 45–52)

… one of the great changes which took place in western society from about 1100 was the development of a new type of legal order. (p. 27)

Towards 1100 the West rediscovered the Corpus iuris civilis of Justinian. This was not simply a matter of finding the whole text of the compilation again; it meant that from now on the text was studied, analysed and taught at universities. Legal scholars glossed and commented on the authoritative ancient compilations, and gradually built up… medieval Roman law which became the common basis for university teaching and legal science throughout Europe… The Roman… law <provided> the principles, terminology and doctrine of Justinian's law which were the basis for the study of canon law, rather than the reverse.

School of Glossators

Outline of its development

Van Caenegem R.C. An historical introduction to private

45

law, p. 47

Little evidence about the first glossators has come down to us… Irnerius undertook the teaching of the whole Corpus iuris … in Bologna. He had been educated in the <liberal arts>, and applied his literary knowledge and skill to the legal texts. Among his pupils, most is known of the four doctors, Bulgarus, Martinus Gosia, Hugo, and Jacobus. Their teaching made Bologna the indisputable capital of legal studies; their influence extended far beyond the circle of their students, and even great figures of the time such as Frederick I Barbarossa sought their opinions.

Placentinus

Azo

Accursius, compiled Glossa Ordinaria, or standard Gloss to serve as the standard reference text to all parts of Corpus iuris civilis.

Analysed sources of Roman law

1.the so-called libri legales <legal books>

2.the Digest

3.the Codex

4.the Institutes

5.the Novels

Van Caenegem R.C. An historical introduction to private law, p.

47

The Corpus iuris studied by the glossators… was the entire Justinianic compilation which had been rediscovered in the eleventh century…

Bellomo M. The common legal past of Europe (1000-1800). p. 61–63.

Here and there, forgotten for centuries, separate or bound 46

parchments bearing a text that reproduced (with uneven fidelity) the text of Justinian’s lost ancient originals were saved from destruction. Toward the mid-11th century someone had the idea of rescuing them from their abandonment and putting them back into circulation. According to imaginative report, something of the sort happened somewhere between Amalfi and Tuscany concerning a complete copy of the Digest of <Justinian>… Around the mid-12th century this exemplar… was in Pisa and that it was and continued to be extremely difficult to get a look at it.

All of the Institutes and at least the first nine books of the Codex seem to have been the first to reappear and attract scholarly attention…

It took a good many sheets of parchment to pass on the laws of Rome… One ‘codex’ was insufficient to contain all the laws, which is another reason why the libri legales were in a state of disorder. Very few copies existed, few were intact and complete, and all were extremely precious. They cost a great deal. Furthermore, the work required to put them back into order was immense.

Irnerius was the first to have the courage to recompose and restore them… With the encouragement of Countess Matilda, the powerful feudatory of Tuscany… Irnerius ‘renewed the books of the laws and, reconstructing the order in which they had been compiled by Emperor Justinian, with the possible addition of a few words here and there, he divided them up’ <as one medieval chronicle reads>.

… <Finally> all the texts of the Justinian compilation were recopied onto new parchment folios and bound together so as to form new volumes, or codices. In this way… they were distributed… in five great folio volumes, each one of which contained some two hundred parchment folios (or some four hundred pages). A <manuscript> tradition was launched; … it continued to be respected until the much later printed editions of the 15th to 17th centuries.

In this new and soon standard organization,

47

–the first three volumes contained the Digest, divided into <old, middle, and new Digest> (Digestum vetus, Infortiatum, Digestum novum);

–volume four contained the first nine books of the Code;

–volume five contained the four books of the Institutes, the last three books of the Code, and the Novels in the version of the

Authenticum…

<...>

Jurists, practitioners, and the professors in the schools all found a ‘certain’ <stable> text of Justinian’s <libri legales> useful because the <value>, validity, and reasonableness of an interpretation, in the courts as in the schools, could not do without the certainty that the text contained those precise words and not others… If during a debate someone could claim to alter the text under discussion… then debate… would have become useless exchanges of <speeches>. The jurist needed a dependable text, an exemplar. This is why structures were created that offered adequate guarantees <of the legal text on the parchment being accurate>. (p. 64)

Methods of the Glossators

Bellomo M. The common legal past of Europe (1000-1800). p.

59.

The novelty of Irnerius’s work lay mainly in the idea that the texts of the Justinian compilation (the libri legales <legal books>, as contemporary sources called them) could be used to give a concrete response to anyone who might want to use the law rather than arms to defend his interests. We do not know whether this idea was Irnerius’s alone or whether it had occurred to others before him…

Van Caenegem R.C. An historical introduction to private law, p. 47–50.

The glossators had to devise methods and principles for 48

assimilating and comprehending the Corpus iuris. Their main aim was like that of the scholastic theologians: just as the theologians aimed by the light of human reason to elucidate a Scripture whose authority was absolute, so the jurists attempted to understand the Corpus iuris with the aid of formal logic. The first task was to grasp the exact meaning of the Justinianic text by explaining it word for word or by paraphrasing the difficult or obscure terms and passages of the Corpus: the name of the School of Glossators denotes precisely that the principal activity of these jurists was to 'gloss' the Roman texts.

'Glosses' in the sense of explanations or clarifications sometimes went beyond purely literal exegesis, for example where the meaning of a rule was elucidated by reference to other passages of the Corpus ('parallel texts') containing other principles or qualifications which contributed to a better understanding of the text. It follows from the structure of the Corpus iuris that the same subject-matter can be dealt with in different places, both in the Codex (when it is a matter of an imperial constitution) and also in the Digest (when for instance it is the opinion of a jurist). Reference to parallel texts certainly permitted a better overall view on a given question.

These cross-references at the same time brought to light disparities, and sometimes even contradictions, which Tribonian and his colleagues had not succeeded in avoiding in the compilation. Nowadays it seems only natural that a compilation of materials from various sources and different periods should not always display a perfectly coherent whole. For the jurists of the Middle Ages, however, the Corpus represented perfection itself, and so contradictions in it could not be genuine but must be merely apparent. The glossators therefore attempted to eliminate these antinomies, particularly by resorting to the technique of distinctio (a minute distinction between the different meanings of a particular word). In applying this technique, they were sometimes tempted into excessive subtleties or logical artificialities. Such excesses may explain the unfortunate reputation of the learned jurists, who were accused of distorting the law by misrepresenting the

true meaning of the texts. On the other hand, the same methods had 49