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It
Abt.
88
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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 Professor Schulz2 we
must, in the later empire, distinguish between two periods of "juristic classicism." 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
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H. F. JOLOWICZ
90
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 CorpusJuris 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 rendering them accessible, to restore in law, as in other respects, the ancient glory
of the Roman name.
The constituent parts of the CorpusJuris are four in number, viz. the
Institutes,the Digest or Pandects,the Codeand 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 Corpusby 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,too, 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
Codeis 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,for 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.
very rare.
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Jura I, 1950,
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 exclusively 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,libroprimoad edictumaediliumcurulium;Paulus, libro
secundosententiarum-andit 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,a 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,or Commentarii,
of 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 Justinianinovi 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
CorpusJuris, 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 multaet maxima,2but some scholars
think there were enormous numbers, and there is a yet more important dispute
about their nature. Were they comparatively unimportant, merely registering 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 compila1 C. Tanta,
? xo.
C. Tanta, ? xo.
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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)is 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 "inscriptions" 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 disbelieve 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 earthquake 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 Constantinople. 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 RomanaVisigothorum,
or BreviariumAlaricianum,a code
of sorts which 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 importance 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,1925, PP. 54-58.
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93
barbarization it was impossible that the full CorpusJuris 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 Codeis 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 "predecessors 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, continuity view, Genzmer, op. cit., p. 365e Bologna," Atti del
5 Leicht, Atti (supra, n. i), p. 284.
6 Vos ...
CongressoInternazionaledi Diritto Romano, 1933,
qui interclientumturbastenetisin
gymnasio ferulam, quoted by Leicht, Atti . . .
Bologna, I, pp. 277-290 at pp. 281 ff.
2 E. Genzmer, "Die
Justinianische Kodifi- (supra, n. I), p. 285. He, however, thinks
1933, 3, and "Ravenna
at p. 356.
Migne,
Kantorowicz,
literature.
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H. F. JOLOWICZ
94
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 comof Gaius Julius
mentaries of Gaius mentioned by Justinian as the commentarii
a
in
fact
There
was
Caesar.'
nothing approaching university standard of
so
far
as
the
instruction
education, and,
necessary for practice was concerned,
this was provided by apprenticing boys to a notary, "as," remarks Kantorowicz (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 something 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 compilation 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
364.
5De Zulueta, The Liber Pauperum of
n. 7) ? 4 n. 4 (Zeitschriftder
Introd. XXI.
Savigny-Stiftungfiir Vacarius,
XXX, p. I99).
Rechtsgeschichte,
6 Cf. Quintilian. Inst. Or. IV, I, 5.
SGenzmer, op. cit., pp. 374-6.
2 "Ober die Entstehung ..
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95
4 C. Tanta, ? 15.
5 Kantorowicz, op. cit., p. 36.
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H. F. JOLOWICZ
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97
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 Wissenschaftim Wandel derJahrhunderte(Rektoratsrede
I920), p. 17-
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H. F. JOLOWICZ
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