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Warburg Institute

Revivals of Roman Law


Author(s): H. F. Jolowicz
Source: Journal of the Warburg and Courtauld Institutes, Vol. 15, No. 1/2 (1952), pp. 88-98
Published by: Warburg Institute
Stable URL: http://www.jstor.org/stable/750115
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REVIVALS OF ROMAN LAW


By H. F. Jolowicz
not be immediately obvious by what right law-any law-can
may
to
claim 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
as a noun is late, and in any case refers to a subordinate sort
lawyer;
voLx6q
But the Romans were peculiar in this respect. To them belongs
of person.
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 pettifogging 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 jurisprudence 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

It

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.

Wirtschaft u. Gesellschaft, 3. Lieferung, ? 4,


p. 465.
F. Schulz, Historyof RomanLegal Science,
I946, p. 67.

Abt.
88

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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 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

known to be a post-classical compilation)


were "confirmed" in 327 (C. Th. 1.4.2.).
2 Op. cit.,
pp. 280 ff.

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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.

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


pp. 223-252.

very rare.

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Jura I, 1950,

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 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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REVIVALS OF ROMAN LAW

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

kation und die Glossatoren," Atti (supra,n. I),


Bologna, I, pp. 347-430
Patrol. Lat. 77, 1299.

at p. 356.

Migne,

more advanced instruction is meant.


7

Kantorowicz,

op. cit., p. 145; "Tber die

Entstehung der Digestenvulgata," ? 4, Zeitder

3 See e.g. quotations, Holdsworth, History schrift

of English Law, II, p. 136.


4 H. Kantorowicz, Studies in the Glossatorsof
the Roman Law, 1938, p. 196. Cf. against the

Savigny-Stiftung far Rechtgeschichte


(Romanistische Abteilung), XXX, I909, p.
196; Genzmer, op. cit., p. 365 with further

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

Genzmer, op. cit., p. 36o.

4 Genzmer, op. cit., p.

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 ..

." (supra,p. 93,

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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,it is a mistake to assume, as some have done-led astray perhaps
the
word "gloss"-that the work of the Glossators was purely explanatory
by
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 CorpusJuris
only the smallest, the Institutes,is 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 purposes. But the Glossatorshad not got that key. They had to approach the texts
direct, puzzle out a system for themselves and, in the course of their work, collect 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 explanation 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,in
the sense of epitomes of a whole title (with other relevant texts), and these
1 Kantorowicz, Studies in the Glossators, exegetique," Pare-Brunet-Tremblay, La Rep. I85.
2

Journalof theWarburg& Courtauld


Institutes,

II, I938, pp. 22 ff.


a

"C'est le rkgne d'une m6thode purement

naissance du XIliime Sikcle, 1933, P- 229.

4 C. Tanta, ? 15.
5 Kantorowicz, op. cit., p. 36.

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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,the relevant material
from all sources, including the Digest. It was indispensable to the practitioner
-chi nonha Azzo nonvadaa 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 quaestionesor
dialogues and such are the quarein which apparently conflicting texts are
marshalled and a reason given whythey co-exist.1 Even the famous brocards,
types of generalization or maxim, are put together in opposing pairs, sometimes with a solutio of the opposition. There are also the collections of
distinctioneswhich may be regarded as a separate form of literature, though
occur in various sorts of work. What is meant is the elucidation
distinctiones
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's money. If he lends someone 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 nonKantorowicz.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 CorpusJuris 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.6But 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 CorpusJuris 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 Problemata des Aristoteles," Atti del congressointer-

nazionale di diritto romanoe di storia del diritto,


Verona, I948, I, pp. 297-306, I95 .
2 Kantorowicz,
op. cit., p. 214.
3 Op. cit., p. 4274
Op. cit., p. 82.
5 Festschriftfir O. Lenel, 1921, pp. 204-285.
6
pp. 212-213.

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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 hodiein 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 shouldprevail, 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 SummaCodicishad become a necessity to the practitioner.
Even so, however, the glossatorial method remained too academic, and
that is why it was superseded by that of the Post-glossatorsor 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 contemporary 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 CorpusJuris under such a
mound of commentary that the text was almost forgotten.
In opposition to their mos Italicusthe Humanist lawyers proclaimed the
mos Gallicus,the 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 Wissenschaftim Wandel derJahrhunderte(Rektoratsrede
I920), p. 17-

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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 aestheticappeal 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,in 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,"
that had grown up in
for he sought to replace the ususmodernusPandectarum
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 CorpusJuris 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 CorpusJuris 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.

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