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(p. 359) 11. Roman Law and the European Ius Commune 

(p. 359) 11. Roman Law and the European Ius Commune
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(p. 359) 11. Roman Law and the European Ius Commune
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Paul J. du Plessis

DOI:
10.1093/he/9780198848011.003.0011
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date: 17 June 2021

The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them. And some countries, although not witnesses to European contact, adopted legal codes that were largely based on Roman-law principles during the course of the nineteenth century. As for those countries with systems derived from the English common law, they too have not been untouched by the influence of Roman law, as Zimmermann, R., ‘Roman Law in the Modern World’, in Cambridge Companion, 452–80 has pointed out.

Given the importance of law as a fundamental element of any society, the contribution of Roman law to modernity is all embracing. It is not just in the concepts, substantive rules, and doctrines of law that the influence of Roman law has been felt, but also in civil procedure and technique, particularly as regards the classification of law and the science of casuistic analysis. The lawyer with a grasp of the fundamentals of Roman law has a passport to the understanding of the law and legal systems of many countries. For Roman law has twice in the past fulfilled the function of a ius commune—the communal law of a large part of the world. The first time, at the height of the Roman Empire when ‘all the world was Rome’. The second life of Roman law as a ius commune began at the end of the eleventh century. With the scientific rediscovery of Roman law in Italy and its transformation and adaptation by Italian and French jurists during the next two centuries, medieval learned law (a combination of Roman and canon law interspersed with local custom) rose to become the ius commune of late medieval Europe. As Coing, H., ‘The Roman Law as Ius Commune on the Continent’ (1973) 89 LQR, 505–17 as well as Mayali, L., ‘The Legacy of Roman Law’, in Cambridge Companion, 374–95, have noted, this does not mean that there was a single homogenous body of law extending across Western Europe during this period. The term European ius commune (in its historical sense) merely signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts and structure provided by elements of Roman law provided a common framework (see Herzog, Short History, 75–92).

(p. 360) 11.1 The legacy of Justinian’s codification in the ‘Dark Ages’

11.1.1 The Eastern Empire

The administrative separation of the Roman Empire into two halves began during the reign of Diocletian (AD 284–305) and was formalized in AD 395. During the course of the fourth and fifth centuries, two distinct empires emerged which steadily drifted apart in constitutional, administrative, and theological matters. With the fall of the Western Empire in AD 476, the centre of power, which by this time had long since ceased to be Rome, shifted to Constantinople (later called Byzantium) on the Bosphorus, by then the capital of the Eastern Empire. Although the inhabitants of this Empire continued to regard themselves as Romans, the lingua franca was Greek and strong cultural influences from Greece and the Near East steadily transformed it into the Byzantine Empire, see Stolte, B., ‘The Law of New Rome: Byzantine Law’, in Cambridge Companion, 355–73, as well as the chapter by the same author and with approximately the same title in the OHELH, 229–48.

The history of Byzantine law is generally divided in modern scholarship into three periods: the sixth century to the start of the ninth century; the ninth century to the start of the thirteenth century; and from then until the fall of Byzantium in 1453. Although later Byzantine law (apart from the Corpus Iuris Civilis) as such did not have a direct influence on the emergence of the ius commune in Western Europe, its literature, which became available in Western Europe only after the fall of Byzantium in the mid-fifteenth century, had a profound impact on the study of Roman law, especially in the works of the French legal humanists of the sixteenth century (see 11.2.3.1 as well as the general narrative of Stolte in the works mentioned previously).

In the sixth century, Byzantine legal science rose to prominence as a result of Justinian’s legislative endeavours. The foundation of law schools in a few locations throughout the Eastern Empire, in which parts of this new codification were actively taught and studied, contributed to the emergence of a sophisticated legal culture. Although Justinian had prohibited commentaries on his codification, translations, and brief summaries were allowed. His instructions seemingly did not prevent attempts to make the codification more accessible to the predominantly Greek-speaking citizens of the Byzantine Empire. These commentaries, such as the Greek paraphrase of Justinian’s Institutes by Theophilus, were mainly prepared by academic jurists from the law schools of the East. The Digest, regarded as a difficult text even in Justinian’s reign, faded from use in its original form soon after his death, if not before; but it proved ripe for both private and official abridgements.

Following the death of Justinian in the mid-sixth century, and the general fate of the Byzantine Empire, the standard of Byzantine legal science inevitably declined. Large parts of the reconquered West (including Italy) were again lost to the ‘barbarians’ and the boundaries of the Byzantine Empire receded. Many of the law schools set up during the sixth century closed down and the teaching of law came to be handled largely by advocates whose interests lay in legal practice rather than legal science. This process of decline continued until the mid-seventh century. By this time, the existence of numerous abridgements and translations of Justinian’s codification, combined with a legal culture dominated by legal practice, had caused uncertainty about the state of the law. In an attempt to provide clarity, efforts were made to restate the law. These culminated in the enactment in c. AD 741 of the (p. 361) Ecloga Legum (‘Select Passages’) during the reign of the Emperor Leo III. This work was a summary of the major parts of Justinian’s codification, but containing some amendments of the law, e.g. mothers were allowed to exercise potestas over children in certain circumstances. It was intended mainly for use by practitioners, who generally could not cope with the complexity of the original codification. Apart from the Ecloga legum, attempts were made to restate other areas of the law and various unofficial codes such as the Military Code, the Farmers’ Code, and the Rhodian Maritime Code were produced during the eighth century.

The ninth century witnessed a renewed interest in the codification of Justinian as the foundation of Byzantine law. This was partly fuelled by successive Byzantine rulers’ reinforcement of the popular notion that the Byzantine Empire was a continuation of the Roman Empire. Thus, attempts were made through compilations such as the Eisagoge (also known as the Epanagoge) (c. AD 885) and its revised form, the Procheiros Nomos (compiled during the tenth century) to adapt Justinianic law to the circumstances of the period and to eliminate obsolete elements. However, by far the most important work emanating from this period was the Basilica (‘Imperial Books’), started by the Emperor Basil I but completed in c. AD 890 by his son, Leo the Wise. This was a Greek paraphrase of Justinian’s codification, issued as one work in sixty books. It represented a significant achievement in a period that witnessed a revival of intellectual standards in the Byzantine Empire and an attempt to emulate some of the achievements of the past. The aim was to make Justinian’s codification more serviceable by arranging the material in a more orderly manner, by excising obsolete laws, and by giving the work a greater sense of unity and harmony. Leo claimed that the Basilica contained no contradictions or obsolete material—a familiar claim—but he was wrong. Nevertheless, the work was an impressive achievement, making Justinian’s codification more accessible to the practitioner. The Basilica was intended as an aid in interpreting Justinian but became so popular that it acquired great authority in its own right. In due course it came to be regarded as too unwieldy and difficult for everyday use. Epitomes were regularly made of it, themselves the object of further epitomes such as the Hexabiblos (‘Six Books’) of 1345. Through such works a form of Roman law (inevitably distorted) survived the collapse of the Eastern Empire in 1453 and remained as the law of the Greek-speaking areas until this century, see Lawson, F. H., ‘The Basilica’ (1930) 46 LQR, 486–501 and continued in (1931) 47 LQR, 536–56.

The final period of Byzantine legal history, from the thirteenth to the mid-fifteenth century is again characterized by a decline in Byzantine legal standards brought about largely by the unsettled political climate of the period. The borders of the Byzantine Empire were gradually retreating under pressure from various neighbouring forces (both Christian and Muslim) and the sacking of Byzantium in 1204 during the fourth crusade signalled the beginning of the end. The reasons for this invasion were largely political. The Venetian Republic, formally still a vassal of Byzantium, but seeking its independence and access to Byzantine trade routes, financed the fourth crusade in the hope that it would lead to the destruction of the Byzantine Empire. The Church of the West happily obliged since it: ‘hardly even saw [the Byzantine Empire] as a part of Christendom, given a century and a half of schisms between the Churches’ (Roberts, History, 183). When the seat of government was temporarily restored in 1261, Byzantine rulers attempted to reverse the decline in legal standards by reforming the court system. Apart from procedural reforms, however, no attempts were made to systematize the law and it remained in (p. 362) chaos. From c. 1400, it was clear that the end of the Byzantine Empire was drawing closer. The Ottoman Turks had begun to surround Byzantium from all sides and the kingdoms of the West seemed unwilling to render assistance. Attempts were even made in 1439 to breach the schism between the Churches of the East and the West when the Byzantine Emperor John VIII attended the ecumenical council in Florence and accepted the primacy of the Pope and a union with Rome. However, all these efforts to ward off the advancing Ottoman Empire eventually proved futile, and in 1453 the Byzantine Empire disintegrated. This event would prove instrumental to the spread of the knowledge of Justinian’s codification in Western Europe. With the fall of Byzantium, books and manuscripts from antiquity, which had thus far been thought lost, once again became freely available, first in northern Italy and thereafter in Western Europe. These (predominantly Greek) works provided the intellectual impetus for, among others, the French legal humanists of the sixteenth century to develop the historical context of Roman legal texts (see 11.2.3.1). (On the history of Byzantine law and its influence on the development of the European ius commune, see Stolte ‘Byzantine Law’, 242–7.)

11.1.2 The West

Although Justinian’s codification was enacted as law in Italy in AD 554 after the defeat of the Goths, it had little opportunity to make a lasting impact in the West because of the tenuous and short-lived nature of Justinian’s reconquest of the area. By the time of his death the Germanic tribes were again gaining control of the areas liberated by his generals. If anything, it was the Theodosian Code—longer established—which provided the backbone of Roman law in the West.

In the following centuries (from the sixth to the end of the tenth century), the so-called ‘Dark Ages’ (or early-medieval period), the picture is rather confused. The Germanic tribes’ struggle for territorial supremacy in the immediate aftermath of the collapse of the Western Empire caused widespread destruction. The already fragmented legal system of the former Western Empire crumbled. Widespread illiteracy led to a decline in knowledge of the law and communities came to rely increasingly on localized (largely oral) custom. The ‘professional jurist’ skilled in law—a key feature of classical Roman law—disappeared to be replaced by councils of laymen who had knowledge of local custom, see Schoemaker, K., ‘Germanic Law’, in OHELH, 249–61, as well as Herzog, Short History, 47–61. By the end of the sixth century, most Germanic migrations had come to an end and the borders of the medieval kingdoms had been defined. A form of legal pluralism prevailed in most of these kingdoms. The Roman subjects of the areas that had previously constituted the heart of the Western Empire continued to live under a mixture of laws—the Theodosian Code, parts of Justinian’s codification, and the laws of the Germanic kings, while the Germanic subjects continued to use their own customary laws (known as the personality principle, see Tamm, Legal History, 193 ff.). The interaction between Roman and Germanic subjects within these kingdoms and the application of the personality principle in legal disputes necessitated the compilation of the laws in force in these kingdoms. These codes show varying degrees of borrowing from Roman law, but their impact must have been slight, since illiteracy was rife and the codes were in effect: ‘like an archipelago of tiny islands in the vast sea of custom’ (Bellomo, Common Legal Past, 42). It is hardly surprising that the (p. 363) tenuous survival of Roman law in this period has been likened to ‘a ghost story’ (Vinogradoff, P., Roman Law in Medieval Europe (1929), 13).

The Goths—especially the Visigoths and Ostrogoths—were most influenced by Roman law. Despite the fact that their relationship with Rome had run a decidedly erratic course, the Goths had settled among the Roman population and become largely assimilated into the Roman way of life before the fall of the Western Empire: ‘their leaders became Roman magistrates, their legislation, originally derived from that of the Empire, was drafted by Roman literati and clerics, and the local Roman administration generally remained in place. These people found nothing at odds with their own thinking and feeling in the venerable and brilliant culture they met’ (Wieacker, History, 20). By far the most important Germanic code in the West throughout the Dark Ages—and well into the medieval period—was the lex Romana Visigothorum promulgated in AD 506 (see 2.4.3.3). It was intended principally for use by the Roman populations of Gaul (the kingdom of the Ostrogoths) and Spain (the kingdom of the Visigoths). The code represents a considerable achievement, although any attempt to produce a workable code at that confused time, and with relatively meagre resources, was bound to be problematic. For example, particular use was made of Gaius’ Institutes and Paul’s Sententiae, but the desire to produce a simple code resulted in a somewhat bowdlerized version of the former at least. The Gothic kings continued to enact codes strictly for their own non-Roman subjects, and these showed considerable borrowing from Roman law, although blended with Germanic custom.

Another Germanic people, the Lombards, invaded Italy in AD 568, and established control for some 200 years over most of the northern and central part of the mainland. They too borrowed from Roman law, but to a lesser degree than the Goths. Their codes—principally that of King Liutprand (AD 712–44)—are essentially enactments of Lombard custom interspersed with rules clearly Roman in origin. However, Lombard government—based at the royal court at Pavia—tended to be more centralized and better administered than was the case in other Germanic kingdoms. In the long term, these factors, combined with greater adherence to the written word and royal authority, made Lombard law resemble Roman law in some important characteristics. Moreover, the growth of economic activity in northern Italy led to sporadic recourse to the Roman law of obligations in particular.

The Franks proved to be the most militarily successful of the Germanic peoples in the long term. Under Charlemagne (reigned AD 768–814) they captured Pavia and subjugated the Lombards. The Franks established such a hegemony over much of Western and central Europe that a new empire—the Holy Roman Empire—was created, with Charlemagne crowned as Emperor by the Pope in AD 800: ‘the idea of universal empire, which was to prepare the way for the rebirth of Roman law in the High Middle Ages, was already discernible’ (Wieacker, History, 22). The Frankish codes primarily enacted Frankish custom with only occasional Roman influence (mostly the law of obligations). Where parts of Roman law were incorporated, it was in a somewhat debased form, as in the case of the lex Romana Curiensis c. AD 800. This code—applied in northern Italy and the Alpine region beyond—was a mixture of Frankish and Lombard custom incorporated with a distorted summary of the lex Romana Visigothorum, and containing references to ‘Scifola’ and ‘Gagius’ (instead of Scaevola and Gaius). See generally Vinogradoff, Roman Law in Medieval Europe (1929), ch. 1; and Robinson et al., ELH, ch. 1.

(p. 364) But. even codes such as these at least served the purpose of preserving some elements of Roman law, and a degree of continuity of legal tradition, however thin. On the other hand, in northwest Europe and other outlying regions of the former Western Empire, Roman law virtually disappeared. Fortunately, in the remaining regions, the survival of Roman law during the Dark Ages was greatly aided by the rise of the (Catholic) Church in the West (see Robinson et al., ELH, ss. 1.4.2–1.4.3). Once the borders of the medieval kingdoms had settled during the sixth century, the Church became an important political agent within these kingdoms while at the same time developing its own legal system (based on Roman law) to deal with matters falling within its jurisdiction. The interaction between the ecclesiastical jurisdiction of the Church and the secular jurisdiction of the ruler was defined shortly after the collapse of the Western Empire in a comment made by Pope Gelasius I in a letter to the Eastern Emperor Anastasius in AD 494. According to the Gelasian principle (as it came to be called) the Church would only issue decrees with general application concerning matters falling within its ecclesiastical jurisdiction (sacerdotium), while the secular ruler would have the right to issue decrees over all other civic matters falling within his secular jurisdiction (imperium). This division of ecclesiastical and secular jurisdiction did not cause conflict in the early centuries of the Dark Ages, but as the Church became more powerful and Popes continued to interfere with secular matters it eventually culminated in the Investiture Contest during the tenth and eleventh centuries (see 11.2.2.1 and Montateri, P. G., ‘Early Roman Law and the West: A Reversal of Grounds’, in OHELH, 162–85 as well as Herzog, Short History, 62–72).

11.2 The second life of Roman law

11.2.1 The term ‘Reception’ and its phases

The Reception of Roman law can be broadly described as the trend (predominantly in Western Europe) towards the increasing Romanization of law and legal institutions during the late medieval period. It was the process whereby Roman law, in danger of oblivion during the ‘Dark Ages’, was revived to such an extent that it became the ius commune of much of Western Europe, supplementing and sometimes replacing the feudal, customary law then prevalent: ‘the essential feature of the Reception was that it signalled the change from acting out of unconsidered habit to acting on the basis of theory: it was a process of intellectual and technical rationalization consonant with the nature of the modern state, particularly its monopoly of making and administering law’ (Wieacker, History, 191). Though an important part of the general history of Europe, only an outline of this process can be attempted here. At the outset, it must be appreciated that the Reception took as many different forms as there were countries or areas affected by it: no two countries experienced an identical development. As a broad generalization, it can be said that the Reception tended to be gradual in those areas where Roman law had never died out, i.e. the heart of the former Western Empire, but delayed and comparatively sudden elsewhere.

Universal agreement is lacking as to meaning of ‘the Reception’ and therefore as to its time span. Some would argue that the Reception is strictly a sixteenth-century (p. 365) phenomenon sparked mainly by developments in the legal systems of the Holy Roman Empire, but Alan Watson has suggested that an early Reception occurred some 1,000 years earlier when the codes of the Germanic tribes extensively borrowed from Roman law (although he considers that the Reception started in the eleventh century): The Evolution of Law (1985), ch. 3. At the other extreme, it is arguable that a late phase of the Reception commenced with the era of modern codification, in which case the Reception has lasted the best part of 1,000 years and Roman law may have a potential role should a ‘new’ European private law emerge. See Zimmermann, R., ‘Savigny’s Legacy: Legal History, Comparative Law and the Emergence of a European Legal Science’ (1996) 112 LQR, 576–605; Legrand, P., ‘European Legal Systems are not Converging’ (1996) 45 ICLQ, 52–81; Johnston, D., ‘The Renewal of the Old’ (1997) 58 Cambridge LJ, 80–95.

The reception of Roman law in Western Europe is commonly divided into three phases linked to the rise of certain legal–philosophical currents. The first phase, from the scientific rediscovery of Roman law in Italy at the end of the eleventh century to the start of the sixteenth century, is generally regarded as the formative period of the European ius commune. It was during this period that the principles, terminology, and structure of Roman law were moulded into a medieval learned law to become the backbone of a common European legal culture in which the existing customary law could develop into national legal systems.

The second stage of reception, from the start of the sixteenth century to the mid-eighteenth century, is linked to the rise of the nation state and the development of national legal systems based on the principles of the European ius commune. The influence of the principles of Roman law on legal development during this period changed somewhat. As Stein (Roman Law, 75) has noted:

By the end of the fifteenth century the ius commune developed by the Bartolists was becoming more and more influential throughout Europe, as new universities were founded and more jurists were trained in the traditional learning. At the same time, however, the more it was adapted to find solutions to contemporary problems, the further the ius commune moved away from the law of Justinian, from which its authority derived.

It was also during this second phase of reception that the universal applicability of Roman law as the basis of the European ius commune came to be critically evaluated, first by the legal humanists of the sixteenth century and thereafter by the supporters of the secularized natural-law doctrine during the seventeenth century.

The third and final phase of reception, from the mid-eighteenth century to the end of the nineteenth century, witnessed the emergence of various national codifications of law in Western Europe. The principles and structure of Roman law also fulfilled an important function during this period. The adoption of codes such as the French, German, and Swiss by other countries also resulted in a late Reception of Roman law outside Western Europe. In virtually every legal system in the world, other than those that adhere to an English common law tradition or Marxist ethos, the influence of Roman law continues to be strongly felt. The United States is generally regarded as a common law system, but for some half a century following independence there was a real prospect that civil law would prove supreme (it actually did in Louisiana, which promulgated an influential Romanist code in 1825 based on French and Spanish law). Some of the outstanding statesmen of the period, such as John Adams and Thomas Jefferson, were not only great admirers of ancient (p. 366) Rome but erudite in her law. See Sellers, M. N. S., American Republicanism (1994). Not surprisingly, following the Revolution there was a certain hostility towards the common law, and a receptiveness to French influences. Civil and natural law were important elements of legal education, American jurists read Pothier, and legal literature of the period was decidedly enthusiastic about civil law. However, the legal profession did not share the enthusiasm, and this was perhaps the major factor why Roman law gradually faded as a potentially dominant influence. See Stein, Character and Influence, 411 ff.

11.2.2 The birth of the European ius commune

11.2.2.1 The Glossators

The Reception was made possible by a revival of the study of Roman law in the eleventh century, particular interest being shown in Justinian’s Digest (which had long been forgotten in Western Europe, see Tamm, Roman Law, 201–2, as well as Hallebeek, J., ‘Structure of Medieval Roman Law: Institutions, Sources, and Methods’, in OHELH, 286–308, at 293–302, together with Herzog, Short History, 75–92). This revival was part of the wide-ranging intellectual and artistic movement affecting all aspects of society during the eleventh and twelfth centuries. Central to this ‘renaissance’ were various factors, including the gradual relaxation of feudal structures, the rise of towns and urban civilization in Italy as well as an increase in trade and commerce between Italian city states and other regions in Western Europe. The crucial elements, as far as the study of law was concerned, were the rise of the professional jurist and the work of the law schools in the universities of northern Italy, especially Ravenna, Pavia, Verona, and above all, Bologna, where law (and more specifically Roman law), for the first time since the fall of the Western Empire, came to be studied as an autonomous discipline. The extent to which Roman law was studied before this period is uncertain.

The revival of interest in the Digest was stimulated, amongst other things, by the Investiture Contest, a series of disputes between Pope and Holy Roman Emperor over the right to appoint bishops and lesser clergy and to invest them with the symbols of their office. This dispute formed part of a larger controversy concerning the relationship between the ecclesiastical jurisdiction of the Church and the secular jurisdiction of the ruler (see 11.2.1). It arose during the papacy of Gregory VII (1073–85) and was not settled until 1122 with the Concordat of Worms. During the course of this dispute, both sides searched the ancient authorities for supporting arguments, and it is at this time that the Digest was ‘rediscovered’, perhaps in Ravenna (see Roman Law Tradition, 3). However, it was at Bologna that the outstanding figure of the period, Irnerius (c. 1055–1130), led the way in the textual analysis of the Digest. His work, and particularly that of his outstanding successors, Bulgarus and Martinus Gosia was instrumental in the scientific revival of the study of Roman law. A typical analytical device used by the Glossators was the adding of brief comments (or ‘glosses’) in the margins of the text in order to expound it more easily by explaining difficult points, making distinctions where necessary, and by adding copious cross-references to related texts. In this way the Glossators reintroduced scientific method into the study of Roman law in a manner similar to—if not identical with—that of the classical jurists. They sought a harmonious order in the texts, believing that the Digest in particular was the ultimate authority for most legal problems. Their work was clearly influenced by Scholasticism, the philosophy (p. 367) which propounded that the universe was determined by a harmonious, logical, and divine order: ‘the whole attitude of the Glossators corresponded to the aims of Scholasticism—to harmonize and systemize, to use reason to explain and justify an authority which was at the centre of their studies as a guide to the harmonious order which they sought to discover… For the civilians the central authority was the Corpus luris Civilis, as the Bible and the Fathers of the Church were for the theologians, and Aristotle for the philosophers’ (Robinson et al., ELH, s. 3.3.3).

Apart from annotating the texts, the Glossators wrote a great deal, especially summaries and commentaries on their glossing of the Digest, culminating with the monumental Glossa Ordinaria (‘Standard Gloss’), the work of another Bologna scholar, Accursius (c. 1184–1263). This work, containing some 97,000 entries, became accepted as the standard commentary on Justinian’s codification. It took the form known as apparatus—a comprehensive compilation of glosses. Large-scale commentaries on sections of the Corpus Iuris Civilis were called summae, the most celebrated of which was the Summa Codicis of Azo (c. 1150–1230). This work became an indispensable textbook for practitioners—‘Do not go to court without Azo’, ran the saying. Other literary forms included tractatus—general treatises on parts of the law not specifically related to Justinian’s arrangement; notabilia—noteworthy points, mainly for use in solving real and hypothetical cases; and quaestiones—controversial points arising from conflicting passages. Quaestiones were sometimes compiled following disputations on points arising in lectures. Indeed, much of the Glossators’ literature was the result of their work as teachers: see Robinson et al., ELH, s. 3.4.

The Bologna doctors regularly lectured on their work—with attendant disputations—attracting students from all over Europe (see Stein, Roman Law, 52–4). Roman law became the focus of law as a university subject, to be studied for a period of five years, with oral examinations necessary for the award of a degree: Robinson et al. consider that the concept of a university law school began at Bologna (ELH, s. 3.8.1; Bellomo, Common Legal Past, 112–25). Exposition of the Corpus Iuris Civilis became part of the intellectual mainstream of early medieval Europe. This sparked an interest in the study of Roman law in other centres of learning. For example, evidence suggests that the subject was being taught in the universities of Paris and Oxford in the second half of the twelfth century. But the most important centres, apart from northern Italy, were in southern France, particularly in Provence (see Dauchy, S. ‘French Law and its Expansion in the Early Modern Period’, in OHELH, 760–81). The law schools at Montpellier, Arles, and Toulouse achieved a high reputation in the study of Justinian’s codification under scholars such as Rogerius and Placentinus, both of whom had studied at Bologna (see 11.2.2.3). Two important works date from this period: the Exceptiones Petri, a compilation of rules extracted from Justinian, and meant for practical use in the administration of the law; and Lo Codi, a manual written in Provençal dialect (possibly by Rogerius) intended for use by judges which draws on Roman rules for the solution of cases. See Vinogradoff, Roman Law in Medieval Europe (1929), ch. 2.

The Bologna doctors sometimes took part in important affairs of State. Bulgarus, for example, was an adviser to both the Pope and the Holy Roman Emperor, and he and others became embroiled in the difficult relations between Church and State at that time. In England, Glossators are thought to have appeared against King John in disputes over ecclesiastical appointments. Thus, their work at times had a vital practical application, even if its main thrust was the exposition of Justinian’s law.

(p. 368) Although it cannot be denied that the Glossators were instrumental in the rediscovery of Roman law and that they provided the initial impetus for the reception of Roman law across Western Europe, their methodology was not without its critics. Owing to the lack of available sources, the Glossators did not always have a clear grasp of the history of the Roman Empire or the technicalities of classical legal Latin and some of their observations on the texts were speculative and historically unsound. Furthermore, many of the Glossators did not read Greek and thus excluded parts of the Code and the Novels from their glosses or commentaries. More significantly, though, the Glossators’ reverence for the text precluded them from suggesting alterations to the order of the fragments, which in the eleventh and twelfth centuries was still somewhat speculative. Nonetheless, without the ground-breaking work of the Glossators, the scientific rebirth of Roman law and the resulting transformation of the principles of Roman law into the ius commune of Western Europe would not have occurred. (On the Glossators and their significance, see Robinson et al., ELH, ss. 3.1–3.8.6; Stein, Roman Law, 43–9; Bellomo, Common Legal Past, 55–77; Tamm, Roman Law, 203–6; Lesaffer, ELH, ch. 4.)

11.2.2.2 Canon law

Canon law consisted of the canons of the Church—ecclesiastical decrees concerned mainly with the administration of the Church, doctrinal issues, and jurisdiction over matters such as marriage and wills. In some respects, it had close affinity with Roman law, was influenced by it, and in turn influenced its revival. During the early centuries of the ‘Dark Ages’, the Church had stepped into the vacuum left by the disintegration of civil authority in the west to extend its jurisdiction and to develop its own legal system based on Roman law for use in its ecclesiastical courts. During the next few centuries, canon law became an important force in medieval society. Its prominence is reflected in a number of unofficial compilations of canon law that appeared during the course of the sixth to the eleventh centuries (see Helmholz, R., ‘Canon Law and Roman Law’, in Cambridge Companion, 396–422 as well as Clarke, P., ‘Western Canon Law in the Central and Later Middle Ages’, in OHELH, 265–85).

The transformation of canon law into a science in the late medieval period, which occurred roughly at the same time as the scientific rediscovery of Roman law, was largely the work of Gratian, a monk working at Bologna. In c. 1140, he produced a systematic compilation of the canons of the Church that, though unofficial and never promulgated as law, was soon considered authoritative. This compilation—the Decretum Gratiani—provided a rich source for the study of canon law. A school of Decretists emerged, using methods similar to those of the Glossators—glossing the texts, with the attendant literary output.

Canon law had two distinct advantages over Roman law (or civil law as it came to be called) in the late medieval period. First, it had direct application in ecclesiastical courts (see Clarke, ‘Western Canon Law’, 279–84), while civil law only had subsidiary application where local customary law proved ineffective. Second, and more importantly, Gratian’s Decretum was not a closed compilation, unlike Justinian’s codification. Popes and ecumenical councils were frequently producing more material that supplemented and developed existing canon law into a more efficient legal system. During the course of the thirteenth and fourteenth centuries, for example, three new compilations appeared which were designed to supplement Gratian’s work. These were the Liber Extra of Pope Gregory IX produced in 1234; the Liber Sextus of Pope Boniface VIII in 1298; and the Clementinae of Pope Clement (p. 369) V in 1317. These compilations gave rise to a second group of canonist scholars, the Decretalists, who wrote commentaries on the Liber Sextus and the Liber Extra.

It was said that canon law could not be understood without studying Roman law, and vice versa, because of their close relationship (see Clarke, ‘Western Canon Law’, 266). For example, both systems were founded on written law; Bologna was the leading centre for a while of both canon law and Roman law scholarship, similar methods (glossing the texts) being used in both; the clerics of the Church often studied both—some of the leading canonists were pupils of Glossators; canon law procedure was based largely on the cognitio process of the later Roman Empire (hence described as ‘Romano-canonical’ procedure); and even the unofficial name given to the classical body of canon law—Corpus Iuris Canonici (a collection of the above-mentioned compilations together with the Extravagantes first produced in 1580)—resembled the title of Justinian’s codification, the Corpus Iuris Civilis. See Wieacker, History, 47 ff. He emphasizes the ‘interchange of legal rules’ which in his view was facilitated by ‘a mutual principle of subsidiarity: spiritual courts used to apply Roman law in the absence of law of their own, and secular courts likewise applied the general principles of canon law’ (54).

The fact that many leading clerics—often among the leading statesmen of the secular State in the medieval period—were versed in Roman law contributed to the revival of Roman law. So did the prevalent use of cognitio procedure in the ecclesiastical courts, especially in matters of ‘secular’ interest such as marriage and wills (see Robinson et al., ELH, s. 5.7 for a detailed discussion of the local application of canon law). Moreover, the universality of canon law acted as an example for the secular law: ‘This universality of legal thinking and practice must have been an important factor in the creation of the ius commune, and in bringing such outlying areas of medieval Europe as Scotland within the framework of European legal civilisation’ (Robinson et al., ELH, s. 5.1.3, and generally ch. 5). (On medieval canon law, see Robinson et al., ELH, ss. 5.1–5.9; Stein, Roman Law, 49–52; Bellomo, Common Legal Past, 65–77; Tamm, Roman Law, 211–15; Helmholz, Spirit, ch. 5.)

11.2.2.3 The school of Orléans (Ultramontani)

From the mid- to the late-thirteenth century, the University of Orléans became an important centre for the study of Roman law. While the glossatorial methodology was still being followed at many Italian universities, it had lost much of its appeal following the publication of Accursius’ Glossa Ordinaria and the time had come for the development of a new approach to the study of Roman law. This approach came from a country to the North of Italy ‘across the mountains’ (Ultramontani, meaning ‘those beyond the mountains’, was an Italian description). Although the teaching of Roman law had earlier (in 1219) been forbidden in Paris by Pope Honorius III, his successor Gregory IX had declared in 1235 that this prohibition did not apply to Orléans, thereby paving the way for the scientific study of Roman law at this university. The appointment of legal scholars from Italy such as Guido de Cumis also contributed to the rise of this university as an important centre for the scientific study of Roman law. Two jurists commonly associated with the School of Orléans are Jacques de Revigny and Pierre de Belleperche. Although the methodological approach of these jurists largely followed that of their predecessors, their approach to the texts was to have a lasting impact on a later group of Italian jurists, the ‘Commentators’. The school at Orléans concentrated on teaching Roman law to clerics destined for high office, but took a less dogmatic approach than the (p. 370) Glossators to the Roman texts. Those who attained high office, especially in the service of the royal court, became adept at balancing the claims of custom against the rules of Roman law in dealing with the practical issues of the day, see Robinson et al., ELH, ss. 4.2.1–4.3.3; Stein, Roman Law, 67–8.

11.2.2.4 The commentators

From the late thirteenth century onwards, an important shift of emphasis occurred in the study of Roman law (see Hallebeek, ‘Structure’, 304–6). The law of the time, largely a mixture of feudal custom and remnants from the codes of vulgar law of the Dark Ages, was inevitably influenced by the academic revival of Roman law in the universities. This process was enhanced by the fact that the scholars who flocked from all over Europe to Bologna and the other law schools occasionally attained high office in their countries. The scholars of the later medieval period, known as the ‘Commentators’, aimed principally at adapting Roman law for contemporary use. In contrast to the Glossators, they were not interested in the exegesis of Roman legal texts in isolation, but attempted to construct a system of law also suitable to the needs of fourteenth-century Italy by adapting the texts to the circumstances of their time and by distilling legal principles from these texts.

Not only had Justinian’s codification achieved a revered status through the work of the Bologna doctors, but it came to be regarded (the Digest in particular) as a repository of solutions to virtually all legal problems. The conflicts, inconsistencies, and varying opinions found in the Digest, Justinian’s best efforts notwithstanding, offered a rich store of possibilities: ‘the Commentators were able to transform the law of Justinian into ius commune, a common law for the whole of Europe, and to apply to the rich variety of the non-Roman laws in Europe their ways of thinking about law’ (Wieacker, History, 57). Their work was clearly influenced by the Ultramontani.

The Commentators, principally Italian jurists of the fourteenth century, became influential mainly through their teaching and literary output. Their teaching methods were similar to those of the Glossators. Bologna was no longer the preeminent school: several other Italian universities were closely associated with the Commentators, including Padua, Perugia, and Naples. Their literary output took two main forms: extensive commentaries or monographs on Justinian’s codification (as glossed by the Glossators) and collections of opinions on specific legal problems. In both types of work, the writers took particular account of local statute and custom, and as a consequence were prepared to interpret the Roman texts much more freely than the Glossators, thus making them more directly relevant to the conditions of the time: ‘This literature was the major catalyst in the Reception of Roman law in Germany after the fifteenth century, for whenever learned decision-making took the place of unsophisticated judicature this literature was used’ (Wieacker, History, 60).

The two outstanding Commentators were Bartolus de Saxoferrato (1314–57) and his pupil Baldus de Ubaldis (1327–1400). Bartolus wrote the most important commentary of the period, a work that became the standard text for subsequent ages, and led to the quip ‘no one is a jurist unless he is a Bartolist’. The task of adapting Roman law for practical use in systems that were based partly on customary law led Bartolus to anticipate the problems that could arise through the conflict of laws in different regions of Europe. A fundamental problem was the potential conflict between local law and the Corpus Iuris Civilis. Bartolus rejected the notion that the (p. 371) latter must automatically prevail. Instead he took the view that the problem was essentially one of interpretation of the scope of the local law. To that extent he can be legitimately viewed as the ‘father’ of the conflict of laws as a specific legal discipline. See Stein, Character and Influence, 83 ff., who thinks that the importance of Bartolus lies: ‘not so much for his specific doctrines but rather because for the first time he offered a systematic survey of the various categories of problem that were likely to occur in practice’ (90).

Baldus, a scholar of wide-ranging interests, was responsible for the richest collection of opinions in his era. His work and that of Bartolus inspired succeeding generations of scholars, so that by the middle of the fifteenth century the Commentators were active in academic centres throughout much of Europe. The result was the growth of a European legal tradition, a common legal language deriving its core from Roman law, just as some of the languages of Europe possessed common roots in Latin. ‘The influence of these Italians is one of the best examples in history of the constant cultural interchange between the peoples in Europe’ (Wieacker, History, 61). Moreover, the supremacy of Roman law, when compared to the vagaries of the feudal law that permeated much of Europe in the medieval period, was much touted by academic and practising lawyers. Public disputations on the merits of Roman law were not uncommon, especially in the universities of Germany; and the teaching of Roman law in universities throughout much of Europe was one of the intellectual achievements of the age, see Robinson et al., ELH, ss. 4.4.1–4.6.8; Stein, Roman Law, 71–4; Bellomo, Common Legal Past, 147–8; Tamm, Roman Law, 206–8.

11.2.3 Towards a European ius commune and beyond

By the end of the fourteenth century, Roman law had been transformed into the European ius commune, see Hallebeek, J., ‘Structure of Medieval Roman Law: Institutions, Sources, and Methods’, in OHELH, 286–308, as well as Rüfner, T., ‘Substance of Medieval Roman Law: The Development of Private Law’, in OHELH, 309–31. This process had occurred in three phases. During the twelfth century, Justinian’s codification had been meticulously cross-referenced by Glossators and had lent much of its vocabulary and doctrine to the emerging canon law. During the thirteenth century, the liberal interpretation of the School of Orléans had provided a new slant on the interpretation of these texts, while the ‘Commentators’ of the fourteenth century had blended Roman law together with local custom and statute into a legal system suited to their particular needs. Through the endeavours of these jurists, a Romanization of the law had begun that was not dissimilar to the transformation that had occurred in the life of the territories settled by the Romans in the heyday of the Roman Empire. This process, which continued until the start of the sixteenth century, did not always lead to a substantial change in the content of the law; the transformation was often more evident in the structure and procedure of legal systems, and in the methods of thinking and the techniques adopted by academic and practising lawyers.

The Romanization of the law also owed much to political and economic factors. The growth of the idea of statehood, a characteristic trait of the fifteenth and sixteenth centuries, made Roman law attractive to some of the rulers of the developing states of Europe, since it was regarded as imperialistic, authoritarian, centralized, and secular in character. And the growing merchant classes in European states often found in Roman law (particularly its law of contracts) a surer legal (p. 372) basis for mercantile endeavour than the outdated, fragmented customary laws then prevalent. The mere fact that Roman law was written law (with clearly identifiable sources) gave it certainty and authority, and therefore a pronounced advantage compared to largely unwritten custom, see Ryan, M., ‘Political Thought’, in Cambridge Companion, 423–51.

The Romanization of the law in Italy was influenced by an unusual factor—the operation of the podestà constitution. Italian cities in the medieval period sometimes became ungovernable, primarily because of strife between warring factions and families. The expedient was occasionally tried of inviting an unbiased outsider—the podestà—to act in a judicial and administrative capacity as governor to restore good order. He might find that the problem lay partly in the operation of the local law, in which case it could make sense to resort to a ‘neutral’ law—namely, Roman law—in adjudicating difficult cases. The podestà would normally be trained in Roman law—indeed, some Glossators and Commentators were known to accept the invitation.

With hindsight, the many and disparate factors contributing to the revival of Roman law in the medieval period can be seen to lead to the Reception with a certain inevitability. To this extent it is surprising to read in Vinogradoff: ‘Within the whole range of history there is no more momentous and puzzling problem than that connected with the fate of Roman law after the downfall of the Roman State. How is it that a system shaped to meet certain historical conditions not only survived those conditions, but has retained its vitality even to the present day, when political and social surroundings are entirely altered?’ (Roman Law in Medieval Europe (1929), 11). Watson, on the other hand, takes the view that massive, voluntary legal borrowing from Roman law was to be expected in societies with a primarily customary system of law, even though very different conditions—whether political, social, economic, or religious—prevailed there. Thus: ‘it is a non-Reception which would have constituted the most puzzling problem of history. The first (and most) important step in understanding the Reception is to know that we should explain its cause by not explaining its causes’, see The Evolution of Law (1985) 97, and generally Ch. 3. The notion that the search for causes is somehow misconceived—if that is what Watson argues—is difficult to maintain, although the thesis that legal borrowing between societies is probable, or even inevitable, is readily understandable. As Wieacker puts it: ‘The adoption by one people of cultural elements fashioned by another is simply one instance among many of the constant changes on which all human civilization ultimately depends. The very idea of Reception illustrates our sense of the continuity of human history as a whole, or at any rate the continuity of great civilizations’ (History, 91).

Romanization of the law took diverse forms and proceeded at a disparate pace in different countries (Lesaffer, ELH, ch. 5). Generalizations are particularly fallible when made in relation to the Reception, but it can be safely asserted that nowhere was there a sudden, overnight metamorphosis from feudal custom to Roman law. There occurred, however, certain events (such as the reform of existing courts or the introduction of new appellate courts using learned law) that undoubtedly hastened the progress of the Reception. Individual rulers tended to staff their highest courts with jurists trained in Roman law. That led to a greater reliance on skilled advocates, themselves trained in Roman law at the universities. The staffing of appellate courts by judges trained in Roman law proved to be an important factor in the course of the Reception in several countries apart from Germany, especially in the Netherlands and Scotland.

(p. 373) In the countries of the western Mediterranean—Spain, France, and Italy—the Reception generally took a slower, more gradual course. There was an absence of momentous events in the later stages of the Reception in these countries, largely due to the fact that Roman law had retained a foothold in parts of this area throughout the Dark Ages. In Spain, for example, it was present in Visigothic law and survived the Moorish invasions. In the thirteenth century, a succession of Castilian kings extended royal authority at the expense of local custom by imposing the Fuero Juzgo (‘the custom of the judges’)—Visigothic law applied normally in appellate tribunals. The revival of Roman law in Spain was typically aided by those in royal service who had studied in Italy or at the University of Salamanca. In the reign of Alfonso X (1252–84) there was promulgated a comprehensive statement of law, Las Siete Partidas (The Seven Parts of Law). Based on Roman law, it gradually achieved general recognition during the period of reconquest of Spanish cities from the Moors, and came to be regarded as the foundation of Spanish law (and thus the law of the New World, South America, when Spain started to acquire its vast overseas empire). See Mirow, M., ‘Spanish Law and its Expansion’, in OHELH, 782–805.

Scarcely a country in Europe was unaffected by the Reception of Roman law, although in some areas—especially Scandinavia and parts of Eastern Europe, such as Poland—the influence was minor, at least until the sixteenth century, despite the teaching of canon law and some Roman law at the universities. Russia was largely outside the European mainstream until even later (see Giaro, T., ‘Some Prejudices about the Legal Tradition of Eastern Europe’, in Comparative Law in Eastern and Central Europe, 26–50).

11.2.3.1 France

French scholars were at the forefront of the scientific revival of Roman law in the late medieval period—notably Glossators such as Rogerius in Provence and the Ultramontani of Orléans (see 11.2.2.3 and generally Tamm, Roman Law, 220). However, the influence of Roman law during the medieval period was confined to the southern regions of France. Broadly, there was a north–south divide in terms of legal development. The south was the pays de droit écrit (‘the land of written law’) because there Roman law gradually became a dominant influence—the general law which was applied unless local custom dictated otherwise. The reasons for the more comprehensive Reception of Roman law in the south of France are diverse. The region’s geographical proximity to Italy ensured that a strong Latin tradition remained throughout the Dark Ages. The ‘barbarian’ codes containing elements of Roman law also remained in force in the South of France throughout this period and later medieval compilations of customary law from the southern regions of France show the extent to which Roman law had been received (see Stein, Roman Law, 54–6). Finally, the foundation of universities during the twelfth century and the academic migrations of Italian scholars to these universities contributed to a strong Roman-law influence in the South of France.

The north was the pays de droit coutumier (‘the land of customary law’) where mainly Frankish custom was followed. The strength of the customary laws of the north—particularly in Normandy, Brittany, and the Île-de-France (Paris and environs)—delayed substantial Romanization of the law. The prominence of customary law in the northern regions of France was aided, amongst other things, by the decree of Pope Honorius III in 1219. By the end of the thirteenth century, customary law had become the local law in force in the northern regions of France (see Robinson et al., ELH, s. 7.5). However, even in the north it is clear that parts of (p. 374) the customary law, especially procedure, property, and contract, were influenced by Roman notions, e.g. the Coutumes de Beauvaisis c. 1280. See Vinogradoff, Roman Law in Medieval Europe (1929) 80 ff. The influence of the framework and terminology of Roman law are also visible in the numerous compilations of customary law that had arisen by the fifteenth century. The compilation of French customary law had been an ongoing project of the French Crown since the fifteenth century (initiated by the Ordinance of Montils-lès-Tours in 1454). By c.1600, a series of separate codes for each region existed—e.g. the Custom of Paris was issued in 1510. Nevertheless, the application of the customary law by the parlements (superior royal courts) in the provinces, the eventual codification of these laws, and the suspicion of some French kings that Roman law constituted a threat to their privileges, prevented a full-scale Reception in the north. (See Robinson et al., ELH, ss. 7.5.1–7.5.14 on French courts and their use of customary law; Bellomo, Common Legal Past, 101–6; Tamm, Roman Law, 219–22.)

There was, however, a notable development in France of academic interest in the study of Roman law—the ‘humanist’ revival of the sixteenth and early seventeenthcenturies. See Stein, P. G., ‘Legal Humanism and Legal Science’, in Stein, Character and Influence, 91–100 (also in (1986) 54 TR, 297–306). It formed part of a cultural and intellectual re-evaluation of the classical cultures of Greece and Rome that had started in northern Italy during the latter part of the fifteenth century. This methodology eventually came to dominate all aspects of society in Western Europe during the sixteenth century. ‘Legal humanism’ was essentially a reaction against the aims and methods of the Commentators, which French jurists (as well as certain of their Italian and German contemporaries) considered to be somewhat crude and conducive to the distortion of Roman law. The humanists therefore focused on the original Latin and Greek texts (with their motto petere fontes), largely discarding the glosses, and attempted to rediscover classical Roman law in its original context. This task was of course aided by a great number of classical texts that had once again become available in the West after the fall of Byzantium (see 11.1.1). Their editions of Justinian’s codification bear witness to a greater clarity and refinement in style and method (‘elegant jurisprudence’) than that displayed by the Commentators. But then, the latter were aiming at different and arguably more important things. The humanist soon found sympathizers in other countries, particularly in Germany in the early-sixteenth century and later in the Netherlands. However, it was France that was to prove to be the most important home of the humanist revival, especially the law school at the University of Bourges. The pioneering work of stripping the texts of all the glosses and commentaries which had engulfed it since the twelfth century was done by the Frenchman Guillaume Budé (Budaeus) (1467–1540) and the Italian, Andrea Alciato (Alciatus) (1492–1550) who taught law at various French universities. It was carried on by illustrious French jurists such as François Baudouin (Balduinus) (1520–73), Jacques Cujas (Cujacius) (1522–90), Hugues Doneau (Donellus) (1527–91), François Hotman (Hotomannus) (1524–90), and Antoine Favre (Faber) (1557–1624). For much of the sixteenth century Bourges was: ‘the most exciting institution for legal study not only in France but in all Europe’ (Robinson et al., ELH, s. 10.2) . Some of the French humanists had Protestant leanings, and thus had to leave France when the persecution of the Huguenots became intolerable in the 1570s. Some settled in Germany, but it was chiefly in the Netherlands that they carried on their work, helping to foster there a humanist tradition in Roman legal studies (see 11.2.3.3).

(p. 375) The work of the humanists took various forms, emanating from the central aim of returning to the original texts, which could only be properly understood—argued the humanists—within their historical context. That required a student of the texts to view them in the light of knowledge about the history, language, customs, and traditions of the time, as well as disciplines such as philosophy and medicine: total immersion in classical antiquity was de rigueur. The connection between law and its historical context had a significant impact on the widely held view concerning the universal applicability of Roman law. By equating law with history, the legal humanists showed how different the historical context of Roman law was from the circumstances of the sixteenth century and thereby challenged the way in which Roman law should be studied.

By stripping the texts of all the glosses and commentaries and exploring its historical context, legal humanists also became involved in the search for interpolations as they realized that the texts preserved in Justinian’s codification contained layers of law from different periods (see 2.5.3.2). Moreover, some humanists were concerned to provide a more systematic ordering of the material and looked towards the division of Justinian’s Institutes into persons, actions, and things as an alternative arrangement. The efforts of predecessors such as the Glossators were likened (rather unfairly) to ‘quack medicine’ and the difference was described in the phrases mos italicus—‘the Italian way’, namely the work of the Glossators and Commentators—and mos gallicus, ‘the French way’, the humanist approach. (On legal humanism in France, see Robinson et al., ELH, ss. 10.2–10.5.8; Stein, Roman Law, 75–82; Bellomo, Common Legal Past, 203–10; Tamm, Roman Law, 222–4.)

The influence of French legal humanism on legal practice was less pronounced and the courts in France (and elsewhere) continued in the Bartolist tradition. These courts (especially in the north) applied local customary laws that, by the fifteenth century, were available in many compilations. Although compilations of regional customary law made it more accessible, legal uncertainty still prevailed on account of the limited applicability of local customary law and its inability to deal effectively with many aspects of commerce. Though there were calls for reform of customary law throughout the sixteenth century and attempts were made to blend customs of entire provinces into a more standardized system, uniformity of custom was never achieved. Many commentaries on these customary compilations were produced during the sixteenth and seventeenth centuries. These commentaries proved influential to the development of French national law (see Robinson et al., ELH, ss. 12.1–12.5.5). Arguably the most influential jurist on French national law during the sixteenth century was Charles Dumoulin (Molinaeus) (1500–66) whose Commentary on Customs of Paris was an attempt to find a general custom suitable for France. The most influential proponent of French national law during the seventeenth century was Jean Domat (1625–96) who wrote an extensive commentary on the Reception of Roman law in France entitled Les lois civiles dans leur ordre naturel (1694). This work was strongly influenced by the secularized natural law doctrine of the seventeenth century (see 11.2.3.3), but it also supported the methodology of the usus modernus Pandectarum (see 11.2.3.2) in Germany. During the eighteenth century, French national law was dominated by Robert Pothier (1699–1772) who, ‘… had an immense knowledge and tremendous organizing ability’ (Robinson et al., ELH, s. 15.7.2). His well-known work The Pandects of Justinian in New Order (1748) attempted to reorder the text of the Digest within their specific titles in order to illustrate principles of law. He also wrote on the Customs of (p. 376) Orléans and produced treatises on various areas of the law of property and obligations which proved very influential, not only in the development of French private law, but also in the development of other legal systems, such as the Netherlands. (See now Dauchy, S., ‘French Law and its Expansion’, in OHELH, 760–81).

Although the codification of French law had in a certain sense already begun during the sixteenth century when attempts were made to compile regional customary law (see Robinson et al., ELH, s. 15.7.1), the true stimulus for codification came from the unsettled political climate of eighteenth-century France. The eighteenth century was the age of the Enlightenment—a shared view of the world based on a profound scepticism towards traditional systems of authority. In the second part of the eighteenth century, this scepticism would fuel the French Revolution and would lead, albeit indirectly, to the eventual codification of French law. As Stein (Roman Law, 114) observes: ‘They [the sons and daughters of the Revolution] sought to sweep away the legal structure that propped up the ancien régime, and replace it with a short, simple code, that would express the aspirations of liberty, equality and fraternity.’

Various attempts at codification were made between 1793 and 1799, but it was only when Napoleon Bonaparte came to power in 1799 that the codification of French law became a reality. A commission of four jurists, all of whom had been trained in Roman law, drafted the French Civil Code of 1804. Napoleon Bonaparte took a keen interest in the project and appears to have personally drafted some of the provisions. The Code was based mainly on the Corpus Iuris Civilis, especially Justinian’s Institutes, in the light of custom and natural law. Napoleon’s commission was greatly aided by the organization and exposition of French law by eighteenth-century jurists, notably Robert Pothier and Jean Domat. Since its promulgation the Code Civil has generally been regarded as a model of rational principles, clearly and simply expressed. No code has been more widely admired and copied all over the world than the Code Civil. It was Napoleon’s finest achievement and represents one of France’s most enduring contributions to world civilization. Its stirring emphasis on human rights and liberties has given it universal appeal. (On the codification of French law, see Robinson et al., ELH, ss. 15.7.1–15.7.11; Stein, Roman Law, 114–15; Bellomo, Common Legal Past, 6–11; Tamm, Roman Law, 245–52.)

11.2.3.2 Germany

Scholars have remarked that: ‘Germany had no real part in the creation of the ius commune. When the learned law was received there, it had already been modified’ (Robinson et al., ELH, s. 7.4.3). Large parts of Germany—predominantly in the north and east—had experienced little or no contact with Roman civilization in antiquity, and by the late Middle Ages had acquired an effective customary law which was enforced by local courts (called schöffen courts) using a largely oral procedure. This was particularly true of the ports and cities of the Hanseatic League—which operated under an efficient customary commercial code—and Saxony with its relatively enlightened compilation of customary and feudal law, the Sachsenspiegel, produced during the first half of the thirteenth century. Romanization of the law during this period was far less pronounced than in the Mediterranean countries and authors such as Bellomo have likened the situation in Germany prior to the fifteenth century to that of the pays de droit coutumier in France (Common Legal Past, 109). Nevertheless, in Wieacker’s view there was a clearly discernible ‘Pre-Reception’ prior to the fifteenth century (History, 84 ff.). Signs of this ‘pre-Reception’ are visible in, (p. 377) for example, trading links with the cities of northern Italy that encouraged adoption of Roman practices. German graduates from Bologna often entered imperial administration, or the service of city councils or the various territorial powers within the Holy Roman Empire. A major factor was the influence of canon law. Most German universities were founded (from the mid-fourteenth century onwards) with the primary aim to teach canon law that, in pre-reformation Germany, exerted a wide sphere of influence over many areas of the law through its application in ecclesiastical courts. Notaries, who had the important function of drafting public legal documents, were trained in canon law. Moreover, an embryonic legal literature emerged, largely the work of canonists and civilians.

The pronounced political and legal fragmentation of the Holy Roman Empire made her particularly susceptible to the Reception of Roman law. The breakdown of imperial hegemony resulted in a profusion of States and territories with a large degree of autonomy in the late medieval period. The lack of centralized political authority was mirrored in the diverse and localized legal systems throughout the Empire, lacking an effective judicial hierarchy. Moreover, law differed not only from territory to territory (Landrecht) but also according to status: e.g. feudal relations between lord and tenant were encompassed by the Lehnrecht, but there were also a manorial law, a municipal law, a trade guild law, and so forth (see Heirbaut, D., ‘Feudal Law’, in OHELH, 528–47).

It can thus be seen how significant the developments of the fifteenth century were when the supremacy of customary law in Germany was challenged. The challenge presented itself on two fronts. First, the schöffen courts began to allow litigants to use the Romano-canonical procedure used by ecclesiastical courts in the Holy Roman Empire since the thirteenth century. Soon thereafter, the complexity of this procedure combined with the increased use of Roman-law elements as the foundation for more intricate legal claims forced these courts to enlist the aid of scholars trained in learned law. By the end of the fifteenth century, the practice of Aktenversendung had developed whereby local courts requested legal opinions from academic scholars in faculties of law. Since both canon and Roman law had been actively studied at these faculties since the foundation of German universities, this practice contributed to the infiltration of additional elements of the ius commune into legal procedure and substantive law applied in courts.

A second and more important factor in the Reception of Roman law in Germany was the foundation of the Reichskammergericht (the supreme court of the Holy Roman Empire) at the end of the fifteenth century (1495). The motives for the foundation of this court were undoubtedly political and it was a conscious attempt to introduce a new legal order based on the ius commune for the Holy Roman Empire. Not only was a written procedure used in this court from its inception (which soon developed into the Romano-canonical procedure), but the requirement that at least half of the judges presiding over this court had to be trained in learned law had a definite impact on the Reception of Roman law (see Wijffels, A. ‘Civil Procedural Law, The Judiciary, and Legal Professionals’, in OHELH, 654–77). The judges of this court were specifically instructed to judge cases according to the ‘law of the Empire’, which was in effect an instruction to judge cases according to the principles of the ius commune. Thus, by the end of the fifteenth century, Roman law had become the most viable candidate to fulfil the function of a ius commune for the Holy Roman Empire (see Schmoeckel, M. ‘Holy Roman Empire of the German Nation’, in OHELH, 358–77).

(p. 378) It was now taught extensively at the universities, which in time came to be regarded as authoritative interpreters of the law (not unlike the classical Roman jurists). See Robinson et al., ELH, s. 11.2., and generally Part V of this book. The circulation of legal literature concerned with Roman law became widespread following the invention of printing with movable type in Germany, and German legal scholars, notably Ulrich Zasius, were among the foremost humanists of the era. Although the Reception was delayed in the north and east, the superiority of Roman law over indigenous and diverse German custom came to be generally recognized among those holding power: ‘The real forces behind the actual Reception were city councils, local rulers, and the territorial estates who saw that if professional lawyers were allowed to extend to judicature their existing monopoly of administration, law could become rational, uniform, and unprejudiced’ (Wieacker, History, 109, and generally Chs. 6–11). These various factors led to the widespread application of Justinian’s law to ‘modern’ conditions (usus modernus Pandectarum) as the communal law of Germany, See Oestmann, P., ‘The Law of the Holy Roman Empire of the German Nation’, in OHELH, 731–59.

The usus modernus Pandectarum dominated German legal scholarship of the seventeenth and early eighteenth centuries. It was not a ‘movement’ of jurists with similar views, as such, but rather a shared methodological approach to the use of Roman law texts. The usus modernus used Roman law texts as practical solutions to real legal problems. In doing so, they contributed greatly to the development of new doctrines in private law based on existing Roman-law elements. According to Wieacker (History, 167):

[I] t is to the legal science of this age—a legal science based on German decision-making, set out in books both learned and practical, broadened because the discipline of the ius commune was now applied to the whole of the law—that we owe the particular kinds of law teaching and writing with which we are still familiar today.

The usus modernus was an important phase in the development of German national law and contributed to the rise of a national legal consciousness in academic works such as those of Benedikt Carpzov (1595–1666) and Samuel Stryk (1640–1710), while reforms in legal education gave rise to a new German legal science. The usus modernus, while predominantly centred in Germany, also had influential supporters in France, the Netherlands, and elsewhere in Western Europe (see Tamm, Roman Law, 225).

The seventeenth century saw Western Europe dealing with the fallout from the Protestant reformation. The rejection of papal authority also had widespread intellectual consequences. It became the age of scientific revolution where authority was rejected in favour of empirical exploration. Furthermore, the seventeenth century saw the rise of a new approach to natural law that rejected the existence of a higher order and proposed that the principles of natural law could be discovered through rational thought (see Ibbetson, D., ‘Natural Law in Early Modern Legal Thought’, in OHELH, 566–83). One of the most influential proponents of this view was the Dutch scholar Hugo Grotius whose views on natural law also found favour in Germany in the works of Pufendorf, Wolff, and Thomasius. These scholars, who represent the ‘German school of natural lawyers’, continued to develop Grotius’ notion that natural law should be freed from all authority and suppositions and moulded into a system that could be deduced logically through rational thought. (p. 379) The most famous exponent of this view was Samuel Pufendorf (1632–94). By the start of the eighteenth century, the German concept of natural law had reached new levels of abstraction in the works of Christian Wolff (1679–1754) and Christian Thomasius (1655–1728).

From the middle of the eighteenth century there was evident another form of Reception—this time through the medium of codification (see Halpérin, J. L., ‘The Age of Codification and Legal Modernization in Private Law’, in OHELH, 907–27). States began to issue national codes that were based in varying degrees on Roman law, which thus ceased to be a direct source of law in these countries but survived as the foundation of their codified law. The trend towards codification was a signal part of the Enlightenment, the intellectual movement—bedded in part in natural law—driven by a philosophy characterized by a reliance on rationalist thought. Reformers invariably desired clarification and rationalization of the law, with the emphasis on organizing it into a simple and manageable system. Supporters of codification often had opposing views on the purpose of a codification. Some wanted radical and sweeping reform designed to abolish all previous systems of authority (as in France), while others: ‘wanted to consolidate a society divided into “orders,” “estates” or “levels” and to assure the stability to each of these groups, to guarantee its existence and guide it, in exchange for obedience to a sole and single law (the “code”) willed and imposed by a recognized and incontestable sovereign authority’ (Bellomo, Common Legal Past, 4). Bavaria and Prussia were the forerunners of this latter type of codification, inspired by natural law and brought about by enlightened rulers and their ministers. For example, the Bavarian Civil Code 1756—heavily based on Roman law—was largely the creation of the Elector Max Joseph III and his Chancellor, von Kreittmayr. Efforts to codify Prussian law actually preceded those in Bavaria but did not fully materialize until the code of 1794. The Prussian code—the work primarily of von Carmer and Suarez, encouraged by Frederick William I and II—was extremely detailed and (unlike the Bavarian code) superseded all previous laws (see Tamm, Roman Law, 238–9).

The process of codification in Germany was delayed by diverse factors, most notably the academic debate which arose during the early nineteenth century between supporters of the ‘Historical School’ in Germany. This debate was sparked by A. F. J. Thibaut (1772–1840), a professor from Heidelberg, who published a pamphlet calling for the enactment of a code for Germany. This view was opposed by Friederich Carl von Savigny (1779–1861), Germany’s leading jurist of the early nineteenth century and a staunch supporter of Roman law, who was strongly opposed to codification (and natural law for that matter) on the grounds that Germany was not then ready for it. Indeed, it is difficult to see how a general codification could have been achieved before German unification (which did not occur until 1871). There was, moreover, considerable disagreement as to what codification should entail between the Germanists within the ‘Historical School’, who emphasized the importance of native tradition, and the Romanists, who advocated Roman law as the foundation of German law. (On the significance of the ‘Historical School’ in Germany, see Bellomo, Common Legal Past, 14–18; Stein, Roman Law, 115–18; Robinson et al., ELH, ss. 16.2.1–16.2.11.) Even within these broad divisions there were sub-currents. For example, the ‘Pandectists’—an offshoot of the ‘Historical School’ headed by Georg Puchta (1798–1846) that dominated German legal scholarship during the second half of the nineteenth century—favoured classical Roman law rather than later models.

(p. 380) The codification process, started soon after the unification of Germany, lasted virtually a quarter of a century and culminated in the enactment of the German Civil Code (Bürgerliches Gesetzbuch = BGB) in 1900. Pandectist influence in the codification commissions was substantial, but the final product was a blend of Roman law and Germanic practice. As in the case of the Code Civil, the Roman influence was especially pronounced in the law of obligations. Compared to the French code, the BGB is more detailed, but at the same time more abstract and less related to life (On the ‘Pandectists’ and their influence on the BGB, see Stein, Roman Law, 119–23; Robinson et al., ELH, ss. 16.3.1–16.3.8.) ‘The Code betrays in both its form and its content the intellectual and social conditions prevailing at the time of its creation. It is general and abstract private law, a system geared not to the conditions of life in society … but to the conceptual apparatus of law’ (Wieacker, History, 376). In some respects, then, the BGB can be compared to the work of the Roman classical jurists, particularly in their legal isolationism and high degree of conceptualisation (as emphasized by Watson). This characteristic helps to explain the appeal of the German code: ‘[I]ts scholarly and technical merits outweighed the fact that it had little emotional appeal, political colour, or concern for current social problems. On the contrary, the very abstraction of the BGB apparently made it easier for alien cultures and social orders to assimilate it’ (Wieacker, History, 384). Among the ‘alien cultures’ to adopt the BGB were Japan and Brazil, see Tamm, Roman Law, 252–8. (On the structure of the BGB, see Robinson et al., ELH, ss. 16.4.1–16.4.9.)

11.2.3.3 The Netherlands

To understand the way in which the principles of the ius commune contributed to the formation of Dutch national law, a brief historical synopsis of what is today known as the Netherlands and Belgium is required. During the late medieval period, the Netherlands (including Belgium) came to be ruled by the Dukes of Burgundy, mainly the result of a series of dynastic marriages that incorporated Flanders into the Duchy of Burgundy (thus creating an area as flourishing artistically and economically as any in Europe). The Dukes of Burgundy nominally owed allegiance to the French Crown but in practice were independent. In the sixteenth century, the Netherlands came under the control of the Spanish Crown through a chain of events too tortuous to relate. The Spanish rule of the Netherlands was unpopular with the local population from the start. The rise of Protestantism in the northern regions of the Netherlands and the desire for self-determination fuelled a revolt in the 1560s against the rule of Philip II of Spain. In 1579, the seven northern provinces of the Netherlands seceded from Spain under the Union of Utrecht. The provinces were organized into a confederation (the United Provinces), each retaining a large measure of autonomy through its own laws and courts, but with the province of Holland, because of its wealth and prominence, as its leader. This marked the start of nearly a century of intermittent wars (the so-called Eighty year’ war) through which the Dutch eventually obtained their independence under the Treaty of Münster in 1648. Ironically, despite (or perhaps as a result of) the turbulent political events prevailing in the Netherlands during the sixteenth and seventeenth centuries, it was also one of the most creative periods in Dutch legal history in which the ius commune had its most pronounced influence on the formation of Dutch national law.

It is, of course, worth noting that learned law was already prevalent in the Netherlands by the thirteenth century. Flemish and Dutch students attended (p. 381) universities in Italy (and later in France) and the presence of the Church ensured that canon law and the Romano-canonical procedure used in ecclesiastical courts were familiar to the regions of the Netherlands. For much of the fourteenth and fifteenth centuries, however, localized customary law still prevailed. It was only in the latter part of the fifteenth century that the influence of the ius commune in the Netherlands became more pronounced. The reasons for this are many and varied, but the following factors deserve mention. The prevalence of localized customary law and the absence of a unified legal system contributed to the Reception of learned law. Two courts with appellate jurisdiction were founded during the fifteenth century in which jurists trained in learned law were employed. In the north, the Court of Holland, Zeeland, and West Friesland (founded in 1428) functioned as the provincial court of appeal for these regions, while the Great Council of Malines (re-established in 1504, based on an earlier model) fulfilled the same function in the south. During the struggle against the Spanish, the Netherlands—predominantly Protestant in the north—became a haven for French humanists escaping the Wars of Religion. This development not only helped to preserve the humanist movement but also fostered a rich tradition of Dutch contribution to jurisprudence, especially in the seventeenth century.

It was also during this century that most Dutch universities were founded (Leyden in 1575, Franeker in 1585). Apart from the infusion of learned law through legal practice, the contributions of academic jurists to the foundation of a legal system for the Netherlands cannot be denied. The term ‘Roman–Dutch law’, first used by the Dutch jurist Simon de Leeuwen in the seventeenth century, is an indication of the prominence of Roman law in the development of a national legal identity for the United Provinces. In the words of Stein (Roman Law, 97–8):

The law of the United Provinces was largely created by Dutch Professors, particularly those of Leyden, and by the judges of the High Courts of the provinces, particularly the Hooge Raad of Holland. Through their synthesis of legal science and legal practice, the Netherlands led the rest of Europe in the seventeenth century in the way that France had set the pace in the sixteenth.

Dutch legal science reached its formative peak during the seventeenth century. It was the period in which Roman–Dutch law developed into a fully-fledged legal system suited to the needs of an enlightened and wealthy Protestant Dutch Republic with trading interests spreading as far as India and Africa. The outstanding figure of this period was Hugo Grotius (Huig de Groot 1583–1645) whose diverse talents and profound achievements mark him out to be as great a jurist as any in history, ancient or modern. His monumental work De Iure Belli ac Pacis (‘On the Law of War and Peace’) was published in 1625. In it he formulates a system of international law based on his vision of natural law: rational principles—derived from practice, experience, and tradition—which could be regarded as binding on any State. Grotius’ vision of natural law represented a significant reinterpretation of the medieval view of natural law (in which divine reason was the source of all law) and was destined to become an important and influential legal–philosophical current in the seventeenth century. It was undoubtedly influenced by the Protestant reformation of the previous century, which had shattered the authority of the Church in Europe, as well as the scientific revolution of the seventeenth century whereby the authority of God as the source of all wisdom was rejected in favour of empirical research and exploration (see Kelly, Short History, 222–7, and Witte, J., ‘Law and the Protestant Reformation’, in OHELH, 583–610). It is through this work that Grotius is widely (p. 382) recognized as having an important impact on the development of international law and modern natural law, as well as influencing major jurists in other jurisdictions such as Pufendorf and the ‘German School of Natural Lawyers’ in Germany (see 11.2.3.2) and Stair in Scotland (see 11.2.3.4).

Another outstanding work by Grotius was the Introduction to the Jurisprudence of Holland (1631) in which he achieved a synthesis of Roman law, custom, and natural law in outlining a national legal system. This work is regarded as the literary foundation of Roman–Dutch law. Remarkably, it was mainly written while Grotius was imprisoned for his religious beliefs.

The French humanist influence on the formative period of Roman–Dutch law set the trend for the development of a unique approach to legal scholarship known as ‘elegant jurisprudence’. This approach developed principally at the universities of Leyden and Utrecht by a number of distinguished jurists was based on the idea that legal education should consist of a synthesis of theory and practice. Although students of law were primarily trained to become practitioners of law, a course in the basic principles of law (i.e. Roman law) was fundamental to legal education.

Apart from Hugo Grotius whose religious affiliations forced him to spend much of his life away from the Netherlands, other Dutch jurists greatly contributed to the development of Roman–Dutch law as a legal system. While Grotius is often regarded as having laid the literary foundations of this new system in his Introduction to the Jurisprudence of Holland, his contemporary Arnold Vinnius (1588–1657), professor of law at Leyden, demonstrated the practical side of Roman–Dutch law in his extensive commentary on the Institutes in which he synthesized not only the opinions of German and French writers of the period, but also demonstrated how the rules of law applied to legal practice. Another influential jurist was Johannes Voet (1636–94),also professor at Leyden and a supporter of the usus modernus Pandectarum, who produced a majestic commentary on the Digest in which Roman law was synthesized with modern custom and legislation.

In the 1650s, the Dutch started to use the Cape of Good Hope as a supply base for the East Indies trade. Thus, Roman–Dutch law became the law of what is now South Africa, as well as throughout the Dutch Empire: ‘It is, of course, in itself somewhat ironic that the southern tip of Africa should have become one of the last strongholds in the modern world of European jurisprudence in its original uncodified form’ (see Zimmermann, R., in Civil Law Tradition, 41 and 44). Roman–Dutch law is still regarded as a formal source of law, but it is clear that the influence of English law has been so pronounced that the South African system is best described as a mixed legal system. See Zimmermann, R., Roman Law in a Mixed Legal System: The South African Experience in Civil Law Tradition, 41–80 and Fagan, E., ‘Roman–Dutch Law in its South African Historical Context’, in Southern Cross, 33–64.

The history of the codification of Dutch law in the first half of the nineteenth century is closely linked to expansion of the French Empire under Napoleon. In 1795, the Dutch Republic collapsed and was briefly replaced by the Batavian Republic (1795–1806). From 1806 to 1810, Louis Napoleon, brother of the French Emperor, ruled as king over the Netherlands and its existing system of Roman–Dutch law was heavily influenced by French law. During this period the first steps toward the codification of Dutch law were also taken. In 1807, Louis Napoleon instructed Johannes van der Linden, one of the most prominent Roman–Dutch jurists of the nineteenth century to draft a proposed code. The code was largely (p. 383) based on Roman–Dutch law, but it was never enacted. In 1808, under pressure from Napoleon, the French Civil Code was adapted for the Netherlands and enacted in the following year as the Wetboek Napoleon ingerigt voor het Koninkrijk Holland (the Code of Napoleon adapted for the Kingdom of Holland). In 1810, the Netherlands was annexed as part of the expanding French Empire and the French Civil Code remained in force until 1815 when French control of the Netherlands ceased. In this year, the sovereign Kingdom of the Netherlands was proclaimed. The next 15 years witnessed two draft codes and the secession of Belgium, but in 1830 the Dutch Civil Code (Burgerlijk Wetboek = BW) was enacted. (See Stein, Roman Law, 97–11 and Robinson et al., ELH, ss. 13.4.1–13.4.7 on Dutch elegant jurisprudence. Bellomo, Common Legal Past, 232–4 provides a readable account of the significance of Hugo Grotius and the secularized natural law doctrine of the seventeenth century.)

11.2.3.4 Scotland—a mixed jurisdiction

Little can be said about the state of Scots law before the twelfth century. It is generally believed that unwritten customary law, which had some affinity to Celtic law, prevailed during this period (see Robinson et al., ELH, s. 9.1 and Sellar, W. D. H., ‘A Historical Perspective’, in Meston, M. C. et al. (1991), The Scottish Legal Tradition, Edinburgh: Saltire Society and Stair Society).

The period from the introduction of Anglo-Norman law in Scotland in the twelfth century during the reign of David I until the mid-fifteenth century witnessed some Romanization of local law, but it can hardly be said that a ‘Reception’ occurred at such an early stage (see Simpson, A. R. C., ‘The Scottish Common Law: Origins and Development, c. 1124–c. 1500’, in OHELH, 450–73). The law consisted predominantly of custom applied by the local sheriff courts which had limited civil and criminal jurisdiction. Itinerant royal officials known as ‘justiciars’ also dispensed civil and criminal justice. the king and his council had a theoretical supervisory jurisdiction over them, but in practice this did not result in any substantial degree of centralization. Local courts (both Sheriff and Franchise) applied the customary law relevant to its jurisdiction: there was thus a very high degree of legal fragmentation. For example, certain towns were granted burgh status, which entitled them to various privileges, including exemption of trade from feudal restrictions. The burgh court would apply the particular customs pertaining to that town. However, although the ground for Romanization was promising, a full-scale Reception never materialized in Scotland. Roman law became an important subsidiary source of law, but it was regarded as at best persuasive rather than binding, and not as the sole or general law of the land. Customary law was never buried by the increasing influence of Roman law; indeed, the burgh laws in particular retained their vitality for a long time.

As elsewhere in late medieval Europe, the canon law of the church courts proved important in the gradual infiltration of Roman notions, especially through the use of Romano-canonical procedure in litigation—its use soon spread to the secular courts. (See Robertson, J. J., ‘The Canon Law Vehicle of Civilian Influence with particular reference to Scotland’ in Civilian Tradition, 117–34.) This process of infiltration was aided by the existence of ecclesiastical courts alongside sheriff courts (until the reformation during the sixteenth century) to deal with all matters falling within the jurisdiction of the Church. Crucial also was the migration abroad of Scottish students to study Roman and canon law, since there were no universities in Scotland prior to the fifteenth century.

(p. 384) The students at first studied mainly at the Northern Italian universities, then France (especially Paris and Orléans) and later still, Cologne and Louvain. Some of the returning scholars attained high office and contributed vitally to the Romanization of the law. For example, William Elphinstone—who had studied Roman law at Orléans—became Bishop of Aberdeen and Chancellor of Scotland. He appears to have inspired the enactment of the Education Act 1496 which imposed a duty on substantial freeholders to ensure that their sons learned Latin and attended schools of law so as to understand better the laws which they might one day administer. He was also the founder of the University of Aberdeen. The Universities of St Andrews and Glasgow had been founded earlier in the fifteenth century through the efforts of bishops who had studied Roman law abroad. A major reason for the foundation of the Scottish universities was to satisfy the obvious need for instruction in canon and Roman law. W. M. Gordon sees this as significant: ‘One of the important indications of the value of Roman and Canon law in legal practice is the foundation of universities which had as one of their specific aims the provision of legal education’ (Civil Law Tradition, 19).

The extent of the use of Roman law in medieval Scotland is difficult to gauge, but there is documentary evidence of Romanist arguments being employed in two celebrated cases c. 1380: one concerned the issue whether the Abbey of Lindores held lands of the Crown or the Earl of Douglas; the other tested the validity of a decision by the Bishop of Aberdeen that lands had not been validly granted by a former bishop to a certain John Crab. The same was true in the dispute about the succession to the Scottish Crown between John Balliol and Robert Bruce in 1291–2—the Great Cause. See Stein, Character and Influence, 294 ff. Moreover, there is evidence of some Roman law influence in early Scottish literature from the thirteenth century onwards, particularly Regiam Majestatem, a commentary on legal procedure in royal courts in civil and criminal cases dating probably from the early fourteenth century and Quoniam Attachiamenta, a treatise on procedure in baronial courts. And medieval charters point to the level of expertise then current in Roman law: they contain ‘renunciations’—clauses expressly excluding specific civilian remedies. The widespread use of renunciations is some evidence—though not conclusive—of the extent to which Roman law was applicable in practice.

The pace and extent of Romanization of the law increased from the late fifteenth century, probably due to increasing reliance by professional advocates (eventually the Faculty of Advocates) on arguments derived from Roman law, and their acceptance by the judges. Indeed, in the seventeenth century, competence in Roman law became an examined element in the general requirements for entry to the Faculty. The Roman law that was received was of course not necessarily that of Justinian, it was that of the ius commune—the law as glossed by the Glossators and adapted by the Commentators. In 1532, a supreme appellate court was established—the Court of Session—staffed by a professional judiciary consisting partly of judges trained in Roman and canon law, and operating a Romano-canonical procedure for the most part. The evidence suggests that the judges of Session were prepared to resort to Roman law whenever the indigenous law could not resolve an issue. This more systematic resort to Roman law influenced the local courts, similar to the effect of the restructuring of the Reichskammergericht. Moreover, it is possible that political ties with France—the ‘Auld Alliance’—strengthened by dynastic intermarriage, contributed to the increased pace of Reception. Scotsmen continued to study in (p. 385) France, especially Bourges, but later the universities of the Netherlands became more popular, Leyden in particular.

The extent of the Reception in Scotland can best be gauged by the literature of the institutional writers, authors whose works are regarded as an authoritative source of Scots law. The work of the institutional writers should be seen in the context of the rise of a national legal identity in Scotland during the sixteenth and seventeenth centuries. See Cairns, J. W. ‘Institutional Writings in Scotland Reconsidered’ (1983) 4 JLH, 76–117. The sixteenth century was intellectually dominated by the works of the French legal humanists and Scotland’s contact with both France and the Netherlands ensured that their views had a lasting impact on the formation of Scots law. See Cairns, J. W., Fergus J. D., and MacQueen, H. L., ‘Legal Humanism in Renaissance Scotland’ (1990) 11 JLH, 40–69. At the same time, the rise of a national legal identity necessitated the writing of a work similar to Grotius’ Introduction to the Jurisprudence of Holland, in which Scots law was systematically set out as a legal system based on a combination of learned and customary law. (See Luig, K., ‘The Institutes of National Law in the Seventeenth and Eighteenth Centuries’ (1972) Juridical Review, 193–226.) This work was Viscount Stair’s Institutions of the Law of Scotland, published in 1681. Stair, who became Lord President of the Court of Session, achieved a comprehensive exposition of Scots law, consistent with the rational principles of modern natural law, in which Roman law is acknowledged as a persuasive (if not binding) source of law in the absence of native custom. Other institutional writers of importance included Craig, Mackenzie, Erskine, and Bell. See Robinson et al., ELH, s. 14.2.

Union with England in 1707 led to some anglicization of the law in the long term, and to a corresponding decline in the influence of Roman law. However, the Scottish legal system remains markedly different from its English counterpart in many respects, much of the difference being attributable to the legacy of the Romanist tradition in Scotland. See Stein, Character and Influence, 336 ff. where he concludes: ‘the Roman notions which were introduced into Scots law during its formative period were embedded so firmly in its structure that many parts still bear an unmistakably Roman stamp; they cannot be fully comprehended without a knowledge of the Roman institutions from which they derive’ (358–9). Robin Evans-Jones suggests that Scotland, essentially a mixed legal system, needs to maintain at least ‘two distinct legal cultures of high quality’ and that it should occupy ‘a challenging position at the interface of the Civil and Common law where it will be well placed, when appropriate, to select what is best from each’ (The Civil Law Tradition in Scotland (1995), 11). See also Evans-Jones, R., ‘Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law’ (1998) 114 LQR, 228–49 and Sellar, W. D. H., ‘Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions’ (2000) 4(1) Edinburgh LR, 3–18. (On the reception of Roman law in Scotland, see Cairns, J. W., ‘Historical Introduction’, in Reid, K. G. C. and Zimmermann, R. (eds.) (2000), A History of Private Law in Scotland, vol. 1.)

11.2.3.5 Roman law in modern Scots law

The reception of Roman law in modern Scots law is a continuing process. The uncodified nature of the legal system and its compatibility with other mixed jurisdictions in areas of property and obligations enables Scottish courts and jurists to make ample use of the civilian heritage of Scots law. The following cases are but a few examples of Scottish courts’ use of Roman law in recent decisions.

(p. 386) Sloans Dairies Ltd v Glasgow Corporation 1977 SC 223; 1979 SLT 17

This case dealt with the risk of accidental destruction in a contract of sale (see 9.3.1.4). Sloans Diaries (SD) had entered into negotiations with Glasgow Corporatio (GC) to purchase certain buildings. The missives stated that the parties would agree at some point in the future on the date of entry. Before the parties could agree on a date of entry, the buildings were gutted by fire and had to be demolished. GC refused to implement the contract and SD brought an action to enforce it. In the court of the first instance, the Lord Ordinary held:

The rule that the risk of accidental damage to the property passes to the purchaser on the conclusion of the contract stems from the Roman Law of Sale as set out in the Institutes of Justinian … With the possible exception of Stair (I.14.6) where the position of the purchaser of goods which has perished without fault of the seller is treated as an undecided question, the importation of the rule into Scots law is supported by a long line of authority (Erskine, Institutes 337; Bankton I.19.35; Bell’s Commentaries 2321; Bell’s Principles (10th edn.) para. 87; … [at 226–7].)

The court decided that the missives had created a valid contract of sale even though a precise date of entry had not been agreed. Furthermore, it was the opinion of the court that once the missives had been concluded, the risk of accidental destruction passed to the purchaser. GC reclaimed upon the latter point, but the reclaiming motion was refused (see 1979 SLT 17).

Will’s Trustees v Cairngorm Canoeing and Sailing School Ltd 1976 SC (HL) 30

This case concerned the status of the river Spey as either a private navigable watercourse in which the owners of the riverbanks had exclusive rights of navigation or a public navigable watercourse to which members of the public had legitimate access (see 6.1.2.2). WT as owners of large stretches of both banks of the river brought an action against Cairngorm Canoeing and Sailing School Ltd (CCSS) who used said river for recreational purposes. The Lord Ordinary found in favour of CCSS. Will’s Trustees (WT) reclaimed, but the decision was upheld. It was decided that, even though the river Spey was not technically a public navigable watercourse, CCSS had established a restricted public right in favour of recreational use of the river. WT appeal to the House of Lords. In the latter decision, the Roman-law position and the writings of the institutional writers in light of an earlier decision (Grant v Gordon M. 12820) were extensively examined. The court found in favour of CCSS.

Cantiere San Rocco v Clyde Shipbuilding & Engineering Co. 1923 SC (HL) 105

This case dealt with unjustified enrichment (see 9.9.2). In 1914, Clyde Shipbuilding & Engineering Co (Clyde SE) contracted with CSR to build and supply a set of maritime engines. The terms of their contract stated that Cantiere San Rocco (CSR) would pay half the purchase price when the contract was signed, while the remaining monies would be paid at specific stages of the construction process. After the first instalment had been paid, but before construction could commence, war broke out. After the war, CSR brought a action in the Court of Session (1922 S.C. 723) stating that the contract had been dissolved by the intervention of war and reclaiming the deposit already paid. The court concurred, but granted Clyde SE leave to reclaim. In the second instance, the earlier decision was overturned in favour of Clyde SE. CSR appealed to the House of Lords. The House of Lords reversed the decision of the first division of the Court of Session and found in favour of CSR. The court reasoned that the instalment had been paid as part of the price for the engines and, since the delivery of the engines had been rendered impossible by the outbreak of war, Clyde SE was responsible for the return of the deposit (subject to any counterclaim that they may have) on the basis of the condictio causa data causa (p. 387) non secuta. In its decision, the court examined both Roman law and the views of the institutional writers on the subject.

Morgan Guaranty Trust Co. of New York v Lothian Regional Council 1995 SLT 299

This case dealt with unjustified enrichment (see 9.9.2). In 1987, a local authority Lothian Regional Council (LRC) had entered into an interest rate and currency exchange agreement with a merchant bank, Morgan Guaranty Trust Co (MGT). The agreement would continue until 1992. In 1989, however, a decision in a divisional court in England (Hazell v Hammersmith and Fulham London Borough Council (1992) 2 AC 1) found such agreements to be ultra vires for local authorities and unlawful. MGT reclaimed the amounts paid to LRC. The Lord Ordinary concurred with the decision of the English divisional court on the matter, but found that he was bound by a Scotts case law in which it had been decided that an error of law in the interpretation of a public general statute concerning the contractual capacity of a local authority excluded the use of the condictio indebiti. MGT reclaimed and the decision of the Lord Ordinary was reversed. It was decided, after an extensive review of the institutional writers on the point (see 1995 SLT 311) that the condictio indebiti did indeed cover this situation and was the appropriate remedy.

McDyer v The Celtic Football and Athletic Co. Ltd. 2000 SC 379

This case concerned the application of the actio de positis vel suspensis (see 10.7.1). McDyer was injured when a piece of wood fell from the stadium canopy while he waited for the opening of the European Summer Special Olympic Games. He sued Celtic Football and Athletic Co. Ltd. (Celtic FAC) (first defenders) as the occupiers of the stadium in terms of s. 2 of the Occupiers’ Liability (Scotland) Act 1960 and the organizers of the Special Olympics (second defenders), but did not include the cause of the wood falling or the fault of the defenders in his initial claim. Instead, he relied on the principle of res ipsa loquitur. The Lord Ordinary dismissed the claim. McDyer reclaimed to the first division of the Court of Session and was allowed to amend his claim to reflect, inter alia, that the defenders incurred strict liability at common law for the incident based on the Roman-law rule of said action which was adopted and modified in Scots law (see 383E–F). The court examined the Roman-law position and the comments of the institutional writers on this point (see 387H–390E). It concurred with the pursuer, following a reading of Bankton, that the Roman-law rule had been received into Scots law, but noted that there was some uncertainty in the works of other institutional writers and later court decisions concerning the basis of the liability. In the end, however, it was the place where the injury had occurred which persuaded the judges not to resort to liability on the basis of the actio de positis vel suspensis:

We find it unnecessary in the present case to explore any more fully the questions which counsel for the reclaimer and second respondents raised about the nature of the liability under the old Roman law or about the passages in Bankton and Hume. It is noteworthy that both the Roman law provisions and the Scottish authorities upon which counsel for the reclaimer sought to rely were really concerned with the liability of occupiers and owners of buildings for injury and damage caused to those outside the premises, whether in the streets or in open spaces or on neighbouring properties. In this case, by contrast, we are concerned with the liability of Celtic and European to the pursuer who was actually in some part of the stadium when the piece of wood fell from the canopy area of the stadium. Indeed in each of the alternative cases, the pursuer recognises this and avers that Celtic and European are liable under the Occupiers’ Liability (Scotland) Act 1960. In these circumstances it appears to us that the law relating to the liability of the defenders to the pursuers is to be found in terms of the 1960 Act. [at 390G–H]

(p. 388) 11.3 Roman law in England

When the Romans colonized Britain, Roman law became the law of the province. But it is not clear to what extent Roman law applied to non-citizens before the general grant of citizenship in AD 212. It is known that Papinian, Paul, and Ulpian were in Britain in AD 208, presumably hearing cases rather than just sightseeing. It is unlikely that Roman law survived for long after the withdrawal of the Roman armies in the early fifth century. Some parallels have been drawn between the codes promulgated by the Anglo-Saxon Kings and the Twelve Tables, but this is not persuasive evidence for the continuity of Roman law in Britain. In all probability Roman law was swept away in the course of the Anglo-Saxon invasions. However, the establishment of the Christian Church in Anglo-Saxon England was largely the work of ecclesiastics from abroad who would have studied canon law and possibly Roman law. Churchmen normally sat in the ‘courts’ of the time, so it is likely that some of their learning influenced the proceedings (on English legal history, see Baker, Introduction, generally).

11.3.1 The medieval period

England was not unaffected by the early stages of the Reception of Roman law (see Brand, P. ‘The Beginnings of the English Common Law’, in OHELH, 430–49, Herzog, Short Introduction, 93–114). English scholars studied in the law schools abroad; Glossators from Bologna lectured in England; and Roman law became one of the earliest disciplines taught at the universities. Lanfranc, Archbishop of Canterbury and chief counsellor under William the Conqueror, was a notable scholar from Pavia where he studied canon law, Roman law, and Lombard law, before distinguishing himself as a teacher (he was possibly a predecessor of Irnerius at Bologna). He adjudicated on legal issues, but the extent to which he applied his Romanist learning is unclear. Another foreign scholar, Vacarius, a teacher from Bologna, was invited by Archbishop Theobald c. 1143 to help him administer Canterbury. Vacarius produced the Liber Pauperum (‘The Book of the Poor’), a compilation of extracts from Justinian’s codification for students who could not afford the full texts. The book became heavily used in Roman law studies during the second half of the twelfth century. By 1200, Roman law teaching was flourishing at Oxford but whether Vacarius ever taught there is doubtful. See de Zulueta, F. and Stein, P. G., The Teaching of Roman Law in England Around 1200 (1990).

The most important works on English law in the early medieval period, commentaries on the ‘law and customs’ of England by Glanvill and Bracton, demonstrate appreciation of Roman law and some borrowing, mostly of organizational concepts rather than substantial rules (see Baker, Introduction, Ch. 11). For example, the work attributed to Glanvill—dating from the 1180s when he was Henry II’s chief justiciar—makes use of Justinian’s Institutes in the classification of contractual obligations. Bracton’s work (he was probably not the sole author) was written some fifty years later and shows an even more substantial Roman influence. Indeed, Bracton quotes extensively from Justinian, and his treatise demonstrates that Roman law and the work of the Glossators considerably influenced his thinking as a lawyer and judge. Bracton found valuable precedents in Roman law that gave him the tools for presenting English law as a coherent body of law. The royal judges of the time, often trained in Roman canon and civil law, used their learning to fill the gaps in the (p. 389) nascent common law. Some important remedies were possibly inspired by Roman precedents, notably the assize of novel disseisin, which bore resemblance to the praetorian possessory interdicts (Padoa-Schioppa, History, 212–27).

The influence of Roman law in the medieval period can also be seen in the operation of the courts. See Siepp, D. J., ‘The Reception of Canon Law and Civil Law in the Common Law Courts before 1600’ (1993) 13 Oxford Journal LS, 388–420; as well as Brand, ‘The Beginnings’, 439–43, and Baker, Introduction, chs 3–9. Medieval chancellors tended to be trained in Roman canon and civil law. So it is not really surprising that Chancery employed an inquisitorial process conducted by a magistrate (the Lord Chancellor) without the use of a jury, namely Romano-canonical procedure. Star Chamber was similar. The ecclesiastical courts, which had an important jurisdiction in matters such as marriage and wills, applied the canon law of the Roman Catholic Church. The Court of Admiralty was both Romanist in its procedure and in much of the law that it applied (based partly on the maritime code of Rhodes which had been adopted by the Romans). The personnel staffing these courts were largely trained in Roman law. Moreover, civilians were sometimes asked to adjudicate upon issues of State, as on the continent. For example, civilians were included in the commission that determined Richard II’s fate when he was deposed.

However, there were developments in medieval England which were not paralleled elsewhere, and which were to prove the decisive obstacle to a full Reception of Roman law in England. A centralized legal system was developed—based on the royal courts at Westminster—and a common law was established throughout the country, thus reducing the importance of local law and custom. Notable among the medieval kings who helped to achieve this transformation were Henry II and Edward I. Moreover, an enduring common law tradition was fostered through the growth of an active legal profession and the evolution of the Inns of Court. The influence of the universities on the operation of the legal system waned sharply. Consequently, the mixture of factors which were conducive to the Reception elsewhere in Europe in the fifteenth and sixteenth centuries—the existence of customary law, fragmented political units, and a university-trained legal profession erudite in Roman law—was absent in England. Nor did the common law courts use Romano-canonical procedure.

11.3.2 The Tudor period and beyond

Not all was well with the common law at the time of the crucial stage of the Reception in Europe (see MacMillan, K., ‘English Law and Its Expansion’, in OHELH, 830–53, as well as Herzog, Short Introduction, 131–51). By 1500, the common law system was creaking through a combination of rigid formalism, arcane procedures, and a complacent conservatism in Common Pleas, the senior court of the land. There is some evidence (though not conclusive) that the business of the common law courts was declining in the first two or three decades of the sixteenth century. Traditional areas of common law jurisdiction were certainly under threat from the activities of Chancery and Star Chamber, particularly under Wolsey (Lord Chancellor 1515–29). He was deeply hostile to the common law and was accused of trying to subvert it. Nevertheless, hardly anyone (the odd crank apart) seriously called for the replacement of the common law by Roman law (Padoa-Schioppa, History, 385–400). Even had there been a vociferous demand in that direction, it is difficult to see how such a legal transformation could have been achieved: ‘A revolutionary Reception was (p. 390) practically impossible because the principles of the common law were part and parcel of the English constitution. To supersede the common law by Roman rules it would have been necessary to sweep away, or at least to modify profoundly, the existing machinery of government; and this … was wholly contrary to the methods, and, indeed, beyond the powers of the Tudor kings’, see Holdsworth, W. S., ‘The Reception of Roman Law in the Sixteenth Century’ (1912) 28 LQR, 236–54, at 247; see also MacMillan, ‘English Law’, 833–6.

Following Wolsey’s fall and the break with Rome, the possibility of the common law being replaced by Roman law became even more remote. However, Henry VIII was prepared to create a Regius Professorship of Civil Law at Cambridge in 1540. The first holder—Sir Thomas Smith—acquired a reputation as a civilian in the French humanist tradition. See Stein, Character and Influence, 186 ff. On the other hand, when Wriothesley LC allegedly tried to introduce further Roman practices in Chancery in 1546, he was dismissed. The pulses of Romanists may have quickened for a while in the early seventeenth century when James I, who as James VI of Scotland had ruled for some years in a country experiencing a partial reception, found himself much at odds with the common law of England. The eventual defeat of the royalist cause in the reign of Charles I certainly ended any lingering possibility of a delayed Reception in England. Nevertheless, Roman law continued to exercise an influence on English law (see Baker, Introduction, Ch. 10). For example, that outstanding seventeenth-century judge and common lawyer, Sir Matthew Hale, applied his admiration for Roman law in advocating the need for greater method and organization in English law. And his humanist leanings enabled him to view the evolution of English law in comparative terms, and thus in a more intellectually satisfying manner than had been previously achieved.

Later, outstanding judges such as Holt CJKB and Lord Mansfield made use of their erudition in Roman law in the development of the commercial law of England. Moreover, English jurisprudence came to be influenced by Roman law. For example, the views of Austin, one of the founders of English positivism, were coloured by his studies in Bonn of the work of early nineteenth-century German jurists such as Savigny. Austin’s study of Roman law clearly influenced his theories about the nature of law, particularly his view of law as the command of a sovereign (see Tamm, Roman Law, 240–1).

11.3.3 Roman law and modern English law

Although Roman law never became a dominant influence in England, it has made a significant contribution to English legal culture (see Wauters et al., History, 144–67). Part of the stock-in-trade of the modern English lawyer consists of the language of Rome and her law—animus, consensus ad idem, restitutio in integrum, sui iuris, inter vivos, ultra vires, eiusdem generis, and so forth. But it is more than just a question of vocabulary: the grammar of English law has been influenced, especially as regards the basic distinctions and the classification of the law, e.g. the distinction between actions in rem and in personam, or between gifts inter vivos and mortis causa. And well-known maxims such as id certum est quod certum reddi potest and concepts such as nec vi, nec clam, nec precario, in the operation of easements (see Newnham v Willison later in the chapter) testify that the substantive content of modern English law has some Roman borrowings. The law of easements and of bailment have been particularly influenced. Indeed, there continues a regular flow of cases in which the (p. 391) principles and institutions of Roman law are found to have relevance (often in providing the historical background to a particular rule applied by the court). Among such cases in recent years are the following:

Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd [1993] AC 573

The issue in this case was whether a deposit that had been paid under a contract of sale of land was forfeited to the vendor on the failure by the purchaser to complete on the due date. The Bank had sold premises to Dojap under a contract requiring a deposit of 25 per cent, the deposit to be forfeited if the purchaser failed to complete in time (time being of the essence). Dojap failed to complete in time. In the course of the judgment of the Privy Council, Lord Browne-Wilkinson stated (578–9):

In general, a contractual provision which requires one party in the event of his breach of the contract to pay or forfeit a sum of money to the other party is unlawful as being a penalty, unless such provision can be justified as being a payment of liquidated damages being a genuine pre-estimate of the loss which the innocent party will incur by reason of the breach. One exception to this general rule is the provision for the payment of a deposit by the purchaser on a contract for the sale of land. Ancient law has established that the forfeiture of such a deposit (customarily 10 per cent of the contract price) does not fall within the general rule and can be validly forfeited even though the amount of the deposit bears no reference to the anticipated loss to the vendor flowing from the breach of contract … The special treatment afforded to such a deposit derives from the ancient custom of providing an earnest for the performance of a contract in the form of giving either some physical token of earnest (such as a ring) or earnest money. The history of the law of deposits can be traced to the Roman law of arra, and possibly further back still: see Howe v. Smith (1884) 27 ChD 89 per Fry LJ at pp. 101–2. Ever since the decision in Howe v. Smith, the nature of such a deposit has been settled in English law. Even in the absence of express contractual provision, it is an earnest for the performance of the contract: in the event of completion of the contract the deposit is applicable towards payment of the purchase price; in the event of the purchaser’s failure to complete in accordance with the terms of the contract, the deposit is forfeit, equity having no power to relieve against such forfeiture.

However, the special treatment afforded to deposits is plainly capable of being abused if the parties to a contract, by attaching the label ‘deposit’ to any penalty, could escape the general rule which renders penalties unenforceable.

The Privy Council’s view was that the deposit in this case was not a true deposit by way of earnest; that the forfeiture provision was a penalty; and that the deposit should be returned, subject to the retention of a fund by the Bank for any damage that it might have suffered by reason of the failure to complete on time.

Sen v Headley [1991] Ch 425

The issue was whether there could be a valid donatio mortis causa (see 7.3.2) of realty. Shortly before his death from terminal cancer, the donor told the donee that he was giving her his house. The deeds were kept in a steel box, the key to which had been given to the donee by the donor. The Court of Appeal held that a valid donatio mortis causa had been made. The decision was controversial because there had previously been considerable doubt whether land could be the subject of such a gift. And property lawyers were understandably concerned that valuable realty could be legally transferred by little more than the utterance of a few words. Nevertheless, the result was consistent with the position in Roman law, although the court did not specifically rely on Roman principles in reaching its decision. But the court did recognize the Roman ancestry of the rules that the gift must be made in contemplation of death and that the gift was to be regarded as absolute only when the donor died.

(p. 392) Newnham v Willison (1987) 56 P & CR 8

This was a dispute between neighbours concerning the plaintiff’s use of tracks over the defendant’s land. The plaintiff had a right of way over the tracks and contended that the junction between them was a curve rather than a corner. However, he failed to establish the requisite twenty years’ use (of the junction as a curve) immediately prior to the proceedings because for over a year prior to the action the defendant had objected to the particular way in which the plaintiff was using the tracks, and had occasionally tried to obstruct him. The plaintiff thus failed to show that his use was not by force, secrecy, or permission, i.e. nec vi, nec clam, nec precario. An extract from the judgment of Kerr LJ in the Court of Appeal (17):

In Megarry and Wade [Law of Real Property, 5th edn. at p. 870] the following passage in my view presents a correct summary of the position on the authorities. The heading is ‘User as of right’: ‘The claimant must show that he has used the right as if he were entitled to it, for otherwise there is no ground for presuming that he enjoys it under a grant. From early times English authorities have followed the definition of Roman law: the user which will support a prescriptive claim must be user nec vi, nec clam, nec precario (without force, without secrecy, without permission). The essence of this rule is that the claimant must prove not only his own user but also circumstances which show that the servient owner acquiesced in it as in an established right. Since the necessary conditions are negative, it is usually the servient owner who alleges that the user was either forcible, secret or permissive; but the burden of proof on these matters nevertheless rests on the claimant’.

Newnham v Willison is one of a stream of cases down the years in which the nec vi, nec clam, nec precario principle has been at issue. Scarcely any other rule of Roman law has had (and continues to have) such widespread application in English law. A more recent example is:

Mills v Silver [1991] 1 All ER 449

The case concerned the acquisition of a prescriptive right of way. The defendants alleged that they were entitled to drive vehicles over a rough track leading from their upland farm in the Black Mountains (one of the highest points of agricultural land in England) across the plaintiffs’ land to a public road. Although the plaintiffs made it clear that they did not accept that the defendants had any right to cross the land with vehicles, the latter continued to use the track for that purpose. Indeed, they employed contractors to lay some 700 tons of stone to make the track passable in all weathers. The plaintiffs sought a declaration that the defendants were not entitled to use the track with vehicles, an injunction restraining them from doing so, and damages for trespass. The plaintiffs were successful at first instance, but the Court of Appeal ruled that the defendants had a right of way with vehicles. A crucial issue was whether such user had been nec precario. Micklem J held at first instance that the tolerance of such user by previous owners of the plaintiffs’ land constituted implied permission. The user was thus by permission (precario) and hence prevented a prescriptive right of way from arising. But on appeal it was held that the user was nec precario: the user could not be regarded as being by permission simply because the previous landowner had tolerated it. The award of damages for trespass stood, however, because the improvements made to the track went beyond the defendant’s right to make repairs.

Waverley Borough Council v Fletcher [1995] 4 All ER7 56

The defendant found a valuable medieval gold brooch whilst scanning ground in a public park with his metal detector (he had to dig some nine inches for it). The plaintiffs—the owners of the park—claimed the brooch after a coroner’s inquisition (p. 393) had decided that the brooch was not treasure trove. At first instance it was held that the defendant was entitled to it; but the Court of Appeal held in favour of the local authority, applying the principle that an owner of land owned all that was in or attached to it. This was a superior right to that of the finder. In Roman law, the owner would have been absolutely entitled—assuming the brooch was not treasure—without the issue of ‘superior right’ obtruding. Auld LJ commented that ‘the English law of ownership and possession, unlike that of Roman law, is not a system of identifying absolute entitlement but of priority of entitlement’ (764).

Oil Corporation Ltd v Greenstone Shipping SA (Panama) [1988]QB 345

This case illustrates how even the most arcane rules of Roman law may have a vital application in modern law. The owners of an oil tanker, chartered to transport a quantity of Russian crude oil belonging to Indian Oil Corporation, wrongfully mixed the Russian oil with their own crude on board the ship. The mixture of oils could not be separated—a classic case of confusio (see 7.2.4). Having received short delivery, Indian Oil Corporation claimed damages, and that it was entitled to the residue of oil on board the tanker. The court, upholding the arbitrators’ decision, allowed damages but held that the claim to all the oil on board the ship must fail. Where a party wrongfully mixed his own goods with those of another, and they could not practicably be separated, the resulting mixture was held in common, the innocent party being entitled to a quantity equal to that of his goods in the mixture.

The judgment in this case was in effect an application of the Roman principles on confusio. Oil, international trade, tankers … and confusio—oil drives the modern world and yet its ownership depends in some circumstances on principles formulated in ancient Rome.

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Further Reading

Backman, C. R. (2003), The Worlds of Medieval Europe, Oxford: Oxford University PressGoogle PreviewWorldCat, contains a particularly readable account of the history of Byzantine law and society. For an overview of later Byzantine law, see Laiou, A. E. and Simon, D. (1994), Law and Society in Byzantium: Ninth–Twelfth Centuries, Washington, D.C.: Dumbarton Oaks Research Library and CollectionGoogle PreviewWorldCat. Those with an interest in the reign of Justinian may also wish to focus on Maas, M. (2005), The Cambridge Companion to the Age of Justinian, Cambridge: Cambridge University PressGoogle PreviewWorldCat.

(p. 394) On medieval learned law, see Van Caenegem, R. C. (1991), Legal History: A European Perspective, London: HambledonGoogle PreviewWorldCat; and Drew, K. F. (1988), Law and Society in Early Medieval Europe, London: VariorumGoogle PreviewWorldCat, for an informative overview of the period. Those with a keen interest in specific aspects of this period may also wish to consult one of the following works, Ullmann, W. (1975), Law and Politics in the Middle Ages, Cambridge: Cambridge University PressGoogle PreviewWorldCat; Ullmann, W. (1980), Jurisprudence in the Middle Ages, London: VariorumGoogle PreviewWorldCat; Ullmann, W. (1988), Law and Jurisdiction in the Middle Ages, London: VariorumGoogle PreviewWorldCat.

On medieval canon law, see specifically Brundage, J. A. (1995), Medieval Canon Law, London: LongmanGoogle PreviewWorldCat, and Evans, G. R. (2002), Law and Theology in the Middle Ages, London: RoutledgeGoogle PreviewWorldCat. Those with a specialized interest may also wish to consult Ullmann, W. (1975), The Church and the Law in the Earlier Middle Ages, London: VariorumGoogle PreviewWorldCat; Kuttner, S. (1983), Gratian and the Schools of Law 1140–1234, London: VariorumGoogle PreviewWorldCat; Winroth, A. (2000), The Making of Gratian’s Decretum, Cambridge: Cambridge University PressGoogle PreviewWorldCat.

On the reformation and its effect on the development of the European ius commune, see comprehensively Berman, H. J. (2003), Law and Revolution II: The Impact of Protestant Reformations on the Western Legal Tradition, Cambridge, MA: Harvard University Press.Find this resource:

On natural law, Enlightenment and codification, see Stein, P. (1980), Legal Evolution: The Story of an Idea, Cambridge: Cambridge University PressGoogle PreviewWorldCat; Watson, A. (1981), The Making of the Civil Law, Cambridge, MA: Harvard University PressGoogle PreviewWorldCat.

On the reception of Roman law in Germany, see Kunkel, W., ‘The Reception of Roman Law in Germany’, in Pre-Reformation Germany, 263–81Google PreviewWorldCat; Berman, H. J. (1983), Law and Revolution, Cambridge, MA: Harvard University PressGoogle PreviewWorldCat; Whitman, J. Q. (1990), The Legacy of Roman Law in the German Romantic Era, Princeton: Princeton University PressGoogle PreviewWorldCat; Stein, P. G., ‘Legal Education in Mid-Nineteenth Century in Germany through English Eyes’, in Quaestiones Iuris, 233–7Google PreviewWorldCat; Van Caenegem, R. C. (2002), European Law in the Past and the Future—Unity and Diversity over Two Millennia, Cambridge: Cambridge University PressGoogle PreviewWorldCat.

On the reception of Roman law in the Netherlands, see the particularly readable account of Zimmermann, R., ‘Roman–Dutch Jurisprudence and its Contribution to European Private Law’ (1992) 66 Tulane LR, 1685–721Google PreviewWorldCat. Those with a keen interest in this topic may also wish to consult Van Caenegem, R. C. (1994), Law, History, the Low Countries and Europe, London: HambledonGoogle PreviewWorldCat, as well as Feenstra, R. and Waal, C. J. D. (1975), Seventeenth-Century Leyden Law Professors and their Influence on the Development of the Civil Law: A Study of Bronchorst, Vinnius and Voet, Amsterdam: North-Holland Publishing CompanyGoogle PreviewWorldCat.

On customary law in pre-feudal and feudal Scotland, see Stein, P. G., ‘Roman Law in Medieval Scotland’, in Stein, Character and Influence, 269 ff.Google PreviewWorldCat; Sellar, W. D. H., ‘The Common Law of Scotland and the Common Law of England’, in Davies, R. R. (ed.) (1988), The British Isles, 1100–1500, Edinburgh: John Donald, 82–99Google PreviewWorldCat.

On the reception of Roman law in Scotland, see Stein, P. G., ‘The Influence of Roman Law on the Law of Scotland’ (1963) Juridical Review, 205–45Google PreviewWorldCat; Stein, P. G. (1968), Roman Law in Scotland (Ius Romanum Medii Aevi, pars v, 13b), Milan: GiuffrèGoogle PreviewWorldCat; and Cairns, J. W., ‘The Civil Law Tradition in Scottish Legal Thought’, in Civilian Tradition, 191–224Google PreviewWorldCat.

On English common law, see Van Caenegem, R C., ‘The English Common Law: A Divergence from the European Pattern’ (1979) 47 TR, 1–7Google PreviewWorldCat; Van Caenegem, R. C. (1988), Birth of the English Common Law (2nd edn.) Cambridge: Cambridge University PressGoogle PreviewWorldCat; Hudson, J. (1996), The Formation of the English Common Law: Law and Society in England from the Norman Conquest to the Magna Carta, London: LongmanGoogle PreviewWorldCat.

On the debate concerning the use of Roman law as the basis of the new ius commune of the European Union, see Cairns, J. W., ‘Comparative Law, Unification and Scholarly Creation of a New Ius Commune’ (1981) 32 Northern Ireland LQ, 272–83Google PreviewWorldCat; Schulze, R., ‘European Legal History—A New Field of Research in Germany’ (1992) 13 JLH, 270–95Google PreviewWorldCat; Zimmermann, R., ‘Roman Law and Comparative Law: The European Perspective’ (1995) 16 JLH, 21–33Google PreviewWorldCat; Luig, K., ‘The History of Roman Private law and the Unification of European Private Law’ (1997) 5 ZEP, 405–27Google PreviewWorldCat.

For a good recent account of the impact of Roman law upon the development of law in Eastern Europe, see various chapters collected in the newly published OHELH.