1. Rome and Europe
‘Three times the laws of the world were dictated by Rome, three times Rome bound the nations together in unity: first when the Roman people still stood in the fullness of their power, the unity of the State; secondly after the fall of that state, the unity of the Church; thirdly as a result of the reception of Roman law in the Middle Ages, the unity of the Law. The first was achieved by force of arms and compulsion, the latter two by the force of mind and reason.’ These are (in English translation) the opening words of Rudolf von Jhering’s Geist des Römischen Rechts auf den verschiedenen Stufen seiner Entwicklung (1852–1865). And, indeed, Roman law was one of the elements of the culture of antiquity which left an enduring mark on contemporary Europe. This is evident at every turn in European private law.
2. Key points of Roman legal development
Two particularly prominent documents in the development of Roman law in antiquity are the Law of the Twelve Tables (c 450 BC) and the Corpus Juris Civilis (AD 528–534). The Twelve Tables do not mark the beginning of Roman legal history; they are, however, our main source for its so-called ancient period. This stretches up to around the beginning of the Punic Wars (the middle of the third century BC). The subsequent period of the later Republic was marked, on the one hand, by the expansion of Roman authority in both Italy and the wider Mediterranean area. On the other hand, the social and economic relationships were transformed; from an essentially agricultural society a typical urban culture emerged, and economic life was no longer dominated by farming interests but by commerce and the circulation of capital. At the same time, the encounter with the Hellenistic East paved the way for the development of a legal science; the creative power of the jurists who lived in the last two centuries of the Republican period (among them Publius Mucius Scaeola and Sevius Sulpicius Rufus) certainly is not correctly reflected by their traditional designation as ‘pre-classical’. This legal science was then brought to its zenith by the jurists of the classical period—which more or less corresponded with the time of the Principate (27 BC–AD 235). The post-classical period is regarded as an age of decline. A vulgarization took place, ie a simplification and corruption of Roman law resulting from the infiltration of laymen’s modes of thought and expression. After the division of the Empire in AD 395 it was counteracted by the law schools of the Eastern Empire, in particular in Beirut and Constantinople. That classicist tendency reached its high point in the legislation of the Emperor Justinian (527–565), which is known as the Corpus Juris Civilis; our knowledge of classical Roman law is largely based on its main part, the Digest.
3. Essential characteristics of classical Roman law
The following characteristics were particularly important for the impact of Roman law in European legal history. (a) We are dealing here with a highly developed jurisprudence, that is, a specific branch of knowledge developed and sustained by lawyers. That was unique in the world of classical antiquity. (b) Closely related to it was what Fritz Schulz has referred to as the isolation of law vis-à-vis religion, morality, politics, and economics: the separation of the law from non-law. (c) That, in turn, entailed a strong emphasis on private law (and civil procedure); criminal law and the administration of the state, on the other hand, appear to have been regarded by the Roman lawyers as something not subject to specifically legal criteria. (d) Roman private law was very largely Juristenrecht: it was not laid down in a systematic and comprehensive enactment, but was applied and developed by lawyers with great practical experience. (e) That explains, on the one hand, the great realism of Roman law and its focus on practical problems rather than abstract theory. On the other hand, it also explains the many controversies that tended to envelop the resolution of legal problems. Thus, for example, we read in Ulp. D. 9,2,11 pr. (a fragment from the 18th book of the commentary to the praetorian edict by the late classical jurist Ulpian (AD 170–233)): ‘Further, [Fabius] Mela [a contemporary of Augustus] writes that, when some people were playing with a ball, one of them hit it hard and it knocked the hands of a barber with the result that the throat of a slave whom the barber was shaving was cut by the jerking of the razor. In which of the parties does the fault lie? For it is he who is liable under the lex Aquilia. Proculus [he lived in the first century AD and was the head of one of the two “law schools” of the classical period] says the blame is the barber’s, and surely, if he was doing the shaving in a place where people customarily played games or where there was much going to and fro, the blame will be imputed to him; but it is no bad point in reply that if someone entrusts himself to a barber who has his chair in a dangerous place he has only himself to blame for his own misfortune.’ European lawyers, from the reception of Roman law in the Middle Ages to the present day, have engaged with this text when they discussed the fault requirement with regard to delictual liability and the development of the doctrine of contributory fault. (f) These controversies were an expression of the inherent dynamic of Roman law. It was constantly developing. Between Publius Mucius Scaevola, who was described as one of those qui fundaverunt ius civile (who have founded the civil law; he had been consul in 133 BC) and Aemilius Papinianus (prefect of the praetorian guards from AD 205–212 and the most eminent lawyer of the late classical era), there was a period of more than 300 years, in the course of which state and society, Roman legal culture, and Roman law were subject to fundamental change; and in the course of which the solutions to legal problems were further and further refined. (g) Reference just to ‘Roman law’, therefore, is imprecise. Even the Roman law of classical antiquity constituted a tradition and was based on a discussion of legal problems spanning many generations of jurists. The fragment from Ulpian cited above is a typical example. (h) Roman law, therefore, was extraordinarily complex. It was largely casuistic in nature. It was developed over many centuries, it was recorded in an abundant literature and it rested on two conceptually and historically separate foundations: the ius civile, that is, the traditional core of legal rules applying to a Roman citizen; and a ius honorarium that had been introduced by the praetors in the public interest adiuvandi vel supplendi vel corrigendi iuris civilis gratia (in order to assist, supplement, and correct the traditional civil law); Pap. D. 1, 1, 7, 1. The parallel with the relationship between common law and equity in the development of English law is obvious. (i) None the less, Roman law was not an impenetrable jungle of detail. The Roman jurists developed a large number of legal concepts, rules and institutions, which they constantly attempted to coordinate, and intellectually to relate to each other. They thus created a kind of ‘open’ system that combined consistency with a considerable degree of flexibility. In the process, the Roman jurists were guided by a number of fundamental values, or principles, such as liberty, bona fides, humanitas and the protection of rights that have been acquired, particularly the right of ownership. (j) Another characteristic of Roman jurisprudence that contributed to making it such a fertile object of legal analysis was the fact that reasons for the decisions arrived at were either not given at all, or only hinted at. The Roman case law, therefore, is particularly rich in tacit assumptions and presuppositions that can be, and have to be, unravelled by a process of interpretation.
The emergence of a jurisprudence with these characteristics would hardly have been possible without the reception of Greek philosophy, and quest for truth, in Republican Rome. Of decisive importance, however, was the role of the legal expert in the application and development of law. In Greece itself, for example, it had been absent. Ancient Greek law had been, to put it very pointedly, a law without lawyers; for legal disputes were decided by a number of laymen, appointed by drawing lots, who had to take their decision on the basis of an oral proceeding, in the course of which both parties were allocated a specific period of time in order to argue their case, and who had to give their decision without any discussion or the possibility of asking questions, by secret ballot on the basis of a simple majority. It is not difficult to see that these were not fertile conditions for the establishment of a science of law and for the flourishing of legal experts.
4. Roman law and European legal tradition
The university is regarded as the European institution par excellence. It does not date back to classical antiquity but rather originated, as a manifestation of the great occidental educational revolution, towards the end of the 12th century, first in Bologna, then in Paris, Oxford and in an ever-growing number of places in western, central and southern Europe. Law in Rome can be described as a jurisprudence without, however, having been an academic discipline taught at the university. But when, in the High Middle Ages, law was caught up in the educational revolution just mentioned, it was Roman law that lent itself like none of the other contemporary laws (with one exception closely linked to Roman law, ie canon law) to scholastic analysis and hence to the type of scholarship appropriate to a university. The Roman legal texts therefore immediately occupied the central position in the study of the secular law. That applied to all universities to be founded on the model of Bologna throughout Europe, and it remained the case down to the era of codification, that is, in Germany until the end of the 19th century. This also entailed a practical reception of Roman law: the latter became the foundation of a ius commune which, in large parts of western and central Europe, not only moulded legal thinking but also legal practice.
If one attempts to specify features characterizing the European legal tradition in comparison with others in the world, the influence of Roman law can be shown in every instance. Thus, there is the element of writing. One of the reasons why Roman law was so influential in medieval Europe is that it was a law that had been laid down in writing. It was ratio scripta. This is not only demonstrated by the process of reception itself but also by the many endeavours to provide a written documentation of the customary laws prevailing in Europe from the end of the 12th century onwards.
Apart from that, of course, Roman law was also for centuries regarded as ratio scripta: it was the model of a law that was reasonable, that is, in conformity with human reason. Roman law, therefore, was an expression of, and stimulated the quest for, a law that was rational and scholarly, intellectually coherent and systematic. At the same time, the specific nature of the Roman sources prevented that system from becoming inflexible and static. For European law has always been characterized by an inherent ability to develop. European law is subject to constant adaptation; it is able to react to changed circumstances and new situations, and it has always displayed an extraordinary capacity for integration. Medieval Roman law was no longer the Roman law of classical antiquity, the usus modernus pandectarum no longer corresponded to the usus medii aevi, and pandectist legal doctrine (historical school) was a far cry from the usus modernus. The development moved, to use a famous phrase coined by Rudolf von Jhering, beyond Roman law by means of Roman law. In the days of the Roman Republic and Imperial Rome, legal experts had fashioned a Roman ‘legal science’. The medieval lawyers turned it into an academic discipline, a learned law that had to be studied at a university.
That is yet another characteristic of European law, and also one that originates in Roman law. Law is a learned profession, and the application and development of the law is the task of learned jurists. Closely related is the fact that law is an autonomous discipline and that, as a result, it is conceived as a system of rules that is separate, in principle, from other normative systems seeking to guide human conduct and to regulate society, such as religion. That corresponds to the Roman isolation of law from non-law. A Roman legacy is also the predominance of private law within the tradition of the ius commune, with an emphasis on a finely differentiated law of contract. Moreover, law in Europe is based on certain values that ultimately reflect the centrality of the person as the subject and intellectual reference point of the law. That was to be expressed particularly clearly in the idea of a specific dignity attributed to Man as having been created in the image of God, but it was inherent already in the principle of liberty of Roman law. Also in this respect, the Christian revelation may, therefore, be seen to have taken the intellectual achievements of antiquity to their true destination. In a very similar way, aequitas canonica and Roman fides corresponded to each other.
5. Roman law today
The codifications of continental Europe have brought the ‘second life’ of Roman law to an end. This led to the replacement of Roman law, in legal education, by lectures on the national civil codes. The knowledge of Roman law was no longer of practical utility and thus its position within the law faculties was gradually diminished. This development is particularly paradoxical in a time which, once again, has to emphasize the understanding of fundamental connections and of the European character of our legal culture. Codifications are, in the words of Bernhard Windscheid, nothing more than ‘a point in the development, certainly less elusive than a ripple in a stream, yet still a ripple in a stream’. In fact, a code such as the Bürgerliches Gesetzbuch (BGB) bears the characteristic traits of a restatement of 19th-century ius commune legal thinking. It saw itself as part of a tradition, and indeed of a tradition deeply shaped by legal scholarship. The code, itself developed organically from the ius commune tradition, was supposed to provide a framework for an ‘organically progressive legal science’ (Friedrich Carl von Savigny); and it is precisely in this sense that its rules have been understood by scholarship and legal practice. Something very similar can be said of the other modern codifications; thus, for example, the Code civil of 1804 is, in some respects, even more Roman than the Bürgerliches Gesetzbuch (BGB).
More dramatic were the consequences of codification for the scholarship of Roman law. For it could now, unaffected by the overwhelming weight of having to consider how Roman law might still be applied in practice, devote its whole attention to the consideration of antiquity and begin to understand the sources of Roman law in their historical context. This marked the beginning of a great age of discovery. Otto Lenel reconstructed the praetorian edict on the basis of the fragments from commentaries by classical jurists which were contained in the Digest (Edictum Perpetuum, 1883); the edict had been of central importance for the administration of justice in ancient Rome, because Roman law was—incidentally, like English law—based on a collection of actions (that is, the substantive law was conceived from the point of view of its enforceability: ubi remedium, ibi ius), and the praetorian edict contained the appropriate promises of legal protection and claim forms. Lenel’s other great work, the Palingenesia Iuris Civilis, 1889, was the sustained attempt to recreate the classical law library as far as that was possible on the basis of the fragments that have come down to us. Ludwig Mitteis demonstrated the extent to which indigenous ‘vulgar’ legal conceptions, particularly of Hellenistic origin, remained alive in the eastern part of the Empire, and he thus shattered the traditional understanding of a uniform, and uniformly Roman, legal order in Imperial Rome (Reichsrechts und Volksrecht in den östlichen Provinzen des römischen Kaiserreichs, 1891). Otto Gradenwitz and Fridolin Eisele were pioneers in the systematic search for interpolations (Corpus Juris Civilis). Fritz Schulz and Franz Wieacker set out to detect pre-Justinianic alterations of the classical texts. With the West-Roman vulgar law, Ernst Levy unlocked the interface between ancient Roman law and medieval ‘Germanic’ law. Alongside private law and civil procedure, the history of criminal and constitutional law attracted increasing attention (Wolfgang Kunkel). Legal practice in the Roman provinces, as documented in a vast quantity of papyri, began to be scrutinized (Ludwig Mitteis, Ernst Rabel), and the horizon was broadened to include other ancient legal cultures (Josef Partsch, Paul Koschaker). This very pronounced historization of legal history, with all its brilliant discoveries, and the simultaneous process of an ‘emancipation … by thinking apart Roman and modern law’ (Ernst Immanuel Bekker) also had a downside: legal science perceived itself less and less as a ‘historical science’ (Savigny; historical school). The extent to which Roman law still moulds our modern continental systems, and the unifying potential inherent in it, were thus increasingly lost sight of.
Fritz Schulz, Principles of Roman Law (1936); Fritz Schulz, Classical Roman Law (1951) (reprinted 1992); Fritz Schulz, History of Roman Legal Science (2nd edn, 1953); Paul Koschaker, Europa und das römische Recht (4th edn, 1966); Max Kaser, Das römische Privatrecht (2nd edn, vol I 1971, vol II 1975); Franz Wieacker, Römische Rechtsgeschichte, vol I (1988), vol II (2006); Tony Weir (tr), Franz Wieacker, A History of Private Law in Europe (1995); Max Kaser and Karl Hackl, Das römische Zivilprozeßrecht (2nd edn, 1996); Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996) (focusing on the historical impact of Roman law in the law of obligations); Wolfgang Waldstein and J Michael Rainer, Römische Rechtsgeschichte: Ein Studienbuch (10th edn, 2005).
Corpus Juris Civilis; also: S Riccobono, J Baviera, C Ferrini, J Furlani and V Arangio-Ruiz, Fontes Iuris Romani Ante-iustiniani, 3 vols (reprinted 1968–69); MH Crawford, Roman Statutes, 2 vols (1996); H Heumann and E Seckel, Handlexikon zu den Quellen des römischen Rechts, 1907 (11th edn, 1971).