Sei sulla pagina 1di 19

1

A HISTORY OF PRIVATE
LAW IN EUROPE

with particular reference to Germany

by
FRANZ WIEACKER
(19081994)

Professor, Uuiversity of Gttingen


Honorary Professor, Universizy of Freiburg im Breisgau

translated by
TONY WEIR

FelIow of Triniry College,


Cambridge

OXFORD

Professor, (In iversity of Regensburg

foreword by
REINHARD ZIMMERMANN

CLARENDON PRESS
1995

4
/
f.S?

Oxford University Press, Waltosa Street, Oxford OXZ 6np


Osford lkw York
Atlietis Auckland Bangkok Born bay
cakutta Cape Town Dar es Salaw,z Dcliii
Florence Hong Kong Istanbul Karachi
K,wla Lumpur Madras Madrid Mdboume
Mexica Ci! Nairobi Paris Singapore
Taipei Tokyo Toronto
am) associaied conipunies in
Berlin Ibadan
Qxford is a wade mark of Oxford University Press

PuI,Iished in Hie United States


by Oxfonl Universitv Press Inc.. New York
i the Original Gennan edition
Vanden hoeck & Ruprecht. Gttin gen
in die Enghsh transiation. Oxford University Press 1995
All rights reserved. Na part of this publication may 1w reproduced
stored in a retrieval system. or trans,nitted. in any fonii or by any means.
without Hie prior pennission in iinting of O4ord University Press.
Within die UK, excepiions arc allowed in respert of wiy fair dealing for the
purpose of research or private stud, or cnticisni or rev,e1i as pennitted
iinder the Copyflght. Designs and Patents Act, 1988, ar in die rase of
reprographic reproduciion in accordaiice witt, die temu of the hcences
issued by the Copyright Licensmg Agency. Eiiquiries cancernig
reproduciion ontside these remis and in other cowitries should 1w
sent ta Hie Rights Depantnent. Oxford University Press
at the address above
British brary Caialoguing in Publlcatwn Dato
Dato available

Libra of Cotigress Cata!oging in Pubikation Data


Ivieacker, Franz, 1908
(Privatrechtsgeschichte der Neuzeit. Enghshj
History of private fair ii Europe (especially Gemut.y) / by Franz
Wieacker transtated by Tony Weir.
p. mi.
1. Civil tawEuropeHistory. 2. Ciii? law GennanyHistary.
1. fltle.
3. biw_Philosoph)HistOO
KJC9SS.W5413 1995
346.4 dm20
(344.061 9523839
ISBN 0198258615
1 3 5 7 9 10 8 6 4 2
Typeset by Graphicrafl Typesetters Lid.. Hong Kong

Printed in Great Bdtain


an acid.free paper by

Biddies Ltd.. Guildford and King s Lynn

Foreword

Law is both a constituent feature anti a characteristic emanation of European


culture. Not surprisingly, therefore, lt exhibits a number of attributes which dis
tinguish it from conflict regulation in other cultures. For though it is, in many
complex ways, related to moral norms, religious beliefs, and poiitical evaiua
tions, it is at the same time quite distinct from morality, religion, anti politics.
lt is administered by a body of professional experts who have received a spccial
ized training for their task. The central institution providing such training is typi
cally a university. As a university subject, law is submitted to methodical refleution
and analysis: lt is the object of a legal science. European legal science, in lum,
is based on the belief that the legal material does not constitute an indigestible
anti arbitraiy mass of individual mies and cases, but cnn be reduced to a rational
und organizcd system, Inkl down in writing. lt aims at presenting law as a
logically consistent whole. And it attempts to demonstrate how individual mies
and the decisions of individual cases can be derived from general propositions,
anti 1mw they can be understood anti relaled te each other. A dctermined effort
is made to rationaiize the application of the law.
Such rationality significantly contributes to the attainment of justice. Sadiy,
however, experience has shown that perfect justice can never be procured in nur
world. Every generation of lawycrs is therefore called upon to search for as gond
an approximation as possible, given the chailenges anti requircments of their
own time. Law thus acquires an inherentiy dynamic chamcter. lt is aiways
developing. But it is deveioping within an estabiished framework of sources and
methods, of concepts, mies, and arguments. lt constitutes a tradition which is
constantiy evolving. And in spite of many differences in detail, that tradition is
characterized by a fundamental unity. lt is based on the same sources, has been
moving with the same cultural thies, rdfiecis a conmion set of values, and uses
common techniques.

We today are the heirs of that tradition. lt is an innitely rich tradition that
has significantly contributed to the ievel of sophistication of modern Europe. But
it is important for us always to re-acquire that tradition inteliectually, if we wish
to preserve it (Envirb es, um es zu besitzen) and to contribute to its organic evolu
tion. This reassertion is particularly necessaiy at a time where the inteliecmai
integrity of European legal culture is threaiened. For about flvo hundred years,
nationahsm has led to an ever-increasing particuiarizaflon of law and legal sei
ence. As a consequence, French professors at French universfties have started to
write textbooks on French law to be read by French studcnts, German professors

Transiator s Foreword

TONY WEW
Trinity College,
Cambridge

Reinhard Zimmermanns remark that Franz Wieackers Privatrechtsgeschichte


der Neuzeit ought to be made available in English seemed to suggest the ideal
project for a year when 1 had leave and no ideas of my own worth pursuing. To
engage with a work of such manifest quality certainly proved an enriching, if a
chastening, experience. Wicackers darting mmd makes lightning connections
over the huge panorama of his knowledge, and 1 bad tu learn a lot in order to
understand him. Nor did his style make understanding any easier, for lt is pregnant and allusive. lt is also incproducible; this version is at best a water-colour
replica of the original, with none of its expressive impasto. Hazlitt was right that
The happiness of the result bears no proportion 10 the difficulties overcome or
the pains taken.
Alterations in the text must be ascribed tu negligence, hut the omission of
most of the footnotes is intentional: there was no point in reproducing references
to literature in German, ex hypothesi inaccessible to rcaders of die English version.
For the same reason many of the remaining notessome substantial and
stimulatinghave been abridged. Names of places and medieval intellectuals
presented the usual difficulties; my usage is doubtless unpdncipled and inconsistent hut hoffentlich unambiguous.
1 am deeply grateful to Georg Wolf in Freiburg for providing essenUal intellectual aid and weicome spihtual solace, to Hein Ktz for arranging congenial
acconunodation in Hamburg, to the Institute of Anglo-Amedcan Law of the
Rijksuniversiteit of Leyden for generous financial support. and to Reinhard
Zimmermann not only for stimulating the enterprise hut also for embellishing
the result. The Oxford University Press has, as usual, been marvellously under
standing, efficient, and heipful in every way.

June 1995.

Contents

28

47

13
25

The Origins of Luropean Legal Culture


Exeursus: The Idea of Continuity
The Beginnings of European Legal Science

TUE RECEPTION OF ROMAN LAW IN GERMANY

55

91

143

132

113

71

Law in Germany on the Eve of the Reception


The Causes and Conditions of the Reception of Secular Law
in Germany

127

The Advance of Leamed Law in the Coufls


Legislation in the Age of the Reception

Secular Lawyers in Germany


Legal Literature at the Time ol the Reception

PART TWO

Canon Law and its Iniluence on Secular Law


The Development of Medieval Legal Science:
fle Commentators

PART ONE TUE MEDIEVAL FOUNDATIONS


OF MODERN PRIVATE LAW

The Subject and Object of the Book

Introduction
1

2
3
4
5

6
7
8
9
10
11

159

CONCEUSION

fle Usus Modemus

or THE RECEPTION

PART THREETHE USUS MODERNUS AND THE

12

176

199

168

13

The Jurisis of the Usus Modernus


fle Recepilon and the Usus Modemusa Balance-sheet

The Foundations

222

14

15

239

PART FOURTHE AGE OF THE LAW OF REASON

16

Precursors and Founders of the Law of Reason


The Systemaflzers of the Law of Reason
18

17

257

249

fle Law of Reason and the Enlightenment


The NaturaL Law Codes
19

xvi

Contents

The Origins of the Historical SchooL


Precursors and Leaders of the Historical School of Law

363

341

330

300

279

PART FIVETHE HISTORICAL SCHOOL OF LAW, PANDECTISM


AND POSITIVISM IN THE NATION-STATE

20
21
22
23
24
25

371
385

fle Development of German Private Law

431

409

387

27
Social Law and the Disintegration of Private Law
The Degeneration of Positivism, und Legal Naturalism

26

The Discoveiy of Legal Histoiy


Pandectism and Positive Legal Science
From Scholarly Positivism to Textual Positivism
The Gennan Civil Code (BGB)
ExcursusOn the Question of the General Part
The Swiss Civil Code, and European Legal Families in th e
Twentieth Century

28
The Search for Justice

PART SIxPRIVATE LAW AND POSITIVISM IN CRISIS

29

463

442

30
The Outlook
List ofAbbrewations

491

489

484

Index of Persons
General Index

F. Calasso, Medio Evo dcl diritto (Milan, 1954)


H. Coing, Rmisches Recht in Deutschland, in Ins Romanum
Medil Aevi (Milan, 1961)
W. Friedmann, Legal Theory (2nd cdu., London, 1949)
H. Friedrich, Epochen der italienischen Lyrik (Frankfurt-on
Main, 1964)
H-G. Gadamer, Wahrheit und Methode (2nd edn., Tbingen,
1964)
Sten Gagndr, Studien zur Ideen geschichte der Gesetzgebung
(Stockholm, 1960)
II. Kantorowicz, Studies in the Glossators of Roman Law
(Cambridge, 1938)
P. Koschaker, Europa und das rmische Recht (2nd edn.,
Munich-Berlin, 1953)
W. Kunkel, Quellen zur neueren deutschen Rechtsgechichte
I.i: Altere Stadtrechte (1935)
C. Lefebvre, Juges et savants en Europe du 13C au 16C si&le,
Ephietuteddes tuns Canonici 21(1965) 3123, 22 (1966) 76
202, 23 (1967) 961.
F.C. von Savigny, Geschichte des rmischen Rechts im Mittelalter, 7 vols. (Ist edn. Heidelberg, 181531; 2nd edn., 1834
51; reprinted Darmstadt, 1956)
P. Vinogradoff, Ro,nan Lau in Medieial Europe (2nd edn.,
Oxford, 1929; reprinted, foreword P. Stein, Cambridge and New
York, 1968).
1-1. Welzel, Naturrecht und materiale Gerechtigkeit 4th edn.,
Gttingen, 1962)
E. Wolf, Groe Rechusdenker der deutschen Geistesgeschichte
(4th edn., Tbingen, 1963)

Works Cited by Authors Name only


Calasso
Coing
Friedmann
Friedrich
Gadamer
Gagndr
Kantorowicz
Koschaker
Kunkel
Lefebvre

Savigny

Vinogradoff

Welzel
Wolf

INTRODUCTION

1
The Subject and Object of the Book

1. The Rote of a History of Privaw mw Today.IL Die Boundaries of die


Subject.llL Die Epochs in Ehe Histrny of Modenz Private mw.

1. THE ROLE OF A HISTORY 0F PRIVATE LAW TODAY

The historian of private Iaw in modern times must to same extent depart from
the familiar disciplines of legal histoiy. Histories of Roman Iaw gcnerally end
with Justinians Corpus luris, hut if one is to write of its subsequent effeets
in Western Europe one must use a different method, for the presuppositions
arc different. Histories of German law. if they reach the modern pedod at all,
have traditionally been concerned with the sources of law, the organization of
the courts, and the legal profession rather than with the development of legal
scholarship and institutions: books on German private law have dealt with the
history aU its doctrincs and institufions (or more accurately, those foreign to the
ius conunune), while recent consfifttionai histories have deaJt with how the ]aw
of the modern siate came about. fle present book is different in that it is
concerned with the intellectual anti scientific developments which led up to the
private law of today: it deals with the way priVate law in Germany has evolved
in the social and intellectual context of the past live centuries, in constant inter
action with the legal culture of the rest of Europe, starting with the deVelopment
of legal studies in Italy in the High Middle Ages and then pervading Western
and Central Europe.
The discipline is a young one in Germany, and few books have covered the
whole topic. Much productive research has leen inne, especially in recent years,
hut the results arc scattered anti not easy to assimilate, especially in Germany
where Romanists, Germanists, and Canonists have followed different lines of
research according to their professional realms and roles, anti ii is easy to forget
that they arc all really dealing with the same subject-matter. Standard works
contain impodant contributions conceming the sources and intellectual origins
in tiiis area, but they do not purport to offer complete histories of modern private
law: here one can mention Savignys histoiy of Roman law in the Middle Ages,
Stobbes histoy of the sources of German law, Stinlzing-Landsbergs invalu
able history of German legal science, Schnfelds somewhat idiosyncratic

The Subject and Objecr of 11w Book

Fundan,enra& of Legal Scholarship, Dhrings graphic history of German legal


practice since 1500, anti the extensive historical section in Dahms German
Lnsv. However, the only books devoted to the history of modern private law
are such as those by Molitor and Wesenberg, small in size but weil informed and
presenting an individual view. The present work owes much to the recent
publication of Coings deeply researched and carefully documented pieture of
Roman Law in Gemiany until the eve of Ute Reception (about 1500).
The plan anti content of this book are accordingly veiy much our own. Given
Ute unitaiy natum of Ute historical process, a histozy of private law can emphas
ize certain aspects only at Ute cost of ignong others perhaps equally important.
If it tiwells on objective and extemal aspects, such as Ute sources of law, the com
position of the courts, and the decisions they rendered, and concentntes on
how the Corpus luris was deveiopcd by scholars anti applied in practice, it must
leave out the history of peoples attitudes to law and its institutions; likewise,
a histoty of institutions er doctrincs would lose sight of changes in attitudes to
law anti Ute experiences of these who entertained them. Our decision to write
a history of Ute way in which people have thought about law anti the effect this
has bad on the way srnw and sociely have developed in the modern world entails
a certain neglect of Ute history of Legal institutions. This calls for some further
justification, in Ute light of our conception of the relationship between legaL
history and histoty in general.2

occupied in vefying Hie historical origins of legal ights anti titles. In the nineteenth

a) In the Middle Ages, indeed right up to Ilse Baroque period, legal historians wem
Etc full titles are US follows: F.C. von Savigny, Gescl,ichte des rmische,, Rechts im Mittelalter
(seven vols., Heidelberg. 181532; 2nd cdii., 183451; reprinled Danustadl, 1956); 0. Slobbe,
Geschichte der deutschen Rechtsquellen (vol. 1, Leipzig, 1860; vol. 2, Bmnswick, 1864; reprinled
Aalen. 1965); Stinlzing & Landsberg. Geschichte der deutschen Rechtswissenschaft (parts 1, II, UV
1 by lt Stintzing, Leipzig, 18801898; pan IIL/2 by E. Landsberg, Munich-Leipzig. 1910; reprinted
Aalen, 1957); Erik Wolf. Groe Rechtsde,,ker der deutschen Rechtsgeschichte (4th edn., Tbingen.
1963); W. Schnfeld, Grundlegung der Reclanrissenschafl (Stuttgart. 1951); E. Dhring. Geschichte
der deutsche,, Rechtspflege seit 1500 (Berlin. 1953); 0. Dahm, Deutsches Recht. Die geschichtlichet,
zsnddognwtischen Grundlage,, des geltenden Rechts (2nd edn.. Siongan, 1963); E. Molitor, Gnnulziige
der Pnvatrechtsgeschichze (Karlsruhe, 1949); 0. Wesenberg, Neuere deutsche Phrarrechtsgeschichie
itt, Rahme,, der europischen Rechtsennticklung (Lahr. 1954); H. Coing, Rmisches Recht in
Deutschla,,d, in las Ro,,,anu,n Mcdii Aeyi (IRPJAE) 1, lad (Milan, 1961).
2
(a) Legal histo,y has the Same aims anti methods as general histoty: both deal wiLli past actions
und situations. lt is not for legal history in indicate how curent mies of Iaw should be applied nor
10 embellish general edocation by offering historical backgrnund (as found in technical rnanuais on
subjecis such as paper-rnaking or machine looIs). Us function 15 10 raveal tUe historical dimension
of iaw so ihat past legal systems. and possibly pmseni ones as weil, rnay be heiter undemtood.
(1,) However. legal hisioiy is distinguished frum offier bnnches of histoncal study by its special
rcus. lt deals willi exn and eventa which were concemed wich tUe ordering er conimunity life by
law, diat is, general enfurteahle mies of cuoduct (as opposed. for cxample, 10 beute force, omcular
utterances, rebgicus or moral ideas, or appeals to instincts er emotions). lt takes a person who knows
what iaw is to undersrnnd such matters, ]his means that tUe legal histodan needs to have personal
expenence of iaw before he is capable of even recognizing among bis data (hose which relate to pasl
experience ef mw.

L The Rote of a Histoty of Private bzw Today

century legal scholars set aboui explaining the odgins of the mies of law then in force.
These tasks may fall to tUe jurist at any tinte,3 hut they arc noL the primasy role of legalhistorical research today.4 The valuc of legal or any other kind of histozy resides not in
rehearsing the stuff of individual data and demonstrating their possible utihty (er the
present, hut in elucidating the historicity of our own existential position;5 and the subject
matter of legal history, necessarily concemed with experience of lais itself, is that fleld
of human experience in which man has interacted with law. lt is history, bul histoty
focused on mans experience of law.

b) The reason why historians of private Iaw cannot focus prirnarily on the doctrinai
histoiy of ind,vidual institutions of lawt is not just the huge volurne of research to be
accommodaled er the fact that the number of insiances of applicailon of the ins co,n,nune
in Germany, let alone Ute whole of Europe, defles covenge. There 15 a general mdli
odological reason. Legal lustoiy, like all lustory, is idiographic in that lt has to do with
unique events anti situations in the past, anti whereas the objective acts of legislation er
decision-makung anti Hie subjective processes of human consciousness and thought which

Apphkatiot, is the tenn traditionaiiy given by henneneutics, er the genen! theo,y of inlerpreta
tion, to the explical,on of historical lexis for the purposc of discovering their doctrinal cnnlenl. See
Gadamer, 162 ff., 184 ff. Gadamer 15 quile dghl In exiend the tenn, odginaliy used by Protestant
theoiogians engaged in lextual analysis, 10 die aclivity of lawyers who am sceutinising statutory Cexta
for authority and doctnne. But the legal hislonan does not werk widi exts in quite this way; he is
not engag,ng in application an such, Ihat is, seeking mit die tnnsmitted ineaning which an become
aulhoritauve md doctnnal and applying it to bis own conduct; he is more contemplarive and aca
dernic, iookjng 1 diseenn in die meaning of die words an unrepealable und inconmmvenible legal
event which has receded lnto die past (E. BeIn, Annali dell,, Fncolt di giurispntdencn di Bart 16
(1961), 3ff.). Gadamer, however, takes Utejunsts dogmadc reading oftexts as a feading exaniple
of histonical (and Icgal-historicai) hemieneulics, anti is surely wrong to suggest (hat nny legal
historian who ii cnilical of legal positivism thereby rejects hislorical objectivity (pp. 307 fr. 482).
Nowadays Hie subjective themy uf interprelation which legal scholars used 10 call the histonical
nelhod is most commonly applied 10 recenl lexts such an the BGB of 1896 or Ihe Basic Law of
1949, bot until 1900 when die ts co,nmu,,e was still dominant, such interpretation might reach back
mb antiquity. lt si,ll does so in die exceptional case where a text of die Corpus 1,,Hs remains valid,
for example in Ihe paris of neighbour Iaw which am sIlil resened In Ihe Lnder dms in 1963 Hie
Landgericht of Gottingen had lo pass on Ilse vaitdity and applicability of the so-called In Solonis
(0. 10.1.13). However, die intelleclual appmachofthe legal historlan differs from that of Ilse lawyer
who uses his sense of history to heip hirn apply a vaiid Mc of law conectly, which is 11w henneneutic
application discussed by Gadamer, an aclivity for which tUe lawyer 5 prepawd by histndcaI mm
ductions in modern textbooks, anti die lawyer needs io 1w so prepared, since in Ihe case of many.
pedrnps mnsl, of die principles of Hie BGB he neetis io know their earlier hismory in Roman iaw und
die ins cor,,,,,,nie ifhe is In appreciale theirfull doctrinal import (see esp.
812, 817, 92931; even
133, 157, 242).
In this cunmext Ilse legal histodans attilode to his sobject-matter is akin In that of the individual
retlecting on his own past behavinur, who asks 1-bw did dtis come abaul?, How did we fam in
die Situation?; die histoflan should similarly feel that tUe answer is significant to hirn penonally.
6
Legal histoiy und Hie history of legal institulions have differant subject-matters (er. mom
accumtely, idenfy Hicir subject-matter in dufferent ways). TUe law of inslilutions deals willi Hie
complex of insiflutions anti rades whereas legal hislory iooks to an ongoing histonical process in
which mndivdual wies of law appear an mutable und Iempumiy elements. Along with (he legal
hislodans belief in die unity of a particulas systern goes a doubt an to whether individuai mies retaun
their identity und continuity when they reappear in a later und different system. haus while die
individual mies of classical Roman law, the medieval ins conmnmune, und die Pandeclist law of die
l9lh C. arc verv similar, diese are cleariy differenl legal systems; die history of die Roman law
nol Ilse husioiy of a single legal syslem, bol mther die histoiy of a tradimion.
15

4
The Subject and Qbject of
die

look

beget Diose acts arc unique events, whose reciprocal cffects detenuine the historical pro
gress of law, legal institutions, concepis. und systems arc not individualed phenomena in
this sense.7
Accordingly, the legal institutions of private law figure in this book only where
they illustrate sociaL ans) political development or changes in the legal ans) scient
Wie thinking they which instantiate.

II. THE BOUNDARIES OF TUE SUBJECT

1. Other matlers are omitted for different reasons. The development of private
law has always been closely linkes) willi that of olher branches of law, since after
all courts, scholars, and practitioners dealt with iaw as a whole. This is especially
tme of criminal ans) procedural law; but the history of criminal law has been
very weil written up by criminal lawyers, and despite the key role played by pro
cedure in the reception of Roman law prior to its cotnplete overhaul on the prin
ciplcs of the Napoleonic Code de procddure civile of 1807, here we can only give
a sketch of its history in the earlier period. Canon law we shnll consider only in
its dawn, when its inleraction willi private law scholarship in Europe was dose
und fenile (pp. 47 II.).
2. The focus in Ibis book will be on the situation in Germany, sometimes to the
exclusion of deve)opments elsewhere. This is a serious restriction, because the
histoty of Europe and its private law is a unity: developments in Germany arc
onLy a special instance (even if of particular importance to Germans), explicable
However, Die dogmacs of a legal system in forceits system, im pnnciples. and im conccpts
arc not mally a pieper ebject of idiographic treutment: they no morn have a hisiory of their own
thun rio laws of naluit or propositions of logic, though ii is certainly a hisioncal event when juns
or cimizens become conscioUs of them, an they do in different ways at differcnm limes. The devel
opmenls eI doctnnes arc really only dcvclopinenms in peoples consciousness, in the convtctions und
pmcticcs of existent legal communities, und we think that doctrine has im cwn history only because
the communication of doctrine between past and present is continuous. Ttie corollaiy is Diat because
Ihe legal historian has 10 deal with legal principtes which arc genemlly valid und nonnally obeyed.
he is Inore apt 10 ihink in types than is the general historian engaged willi spontaneous human
condoct und events.
Certainly at any moment in Die post, doctrine bad reached ii certain Position and die scholars of
die time were conscious of lt. At this point die nomographic portrayal of doctrine und die idiographic
portnyal eI die legal-historical situation coincide in so far an the lalter is dealing willi Die doctrine.
Tu present die mauer in this way does not, however. hetp US to comprehend die coherent onward
niasth of historical process und it is indicative that histohans of doctrine always divide up their
material synchmnistically.
Another frequent obstacle 10 die proper hissorical Irealment of private law is die logical md
dogmatic way in which lawyers (and legal historians) think: INS tends to resmncl Die legal hissonans
undenlanding of the snurces, for he is Ion concemed widi audiority to make an much use of bis
creative liistoricat imaginalion an Ihe general lustorian does. Legal histedans muss break away [rom
these lendencies ansi wdle in a manner which domes cioser so Die real world of die post by including
more anti more levels of histodcal expedence.

I1L The Epochs in die Hislorv of Modern Private Lnw

TUE EPOCHS IN TUE HISTORY OF MODERN PRIVATE LAW

on[y in the context of Europe an a whole.t This unity is manifest: sociaL und legal
problems were similar throughout Europe; so were its institutions and intellec
tual background; the iris conunune ans) legal method were much alike across the
continent; ans) there was continual interchange between the different national
systems. The reception of Roman law in Germany must be seen as a particular
instance of the spread throughout Europe of Italian und French legal science
in the laie Middle Ages; orte cannot understand Ute law of reason in Germany
unless one brnws about the moral theology of the Chureh ans) its Western Euro
pean founders; and even so charactedsticaily German a phenomcnon an the histor
ical school ot law is unimaginable without the humanist und empiricist traditions
of Western Europe. So although the particular aim of this book requires it to
limit itself mainly to events in Germany when so much was happening else
where in Europe, still the European context is always taken mb account and
comparison is continuous, going into detail where necessary,
III.

1. The strucinre of the book reflects the authors conviction that it is innov
ations in ways of thinking which mark the different stages or epochs in the

See in particular Koschaker; Calasso, hiiroduzionc cl dirluc ccnn,siune (Milan. 1951). The unily
started with the foundation of Ihe scndiu,u chile in Bologna und France. und conuinued unlil Ihe rise
of Die modern nation states; nor was Ihis unity impaired by the greal variely in loyal laws, even
wishjn Die fumure nation siales, because the meshod of training jurisls was international. Tben for
over a centoiy Ihis unity was submcrged. There wem three reasons for skis: cnlightened absolulisin
and Ihe idea of die sovereign dcmocmlic nalion divided countfles from euch otlier; die hislorical
school of law treated law an linked lo natiooality und slmled 10 oppose Roman und Gerrnan law
an genetically dislinct systems; and she positivism eI Ilse legislative stale in Ilse 191k C. inade it a
principle that national legal systems were complelely sepamie und did not inlerncl. This was bad [er
die histosy of pnvate law: its common Held of operalion was divided up und fenced off nIe Roman
law, Gemian law, and Canon law, die similariiy of seoul conditions across Europe was ignored. ihe
similarity of Ilse methods und lilenilure ofjudsls was lost sight of, und Ilse Reception was viewed
in mhe Iighm of anachronissic nationalist values. These lendencies dominaled 19mb C. legal hislotical
research in Germany, und to a lesser extent elsewhere, especially in Die great nation Mutes on Ihe
contjnens, such an France, Italy, und Spain. Here legal histoiy obedienlly followed the nationalist
trend obseswable in general histoncal wnting (in which Hegel played a part) and in osher cultumt
disciplines, such as philology und liternsy studies, where die nationalism viewpeint was rein[urced by
Ilse link widi Ilse national language.
fle disuslreus effects ef German nationalism produccd a radical revision afmer Ihe Second World
War. A leading example is Koschakers post-War werk Europa und das rmische Recht (Munich
and Berlin, 1957), intematiooalism also being mflecled in the title of bis Festschrift with contdbutors
from many nations, LEuropa e ii didtto ramona (2 vols., Milan, 1953). Also symplomatic is E.
Cuflius, Esiropean Leransre und ilse mii,, Middle Ages, tr. W. Trank (lkw York, 1953). The his
tory of pnvale law flourished anew in this elimate eI opmion; new international werk-ing groups
wem fonned and communal pmjecms undertaken. Oumsianding here is 1RME, Hie bis Reu,sanss,,s Medii
Aesi (Die oew Savigny), Die first frnits uf whicb arc new insights mb social histoiy, Ilse histomy
of edocation und Ilse vaduus kinds of legal lilemmure in Europe (pp. 48 ff., 79, 118 ff.) und tlse
recognition of Ilse Receplioo an a pan-European phenemenon (pp. 79, 114 ff. on Ilse Pre-Reception).
The barriets between scholars of different fladens, between Remanisls, Germaoisls und canonisms,
even between seoul und culsural historians an epposed 10 legal histohans am now lower iban lhey
have been since ilse beginniog eI modern histedography in the early l9th C.

The Subject und Qbjecl of 1/je Book

F
111.
hie

Epochs

in

the Hislory of Modern Private Lszw

2.

6
history of private law in Europe: it hinges on the different types of scholarship
which wem the successive intellectual responscs to novelties in the outside
world of law.
lt has long been recognized that there is a relationship between the legal
method of a period and the type of thinking generally prevalent at the tirne.
For example, writers have pointed out the following connections, though some
times on rather slight evidence: between scholasticism and the science of the
Glossators, both applying the logical figures of general medieval instruction to
texts supposed to possess eternal authority (pp. 33 1!.); between philological and
juristic hurnanism, both imbued with a passion for truth and deferential to the
exemplaiy texts of the ancient world, once corectly ascerlained (pp. 63 f., 107,
121 fj; between the mathematical age and the Iaw of reason, both of which in
analogous ways sought generally valid laws of nature, physical or social (pp.
201 f.); between historicism, the development of a sense of history, and the
historical school of law, both resting on the discovery of the histodcity of
morality und human freedom (pp. 282 1.); antI hnally between ihe positivism of
the natural und social sciences and juristic naturalism, both gearcd to the idea
that mechanical laws of causation are determinative (pp. 446 f.). These con
nections show us that, consistent with that peculiarly European characteristic of
seeking to control public affairs by methodical consciousness, legal history is
essentially the history of the way in which ideas have been realized in stute and
socicty.
Ideas have not always, however, bcen fuLLy actualized, and their implemen
tation bus often been subject to opposition and delay. Funhermore, their irnpact
has proved vety variable. For example, the medieval los itulicus was closely
linked in Western Europe to the early national stute, in Italy to the city stute, and

b) The reception of Roman law is nothing other than the diffusion through
nut Western and Central Europe of this intellectual and sociai process. In Germany
the reception was facilitated, after some initial hesitation, by Ihe fact that after

a) The history of modern private law in Europe begins with the rediscovery of
the Curpus hans of Justinian. European legal science look off at the beginning
of the High Middlc Ages when scholurs applied to the study of the Corpus luris
the fomis of explanation and instruction inberited by the lriviun, from late anti
quity. Jurists who were trained in such schools, originally as clerics, soon began
to assume the functions and to develop the techniques of diplomacy, administra
tion, and finally judicuture. Their dominance in public uffairs ensured for ever the
peculiurly legalistic character of Western society, its habit of seeing problems
as Legal und discussing ibm rationally. a hubit which has stamped society, the
state, and the economy, even eontemporury administrative technology, in such a
way that life would be unimaginable without lt. lt distinguishes Western society
from all other cultures known to us.

An outline of what follows may be of assistance to the reader.

in Gerrnany 10 the territorial principality; the law of reason was involved in both
European absolutism and the revolutions which gave binh to die modern nation;
and hnally the historical schoot of taw was associated with the bourgeois state
of the nineteenth century. By contrast, whereas judstic humanism and modern
naturalism have bad a considerable effect on peoples attitudes, they have not,
as yet, generated uny panicular type of stute or law.
When ideas did have an cffect, it was often because they matched later social
strnctures rather than those of their own day: thus medieval legal science was
nunured on the universal powers before the rise ol nation states; the elassical law
of reason fed on late medieval scholasticjsm and the social theories of Calvinism
antI the Counter-Reformation; and the historical school fell at home in the old
German Empire, not in the modern constitutional stute. Such tcmpoml dislocations
are explained by the frictional resistance to thought of the tough outside world
und the collective consciousness, which so offen delays, weakens, or even abates
the social effects of novel ways of thinking.
The epochs in die histoiy of German private law also muich the four great
shifts in European legal thinldng, perhaps more marked in Gemiany where the
intellectuals were more impressionable than in the old nation stales of Europe.
After the emergence of European legal science in the twelfth to fourteenth
centuries they were: its diffusion (reception) throughout the whole of Europe
between the thirteenth and sixteenth centuries, the risc und donunance of the
modern law of nuture in the seventeenth und eighteenth centuries, the historical
school und positivism, both scientific and textual, in the nineteenth centuty, and
finally tlse collapse of positivism and the legal erisis in our own centuty.

lt tias lang been the pruclice in Germany 10 present legal history as a confmntation between
Gemrnn und Roman law. The difhdulty is not only flut ihis ignores Hie urnty of Enropean legal
histoiy bot also Ihat die dislinelion relates lo Hie subslance of Ihe mw ruther thun In Ihe melhods of
legal thinking, in which respeet Hie ancient Roman und Gennanic tradilions were veiy comparable.
lt is much better In focus on Ilse different wuys in which legal Ihinkers hase responded 10 Hie
situation facing them. In 1914 H. Kantorowicz tried to classify Ilse different ntellectuul types of
response in Hie histmy of European legal scidnce (see now 14. Kantorowicz, Die Epochen der
Rechtswissenschaft, Rechtswisseii.tchaft iiiwl Soziologie. Ausgewhlte Schriften (Karlsruhe. 1962),
83 ff.), und Rechtstheoretische Schriften. H. Coing und 0. linmel (Eds.) (Karlsruhe. 1970), 114).
His poles were formalism und linalisin, the fomser bring conservative, pussive-receplive, und theo
retical, Ihe lauer progressive, accive-produclive, und practicul. Wilhin fomsalisni he dustinguished die
scholaslic, Hie humanislic, anti Hie romanlic-hislorical upproaches. wilhin finalism scholaslic und
ineihodological varianis, among oihers. Despite some iendenhous simplificalions und Ihat predilec
tion for hnalism which is In be cxpecled of an adherenl of die Freirechtsschulc (Free-Law School)
(p. 457). Ihis was a vezy spirited frst shot ut stylisiic cutegorizalion in cullural studies. If nur own
presenlation wem geared In different slyles und melhods of legal thinking. we might mom aptly
distinguish between logical und criiical fonnalism on Hie one hand (Glossutors, Law of Reason, und
Pundectism) und nonsjnatistjc und positivistic nulumlism on Ilse alher (Stoicism. late Scl,olusucisin,
und modern naiurnlism). Welzels appmach 5 10 see Hie whnle hisiory of Hie idca of law in Europe
in terms of cnnslant interuction beiween inielleclualism und volunlansm, which he documents willi
much new source material (Welzel, pass(in).

The Origins of European Legal Culture

L The Lote Anden: World: Empire, Church, and SchooLJL The legal dom
inuniries of Ute new peoples of Europe.I!L The survival of Roman traditions
in Ute Early Middle Ages.IV. The beginnings of legal rheoty.

1. THE LATE ANCIENT WORLD: EMPIRE, CHURCH, Min SCHOOL

The legal systems of Europe originated in the irnpact on the vital Romano
German societies in the early Middle Ages of the three great forces of order
bequeathed to them by late antiquity: the organizational stwcture of the Western
Roman Empire or what remained ef it, the Roman Church, and the scheel of the
late ancient period. These were adopied and hnally appropriated by the new
peoples and tribes in the terdtory of the late Empire and in Central Europe. All
Llwee elements had a lasting iniluence on European law and the Mstory of pnvate law, for after a long process of maturation, marked by many set-backs, the
process of adoption gave birth to the legal science of flie High Middle Ages.

1. The first element in the legacy of the Roman Empire to the nascent Occident
consisted of the bureaucracy and the fiseal and administrative organization of
the absolutist central monarchy which emerged out of the troubles of the third
centuiy, and whose remnants suiwived the downfall of the Western Roman
Empire in 476. For the immigrant peoples law was just a matter of the way life
was lived; only from Rome did they leam that law could he created by the
power of the siate and constilute an intellectual heHtage. They came across the
idea of law in two forms: on the one band the imperial decree, a sovereign order
claiming absolute obedience from all its subjects and thus facilitating a wide
range of fonns of control,2 and on the other hand die intellecmal product of
a group of highly sophisticateil professionals. As an intellectual form laW is not
vety obvious or apprehensible, and it was not fully absorbed until the High
Middle Ages; in the early days law as sovereign order was much more in

See in general C. Dawson, Vie Moking of Europe (London, 1932): H. Pircnne, Mahomet ei
Charlemagne (Sib edn., Paris. 1937); F. Lot In fiu du monde unsique ei Je ddbut du noyen ge
(Paris, 1927); CalmeIle, Leffondremeni dun empire ei Ja nuisrnnre dirne Europe. 9 ei 10 sikles
(Paris, 1942).
2
Ebd distinguishes Ihree basic componenu in Ilse medieval Gennan conception of law: tradi
lional Iaw, ordained law, sud agreed mw. One can sec the coalcsccnce of Ibese threc in the case of
synnds and capitularies and when the tribal Iaws were wiitten down.

The Subject and Object of die Book

the early collapse of centralized royat power, Iaw and jurisdiction became in
creasingly fragmented by locality anti dass. The assimilation of Roman law was
somewhat retarded und hampered by the fact that Gemiany bad a vital legal
culture of its own, less inlluenced by the classical world thun those of Southem
anti Western Europe, but in the end a jurispmdence common to all Europe
became virtually dominant.
c) When the Reformation took place the old universaL powers wem on the
wane and the unity of Die European ius conimune, which was notionally rooted
in the imperial idea, began to weaken. Enthusiastic as they were about the
Roman law of elassical times, the idealism and rationality of the humanists had
already undemned the authority of Justinians law books. The Usus nodenzus,
which provided a sound basis for everyday legal practice, was not universal, but
despite its rather old-fashioned mode of expression it was quite progressive.
Natural law was somewhat on the sidelines, rather remote from legal practice
and public power, hut it was beginning to take on the modern guise in which it
was radically to reform European atfitudcs to law for the ncxt two centuries. fle
Church bad adopted Ihe natural iaw of antiquity. Die schoolmen of Die thifleenih
century had incorporated it into their Arisiolelian philosophy, and laie scholasfic
philosophy bad elicited all its fundamental issues and their intenelation. After
the wars of religion of the early modem period anti under the influence of the
new physical view of the world, natural law emancipated itself from moral
theology and founded its postulates, not on the will of the creator or the order
liness of bis creation, hut on the use of reason anti actual experience.
The law of reason prepared 11w ground for the constitutional and political
theory and Ihose basie principles of law, ideological, even utopian in nature,
which are the second hallmark, after that of legalism, of modern European
society. lt not only provided the basis for the law of nations and the modem
society of states as weil as the constitutional principles of both the absolutist
princes and the dass republics of North-Western Europe, but also contributed to
the history of private law by malting the iris commune more rational anti system
atic. In the eighteenth century, in alliance with the Enlightenrnent, lt had a major
impact on legal policy and legislation, in Central Europe tlirough enlightencd
absoluiism and in Die West through the Freneh Revolution, produeing at the
end of that cenluiy Die first great pieces of legislative planning in modem times:
Die Pmssian ALR of 1794, the Frcnch Code civil of 1804 and the Austrian
ABGB of 1811, foilowed by like-minded codes of crinflnal iaw anti procedure,
originating in France.
d) Meanwhile the paternalism of the absolutist planners in Central Europe was
provoking resistance among the rising bourgeoisie, increasingly cultured and
culture-conscious. With an awakened sense of history anti ihe Romantics feeling
for the organic quality of life they opposed the ahistorical eonfldence in legislation

UL The Epochs in die History of Modern Private Law

of the late Enlightenrnent and the French Revolution, anti the new humanists of
the tum ol Die centuty resented Die way they had depreciated scholarahip and
disparaged the Roman tradition. Once the philosophical artillery of Kants
Metaphysical Elements ofiustice bad shot down the naYve axioms of Die law
of reason, these trends combined in the histotical schooi of law to produce a
profounder appreciation of the sources of iaw, both Roman anti Gemian, anti
to renew positive legal science from bottom to top. Legal science, now eman
cipated and setf-confident, ciaimed to provide law with proper foundations in
place of Die pallid moral philosophy of Die Eniighienment. People gradually
came to accept that iaw was nothing more than the iotaiity of mIes accepted
by legal scholars; later, that it consisted exclusively of mies endorsed by the
legislator. At mis point legal scholars abandoned the ethica] phnciples whose
superiority to positive law bad been accepted by both the natural lawyers of the
Middle Ages anti the adherents of the modern iaw of reason, but held fast,
as if still in chrall to the rationalism of the law of reason, to the view that right
law could be inferred from generaL legal concepts bound together in a logical
system.
Despite its ideaListic roots anti basis in historicism, Pandectism became more
anti more the tool of the advancing acquisitive society of Ibe bourgeois state.
This was possible because it had neutralized ethics and adopted a mode of
reasoning which was purely formal. lt ended up by producing Die second, positivist
wave of codification in Europe. the BGB of 1900 anti the Swiss Civil Code of
190711. With these codes Pandectisrn itself eame to an end, anti was replaced
by textual positivism which, becoming blinkered anti inilexible, set in train the
intelleciual and moral collapse of legal positivism in our own lurbuient century.

e) If scientific positivism, thanks to us formalism and us abandonment of


ethical legitimation, proved incapable of meeting the moral and technical de
mands of the world of the industrial revolution, textual positivism capitulated
completely in the face of Die political crises which undermined anti ultimately
destroyed Die constitutional bourgeois state. As long as legisLation was entmsted
to properiy educatcd legal specialists whose ideas of law were still imbued with
the practical morality of their profession, lt escaped notice that positive law now
lacked Die protcctive cover ol superior principles ofjustice, bin when lawmaldng
ccased to be controlled by any sense of what was dght, whether because Die
bureaucracy was overstrained or because it was in thrnll to a diciatorship, positive
law lost its credentials even in the opinion of the public. Ideological foundations
were therefore sought as sunogates for justice. These were found in purposes
extemal to law, such as die idea of Die interests of Die individual, of society,
or of Die community. After the disappearance of Die underlying metaphysics
anti supporting authorities, law was explained in causal terms as the product of
social life, and in terms of purpose as a means of pursuing goals external to law
und justice. The full explosive power of such naturalism in law became manifest

10
The Subject aM Objecr of Ilse Book

only when law was deployed as a weapon in the social and political conflic of
our century, sometimes for the advantagc and secudty of tfie dass in power,
sometimes for the advantage aix] dorninance of paflicular peoples und races,
However, the crisis over the basis of mw continued even where disastrous pol
itics stopped short of overt legal nihilism, because adherenls of naturalism are
incapable of recognizing generally binding values, whether because they just
cannot see thern or because they lind ii inconsistcnt with intellectual integrity
to admit to them. Atternpts to counter this crisiswhether by conservative philo
sophies uf values, by humanist rational ethics, by recourse io theology, or by
radical existentiaiismare still in progress, und that is just as weil, since easy
or husty solutions would be as bad as die cvii they purport Lo eure. Today, as
in every period of legal histoty, the inner dynamic of the age is reflected in the
palpable problem of detemfining the foundation of law.

PART ONE

The Aledteval Foundatsons of


dern riva e aw
AS

flLO

2
The Origins of European Legal Culture

L lire Laie Ancient World: Empire, Chureh, und SchooLIL The legal corn
munhiies of lire new peoples of Europe.Ill. The surwval of Roman traditions
in die Early Middle Ages.IV. The beginnings of legal theory.

1. TUE LATE ANCIENT WORLD: EMPIRE, dURCH, AND SCHOOL

Ehe legal systems of Europe originated in the impact on the vital Romano
German societies in the early Middle Ages of the three great forces of order
bequeahed to them by late antiquity: the organizational structure of the Western
Roman Empire or what remained of it, the Roman Church, and the school of the
late ancient period. These were adopted and finally appropflated by the new
peoples and tribes in the territory of the late Empire and in Central Europe. All
three elements bad a lasting influence on Europcan law and the history of pri
vate law,t for after a long process of maturation, marked by many set-backs, the
process of adoption gave binh to the legal science of the High Middle Ages.

1. The first element in the legacy of the Roman Empire to the nascent Occident
consisted of the bureaucracy and the fiscal and administrative organizafion of
the absolufist central monarchy which emerged out of the troubles of Die third
century, and whose remnants survived the downfall of the Western Roman
Empire in 476. For the immigrant peoples law was just a matter of the way life
was lived; only from Rome did they lean that law could be created by the
power of the state and constitute an intellectual heritage. They came across the
idea of Law in two forms: on the one hand the impedal decree, a sovereign order
claiming absolute obedience from all its subjects and thus facilitating a wide
range of forms of control,2 and on die other band the inteLlectual product of
a group of highly sophisficated professionals. As an intellectual form law is not
very obvious or apprehensible, und lt was not fully absorbed unlil the High
Middle Ages; in the early days law as sovereign order was much more in

See in general C. Dawson. lire MaL-ing of Europe (London. 1932): Ii. Pirenne, Mahomet ei
Charlemagne (i eda., Paris, 1937); F. Lot, In fiu du onde nun que eile dbut du mayen ge
(Paris. 1927); Calmette. Leffondre.nenr du,, empire ei In unissance dune Europe, 9r ei J0 siheies
(Paris, 1942).
Ebel distinguishes three basic companenis in the medieval Gennan conception of Iaw: tradi
lional Iaw, ordained Iaw, rind agreed Iaw. One can see the coalescence of these lhree in the case of
synods und capitulades rind whcn the tribal Iaws were wrillen down.

14
lire Origins of Enropean Legal Culture

evidence. Imperial law not only formed the basis for the constitution, administra
tion, fiscal arrangements, and economy of the Byzantine monarchy hut also under
lay much of vuigar law as weil, interspersed with a few scraps of ciassical juristic
law, mainly in the form of meagre extracts used in eiementary schools in the
iate classical period.3 Oniy in the Corp cix tuns, the ciassicizing legislation of the
Eastern Empire, did the other bnd of Roman iaw, the creation of the classical
jurists, survive, aiong with some imperial rescripts of specialist interest up till
the time of Diocietian. in die West almost the oniy iaw known was Western
imperial Law and vulgar law. This S one of the most crnciai facts of European
legal history, and remained die case for half a miilennium untii finally the tme
spirit of ciassical law in the Corpis lunis was reveaied. This breach in continuity
made possible the decisive enirde of the pmfessional jurist on to the stage of the
modern world.
2. The iniluence of the Western Church was perhaps even more profound. Ever
since Constantine it bad taken over many of the public, social, and moral ftinc
tions of the ageing state, and when Hie state coliupsed it stood finn and provided
Ihe Romans wilh emergency services. The Germans were also quite ready to
accept it, for in die Church the new peoples couid see a real and powerful
organization which was, so 10 speak, a permanent embodiment of Roman law,
Roman law having survived in it long after the Empire bad wasted away. The
officers of die Church were much more effective than the residual secular ad
ministrators in educationai matters, in decision-making, in drafting and inter
preting deeds, and in representing the idea of authority.
However, Christianity also bad a profound effect on the veiy idea of law. As
the sole ource of unwritten iaw supedor to mere gut feeling, Christian ethics
became social ethics, and European ethics remained Christian until weil into the
modern period;4 Christian doctrine continued 10 inform legal thinidng in Europe
even when lawyer and iawmaker bad almost lost sight of any connection between
See E. Levy, fle Vulgurization of Roman mit in die Early Midd(e Ages. West Roman Vulgar
Lnsi. flic mw of Properly (Philadelphia. 1951); Gaudemet, mview of Wieaeker. Vu!garisnuu und
K!assizisuws im Rechte der Sptantike. IURA 7 (1956). 202 lT.; on Ehe problems see A. Guaiino,
lntroduclinn 10 Inchiesta, Lssbeo 6 (1960). 97 ff., 202 lT.
On die sociology see Max Weber, &ononiy und Saciery. G. Roth & C. Wittich (Eds.) (New
York, 1968), vol. 111/1, 30363, vol. 111)2. On die general effeet of Chmistianity on scholanhip
dimoughout die ages, see e.g. K. Jaspers, Nietzsche und das Christentum (Kamelin, 1946; mpflnted
Munich, 1952) 58, where 1w says dias lt was Chflsuanity which made modern secular schulanhip
possible: If die wurld is die ereation nf Go<!, dien eveiything which exists is worih knuwing as die
ereatien of Godnnt just wha is reasonable, countable ansi measurable (as in Greek science) hut
eveiydiing which can be conceived. Fam die view dias die idea of such knowledge is mdc<! in Ehe
voluntaiism of Duns Scolus as developed by William of Ockham, an<! dial diis opened die way nol
only for die causal explanation of nature hut also for hisloricism an<! legal positivism, See Welzel,
68 ff. At pp. 81ff. WeIzcl observes that immanent nalure, historical uniqueness, ansi actuality have
Ehe vatue they do by reasun ofihe unfalhomable nalum of the Grealors will and the original tThuu
relationship between creatur ansi creature. This last Ideals traceable back so Augusline (WelzeI, 49).
See below pp. 207 lT.

L The Laie Anden! World: Empire, Owrch, und School

15

them. lt was due to Chrislianity that enacted law was seen as subordinate to a
higher value und as justiliable oniy by reference to it. From die time when
Augustine, writing of the Roman Empire, describcd the earthly legal community
as a reflection of the divine state (p. 207) right up untii the nineteenth century,
metaphysics was the leitmotiv of all legal thinlng, even for those who rejected
it. In fact neither the eariy Christians nor the Roman jurisis shared tlus meta
physical position. lt was invented by Plato, taken over by the fathers of the
Church, and refurbished by the theologians of the Fligh Middle Ages, hut if its
discovery was due io die genius of die Greeks, us transmission In Europeun
legal lhought untii the eanly modern period was almost entirely the work of
theologians in the West.

3. lf the Imperium of the late ancient world was a ereation of Roman power, its
cuitural ideals rested phmariiy on Greek education and the concept of Paideia.
This suswived in schools throughout the Helienized Roman empire:5 eiementary
instmction consisted of die rnitiwn of Grammar, Logic (Dialcctic), and Rhetoric,
whieh togedier with the higher diseiplines of Arithmetic, Geometry, Music, and
Astronomy fomied die asles liberales. Grammar helpcd dich the meaning ofwritlen
texts, Rhetoric enabled one 10 speak in an orderly manner, und Dialcctic promoted
the art of discussion und logica] argumentation in theology, philosophy, und iaw.
That the training of lawyers look place in the trhium and in a school of rhetoric
and dialectic is another cmcial fact of legal history in the cariy Middle Ages; no
specialized iaw schoois, as far as we know, existed outside the Byzantine East.6
Education in the late ancient form of the Irivium managed to survive cuitural
regression and the disruptive effect of tribal migrations. At first it continued in
lay schoois, but later only in monasteries which, foilowing Benedicts seminai
example at Monte Cassino, preserved the old idea of education and instruction
und spread it through Western Europe in the sixth and seventh centuries, und
into Central Europe in the eighth.7 This meant that only in the surviving gram
mut schoois und the monastic and cathedral schoois of die early Middle Ages
was there any instrnction in reading, writing, und orderly wHuIen expression.
the eiementary skills essential for legislation, administration, judsprndence, und
legal activity. lt also meant that die language of church and school bad to be
employed whenever anything was to he written down, be lt a legal proceeding,
law, protocoi. or deed. In this way die legal forms of laIe Roman vulgar law
entered the bioodstream of the iaw of the early Middle Ages. Finafly it meant

1
See H.-J. l-lanou, flistaire de I&Iuc,tion tbms ia;riquirJ (3rd edo., Paris, 1955).
F. Schulz. Hcon of Roman Ugal Seiente (Oxford, 1946), 2727; tor ItaIy. E. Voherm, Western
Postclassieal Schools. Cambridge In,i Journal 10 (1949). 196 if.; Vollem. Appunti sulle scuole
posiciassiche occidenlali, lnq.s;or. 1 (1957), 56 ff. Ricln suspecis Ihat pmoper law schools su,vived
in nonhern Gaul until die beginning of Ehe Sds C.. ansi much longer in Ihe snolli: Rich. Enseignement
du drois en Gaule du VI au Xi sicIe. iRiFAE 1 5 b, bb (1965). 4 II.. 710.
See in general Rich,, Educurion es adture dosis lOceident barbure (Paris, 1962) 315 ff., 329
ff.; Ricbe, Enseignement (n. 6), 10 ff. (for France).

16
The Origins of Euivpean Legal Culture

flIE NEW PEOPLES OF EUROPE

that only through the medium of the grammatical, rhetodcal, und logical figures
of the school could one entertain any abstract proposition or attain to any intel
lectual perception of phenomena extemal or internal; such perceptions were ac
cordingly constrained by the expressive potential of these devices. Thus right up
until the High Middle Ages when the vemacular began to be used in legal writ
ing. eveiything written in or about law, with the sole exception of the legislation
of the Scandinavian North and the Anglo-Saxons, was inevitably and deflnitively
impregnated by these intelleetual strnctures. Apart from the trivium which pro
vided primary education und the qnadrivium by which the church gave instruction
in the higher artes, no training was available for roles in public life which called
for literacy: unlikely as it may seem, therefore, they constituted the third main
component of the legacy of late antiquity.

11. THE LEGAL COMMUNITIES OF

1. The beneficiaries of this legacy were the new societies which evolved after
the Western Empire bad collapsed and the migrations bad come to an end. These
societies, incorporating the peoples of Central Europe conquered by the Franks,
were composed of the wandering Germanic tribes and the Roman or Romanized
population, of stock which might be Italic, Iberian, Celtic, Illyrian, or Gemianic.
The migrants attitude to law made itself felt not only outside the old Roman
Empire (Central Europe and Scandinavia) or in areas long occupied by 0ermanie peoples (Britain, Europe north-west of the Somme, the Rluneland, und
south-westem Germany) hut also in the Roman heartlands where Germanic
settlements were quite small. This was of capital importance for the future unity
of European Iaw, for the incomers not only revitalized the population but were
also eager for social and political power, as the Carolingian Empire und Spain
bear witness.

2. The unitmy society of those who bad been subject to, und often exploited
by, the bureaucratic and centralized Byzantine Empire was now broken up into
a large number of regional groupings, held together not by imperial organization
hut by the Chureh, by a new attitude to law, und in the upper echelons by a
sense of common descent. Law was thereby rejuvenated, hut at a price. A mature
and sophisticated legal culture where power was used for rational purposes was
replaced by one in which law was a spontaneous expression of life and feeling;
in place of a unitary order there was a proflision of personal und group laws;
and as often happens on the collapse of great powers, order and legal secudty
were lost.
These cultural losses were offset by new values which have bad a lasting
iniluence on the European attitude to law. In place of the oppressive absolutism
which bore so heavily on the subjects after the total destrnction of the freedoms

II. The legal communities of 11w new peoples of Europe

17

enjoyed by cities and citizens in classical times, there arose communities in the
interests of peace (Friedensgemebischaften), held together not by the weakened
central powers hut by a sense of fellowship and by the spidtual authority of
Church and cultural tradition. Law was no longer the sovereigns command hut
a live unwdtten tradition by which the mler also was bound; office was no
longer an abstract bundle of powers and functions hut a personal relationship of
trust between mler and follower. fle subject became a fellow-subject. Inviol
ahle entitlements of free men took the place of objective law wholly controlled
by the absolutist late Roman stute, and manifold liherties took the place of the
freedom of city and citizen extinguished in the late Empire. Finally, altbough
in this young warrior culture the strong emotional sense of elan solidarity and
loyalty to the leader were sometimes fatal to peace and public order, its values
also helped to enrich the system of classical and Christian virtues since they
favoured greater respect for freedom and personal rights.8 These characteristic
standards, once spiritualized and internalized by the Cluniac movement, were to
be fransmuted into the code of chivahy, first powerfully expressed in the Roman
dc Roland (after 1100) and thereafter to mark the personal ethic of Europeans
until the beginning of our era.

3. The legal systems of the early Middle Ages bespeak the remarkable tension
between this new vitality and the civilization of antiquity. or what remained of
it. Where the law was in writing it rested on the remnants of Roman impedal
law, on the Romanized laws of the Germanic peoples,9 the tdbal Iaws written
down at the instance of the Franks, on capitularies and on the law used by the
Church; all of these were drafted and applied by literati and clerics. In the
background was a new unwritten legal culture which found expression in land
holdings and suecession, feudal and service relationships, in clan, fellowships,
and groups, in word und sign, in complaint, court, and judgment; hut whenever
any of it had to be put in wdting, in ordinance, deed, or protocol, resort to the
language of late antiquity was unavoidable, and it was hard to bypass the trained
literati and cledcs or to eschew the legal tenuinology of vulgar law. This means
that for our knowledge of these unwfltten legal systems we have to rely on
secondary sources, on ecclesiastical historians and chroniclers, on deeds, genea
logies, and inventories of the great, on documents, signatures, lists of holdings,
rent rolls, books of the dead, and so on. Only at the start of the High Middle

6
See esp. V. Grnbech, Vor Folkeuet 1 Oldtiden, 4 vo. (Copenhagen, 190912). vol. 1, 56 ff.,
2t8 ff.; C. Dawson (n. 1)7999; tor lIaly, See Calasso, vol. 1, tt8 ff.
On the survival of the Lex Rornana Wisigothonun and its epigones in Europe, See Gaudemet,
Le hrviaire dAlaric et les Epitomae in IRMAF 1 2 b na (1965), 41ff.

The indirectness or the relationship betwccn the subsiance of Iaw and its wrillen expression.
especially when in the learned Jargon of the litemti, is characteristic of the oldest stralum of the
Gemsanic view of law es seen by Ebel (Geschichte der Gesetzgebung (2nd edo.. Gttingen, 1958),
12 ff.). lt is not observable in the older Iaws of the Anglo-Saxons and Scandinavians, wrillen in tue
vemacular.

1ff The sunival of Roman traditions in Ihe Early Middle Ages

See Gaudemel, Survivances romaines dans le druil dc la monarchie franque du V nu X si&cie,


T;jdschnft 23 (1955), 162; and Rich (n. 6).
A. dc Bouard, Manuel dt diplomadque 1. Lade pHrd (Paris. 1948); on the informative
Fonnulary Baok of Marcuif, See Rich6 (n. 6), 9.

2. At ihe same time different regions developcd quite differently after the
collapse of the Empire.
Even before the nascent European nations emerged, Romans and Germans
had quite different attitudes to the Roman tradition, but whereas the landed
nobility and Ute elerics long maintained its higher cultural forms, the Roman
people and the urban nobility, descended [rom soldiers, craftsmen, tradesmen,
farmers, and landlords of Roman, ltalian, or romanized stock, were completely
un[anliar with the Roman constitution, literary Latin, and above all clissical
juspmdence, however much thcy might hold ihem in awe. Vulgar law, how
ever, and the ways of life of the late ancient pedod wcre iheir own and needed
no assimilation. By contrast, they bad io be leamt and adopted by the Germans
wiihin the Empire, while those outside ihe limes or in paris of the Empire whieh

19

The Origins of Luropean Legal Culture

18

Ages does Ute rich law hitherto unwritten brcak out in an astonishing proflision
of vemacular writings, from die Spanish flieros and die Ordinamenti of Italy
to the law books of Gcmiany und Scandinavia; die same happened with poetry,
too. both being rendered possible by Ute increase among the population of literacy
leamt from the old traditions of elerical education.
The [act that for a period lasting hundreds o[ years ihere exisis no primary written
evidence for Ihe internaT nature of European ]egal syslems makes life very difficult for
the legal historian of the early Middic Agcs; in order io reconsimct Germanic, and indccd
olher secular Iaw, he often has Co extrapolate [rom general assumptions or from sources
of later date.

Iii. THE SURVIVAL OF ROMAN TRADITIONS IN THE EARLY MIDDLES AGES

fr

the legacy of Rome was gmdually adopted, a process continuing into our day.
First Ute substance and techniques of vulgar law weit taken up. At Ute mm of
the tweLfth century people became aware of Justinians anthology fmm Ute great
Roman jurisis, aM in Ute Swmna of Thomas Aquinas Aristoiles theoiy of law
and state generated the first European system of naiural law. Only with human
ism did people stall to go behind the Corpus of Justinian and seek out the tme
classical law of Rome, a process later iaken tip by the historical school of law
anti brought to fmition by modern studics.
We now go back to the beginnings, before the Middle Ages ever started.
Creative jurispmdence had dried up und Ute older imperial law had disappeared.
In the Eastem Empire there were law schools still capable of understanding and
iransmitting the ciassical legal literature, to be preserved forever in Justinians
Digest, but in the West they went to ground in the fifth century at the latest,
if indeed they had ever developed there in that form. Only remnants of public
institutions and the simple ideas of vulgar law survived the political and spidtual
collapse of the old Westem world. The new states which emerged on imperial ter
ritoiy took over what was needcd to maintain rudimentaiy public lifemunicipal
and provincial offices, meagre administrative and hscal arrangements, legislation
(whose style increasingly declined from that of the imperial chancery),11 and finally
techniques of documentation, in adopting which the Gcnnans also took over
front vulgar law Ute mIes and types ol transaction associated with them.2 West
of the Rhine, these elements survived from imperial times; thcy reachcd Central
Europe principally through Ute Frankish Empire, and eniered Northem Europe
when Ute people there were finally Christianized. The common features of
European legal histoiy on both sides of the Roman limes rest on these foun
dations from Ute late ancient world.

1. The scene was thus set for the new Europeans to confront the ideas of
imperial order from late Roman times, the Churchs metaphysical views 011 law
and die Tate ciassical educational mode! of schooLing. Civilization in Europe
developed when groups of wandering waniors moved in on an urban civiliza
don whose organization had been weakened or destroycd, conquered it, and were
in tum transformed by it. This has happened elsewhere, and there is a pattem
common Co such events. The intellectuaL education involved in assimilating a
civilization stimulates new creative powers, hut it takes time for the renaissance
of die pdor culture to take place, because at first die new vital forces lack the
spiritual and intellectual experience io put us materials to use. Quite a long and
wearisome process of maturafion usually occurs between the take-over of Ute
trappings of Ute old civilization and the later renaissance, and dudng this period
people do not quite know 1mw to express themse!ves.
This was tme of civilization in the early Middle Ages. The extemal features
of Ute old civilization were die first to be adopted, even before the bMh of
CIu-istthe use of crops, writing for daily use, naming the days of the week after
the planets; in Ute next few centuries there followed building in stone, rhymes,
mimers, and jongleurs, but not until the elevenih century was there a rebirth of
Ute higher fonns of the ancient civilization, in ecclesiastical architecture and
scuipture, in Latin and vemacular poetry, and in philosophy. Further renaissances
werc Co follow, tapping ever deeper into the spiritual resources of the ancient
civilization, in the same way as individuals come Co understand their parents
belier as they themselves mature. As time went by, laie antiquity ceased to have
so much effect and the intellectual influence of die preceding ciassical period
became increasingly strong. European philosophers were familiar wiCh Boethius,
Dionysius the pseudo-Areopagite, and Isidore of Seville before Aristotle and
Plato, and long before the pre-Socratics; plastic allisis first followed the late
classieal and Byzantine styles, then the Hellenistic Roman, only later imitating
the classical Greek and finally their great archaic predecessors.
Law in Europe followed this basic pattem of development: more und more of

III. The survival of Roman traditions in die Early Middle Ages

On Ilse reception of the Roman idea of statulory law under die Ottonian Emperors and, morn
imponant politically, ander tl,e Hol,enstaufens, See EH. Kantorowicz. Ehe Rings flva Bodies
(Princelon, 1957).
For tnuch information on Ilse reception of Ilse idea and concepl of legislation in Ilse church
in Ilse High Middie Ages, focusing 00 Scandinavia from Ilse first half of the l3ih C., see GagnS,
288 ff.

c) The Frankish Empire played a key role in the relations between Gennans
who were romanized and those who were not. The situation in the heart of
Europe was especiaily complex and promising, because here there was an inter
active confrontation hetween the different attitudes of romanized and unromanized

b) lt was different for those Gennans (hke the Old Saxons, the Frisians, and
the North Germans) who had never been on imperial (effitory or (hose who
had destroyed Roman civilization hefore they settled down (the Aiemanni and
Bavarians in Southem Gennany, and in Britain the Angles, Saxons, and Jutes).
The Anglo-Saxons were ahle to keep their statutes (and their poetry) in their
own language, thanks to the open-mindedness and tolerance of their clerics,
even after the nssionaries landed. In Germany itself it was only through chureh
missionaries that the tribes were exposcd to the culture of the ancient world, and
the old Saxons only when forcibly incorporated into the Carolingian Empire. lt
took longer for Roman ideas of state and law to have any effect on the North
Germans who had a distinctive legal culture of their own.t6 These differences
also had a long-tenn effect, and traces of it are still discemible in German,
English, and Scandinavian law.

21

The Origins of Enropean Legal Culture

20
Rome had abandoned bad these ways brought to them by missionaries or forced
on (bem by the Franks. In all these cases the Roman ways were so alien to their
own original attitude to law that it was an effort to assimilate them. This dif
ference helps to explain why the tension of assimilation was greatest and most
productive in the borderlands, in Northem France, in Burgundy, and above all
in Northem Italy.
3. There were also differences in the way in which different German tribes
related to the Roman legacy, and this helps to explain the differences in the way
law developed in the European nations which emerged from the states they
founded.3

Latin language, what was left of ancient education, and finally also the Catholic
faith rather than the Arian heresy.
Their law, however, proved more resistant, especially where it related to their
way of life, their personal relationships, or their group ethos rather than to re
cent economic changes and new power stmctures; its survival was assisted by
the Germanic idea that law was an inviolable aspect of life itseif, not a set of
ordinances laid down by anyones command.5 Even romanized Germans main
tained this view of law and they communicated it to the Romans among whom
they settled until they too adopted it, all the more easily since the cuitural regres
sion had made their conditions of life quite simiiar. This is why the influence
of German law, though sometimes exaggerated in the past, was out of all propor
tion to their numbers. In their tum the Germans adopted from vulgar law mies
relating to business and the forms of transactions, as weil as the iaw of land and
of willIs. Approximation thus occurred quite quickly. This was cmciai for the
history of law in Europe. Roman legal culture was accepted by the Gennans, hut
it was overiaid by German law, even among the Romans; Roman law had there
fore to be rediscovered, hut when the new peoples bad matured enough to be
ahle to respond to its challenge it was there awaiting rediscovery. This redis
covery marks the start of European legal history.

a) The Germans who most quicHy and completely absorbed the old Roman
traditions were those who had settled among the Roman population asfoederati,
like the Visigoths and Ostrogoths, the Burgundians, and a few smaller groups:
their leaders became Roman magistrates, their legislation, odginally 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:4 they adopted the Latin alphabet, the trappings of civilization, the

These developmenls arc discussed in the introductions 10 the histories of 11w various national
legal systems. For England. see P. Ii. Winfield, risc Chief Sasa-ces af Enghsh Legal History
(Cambridge. 1925); W. Holdsworth, Hisrory af Engilsis bsw (7ili edn., London. 1955). vol. i.; Id.,
Sause Makers of English bzw (Cambridge. 1938); Plucktielt, 1 Cosrcisc Histosy of Co,mnon bzw (Sth
edo., London, 1956); and especially F. Pollock & F. Maitland, Histasy of English Luw (Cambridge.
1898), vol. 1. For France, See A. Tardif, Hisgaire des sassrees du droirfra,sais. 1: Origses ramabres
(Paris, 1890); Declareuil, Histaire gdndrale du droitfranqais des arigisses 1789 (Paris, 1925); Lot
Fawticr (Ed.), Histaire des sstizutiosss franraises au Mayen Age III (Paris, 1962); Olivier-Maflin,
Histaire du droitfrasitrais des origses tu Rdrahstio,s (2nd edn., Paris, 1950; EIlul. Histoire des
institutions, 2 vols. (Paris, 19556); Lepointe. Histaire des sstiturio,ss et des falls sociasa (987
1875) (2nd edn,, Paris, 1963). For lIaly, See 0. Monti, II diritto pubblico e iefanti di diritto 1,1 ltalia
da? 476 ai i870 (Bad, 1933), vol. 1; Snlsni, Staria dcl diritta italiana (3rd edn., Milan, 1930); S.
Leicht, Staritz dc? diritto italiana (411i edn., Milan, 1956); C.G. Mor, Appunti suila storia dellafos,ti
ransanegiuddiche da Giustbniano ad Irsscdo (Milan, 1937); Calassn, vol. 1, 118ff.; id, Stoda e sistema
de?lefontc dcl didtta consmune (Milan, 19368), vol. i; Astuti, Leziani di storia del diritta ita?iano.
Je fovsti: clii rausano-barbarica (Padua, 1953). For Spain, Hinojosa, Estudios sabre tu histafla dc
derecha espuflol (Madrid, 1903), vol. 1; i. Beneyto Perez, Fuentes dc dcrccho historica cspaal
(Barcelona, 1930; F. Mera, Estudas dc dircita hispanica niedieral (Coimhm, 1952), vol. i; Riaza
Garcia Oallo, Manual de histada dc? derecho espaal (Madrid. 1934); Garcia Gailo, Qsrsa dc Histoda
dc? Dcrccho Espafla? (5th edo., Madrid, 1950), ,1. i; id. Lii evohscid,r general dci derecha espafla?
(1957); Giben, El reino visigodo y ei panicularissno espanl, Csuadras dc? bsstiustajuridico espaflol
5 (1956), 1547. For Portugal, see Almeida Cosla, Para a histoda da cultllm giufldica medieval cm
Portugal. Ba?eh,ss Facss?dade Direita, Caluskra 35 (1959), 25376.

The observation of t1w Visigothic King Aiaulf given by Paulus Orosius is chamcteristic
(Historiansas adrersus paganos hbri VII, C. Zangemeister (Ed.) (Leipzig, 1889). vol. vii, 43.57,
p. 300): Athaulfhad odginally intended to replace the Roman Einpire with a Gnthic one, to become
Caesar Auguslus himseif and obliterate the name of Rome, bot having leamt from long expedence
Ihat die Golhs were so boundlessly barbaric that they would not obey laws, without which a stare
could not be a state, he decided instead to make a name for himseif by using his Gothic strength
to restore and enhance Ilse name of Rome and 10 be known in Ilse future as die restorer of a Rome
he could not change.

IV. The beginnings of legal theory

P. Stein, Regisine luris (Aberdeen, 1956), 124 ff.

Delahaye, Lorganisation scolaim au XII si&Ie, Tradin 5(1947), 211 ff. (on Fmnce); Haskins,
The Renaissance of Lire Tivelfih Centu0 (Cambridge, Mass., 1927), 18 and passim.
Filtings theoiy, Iaid out in Juristische Schriften des frhen Mitlelallers (1876) and clsewhere,
was devastatingiy criticized by Mornmsen (somnia Fillingiana). Uber Fiuings Ausgabejubstischer
Schriften des frhen Mittelalters, Zeitschrift flur Rechisgeschichte 13 (1878), 196 ff. ilse theory is
still trcaled will, reserve by modern sehnlarssce eg. Calasso, Stark, e sistema (n. 13), vol. i,95 rt
especially since the warb which Fitting regarded as predating Bologna arc now allocaled to a buer
date. lt is another question whether the East Roman consmentaries on (Im Campus luris, eilher of
Juslinians time er laler, bad aiiy direct iniluence an the Glossalors. Wliere Pringslieim was hesilant
(Den: und Bologna (1921)), Sontis is mom confident.

See Besta, Ltgislazione e scienza giaridica datla caduta dellbnpero Ramona (Milan. 1923);
Mengozzi, Ricerche still attirit delta scuola di Paria (lavia, 1924).
See C.G. Mnr, Scritti giuridici preinieriani, 2 vols. (Milan, 19358); Calasso, vol. i, 279 ff.;

23

The Origins of Enropean Legal Culture

22
people to the Roman heritage. The Franks on the Rhine bad been in contact
with Rome for centuries and had early opted for the old Roman form
of Christianity, so they were better situated than any other German tribe to take
over the Empire. The Frankish Empire included not only that part of the Roman
Empire which was to become France, where the conquerors were to lose their
language and their sense of descent, but also the cornpact Franldsh settlements
in what was to become Germany (and Lotharingia), a fact which became more
significant with the incorporation of tribes from farther inland. Finally the
Carolingians moved into Northern and Central Italy and became the guardians
of Rome itself, the mother of Roman law and the Roman Church. Thus even
before Charlemagnes universal monarchy broke up on linguistic and ethnic
lines when divided among his heirs, the idea of universal empire. which was to
prepare the way for the rebirth of Roman law in the High Middle Ages, was
already discemible.
The congress of those in whom the old culture had survived and those who
had striven to acquire it proved fertile in the favoured territories of the Empire
of the Merovingians and Carolingians, and the rebirih of Roman law became
a possibility once the idea of succession to the Imperium Romanum Look root
there. This condition was met when Lothars will enabled the East Franldsh part
of the Empire to lay claim to Rome and to the translatio imperii.
IV. TUE BEGINNINGS 0? LEGAL THEORY

chapel run by a cleric, and eventually also in cathedral schools.8 Thus there was
no specialist training in law, only general education for the cleric; this was, how
ever, a preparation for secular administration as weil as for pastoral and ecclesi
astical duties, for not all the students in monastic schools took holy orders. Occa
sional references to the study of law or statutes in Merovingian or Carolingian
times relate to such schools, which bad some interest in practical legal tasks and
in the documentation of legal proceedings, as is shown by the Formulary Book
of Marculf the Monk.
We have here an answer to the vexed old question regarding the histoiy of
Roman law in the Middle Ages: did legal instmction survive from late Roman
times, say in Rome or Ravenna, the focal points of Byzantine cultural iniluence
in early medievai Itaiy, and have any effect, direct or indircct, on the risc of the
studium generale in Bologna or its Lombardic predecessor in Pavia?9 Since
unambiguous documentary evidence is lacking, the discussion has unfoflunately
bad tobe based on arguments ofa general nature. Fittings theoiy that there was
such continuity presupposes first of all that a law school in the city of Rome (or
perhaps Ravenna) bad a decisive impact on Western legal studies, comparable
to the impact in the Fast of the law schools of Beimt and Constantinople.
However, no modern research has yet produced any satisfactory proof of this.
If no such school survived, it is highly improbable that Ihere was any other
means of transnfltting specialist legal training into the eleventh century; cer
tainly there is no docurnentaty evidence of it. lt is true that direct links can
be established between Bologna and the Lombardic school in Pavia (eleventh
centuty)20in particular they used very similar melhods of expositionbut
between the school in Pavia and the last possible vesliges of Eastem instruc
tion in Rome or Ravenna there intervened a period of five centuries, during
which there arc but few traces, themselves difficult to date, of any work on the
Corpus IurLr, iet alone the Digest.2 What is clear is that in the early Middle
Ages the West had no system of instmction which concentrated exchisively on
the explication of secular statutory texts or on the methodical treatment of
legal problems. The functions later to be perforrned by the studium civile were
exccuted by the trivium, involving schooling in deeds and drafting and also

1. There is very little documentary evidence for the continuance, intemiption,


and rebirih of Roman law in the early Middle Ages,hl but the following facts arc
fairly weil established. The In Romana Wisigothorum and its glosses and extracts
continued to be observed in large parts of romanized tenitoty even outside the
Visigoth Empire (which reached as far as the Loire before 507); the late ancient
practice of putting transactions, gifts, and wills mb writing was dominant enough
to reach even into southem Germany; and all statutes and other legal writings,
from the Eurician Code of the Visigoths to the capitularies of Carolingian limes,
adhered to the style and tenninology of Roman vulgar law. This is all due to Hie
monopoly of literacy enjoyed by the clerk in late antiquity and by the clericrts
who succeeded hirn, even where the actual substance recorded was unquestion
ably Germanic, as in the tribal laws and the law books of the Lombards.
Legal scholarship in the early Middie Ages was elementaiy, never going
beyond school-leaming in mode of expression and the understanding of simple
logical reiationshipsthe triiium which had formed the basic training of legal
officials from Constantine onwards. In the early Middle Ages the transmission
and drafting of written law continued to be in Ihe hands of ecelesiastical cdu
cators. Such as it wasand the quality of church education varied a great deal
this education was available only in schools attached to a monasteiy or to a royal
On what follows sec Vinognidoff, 11ff.; Calasso, vol. .267340.

24

The Origins of European Legal Culture

expiaining legal texts. in fact the studium of Bologna emerged directly from
this form of liberal ans education, with which it maintained its links even in
its prime (p. 32 f.).
2. This is conhmied by the subject-matter, aims, and methods of works which
predate Bologna and are relatcd to law. Whether the latest of these shouLd
indecd be assigned to that pcriod has been doubted, especially by Kantorowicz,11
bat in any case they show how fluid the dividing line still was between general
education and speciahst legal studies. A few of the oldest works can cenainly
be assigned to the early medieval pedod. These include grammatical and philo
logical glosses on the Epitome Jullani (a late sixth century selection in Latin of
cxtracts from the Novellac), on the Institutes of Justinian (the so-called Turin
and Bamberg glosses. both pcrhaps as early as the sixth century) and on the
Code. Then there arc rather unimpressive collecons of wies and definitions
(using Roman sources including the Digest),23 and finally an Epitome Codicis
(seventh to eighth century), the Sununa Perusina (pre-tenth cenflwy) and a Stenuna
Cognitionum. In these very eariy works matters of law are always mixed up with
points of thcology and philoiogy, just as one wouid expect front a school not
specificalLy devoted to iaw. They offer banal glosses 011 matters of fact, just like
the ancient lexicons, philological explanations of texts, and logical distinctions
of the kind one would expect in schools not yet geared to legal problems. How
ever, there arc also concordances with parallel references to Roman iaw and
ecclesiastical or local secuiar law, clearly designed to heip officers of the Church
and city officials (syndici, consules, defensores) whose work involved law or
drafting. Some secondary evidence is also provided by contemporary forgeries
ofgrants of privileges, for the forgers bad detailed knowledge of both ecclesiastical
and secular law as weil as some interest in matters of juridical proof.
In the eleventh centuty specifically legal aims appear in the School of Pavia,
which apphed the logical tools of the triiium to the study of Lombardic iaw in
a purposive and coherent way. The increasing interest in studying the law of
Justinian at this time suggesis a growing sense of its general validity.4 In addi
tion to the ber Papiensis, a concordance of Lombardic laws and lialian capit
ularies, and the In,nbarda,5 a reworking of it, we find studies of canon und
secular iaw in the so-calied Wulcausina and the more appealing Expositio od
librum Papiensem.26 The Petri excepliones legunz Romanarum, on the ocher
11. Kantemwicz, Studies in Hie Glassalors of Roown mw (Cambridge. 1938). 34 rr.; 112 ff.
23
On die in Ronuina Cugior,ice Conipta (9di C.; sec C.G. MorAppunfl (n. 13)) antI die Eicerpin
Bobhknsio (Yth 10 lUth C.) antI Iheir probable common basis, see Calasse, Sinne (n. 13). 285 ft.
am! now 1. Stein (n. 2!). 125 Fr.
inprovement
3 On Lhe prior history of die Digest see Calasso. Sinne (n. 13), 292. On the general
in (isis transitinnal penod afler die lOch C.. See Vinogradoff. 243 ff. (rar France, 70 ffj; Calasso,
296 ff.
3
On the glossing Siunmae in die tn,nborda, see Calasso, 305 ff.; an their introduclion (law still
as ethica) See Stein (n. 21). 128. 26 C.G. Mor, Appunti (ii. 13), vol. ii. 208 ff.; Calassa, 313 fI.
3 (in iii. Prrontin,,pc Pprri re Cal,iqqn. 297 ff.: H. Kanlarowicz. Studies Co. 22). 113 fi.

IV. The beginnings of legal theoiy

25

hand, which bad a wide circulation, originated in Provence, bot perhaps not
as early as this.8
Recent research has, however, made it increasingiy doubtful whether these
works in fact predate the rise of Bologna in the twelfth century.9 if they do, the
most one can say is that, whiie using the traditional grammatical anti logicaL
methods in the cuffent triiitun, they also demonstrate some knowledge ol the
iaw of Rome and the Justinianian Corpus, including the Digest, although the
Digest figures much iess than the Institutes0 and the Code, which were ztcccs
sible in the early Middle Ages. They also show an interest in the hannonization
of non-roman iaw. All in all, there arc indications of the imminence of the
Bolognese revivalthe interesting tendency to regard the law of Justinian as ius
generale, ius ulhersale.SI a method of explication which is occasionally jurid
ical, that is, interested in the legal problem as such, und the beginnings of meth
odical textual criticismY Signihcantly enough, the authors of some of these works
present themselves not as cierics but as teachers of artes liberales, especialiy of
an ars diciaminis, a diseipline designed to instwct future notaries and church
and city officials in the appropdaie terms of an and the conect style (stilus) to
use in deeds, wdtings, negotiations, und correspondence. ilias we can already
see in ftaiy the transition [rom the monastic and cathedral schools to the secular
liberal arts school which was to be the cradle of the studium generale of Bologna.
After these late works (if indeed they do predate Bologna), only one step remained
to be taken, namely to appLy methodical cdficism and exegesis 10 the Digest of
Justinian, lurking in whose inexhaustibie suppiy of legal lore was the autonomous science of law whch was permanentiy to alter state and society in Europe.

Excursus
The Idea of Continuity

Since European Iaw emerges from die intcraction between new and vital kinds of iaw md
traditions of an ancient cuiture, one must know something of the relevant kws of
die

21
For the lileralnre on die Ercepriones Petri See H. Kanlorowicz, Les origines [mnaises des
Exceptinnes Petri, rev.hist. 16 (1937), 588 Fr., antI Rechtshistonische Schnfren (Ch. 1, n. 9), 197;
Studies (n. 22). 113 ff.
3
CO. Mm, Ii digesio ne)le!a pre-imeriana e la fonnazione della Vulgata, Snsdi di dirinn Paula
(Pavia, 1934), 557698.

On die Brachylogus (France, L2ch C.. ttaly lith Ci) sec Calasso, 299 ff.; an the Provenval Lo
codi, See Vinngmdoff. 72 ff.; H. Kanlorowicz, Suidies (n. 22), passn.
Calasso, 279 ff., 296 ff.
3
As Cenrat said, not without sause critical appmisal er (Im Iext; for more detail see Calassa,
297 rr.
3
On die beginnings or the ars dicwrninis see now Coing, IRMAE 21 antI n. 42 (wich references
to die very dispersed literalore). 23 nn. 52 antI 53. On Ihe stitus cuniae in Ihe G!oss (tu Cod, 1.2.1)
und die Ultmmonlanis (Piere dc Belleperche) and Commenlalan, see Prosdocimi, Tra civilisti e
canonisti dci sec. Xltl e XIV, in Studi Ranolo, in!. ii, 413 Fr.

26

The Origins of Furopean Legal Cuhure

general history in order to comprehend the process. Hie problem has usually been dis
cussed in tcrms of continuity ever since Dopsch wrote 011 die subjecY Continuity occurs
when another culture is consciously adopted. lt is ii special instance of that interpersonal
comprehension which Max Scheler calls fulfihling co-operation (Mitiollzug) and Jaspers
communication, die instance being special in that comprehension is delayed rather than
simultaneous. lt is a group Version of what is experienced by die individual in teaching
and learning.
lt is duc mainly tu Vico anti Herder that civilization came to be conceived as a unit.
whereupon continuity became a usable concept in die general historical context. Once
a sense of histoiy bad developed and high allen civilizalions had been discovered, the
question of die connection hetween civihzations became enicial for universal history and
for the philosophy ol civilization in our CCntUEy. fle historian uses the notion of con
tinuity in ordcr tu grasp die effccts of earlier cultures an later ones. The idea calls for
ciaritication. Like simpler ideas such as iniluence, inheritance, legacy, survival,
anti teaching II is initially a mere indicator, a shorthand way of referring tu complex and
unspecific relations for which we use analogies from mcchanical, biological, or psycho
logical connections between phenomena familiar tu us in our daily life. While it may be
necessary tu use such notions when wflting history, they must be chosen and used with
care. Perhaps the genetic model of modern biology is the most appropriate model for the
historian of the effeet of the ancient civilization 011 us daughter culture in Europe, for lt
Sees the transmission of life from generation tu generation in tenns of information: living

forms reproduce themselves by means of genetic information, which like a matrix engen
ders and builds new organisms with the Same or a similar Form.
lic idea eS continuity needs Lo be mark more precisc.

a) lt is anibigucus in its answer tu the question of what it is that survives. Is it the


persons who transmil die culture (Visigothic, lbcrian, Gernianic continuity), or the
objectiVe components of the prior cuhure (continuity of the ancient ways, risc late
Roman City culture)? The historians subject-matter is predetermined by his choice of
the element continucd: Ihe historian of Germanic continuity has elected tu write Ilse
history of a paflicular people, while the historian of the continuity of die laie Roman city
culture has decided 10 wrile about urbanism in die West. A book concemed with the unity
of Fumpean legal history, such as that of Koschaker,6 will be geared towards the con
tinuity of thc ciassical and Weslern tradition rather than die connuity of a particular
national attitude tu Iaw, as is tmc in another ficld of the work of ER. Curtius.3
b) ilse idea that a culture may SutViVC a change in (hose who represent it borders
on the idea of progrcss or development in history. Continuity Sees histodcal elements
as durable features, wisile development Sees tImm as constantly changing. However, the
A. Dopsch, The Economic und Social Foz,,idatio,is of Europernz Civilization, tr. M. Beard and
N. Marshall (London, 1937).
0. Spengler, Vw Dec/inc of 11w lVest, 2 vols., tr C.F. Atkinson (New York, 19268); A.J.
Toynbee, A Siudy uf Hislo,y, 6 vols. (Oxford, 19339); AlFred Weber, Kuturgeschichte als
Kuhursoziotogie (2nd edn., Munich. 1950); and compare K. Jaspers. The Origin und Gaul offlis
ta, tr. M. Bullock (London, 1955).
Koschaker, Europa und das rmische Recht (Munich-Berlin. 1947).
ER. Cunius. Enrapean Lileruture und the Laut Middle Ages, ii. W. Tmsk (New York. 1953).
36

IV. The beginnings of legal (heo,y

27

constant elements arc themselves changed when new people lake Ihem tip: as Bollnow
observed, cvery historical encounter is a fertile misunderstanding. Thus when one con

siders the survival oF old elements such as the great normative authoriuies nE the West
(die Bible, the Falhers of the Church, classical litemlure, the sources of Roman Iaw) it
is Iselpful tu draw a distinction between their actual vilality and their doctrinal authority.

c) Continuity 15 a presupposition of die hisiodan of private law in Europe, for his


central notion is that of the Reception, and as the historian of die Reception he seeks tu
understand the effect ol Roman law on those who odopled it as a system which was
supposedly conilnuing (pp. 91 in-

Potrebbero piacerti anche