Peter STEIN, Roman Law in European History, Cambridge, 1999

CHAPTER 1 Introduction

When we think of the legacy of classical antiquity, we think first of Greek art,
Greek drama and Greek philosophy; when we turn to what we owe to Rome,
what come to mind are probably Roman roads and Roman law. The Greeks
speculated a great deal about the nature of law and about its place in society
but the actual laws of the various Greek states were not highly developed in
the sense that there was little science of law. The Romans, on the other hand,
did not give much attention to the theory of law; their philosophy of law was
largely borrowed from the Greeks. What interested them were the rules
governing an individual’s property and what he could make another person
do for him by legal proceedings. Indeed the detailed rules of Roman law were
developed by professional jurists and became highly sophisticated. The very
technical superiority of its reasoning, which has made it so attractive to
professional lawyers through the ages, has meant that Roman law is not
readily accessible to the layman. Inevitably its merits have a less obvious
appeal than art or roads. Yet over the centuries it has played an important
role in the creation of the idea of a common European culture. Most of what
we know about ancient Roman law derives from a compilation of legal
materials made in the sixth century AD on the orders of the Byzantine
Emperor Justinian. The texts that he included in this collection were the
product of a thousand years of unbroken legal development, during which
the first from a monarchy to a republic and then, not long before the
beginning of the Christian era, to an empire. At the same time its law was
adapted to cope with the changing social situation, but all the time the idea
was maintained that it was in essentials the same law which had been part of
the early Roman way of life. Justinian’s texts have been viewed from different
perspectives by different peoples at different periods in European history.
The revival of Roman law started in Italy, which remained the focus of its
study and development through the later middle ages. In the sixteenth
century, with the advent of humanism, France took over the leading role. In
the seventeenth century, it was the turn of the Netherlands to give a new
vision to the discipline and in the nineteenth century German scholarship
transformed the subject yet again. In each period different aspects were
emphasised. Roman law has had passionate adherents and fierce opponents.
As H. F. Jolowicz pointed out in 1947, the latter based their opposition on
three main grounds. First, it has been seen as a foreign system, the product of
an ancient slave-holding society and alien to later social ideas. Secondly, it has
been portrayed as favouring absolutist rulers and as hostile to free political
institutions. Thirdly, it has been regarded as the bulwark of individualist
capitalism, favouring selfishness against the public good (‘Political
Implications of Roman Law’, Tulane Law Review , 22 (1947), 62). Sometimes
these notions have been combined. The original programme of the Nazi
party in Germany demanded that ‘Roman law, which serves the materialist
world order, should be replaced by a German common law.’ That attitude
provoked the great German legal historian Paul Koschaker to warn of the
crisis of Roman law and to write Europa und das römische Recht , eventually
published in 1947. Fifty years later a certain crisis still affects specialist
Romanists but the contribution of Roman law to European culture can be
reviewed more calmly. This book does not purport to rival that of
Koschaker. It attempts to give an idea of the character of ancient Roman law
and to trace the way its texts have constituted a kind of legal supermarket, in
which lawyers of different periods have found what they needed at the time.
It has indelibly impressed its character on European legal and political
thought. How that happened is our theme.

[…]

3 THE PRAETOR AND THE CONTROL OF REMEDIES

For most of the duration of the republic the law was developed less through
legislation and its interpretation than through the control of legal remedies.
Originally the first stage of a legal action was formal and technical; there was
a limited number of forms of action, which were begun by the oral
declaration of set words in the presence of the magistrate and the defendant.
A plaintiff who did not follow the precise wording might lose his action.
Such legis actiones could only be brought on set days. Once again only the
pontiffs were familiar with the exact details until the forms and the calendar
were published, traditionally around 300 BC , when the pontificate was
opened to the plebeians. The magistrates, originally the two consuls, elected
annually, who replaced the king as the head of the state, were responsible for
all governmental activities. The administration of justice was only a minor
part of their duties and the procedure allowed them little scope for
innovation. As Rome expanded, a special magistrate, called the praetor, also
elected annually, was established in 367 BC , to deal exclusively with the
administration of justice. He had no special training but he was expected to
supervise the formal stage of every legal action. The praetor retained the two-
stage character of the legal action, the first concerned with the categorisation
of the issue in legal terms and the second with the actual trial of that issue.
The second stage had always been, and essential, but it was the second stage
which was by far the more time-consuming. The Romans realised that in
many situations quarrels arise not from disagreement about the law, which is
clear enough, but from dispute about the facts and that an ordinary citizen,
even without experience of the workings of the law, was quite capable of
deciding what had happened. In the second half of the republic an important
change in legal proedure was introduced. When the parties appeared before
him, the praetor allowed them, instead of adhering to set forms, to express
their claims and defences in their own words. Then, having discovered what
the issue was, he set it out in hypothetical terms in a written document,
known as a formula . This instructed the iudex to condemn the defendant, if
he found certain allegations proved, and to absolve him, if he did not. The
formula, once it was settled by the praetor and the parties, was sealed, so that
the iudex who opened it could be sure that it had not been tampered with.
The iudex derived all his authority from the formula and had to act within its
terms. So long as he did so, he was allowed great freedom in his conduct of
the trial and often took the advice of a consilium of friends to help him reach
a decision. In the early republic the parties had represented themselves but
later they tended to hire professional orators, trained in rhetoric, to present
their case to the iudex . The praetor could grant a formula whenever he felt
that legal policy justified it, in the sense that he considered that a plaintiff,
who could prove his case, ought to have a remedy. The function of the
praetors was to declare the law ( ius dicere ) and to give effect to it by their
grant of appropriate remedies. Most remedies were concerned with
recognised claims, such as that the defendant was detaining the plaintiff’s
property against his will or that the defendant owed the plaintiff money. The
praetor could, however, grant a formula in a situation in which there was no
precedent. Officially in such a case he was not making new law; that would
have been beyond his powers. In effect he was
saying that the claim justified a remedy and so the law must provide it.
Although he spoke as if he were just implementing existing law, he was in
fact making new law. Since the new remedies were presented as an expression
of the old law, the innovation was disguised. For example, the praetor could
not treat as owner of property someone who was not the owner under the
civil law, which he was bound to uphold, and so he could not grant such a
person the owner’s action to recover what was his. He could, however, give a
non-owner an alternative action to enable him to obtain physical control of
the property, and protect him in that control until he became owner by law
through lapse of time. Similarly, he could grant the heir’s action to recover
the deceased’s property only to one who was heir according to the civil law.
But he could give a non-heir an alternative remedy to get and keep
possession of the property. Such a person enjoyed the property as a
possessor rather than as owner. Doubtless for many Romans this was purely
a semantic distinction, but for those with an appreciation of the law it was
significant. It enabled the praetor to grant a deserving party a remedy, when
he felt that the popular sense of justice required it, while at the same time
maintaining the formal integrity of the civil law. At the beginning of his year
of office the praetor published an edict, in which he set out the various
circumstances in which he would grant a formula, and eventually appended
the appropriate formulae. Prospective litigants would consult the edict and
could obtain on demand any formula promised in it. A defendant who
disputed the plaintiff’s allegations would not be prejudiced by the grant of a
formula, as he would be confident that his opponent could not persuade the
iudex that his allegations were well founded. The formula was a flexible
instrument and could be modified to take account of particular defences put
forward by the defendant. For example, where the civil law prescribed a
particular form for a legal transaction, it was originally concerned only with
whether or not the form had been complied with. It did been carried out, the
fact that the promisor might have been induced to make his promise by the
fraud or threats of the other party was irrelevant. In the later republic,
however, the praetor allowed both fraud and duress to be pleaded in the
formula by way of a defence to the plaintiff’s claim, and if the promisor could
prove his assertions, he would be absolved. Such a defence, or exceptio , was
required where the defendant admitted the truth of the plaintiff’s allegation
(e.g. ‘I did make the formal promise’) but asserted further facts (e.g., ‘but that
promise was obtained from me by fraud’) which nullified the plaintiff’s claim.
By allowing the defences, the praetor gave legal recognition to the principle
that transactions tainted by fraud or duress were unenforceable. In certain
formulae, the iudex was told to condemn the defendant only to pay whatever
sum he ought to pay ‘according to good faith ( ex fide bona )’, and in such
cases a specific exceptio was not needed. The only award which the iudex
could make at the conclusion of a legal action was money damages. Once he
had given his judgment in favour of one of the parties, his task was over and
he ceased to exist as a iudex . He could not, therefore, order a party to do
something or not to do something, since, when the time came to decide
whether or not the order had been obeyed, he would no longer be a iudex . A
decision that a defendant should pay a particular sum is an appropriate
conclusion of many types of dispute but it is not suitable in all cases. In the
later republic, when remedies other than the grant of regular legal actions
were required,

4 THE IUS GENTIUM AND THE ADVENT OF JURISTS

Where one or both of the parties was not a citizen, it was inappropriate to
apply the traditional civil law to their disputes. At first, when non-citizens
were relatively rare, the Romans resorted to the fiction that the foreigner was
a citizen in order to bring a case within the scope of the civil law. After the
Roman victory over the Carthaginians in the Punic Wars of the third century,
Roman rule extended over the whole of the western Mediterranean and the
number of non-citizens, or peregrines, in daily contact with Romans
increased to such an extent that they had to be brought expressly within the
ambit of the law. In 242 BC a second praetor was introduced specially to deal
with cases in which one or both parties was a peregrine and the two praetors
were henceforth distinguished as urban and peregrine. The civil law was the
proud possession of Roman citizens and could not be extended
indiscriminately to peregrines. In the third century BC citizenship was a
privilege that marked off Romans from other peoples and Romans were
expected to observe higher standards of conduct than others. Livy (34.1)
records that an Oppian law of 215 BC required Roman matrons to wear
simple dress without ornament, while peregrine women walked the streets of
Rome in purple and gold. Disputes involving peregrines had, however, to be
settled by recognised rules.

The civil law was the proud possession of Roman citizens and could not be
extended indiscriminately to peregrines. In the third century BC citizenship
was a privilege that marked off Romans from other peoples and Romans
were expected to observe higher standards of conduct than others. Livy
(34.1) records that an Oppian law of 215 BC required Roman matrons to
wear simple dress without ornament, while peregrine women walked the
streets of Rome in purple and gold. Disputes involving peregrines had,
however, to be settled by recognised rules. The Romans solved the problem
in a typically pragmatic way by the recognition that Roman law consisted of
two kinds of institutions. There were first those legal institutions, such as
traditional ceremonies for the transfer of property from one person to
another, which were peculiarly Roman and therefore must be reserved for
citizens. There were also other institutions of Roman law, such as many of
those derived from praetorian remedies, which were considered to be found
in the laws of all civilised people. They collectively formed what the Romans
called the ius gentium , or law of nations, in contrast with the traditional civil
law. The ius gentium was available to citizens and non-citizens alike. The
notion enabled the Romans to deal with the practical problem posed by
peregrines living under Roman government. Later, when they speculated
about why such rules were universally recognised, they suggested that the
reason must be that they were based not on traditional practice but on the
common sense, or ‘natural reason’, which all men shared as part of their
human nature. Thus the ‘law of nations’ was sometimes characterised as
natural law ( ius naturale ). It came to be accepted that the law of nations and
natural law were similar, except for the institution of slavery. This was an
institution which was recognised in all ancient societies, and was therefore
clearly part of the law of nations, but it was equally clearly not something
dictated by common sense and so could not be part of natural law. In the
later republic the formulary system and the supplementary remedies available
to litigants became increasingly technical and there was a need for specialist
experts to give advice where it was needed. Neither the praetor nor the iudex
, nor the advocates who represented the parties before them, were trained in
the law and all of them needed expert help from time to time. From the
second half of the third century we hear of a class of legal experts, jurists,
who had no formal role to play in the administration of justice but who of
being custodians of the law from the pontiffs but, unlike the pontiffs, they
acted openly and in public. The work of the Roman jurists was from the
beginning concerned with cases which had given rise to legal problems. Their
function was to suggest formulae or defences, appropriate for a particular
fact-situation, and to draft documents, such as wills or contracts, which
would achieve the effect that the parties desired and have no other,
undesired, effect. The opinions of these late-republican jurists depended
entirely on their personal reputation and those of the more authoritative
jurists were collected together in Digests, for reference in similar cases that
might arise in the future. The jurists were largely concerned with private law
and did not normally deal with public or criminal or religious matters. The
law relating to these topics was, as it were, ‘factored out’ of the civil law,
which became synonymous with private law.

[…]

12 JUSTINIAN AND THE CORPUS IURIS

The collapse of the western empire had left the eastern empire relatively
unscathed and indeed the second half of the fifth century saw a revival of
legal learning in the law schools of Constantinople and Beirut. The texts
were, of course, all in Latin but they were expounded in Greek. In 527 there
ascended the imperial throne a man whose name is for ever associated with
Roman law. Justinian was born near Naissus (Niš in modern Serbia), also the
birthplace of Constantine. He was a native Latin-speaker (the last eastern
emperor to be such) but enjoyed a Greek education at Constantinople, which
now reverted to its old name of Byzantium. His legal work was part of an
ambitious programme to renew the ancient glory of the Roman empire in all
its aspects. A man of great nervous energy and command of detail, like
Napoleon he required little sleep. He was much influenced by his wife
Theodora, a former actress, and after her death in 448, he was less active as a
ruler. Through the efforts of his generals, Narses and Belisarius, he recovered
North Africa from the Vandals and re-established imperial authority over the
Ostrogothic kingdom in Italy. He resisted the claims of the Pope to equal
authority with the emperor and regarded himself as holding supreme religious
as well as supreme temporal power. The symbol of his religious authority was
the great church of Hagia Sophia in Byzantium, in the building of which he
claimed to have surpassed Solomon. never have admitted it. Whereas Alaric’s
aim was to give his Roman subjects a law suitable for sixth-century Gaul,
Justinian consciously looked back to the golden age of Roman law and aimed
to restore it to the peak it had reached three centuries before. Rather
inconsistently he also wanted a law that could be applied in the Byzantine
empire of his own time. One part of his project was modest enough: to bring
the Theodosian Code up to date. The main agency of legal development had
been imperial constitutions and there had been many ‘Novels’ in the previous
century. Justinian’s Code arranges the constitutions in chronological order in
titles and covers twelve books. In the course of the general overhaul of the
law, many controversies, unresolved since the time of the classical jurists,
came to light and were settled by his own constitutions. The most important
part of Justinian’s compilation was quite unprecedented. This is the Digest
(Latin Digesta ; Greek Pandectae ), an anthology of extracts from the writings
of the great jurists. The five jurists of the Law of Citations are given pride of
place, over one-third of the Digest being taken from Ulpian and a sixth from
Paul, but there are extracts from earlier jurists of repute, even the jurists of
the late republic. The whole forms an immense legal mosaic, about one and a
half times the size of the Bible, but it represents, Justinian says, only a
twentieth of the material with which its compilers began. The extracts are
arranged in titles, each title being devoted to a particular topic and the titles
arranged in fifty books. Where a subject could not easily be divided up, such
as legacies, a single title might extend over three books. Normally, however,
division was preferred, as with the contract of sale which is covered in eight
titles: a general title and special titles dealing with particular aspects of sale.
The order of the titles is the traditional order of the praetorian edict, but the
fragments within each title seem to be arranged quite haphazardly. The
compilers were instructed to attribute each fragment to its source by an
appropriate inscription. In the nineteenth century, the German scholar
Bluhme showed, from a study of these inscriptions, that extracts from
particular works appear in three groups and that within each group the
extracts normally appear in the same order, although the groups themselves
were not arranged in the same order in every title. He therefore concluded
that the compilers, under pressure from the emperor to speed up the work,
must have divided themselves into three committees, each of which took a
bundle of works to extract. They then brought chains of fragments to a
plenary session, at which the order of the respective chains was agreed for
each title and a few specially significant fragments moved out of order into a
more prominent position. Recent research, based on computerised study of
the text, has further refined Bluhme’s conclusions. The Digest was produced
in three years and the compilers must have had their work cut out just
abbreviating the material at their disposal and making the resulting extracts as
coherent as possible. Although they gave the source of each extract, we
cannot assume that what they attributed to the jurist is what he actually
wrote. This is partly because the original discussion has been cut down, but
also because the compilers were expressly instructed to eliminate all
contradictions and to avoid repetitions. Much evidence of disagreement
among the classical jurists was therefore excised. The compilers were also
authorised to make whatever substantive changes were necessary to ensure
that the final work expressed the law of sixth-century Byzantium. It is the
extent of such alterations which has been a main concern of Digest study in
the twentieth century. The changes in the texts have been known since the
sixteenth century as emblemata Triboniani and more recently as
interpolations, whether they subtract from, add to, or just alter the original
text. The Code and the Digest are the main parts of Justinian’s compilation,
but of their studies, and Justinian ordered that they be supplemented by a
new Institutes, based on Gaius’s Institutes of nearly four centuries earlier.
Although an elementary text-book, it was given equal status with the Digest
and Code. The Digest and Institutes became law on 31 December 533 and a
revised edition of the Code a year later.

[…]

13 THE REDISCOVERY OF THE DIGEST

In the later eleventh century the level of legal culture began to rise and there
is evidence of a new interest in Justinian’s law; notaries in their documents
and advocates in their pleadings now refer accurately to technical Roman
legal institutions. Five hundred years after its compilation, Justinian’s Digest
came to be used in Western Europe as a source of rules and arguments. No
doubt there had been manuscripts lurking in Italian libraries but their bulk
and the All surviving manuscripts of the Digest today derive ultimately from
a sixth-century codex in Pisa, which was seized as war booty by the victorious
Florentines in 1406 and is now in the Laurentian library in Florence. The
relationship is not direct but through a lost, amended, copy made in the
eleventh century and known as Codex secundus . This version was the source
of the vulgata or litera bononiensis , that came to be studied in the twelfth-
century schools. The recovery of the entire Corpus iuris civilis was a slow
process, extending over much of the twelfth century. The Digest became
available in three parts, known as Vetus, Infortiatum and Novum . The
division bears little relation to the original structure, Vetus being Books 1 to
24.2, Infortiatum Books 24.3 to 38 and Novum Books 39 to 50. The origin
of the division, and in particular the designation Infortiatum for the middle
section, is unknown and was a mystery to the twelfth-century doctors
themselves. It probably reflects the order in which the parts of the Digest
became generally available. Eventually the complete Digest could be added to
the Institutes and to the first nine books of the Code. Later the Tres libri (the
last three books of Justinian’s Code) were discovered but were kept separate
rather than integrated into the rest of the Code; and a better version of the
Novels than the Epitome Juliani , known as the Authenticum , became
available. The latter was grouped into nine Collationes in imitation of the
Code. The Institutes, Tres libri , and Authenticum were placed in a fifth
volume, after the three volumes of the Digest and the (nine books of the)
Code.

[…]

14 THE ATTRACTION OF THE BOLOGNA STUDIUM

By the end of the twelfth century the position of Bologna as the legal centre
(or ‘mother of laws’) of Europe was unchallenged and the studium had
thousands of law students from all over Europe. They were grouped in
‘nations’ according to their country of origin. For the first time since the fall
of Rome, law in the West was an autonomous discipline, whose special
techniques had to be learned over several years of rigorous study, at the
conclusion of which a professional qualification was received. The law
students not only attended lectures. They cut their teeth as lawyers by
participating in disputations on set topics, in which each side presented an
argument with supporting texts, after which the master presiding gave his
solution to the problem. They were expected to equip themselves with a
personal set of the more important texts. Authorised booksellers, known as
stationarii exempla tenentes , held certified copies of the texts, which they
hired out to students so that they could make their own copies. When their
period of study was over, they would have the basic material to take with
them. In this way former students were able to disseminate a knowledge of
what they had learned in their own countries. Although the emphasis of the
Bologna law school was academic rather than sheer force, as had been the
case in earlier centuries. There was a yearning for power to be legitimated,
but standard collections of laws, whether of Roman or Germanic origin,
offered little guidance on fundamental questions of jurisdiction and the like.
Bishops and secular princes alike looked for men who could deploy
arguments, based on principles which were objective and rational and had a
universal authority. Only the Roman texts could provide such principles. The
new legal learning provided its students with qualifications which won them
positions of responsibility both in episcopal and princely establishments.
Enlightened bishops sent their promising young chaplains to Bologna to
acquire at least some knowledge of the new learning, while princes and
nobles seeking to legitimate their power sought to ensure that its results were
also available to them. The University of Bologna was not founded by a
deliberate act. It emerged out of the need, felt by the students of law, to
organise themselves for the purpose of ensuring that they received the most
effective teaching and obtained a recognised qualification. In contrast with
the other twelfth-century universities of Paris and Oxford, established and
governed by masters, Bologna became the model of a university governed by
students, who employed the professors to teach them. Although other higher
subjects, such as theology and medicine, were also taught there, law, both
civil and canon, remained dominant. Both the imperial and the papal
authorities endeavoured to find favour with the Bolognese studium , by
supporting it in its dealings with the municipal authorities of the city. The
influx of students had created serious problems for the citizens but they did
not want to lose the economic advantages that the students’ presence
brought them. The young Emperor Frederick Barbarossa, on his way to
Rome for his coronation in 1155, stopped at Bologna to meet the leading
doctors of law and to seek their support, in justifying certain laws that he
wished to enact. Having obtained their assistance, he promulgated the
Constitutio habita , in which he conferred privileges on law students coming
to Bologna, whom he described as ‘pilgrims for the sake of study’. In
particular Frederick recognised corporations of students, who were to be
allowed to govern themselves in the manner of craft guilds. This concession
enabled the students to negotiate with the professors but it also gave the
studium as a whole a certain independence from the commune of Bologna.
By the beginning of the thirteenth century, the students were sufficiently
strong that they could often get their way by threatening to secede from the
town. The commune reacted by trying to keep them and it was now the turn
of the papal authorities to intervene on the students’ behalf. In 1217 Pope
Honorius III pointed out that, instead of trying to compel the students to
stay, it would be better for the commune to adopt measures that would
encourage them to remain there of their own free will. Two years later, the
Pope granted the archdeacon of Bologna the power to confer on successful
students the right of teaching everywhere, thus indirectly subordinating the
university to the Church. The success of Bologna ensured its imitation
through the foundation of law schools in other parts of Italy. There was a law
school at Modena in 1175. The studium at Padua was begun in 1222, and the
example was followed by other Italian centres, such as Pavia, where the old
school of Lombard law developed into a school of civil and canon law. In
1224 the Emperor Frederick II founded the university of Naples, largely for
the study of Roman civil law, and sought to ensure its success by
commanding his subjects to study there rather than in Bologna. At first the
order applied only to those in the kingdom of Sicily, but, in the course of his
dispute with the Lombard League, to which Bologna adhered, he extended
the ban on studying at Bologna to his subjects in his Lombard dominions and
to those in Germany and Burgundy.

15 CIVIL LAW (IUS COMMUNE) AND LOCAL LAWS (IURA

SINGULARIA) IN THE THIRTEENTH CENTURY

From the thirteenth century Europe saw attempts in several European

countries to set down the local law in writing and in every case those
responsible turned to the civil law to provide organising categories and
organising principles. The English common law was set out in the Latin
treatise on the laws and customs of England, known as Bracton. Its core was
written in the 1230s and it was later revised. Although based on the records
of the royal court, it used, and sometimes adapted, the categories of Roman
civil law, derived from Azo’s Summa Codicis . The author of Bracton
understood that if the laws of the king’s court were to be set out in a manner
approaching coherence, he would need a structure of general notions, which
were articulated only in Roman law. Many passages echo the language of
Digest and Code, not by formal citation but by the use of phrases from the
Roman texts, which the author has woven into his exposition. They show
that he had made Roman law part of his way of thinking as a lawyer. His
treatise equipped the nascent common law with the minimum theoretical
structure that it needed to grow in a coherent way. When kings wanted to
legislate, they turned to civil lawyers for help. Edward I, king of England
from 1272 to 1307 (and lord of substantial parts of France), was very
interested in problems of government and law and was responsible for
several pieces of legislation that earned him the (exaggerated) title of ‘the
English Justinian’. For this work he specially recruited Francis Accursius, son
of the great glossator, and a well-known civil lawyer in his own right, into his
service. At the same time as Bracton was compiling his collection of English
law, the Emperor Frederick II in 1231 promulgated a collection of laws for
his Sicilian were used to justify the law-making power of the emperor and the
procedure to be adopted in the royal courts. Again the underlying assumption
seems to have been that, without a clothing of Roman law, the laws of the
kingdom, even when promulgated by the emperor, would not appear to be
fully authentic. Gradually the Roman civil law was permeating all legal
culture; it provided the categories, the methods of legal reasoning and the
forms of argumentation, which were essential for anyone who wished to be
considered a jurist. The Constitutio puritatem laid down the duties of
Frederick’s judges in the face of a multiplicity of overlapping laws. In the first
place they must apply royal legislation. If there is no relevant rule to be found
there, local customs may be applied, so long as they are good customs; in the
absence of a rule in legislation or approved customary law, the judges should
turn to the ius commune , which is explained as Lombard law and Roman
law. Lombard law was the only Germanic law to have been the subject of
scholarly interpretation (at Pavia). Henceforth, however, no law was taught in
law schools but civil and canon law. Even Frederick’s royal constitutions had
no place in the curriculum of the law school at Naples, which he founded. In
Spain the legal situation was much affected by the Moorish domination. The
Liber iudiciorum , a seventh-century collection, based on earlier collections of
Visigothic and Roman laws, which had originally been applied to the
Visigothic and subject populations but had become territorial, provided some
basis for the regional customs. The Moorish occupation, beginning early in
the eighth century, covered the whole peninsula, except for the far north and
Catalonia, until the end of the tenth century. The Reconquista proceeded
during the eleventh and twelfth centuries and by 1200 the northern two-
thirds of the country had been freed from Moorish domination. It was,
however, not united, since, as different parts were freed, they became
independent kingdoms, each with its own set of customs, set out in a
multitude of written ‘fueros’. The leading kingdom was Castile and Leon. The
earliest Spanish university was established in the first decade of the thirteenth
century at Palencia and moved in 1239 to Salamanca, which became a centre
for civil and canon law. In the middle of the thirteenth century, two
remarkable kings, Ferdinand III and Alfonso X, were able to exploit the new
learning in order to counter the diversity of laws in their dominions. In the
style of Frederick II in Sicily, they sought to introduce a modern system that
would act as a unifying force and bring Castile into the mainstream of
European legal thought. Ferdinand initiated an ambitious set of law books,
culminating in the Siete partidas , published by Alfonso, known as ‘the wise’.
The division into seven parts glowed with religious significance and may have
been modelled on the sevenfold division which Justinian imposed on the
Digest for educational purposes ( Constitutio Tanta , 1–8). Alfonso had been
persuaded of the virtues of Roman law by his tutor, who had studied at
Bologna, and personally led the team of compilers. The work they produced
was a mixture of traditional customs of Castile and Leon, of civil and canon
law and of rules derived from the Old and New Testaments and from
patristic writers. Although by inclination favouring Roman law, Alfonso had
to make it acceptable to his subjects. The Siete partidas were written in the
vernacular rather than in Latin, and were comprehensive in scope, covering
general notions of law and custom, procedure, property, marriage and marital
property, contracts, succession on death and criminal law. Roman and canon
law influences are noticeable in all parts. Alfonso was not strong enough to
impose this legislation throughout his kingdoms. The nobility, whose
privileges he had attempted to curtail, and the municipalities initially found it
too foreign. Gradually, however, its merits were recognised and the more
professionally trained the judges became, the more they turned to the Siete
partidas .

[…]

16 THE RECEPTION OF ROMAN LAW

As the national states in continental Europe gloried in their new found

‘sovereignty’, and set up professional courts to take over important business
from local courts, they uniformly adopted a variant of the Romano-canonical
procedure. They adopted the substantive civil law, however, only to the
extent that the existing customary law was inadequate for their needs or was
difficult of access, since it had not been cast in written form. Thus in France,
where the customary laws had generally been codified, the reception of
Roman law into court practice proceeded as a gradual trickle, whereas in
Germany, as we shall see, it was a dramatic flood. Sometimes royal legislation
furthered the movement. In Spain the Siete partidas acted increasingly as a
counterweight to provincial particularism. In 1567 they were supplemented
by a collection of new laws, known as the Nueva Recopilación , arranged in
nine books in imitation of Justinian’s Code. Everywhere there was a need for
the more comprehensive and technically superior law that was offered in
Justinian’s texts, but the extent of its adoption depended on the local
circumstances.