Roman Law

Roman law became once again dominant throughout Europe, as Europan civilization awakened from the dark ages which followed the Barbarian invasions. The prime cause of this phenomenon was the need of a more highly developed system of law. With the revival of commerce which followed the crusades economic conditions became more complex, and the simple customs by which the greater part of the continent was governed became inadequate. One of the first results of the commercial revival was the extension of the mercantile law of the Mediterranean, which was largely Roman in character, along the coasts of Western and Northern Europe; but this body of law was applied only to merchants and to transactions of a distinctly commercial character. The new needs of the rest of the community were amply met by the law-books of Emperor Justinian. In those parts of Europe which were not at first touched by the revival of commerce, and in which simple economic conditions continued to prevail (e. g. Switzerland and the Scandinavian countries), the Roman law was not received.

A further and negative cause of the reception was the inability of the mediaeval state to furnish the kind of law that was needed. Feudalism had so disintegrated political authority that in most parts of Europe there was no real legislative power nor any supreme judicial control. The principal exception was England, where the Norman conquest had so solidified the state that the king in Parliament could enact statutes for the realm, and the king's courts were able to develop the national law by their decisions. A second exception was Northern France, where, at the close of the thirteenth century, the crown had obtained power enough to reform procedure in the provincial courts and to draw cases to the king's courts on appeal. In England therefore the Roman law was not received at all ; and in Northern France the reception was " partial " only — i. e. single rules were received, but the Roman law was not adopted as a whole. A third factor of importance was the conviction which prevailed throughout Europe, and which was especially strong in Germany and Italy, that all political authority was derived from the The Roman Empire, and that all the Roman emperors from Augustus to Justinian were the legal predecessors of the mediaeval rulers. This fiction of "continuous empire" did much to facilitate and legitimize the reception.

Closely connected with the reception of the Roman law was the disappearance of popular courts and lay judges and the development of the "learned judiciary." Each of these movements was in part a result and in part a cause of the other.

From the broadest point of view the reception of the Roman law may be regarded as a first step in that reception of the ancient culture which culminated in the humanistic movement of the fifteenth and sixteenth centuries.

Character of the Reception.—(1) The Roman law was adopted in the form and with the modifications which it had received in the Italian practice of the twelfth and thirteenth centuries. The Italian jurists had combined with the Institutes, Digest, and Codex of Justinian the greater portion of his Novels, and to distinguish this mass of law from the canon law they termed it "the body of the civil law" (corpus juris civilis). They had also "glossed" or annotated its provisions, and their notes, as digested in the "ordinary gloss" of Accursius (about 1250), enjoyed an authority almost greater than that of the text. (2) The "civil law" was received subject to the changes introduced by the canon law. (3) It was received nominally as subsidiary law. it was to be applied only in the absence of local rules. In Germany, however, the learned judges were generally hostile to local custom, and by throwing upon the party who alleged a local rule the burden of proving its existence and its nature they did much to destroy local custom and institute Roman rules.

Modern Codes.—A reaction against the Roman law began almost simultaneously with its complete reception. Codification of local customs was first demanded; later, under the influence of the "natural law" school (see JURISPRUENCE), there arose a general demand for modern codes better adapted to modern conditions. The decisive factor in modern European codification, however, has been the desire to substitute uniform national law for divergent local and provincial laws. In many branches of the law (notably in the field of contract) the existing codes of Europe are sub stantially Roman, and the non-Roman rules which have found acceptance are usually formulated in a manner which shows the influence of Roman ideas to be still dominant. In several countries in which the law-books of Justinian were never received a "scientific reception" of the Roman jurisprudence has taken place; so in Switzerland and in the Scandinavian countries.

SOURCES AND LITERATURE.—For the older Roman legislation and jurisprudence, see Bruns and Mommsen, Fontes Juris Romani, and Huschke, Jurisprudentia ante justinianea. The Institutes of Gains have been translated into English by Poste and by Muirhead ; the Rules of Ulpian by Muirhead; the Institutes of Justinian by Moyle. The best edition of the Corpus Juris Civilis is that of Mommsen and Kruger; the latest edition of the Corpus Juris Canonici is that of Friedberg. Histories of the Roman law (to Emperor Justinian) are numerous; the best in English is that of Muirhead. The best brief exposition of the Roman law in English is the translation of Sohm's Institutes. For the mediaeval history of Roman law the best book is still that by Savigny. For the reception, see the works of Schmidt and Modderman.

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