罗马法The Revival of Roman Law in the Middle Ages

The Revival of Roman Law in the Middle AgesAdapted from Hans Julius Wolff, Roman Law, An Historical Introduction (Norman, Oklahoma, 1951) and Peter Stein, Roman Law in European History (Cambridge, 1999).“It is one of the paradoxes of history that Justinian‟s achievement was destined to play its greatest role in Western Europe, where it was never officially introduced or where its most important part, the Digest, remained for many centuries virtually unknown. Nevertheless, it was in the lands of the West that the law of the classical Roman jurists was rediscovered. In the centuries following A.D. 1100, it was scientifically analyzed, adapted to the needs of the time, and again made an active force in the life of the people. The movement began in Italy and spread thence to Spain, France, and Germany.“This revival came towards the close of the eleventh century as part of a general recovery of European civilization. A new Empire—comprising Germany, Burgundy, and the northern half of Italy—had come into existence; the kingdom of France was consolidating itself; the reconquest of Spain had begun; and well-organized Norman kingdoms were being formed in South Italy and in England. The economic life of Western Europe, which had sunk after the collapse of the Roman Empire to a very primitive level, was again tending toward urban forms and intensified international commerce; especially in North Italy where powerful and prosperous cities were evolving.“The main text of the Digest had been largely unknown i n the West, but a complete manuscript of the Digest was found in Pisa, late in the eleventh century. A painstaking study of the text was at once begun by Irnerius, a professor of grammar in Bologna. Irnerius made the exploration and explanation of the Digest, as well as of the other parts of Justinian‟s legislative work, his lifework. He and his school, comprised of students from all the countries of Europe, recreated the science of Roman law, which has continued to this day.“The school of Bologna is known under the name of …Glossators.‟ This name is derived from the method they employed—a common one among scholars of the period and in fact the only practicable means for assimilating the gigantic mass of material with which they were confronted. This method consisted in writing short comments on the texts, passage by passage, in marginal glosses. Employing the general pattern of scholastic reasoning, they extracted the legal principles underlying the decisions on which they commented. They did this by interpreting each of the several passages as such, by collecting parallel passages from other parts of the Corpus Iuris, and by seeking to harmonize what appeared as contradictory statements. On the basis of results obtained in this explanatory work, they developed two further types of treatment. These were the so-called Summae—i.e., more comprehensive statements of the system or parts of it—and “Distinctions”—i.e., explanations of legal concepts attained by analyzing a general concept into its subcategories and then proceeding to ever more subtle definitions until all the implications of the concept had been developed.“A century and one-half of intense work enabled the Glossators to attain, for the first time in Western Europe, a thorough familiarity with the whole of Justinian‟s legislative achievements. Their work laid the ground for a theoretical understanding of the Corpus Iuris and for practical application of the legal ideas stored in it. They deeplyinfluenced the legal thinking of all succeeding centuries. The maxim came to be accepted that …What the Gloss does not recognise, the Court does not recognise.‟ The authority of the Gloss is the origin of the idea, still characteristic of the continental civil law, that authoritative academic comment on a legal text is itself an authentic source of law.“But, being truly medieval men, the Glossators were not motivated by any historical interest in Roman law. To their mind, Justinian‟s codification embodied the law of their own time. But it was not the real law of their time anywhere. The law actually in force was largely based on native, i.e., chiefly Germanic, conceptions and customs. All this remained outside the scope of the Glossators‟ interest, and thus their approach inevitably proved insufficient.“The leading men of the new school—mainly centred at Perugia—were Italians, too. The new school [of thought or interpretation], begun in the thirteenth century, was known as the school of the …Commentators‟. This name is derived from the fact that these men no longer contented themselves with interpreting the Corpus Iuris directly and in isolation. They wrote coherent treatises, or …commentaries,‟ on specfic topics and they took an important step forward by combining Roman law with the statutory law of Italian cities and with canon law. In this manner they succeeded both in adapting Roman law to the actual practical needs of their time and in giving the contemporary law a scientific basis through theoretical concepts derived from Roman law. They founded the sciences of commercial law and of criminal law, and they laid the ground for what became the European theory of conflict of laws. It could well be argued that the Commentators were the real founders of modern legal science.“It was not lo ng before the new science of Roman law as inaugurated by the Glossators in Bologna spread out into other countries, first of western and then also of central and eastern Europe. Chairs of Roman law were established in the universities which came into being everywhere.“The ultimate explanation for the priority of Roman law can probably be found in the political and psychological conditions of the Middle Ages. Medieval men believed in a single, universal empire of all Christendom, and Roman law was the law of this empire. For the empire, so they thought, had once existed under Constantine and Justinian, and it had been renewed by Charlemagne.“Furthermore, the law of the Corpus Iuris was a highly developed system providing solutions for many difficult legal questions and was conveniently assembled in one great codification. In contrast with this, the local laws were undeveloped and differed from region to region, and often community to community. Many had never been put to writing and were thus inaccessible to scientific treatment and academic teaching.“The consolidation of royal power in western Europe at this time required a more rational approach to government and the administration of justice, and the need could best be filled by trained jurists. In the same measure that royal courts and administrative institutions were competing with or replacing feudal courts in various countries, legally trained officials were being substituted for feudal councilors. Thus, with the infiltration of Romanist concepts and the direct application of specific rules of Roman law, the influence of graduates of Bologna and other universities was growing.“Thus from the outset, the cultural and political significance of Rome gave the study of Roman law an importance far greater than that of a purely academic concern with a body of more highly developed historical legal doctrine. As a matter of fact, the victory of Roman law in medieval Europe did not remain confined to the realm of theory. The revival of studies of Roman law proved to be the stimulus for, and the instrument of, one of the most remarkable phenomena of European history. This is the so-called …reception‟ of Roman law, that is to say, the penetration of Roman principles and institutions into the actual legal life of Europe.“The reception was not planned and was nowhere complete. It was a complex process of gradual infiltration through the action of university trained judges, lawyers, and draftsmen of legal documents; through opinions based on Roman law, rendered by professors of Roman law for the use of judges or parties in specific lawsuits; and through the work of learned men who undertook to draft statutes or to compile comprehensive statements of legal principles for the use of judges and attorneys. It took different forms and worked with a varying intensity in the several countries, but few countries remained entirely untouched by it. It was only Roman law that could truly raise the claim of being common to all, and it was only Roman law that could supply the rules needed to fill the innumerable gaps found in statements of national law. Wherever royal judges were supposed to apply the laws of the kingdom—but could not find them in statements of national law—Roman law naturally offered itself as the source on which to draw.“To be sure, there was one major exception: England. The early establishment of a well-ordered system of royal courts under Henry II (1154-89) made possible the beginning of a unification and soon, comprehensive statements of the national law. This, combined with the rise of a legal profession trained in the national law [common law] and proud of it, gave sufficient strength to English law to withstand the intrusion of Roman ideas.”。