Historians debate whether and how much the barbarian invasions of the fifth century marked a rupture with the Roman past in the former territories of the Western Roman Empire in Europe. Given the endurance of the Catholic religion and the Latin language (at least outside of Britannia and Germania), a strong argument can be made for continuity. Perhaps the clearest sign of rupture, however, was the eclipse of Roman law.
While Justinian compiled and systematized Roman law in Constantinople, Roman law declined in the West. The new barbarian kings promulgated codes based primarily on Germanic customary law, although they incorporated some aspects of Roman law to varying degrees. Among the most “barbaric” of these codes was the Edictum Rothari, promulgated in 643 by the Lombard king in Italy. More than half of its 388 titles related to wergild (the ancient Germanic practice of fixing monetary penalties for a highly detailed list of offenses), while only half-a-dozen dozen titles addressed contract law. Initially, the law codes of the barbarian kings applied only to the ruling Germanic minority while the native Latin majority remained (depending on the time and place) subject to a vulgarized form of Roman customary law. Parts of the Theodosian Code were available in writing thanks to a codification by an early Visigothic king, and it is said that Justinian’s Code and Institutes (but not the Digest) were not completely unknown in early medieval Italy. Perhaps most significantly, important aspects of Roman Law survived in the Church’s canon law. Roman law did not vanish completely in the early medieval era, but it had lost its prestige and sophistication, was not a major subject of study, and had little practical importance in temporal affairs.
The Roman law revival began in 11th-century Bologna with the rediscovery of Justinian’s Corpus Juris Civilis (not coincidentally during the period of ecclesiastical reform under Pope St. Gregory VII). Jurists from throughout Christendom flocked to Bologna, attracted by the elegance, good sense, justice, and usefulness of Roman law. These jurists, however, did not simply commit the edicts and commentaries to memory, as if the study of Roman law were but an antiquarian pastime. They engaged with it as a living tradition, part of their own heritage as members of Roman and Christian civilization. Thus, the glossators and their successors sought not only to harmonize inconsistencies and resolve complex technical questions, but they also adapted Roman law to be responsive to the problems of their own age.
The Bologna jurists also did not attempt to supplant the existing bodies of law (which by this time were more complex and sophisticated than the Germanic codes of old) by introducing a complete, one-size-fits-all code of Roman law in their place. Instead, they adopted a more effective strategy. First, they applied Roman law as part of the ius commune of Latin Christendom. The existing positive laws and customs remained in place, but Roman law was used to inform their interpretation and fill in gaps. Second, jurists trained in Roman law became important advisors to rulers throughout Europe, and the new laws promulgated by those rulers were heavily influenced by Roman Law.
Today, we find ourselves in a new age of legal barbarism. The classical legal tradition—which was formed in part by the Roman law revival a millennium ago—has withered away, choked by the tangled vines of liberalism, positivism, and a panoply of related errors. Although uncouth Germanic war bands have been replaced with the superficially sophisticated heirs of the Enlightenment, the consequences are no less barbarous. Yet, like Roman law in the early Middle Ages, the classical legal tradition has not vanished completely. Its atrophied vestiges endure in both the common law and civil law systems of today, waiting to be rediscovered and resuscitated. Like the Bologna jurists, our project is not to replace the existing body of law in one fell swoop. Rather, the classical legal revival will depend on adapting the classical legal tradition to the circumstances of today and applying it to the existing positive law as a kind of jurisprudential leaven. The revival will also depend on gradually shaping new law in all its forms (legislation, regulation, and case law) such that it is consonant with natural law, promotes the common good, and is informed by a sound understanding of the nature and purpose of law. This is no small task, but we can take heart in knowing that it is not without precedent.
Yves Casertano
(Image: Irnerio che glossa le antiche leggi, by Luigi Serra)
