By the second century AD, the Roman Empire had expanded covering many continents; Roman law was enhanced by Greek ideas and philosophy, the system was brought near to perfection even though it was already adaptable, enduring and pragmatic. After the Romans had conquered Greece the whole Greek culture; its art, literature, philosophy began to infiltrate into Roman Society.
The ‘Institutes of Gaius’ was the first trace of a systematic compilation of Roman law; it was considered to be an elementary introduction to law. The book tells us that the content and concern of the law is threefold: it deals with persons, or things or actions. It takes these headings, explains them and gives further subdivision and sub classifications.
In the 3rd century AD, Rome experienced severe economic crisis, political instability and disruption. Emperors had been replaced on considerably fast basis and great writers like Ulpian and Paul had explored Roman law so comprehensively as to leave very little for future jurists to explore, this thus led to the sudden decline of jurisprudence. Towards the end of the second century, the Republican structure began to disintegrate, less people were coming forward to fill the army and the adoption of the more liberal Greek morals, all contributed to Rome’s moral degeneration.
The Roman Empire had collapsed, which signalled the end for some considerable time, but in the West, the invaders did not impose their own law on the civilians, the locals were still governed by Roman law. Only this Roman law was much more of a ‘vulgarised’ version, which was abused and changed for their own benefits. The Barbarian Invasion in the 5th century maintained the Mediterranean as the Roman world’s chief artery of commerce. From the fifth until the 10th century, there was a period of intellectual decline, due to the rise of Islam and by Muslim control over the Mediterranean. Europe next lost its economic centre in the seventh century, its trade routes had been cut and as a result of this, it turned into a largely rural society in which the old Roman law came to be viewed increasingly as remote and unreal.
The Roman Empire was to survive another thousand years in the East; Byzantium took over the seat of the empire from Rome. Its emperor was Justinian, who had two main aims; firstly to restore Rome to its former glory and secondly to bring together all the Roman laws, by enacting and re-enacting a comprehensive compilation, systematisation and consolidation of all the existing law. His intention was to codify the law based on a selection of the decisions and enactments of the emperors, and from all juristic writings, with all the necessary modifications necessitated by the passage of time and change in social and economic conditions. Various lawyers from the East were appointed, all probably Greek speakers who derived four compilations that were collectively known as the Corpus Juris Civilis or the Corpus Juris for short. The Corpus compromises of several books.
The law as presented in the collection does not really represent classical Roman law or law during Justinian’s era, as Justinian ordered the compilers to edit the juristic writings and the enactments. Later on when the rest of the Roman Empire had collapsed, the Corpus Juris was being applied by conquerors to the inhabitants of the Italian peninsula in a crude way. German conquerors did not want to destroy everything Roman in the style of Gaul, but wanted to fuse Germanic customs with Roman law. Roman Germanic codes emerged, written in Latin, designed for Germans and Romans drawn from various Roman imperial enactments.
During the 11th and 12th century, Roman law studies experienced a rebirth due to the first lectures given by Irnerius at the university in Bologna on the Digest itself. The most important point is that Justinian’s Corpus Juris was being studied and not the vulgarised Germanic versions, or any other devised by local townships or minor rulers. By the middle of the 12th century, there were around 10,000 students in Bologna.
“…through the Bologna lecturers and the dissemination of Roman law through its scholars filtering through to the courts and legal practice, Roman civil law, as interpreted by the Glossators and Commentators, became the basis of a common body of law and legal commentaries, a common legal language and a common approach to teaching and scholarship. This is often called the common law of Europe, or the jus commune.” (de Cruz (1999)
This university became the centre of learning for scholars all over Europe; this meant that these students returned to their homeland where they promoted the study of the Corpus Juris according to the works of the Glossators and subsequently the Commentators. Those who graduated from the university were appointed to the royal councils and were made judges in many local courts.
There is no clear difference between the times when Commentators had replaced Glossators. Commentators stressed more importance to problems that needed to be discussed; they could already take advantage of the Gloss and use this as a standard commentary. Their style was based on making a comment on the glossed text which dealt with concerned extracts rather than individual passages, in other words they concentrated more on the significant texts. The approach of the Commentators was required as other systems of law were being studied, Canon law became a university subject in its own right, theologians and philosophers began to follow and study the work of Aristotle. The study of his Ethics and Politics led to the Natural Law Movement. By the 12th century Roman law became a binding law in Italy, it was therefore necessary to bring it up to date and to adapt it to local conditions of the time.
During the 16th and 17th century, a third group of writers emerged called the Humanists, based in the French University of Bourges. They did not appreciate the approaches of the Glossators or the Commentators so they returned to the original text and sources of Roman law. They believed the true way to study the Roman texts was to criticize it. Lawyers were not convinced by their approach as it was not very practical and could not be applied to situations, they needed a living law which was practice orientated. This philosophy never gained much popularity or acceptance.
The general law of Europe, which eventually emerged by the end of the fifteenth century, was a mixture of local statutes, customs and interpretations of the Roman law. However, the rapid development of society in Europe gave rise to a demand for a series of logically consistent principles and rules (laws). This demand was satisfied by the introduction of various codes of law to meet the needs of the times.
BIBLIOGRAPHY
Peter de Cruz (1999), Comparative Law in a Changing World: Second Edition, Cavendish Publishing Limited
O F Robinson, T D Fergus, W M Gordon (2000), European Legal History: Third Edition, Butterworths
K Zweigert & Kotz (1995), An Introduction to Comparative Law: Third Edition, Oxford University Press
Thomas Glyn Watkin (1999), An Historical Introduction To Modern Civil Law, Ashgate Publishing Limited
Barry Nicholas (1975), An Introduction to Roman Law, Oxford University Press
Originally known as Octavian and was adopted by Julius Caesar, was Rome’s first emperor
A functionary who was one of a group of magistrates who were elected annually
A form of judge, who selected by consent parties and given authority by the praetor
The earliest known codes of law, which were simple rules mainly of Latin custom with references to Greek law, derived by specially appointed commissioners
The book had been discovered in 1819 and has given a great insight into Roman law before the time of Cicero. The writer who had adopted the name ‘Gaius’, a jurist who lived in the 3rd century, and whose Institutes appeared around the 2nd century BC.
The Institutes, a textbook or systematic treatise produced for first law students. The Digest or Pandects, which was considered to be the most important part of the Corpus Juris, as it was a compilation of edited fragments written by great Roman jurists. The Codex, a collection of imperial enactments including edicts and judicial decisions, dating from the time of Hadrian. The Novels, a collection of imperial legislation enacted by Justinian himself, based on private collections, issued subsequent to the publication of the other three parts which were promulgated between 533 and 544 AD. No official edition of the novels was ever issued.
Glossators were a group of scholars, who studied and the Corpus Juris. They initiated the systematic study of Roman law by analysing the texts and trying to reconcile them in a logical manner with other texts. They ironed out imperfections and created the basis of arguments in law. They attached short notes, glosses, to passages so that they could compare them to others, they would then pose a question or list possible solutions to them. In early glosses there are lists of parallel and conflicting passages, the parallel passages simply reinforced what was already written and solutions were proposed for conflicting passages. Eventually, Glossators work developed from gloss to a form of commentary.
