[Legal English] The Civil Law Tradition (Digest)
Charpter 1
History, Culture And Distribution
1. What is the Civil Law Tradition?
When we refer to some of the world’s legal systems with a common name, such as “Romanist”, “Romano-Germanic”, or “civil law” systems, we are calling attention to the fact that, despite their similaritis to other legal systems and despite national differece among themselves, these systems share a distinctive heritage. The tradition of the civil law is characterized by a particular interaction in its early formative period among Roman law, Germanic and local customs, canon law, the international law merchant, and, later, by a distinctive response to the break with feudalism and the rise of nation states, as well as by the specially important role it has accorded to legal science.
2. Roman Law
To use the term Roman law to describe the entire Roman legal output of nearly a millennium stretching from the Twelve Tables (c. 450 B.C.) to Justinian compilations (c. 524 A.D.) is about as helpful as describing the product of English legal minds from 1066 A.D. to the present as “common law”.Thus, specialist in ancient Roman law subdivide their subject into various periods. It was as early as the third century B.C., during the Republic, that there appeared a class of men known as Jurisconsult, who made law their specialty. By the end of the Late Republic in the first century B.C., the Jurisconsults had acquired a monoply of technical information and legal experience. In difficult cases, the lay judges began to turn to these legal specialist for advice. Through this advisory role, the jurisconsults stayed close to the practice of law and remained in constant contact with actual disputes. They were the world’s first professional lawyers (as distinct from orators like Cicero whose main skills were in rhetoric and statesmanship). What we know as Roman law evolved through the accretion of the opinions they rendered case by case. Eventually the principles thus developed by the Jurisconsults were taught and expounded in treatises, all in a distinctive vocabulary and style.
At first rather formal and rigid, Roman law eventually supplemented fixed rules with flexible standards and moved from concrete to more abstract modes of thought. It became characterized by attention to practical detail, and by terms of art which caught on and endured. The law of the Classical period (which began around 117 A.D. and came to an end with the period of anarchy, invasion, plague and civil war that commenced around 235 A.D.), represents the fullest development of ancient Roman law. Of the Jurisconsults of this period, Ulpian, Papinian and Gaius are chiefly remembered. At its height, classical Roman law constituted a body of practical wisdom of a kind the world had not seen before. It was therefore of the highest interest to Byzantine jurists after the fall of the Western empire, and, through them, had great influence on the development of the civil law systems.
Centuries later, Roman law would be called “written reason” by the medieval scholars who “rediscovered ” it as Europe began emerge from the Middle Ages. The Roman law that they “found” when Western society began to be ready for law to play a prominent role once again among the norms that govern human activity, was not the law of the Classical period in its original form. Most of the ancient sources had been lost. What survived was the monumental compilation of Roman law that was made at the direction of the Byzantine Emperor Justinian in the sixth century A.D. By that time, the Roman Empire in the West had been breaking up for more than a century, its fall symbolized by the sack of Rome in 410 A.D. The significance of the work of the Byzantine jurists in preserving the Roman legal heritage would be hard to exaggerate. From Justinian’s times to the present, the term Roman law, except to specialists, generally has meant Roman law as it appears in the sixth century Corpus Juris Civilis of Justinian.
The Corpus Juris Civilis included four parts: The Institutes, The Digest, the Code and the Novels. The Digest was by far the most important in terms of its influence on the civil law tradition, particularly in the areas of personal status, torts, unjust enrichment, contract and remedies. The Digest was treaties representing the distillation of what, in the judgement of Justinian’s jurists, was most valuable from the best Roman legal writings from all previous periods. Since virtually all of the book they used in composing the Digest have been lost, the Digest itself bacame the principal source of knowledge about what the Roman law of earlier periods had been like. The Institutes were simply a short introdutory text for students, the Code was a systematic collection of Roman legislation, and the Novels were the imperial legislation enacted after the Code and the Digest were completed. Together, the Digest and the Code were meant to be a aomplete and authoritative restatement of Roman law.
Byzabtune Roman lawyers did not merely copy the law of earlier periods. The Corpus Juris was the product of a careful process of selection and rejection. In general outlook, as well as in matters of detail, it differed from the law of the Classical period. It continued the movement away from formalism, but this move was accompanied by a decline in technique. Equity, qhich in the Classicalperiod was regarded as a principle of justice animating the whole of the law, degenerated into mere impatience with legal subtleties. Byzantine legislation exhibited, according to Roman law historian Anthony Jolowicz, “an almost pathetic confidence in the power of law to do away with evils of an economic character ……and a taste for excessive regulation by statute of matters to which fixed rules can hardly, by their nature, be applied with success.” After the Lombard, Slav and Arab invasions that followed the reign of Justinian, the Corpus juris Civilis fell into disuse for centuries.
3. Roman Law Survival Admist Mediaval Customs
The fact that Roman law and legal science were left strended by the collapse of the way of life that had produced them did not mean that Romanist legal ifluences disappeared altogether during the Middle Ages. Certainly the sophistication and technical perfection to which ancient Roman law had been brought over the centuries was not maintained during the legal and political disorder that followed the disintegration of the Roman Empire. For five centuries after the fall of Roma a series of raiders and settlers overran the areas that had once been Roman . There were no strong, centralied states. Kingdoms rose and fell. The condition of the people was one of local self-sufficiency, and local customs displaced formal law. It would be centuries before scholars again would be capable of putting to usethe technical instruments left behind by the Classical Roman and Byzantine jurists. When a reawakening of interest in Roman law did occur and when attention turned to the Corpus juris in the eleventh century, the process became known as the “revival” of Roman law.
There was, neverthless, a considerable “survival” of Roman law within the diverse customary systems that prevailed from the fifth to the tenth centuries. Roman conquerors once had been all over Eurpe, and many of the Gemanic settlers, legionaries and migrating peoples who eventually overran the former Empire had been, to a certain extent, “Romanized.” As conquerors and conquered changed places, Germanic rulers used Roman law to gvern their Roman subjects, while applying their own law to their own peoples. Over time, however, the distinctions between these groups disappeared. By the end of the tenth century, the rules were the same for all persons within a given territory. Crude versions of Roman legal ules had intermingleed to varing degree with the customary rules of the Gemanic invaders to the point where historians sometimes speak of the laws during this period as “Romanized customary laws” and sometimes as “barbarized Roman laws”. Thus, though Roman legal science and Classical Roman law disappeared in the welter, diversity and localism of the Middle ages, a Romanist element survived and served both as a strand of continuity and a latent potentially universalizing factor in what we now think of as the civil law tradition.
The widely disseminated Germanic customary laws that began to be written down as early as the fifth century A.D., (as well as particular local customs), formed part of this tradition too, particularly influencing aspects of marital property and inheritance law. Many of the most ingenious and useful legal devices of the modern civil law of property and commercial law derive not from Roman , but from customary medieval origins, and thus remind us that the legal confusion of the Middle Ages had its fruitful and creative, as well as its fragmented and disorganized, side. The Germanic element evolved through the Middle Ages, as tribal laws became territorial laws, to the point where it produced the beginning of a legal literature and a new legal culturethat was quite different from the Roman. But its further development was arrested , partly because of the crudeness of its procedures (e.g. trial by ordeal), and partly because of its limited potential for adaptation to the social and economic changes that were beginning to transform feudal society.
4. Canon Law
With the break-up of the far-flung system of Roman administration, the Church took over some of the functions of government. Indeed, after the fall of the Roman Empire, and until the revival of Roman law in eleventh century, the single most important universalizing factor in the diverse and localized legal systems of the civil law tradition was canon law. But canon law itself was a hybrid of sorts. It had been produced by Christian notions interacting recipropcally with Roman law after the Christianization of the Empire, a process during which the reign of Constantine (d. 337 A.D.) was an important marker. The sixth century Justinian Corpus, in particular, was affected by Christian ideas, but the church, for ots part, had borrowed freely from the structure, principles and detailed rules of ancient Roman law. Furthermore, just as there was some degree of amalgamation everywhere of Germanic customs, indigenous customs and debased Roman law, there was a certain penetration by cannon law into the codes promulgated by German rulers and, later, into the legislation of the Carolingian (c. 800 A.D.) and Holy Roman Empires (c. 962 A.D.). During the Middle Ages, the Church sought and acquired jurisdiction for its own tribunals over matrimonial causes, and over certain aspects of criminal law and succession to personal poperty. Many of the rules and procedures it developed inthese matters were accepted in secular tribunals long after the Church had lost its civil jurisdiction.
5. Revival of Roman Law
Europe entered a period of political, economic and cultrural transformation from about 1050 A.D. onward. The gradual return of politial order established conditions that facilitated speculative learning. Economic expansion, too, with its requirements for predictablility and efficient methods of dispute resolution, led to a renewed interest in law. Along with scholars in other fields, jurists began to turn, with the excitement of discovery, to the accomplishments of antiquity. The revival of Roman law that took place in northern Italy towards the end of the eleventh century was a rediscovery, through the Justinian legacy, of Roman legal science.
The University of Bologna became the principal legal center to which students flocked from all over Europe to hear learned teachers (including some nuns who were the first women law professors) lecture on the Corpus Juris Civilis. Irnerius, who is said to have given the first lectures on the Justinian Digest, proclaimed ts intellectual superiority over the legal inheritance of the Middle Ages. But the ancient text dealt with so many institutions and difficult to understand. The first generations of scholars to study the Digest therefore made it their task to try to accurately reconstruct and explain its text. They became known as the Glossators because of their annotation (glosses) on the Digest. But their approch to interpretation in time gave way to the new methods of the Commentators (or Post-Glossators) of the thirteenth century, who saw their work as adapting the law of Roman society to the problems of their own day. The methods of the Commentators were much influenced by the new spirit of raional inquiry and speculative dialectic that would be brought to its highest form in the work of Thomas Aquinas (d. 1274). This way of thinking liberated them from the literalism of the Glossators and led them to search for the rationale and underlying principles of various Roman legal rules. Bartolus (d. 1357) is remembered as the greatest of the Commentators.
The thousands of students who came to the Italian law faculties from every corner of Europe carried back to their own nations and universities, not only the law of the Corpus Juris Civilis but also the methods and ideas of their teachers. They and their own students became the new profession of lawyers who found places not only in universities, but in the bureaucratic administrations of princes, cities and the Church. Their work was influenced at least as much by the Bolognese method of decision-making (bringing a case within the terms of an abstractly formulated authoritative text) as by the substantive norms of Roman law. In Paris and Oxford, Prague and Heidelberg, Cracow and Copenhagen, a fusion took place between the medieval Romano-Germanic law and the law learning based on the revived Roman law. In different ways and to varying degrees this amalgam formed the base on which future varitations and modifications would take place inall the civil law systems. The new learning, acquired by all those trained in Northern Italy, furnished the commom methodology for the further development of national laws.
It was the shared background of these influential torch bearers of the new legal science that consolidated the civil law tradition. The Roman civil law, together with the immense literature generated by the Glossators and Commentatord, came to be the jus commune, the common law, of Europe. As John Henry Merryman has written, “There was a common body of law and of writing about law, a common legal language and a common method of teaching and scholarship.” Canon law continued to play a role in this shared tradition, but in a new, more refined and “Romanized” form, as Bolognese scholars systematically complied and digested some 700 years of ecclesiastical enactments and decrees. Gratian in the twelfth century is generally credited with having transformed canon law into an independent “system” which then began to be taught alongside Roman ivil law in universities all over Europe.
6. Commercial Law
In addition to Roman civil law and canon law, commercial law furnished another universalizing element as Europe emerged from the localism and relative economic stagnation of the Middle Ages. With the rise of towns, the birth of markets, fairs and banks, the rapid expansion of maritime and overland trade, and the eventual development of large flourishing commercial centers, there appeared the need for a body of law to govern business transaction. Since Roman law did not provereadily adaptable for this purpose, guilds and merchants’ associations established their own rules and their tribunals. The merchants’ courts worked out informal rules and expeditious procedures that were practical, fair, and grounded in the usages of businessmen. These rules in time came to be recognized and applied as customary law by secular and ecclesiastical authorities. Eventually the “law merchant” became international, a body of generally accpted commercial rules that transcended political boundaries. It spread even into England where the Roman law, brought back from Italy, had found favor in universities, but was stoutly resisted in the civil courts.
7. Reception of Roman Law
The Middle Ages were an era of numerous overlapping and competing jurisdictions and sources of law. In the absence of strong central states, the modern notiion of law aw command of the sovereign had bo meaning. Ecclesiastical courts applied canon law; the courts of guild would usually apply the law merchant; while other judges in cities and towns would tend to search for an appropriate rule, first, in local custom or statute, then, with the help of university scholars, filling the gaps with the jus commune. Aided by the expansionof economic activity, the enthusiasm of legal scholars, and by the idea of the “continued” Holy Roman Empire, the jus commune became the basic law of a great part of continental Europe. It proved capable of dealing with many of the new problems posed by a more complex economy; yet as part of a not entirely forgotten past, it had a certain familiarity. Through the process that civil law lawyers call reception, the revived Roman private law (including the writings of the Italian jurists and the canon law) moved from the universities into the courts .(It should be noted, however, that Roman public law (including criminal law), itself relatively undeveloped, was not similarly received. There was no real public law so long as no strong central governments exsited.)
The formality and the extent of reception in a given country and the type of interaction that occurred between the jus commune and the medieval Romano-Germanic base varied considerably. In certain parts of Italy, the influence of Roman law has remain continuously so strong that it is perhaps not quite accurate to speak of a “reception” there. In Spain, however, the jus commune was always in tension with various vigorous local customary traditions. In the regions of France south of the Loire where Roman law influence had been strongest, the local customary law was already heavily romanized. Thus, there was a more extensive reception there than in the northern regions of France where the various local customs had always been of greater importance than Roman law.
The jus commune infiltrated the law of the variousregions of the Holy Roman Empire of the German confedration to the point where it came to be regard as the common law of the empire. In 1495, when a central imperial court was established, its judges were obliged to decide cases according to this common law, unless a conflicting local custom or statute could be proved. The difficulty of proving a controlling German rue meant in practice that the receivedRoman law became the basic law of all the regions of Germany. The reception of Roman law on such a large scale in Germany is usually explained by a combinationof factors. Roman law met no resistance from a strong national legal profession, central court system or from the exstence of a common body of “Geerman” law. Both of the imperial power and its claim to being the successor to the Roman Empire faciliated the reception. Finally, and probably most importantly, Roman law filled the increasingly urgent need to deal with the inconvenience that the variety of local customs posed for intercourse among the many small independent territories that formed the German confederation.
The wide-scale Roman law reception in Germany was a crucial event for the later development of German legal science, producing a much more extensive systematization of law than occurred elsewhere. From the beginning, judges relied heavily on legal scholars for information and guidance concerning the local law as well as the received Roman law. Indeed, by 1600, it was a common practice for judges to send out the record of a difficult case to a university law faculty and to adopt the faculty’s collective opinion on question of law. This practice of Akenversendung, which continued until the nineteenth century, resulted in the accumulation of an extensive body of common doctrine that transcended the borders of the various German political entities. Systematized in reports and essays, distillation from scholarly opinions rendered in actual controversies became a kind of case-law, located in the learned writings.
In Europe generally, the jus commune, like the Latin language and the universal Church, was an aspect of the unity of the West at a time when there were no strong centralized political administrations and no unified legal sytems, but rather a continous struggle among the competing and overlapping jurisdictions of local, manorial, ecclesiastical, mercantile and royal authorities. From the fifteenth century on, however, the relationship between the received jus commune and the diverse local and redional customary laws began to be affected, in varing degrees, by the rise of nationlism and the increasing consolidation of royal power.
8. Nation States and Nation Law
Gradual political unification in Europe did not immediately bring about national legal unification, but it did arouse interest in customary law as “national” law. The way for this development had been prepared , in a sense, by the fourteenth century Commentators who had turned scholarly attention from textual exegesis of the Digest to a consideration of the adaptability of Roman legal rules to contemporary conditions. In the sixteenth and seventeenth centuries, as the center of the legal scholarship shifted to France and Holland, the methods of the Bolognese Commentators were relplaced by those of the French Legal Humanists and the Dutch Natural law School. The Humanist used techniques of history and philology to study Roman law. Their view of Roman law as a historical phenomenon and of the Corpus juris Civilis as merely an ancient text (rather than as “living law” or “writing reason”) marked a step toward eventual displacement of the jus commune. This indirect challenge to the authority of Roman law was continued by the seventeenth century Dutch Natural Law School, whose memebers developed a systematic theory of law grounded in what they conceived to be the universal law of nature. The comprehensive legal system-building of these Dutch jurists was the prelude to modern codification, even as their search for universals laid the foundations for the law of nations, which evolved into modern international law.
The awakening of interest in national law was only one of several parallel developments that marked the end of the unity of the West and the rise of modern nation states. National literatures began to appear. The vernacular language began to be used in universities. Schisms developed between national churches and Rome. In the legal area, so long as the state had been non-existent or minimal, there was no public, administrative or constitutional law in the modern sense. However, as political power became sufficiently centralized, at different times in different parts of Europe, public law, national law and the international law of nationa developed rapidly.
[ 本帖最后由 massimolippi 于 2008-6-23 23:48 编辑 ]
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