Creación de contenido

The entry of the Germanic peoples into the Roman empire produced an awareness of quite radical differences in legal

systems and the opportunity for comparison. In at least one instance, we have some evidence that the opportunity was taken. During the brief period in which there was a separate kingdom of the Burgundians, in the late fifth or early sixth centuries, two ‘codes’ were produced, one of which seems to be a law for the Burgundian inhabitants of the area, and the other for the Roman.19The Roman code is a pastiche of late classical sources, mostly rules, not always accurately stated, from such works as the Opinions of Paul and the Theodosian Code. The Burgundian code is an original work, although some scholars have found echoes in it of the code of the Visigothic king Euric. Both works are arranged into titles, usually with several provisions under each heading. The titles themselves are, however, in no discernible order. What is discernible is that the order of the titles in each work is re- markably similar. Either the compiler of the Roman Law of

the Burgundians had the basic text of theLaw of the Burgun- dians before him or vice versa, because there is no other

reason for the correspondence of the subject-matter of the titles.20That the author or authors of these codes were mak- ing comparisons is clear enough, but we cannot tell what they made of their comparisons.

Awareness of different sources of law and occasional at- tempts to lay different sources side by side continued throughout the early middle ages,21 but pressure of space dictates that we skip to northern Italy in the first half of the twelfth century and to the revival of legal study at Bologna. While the origins are obscure, and becoming more obscure as the result of recent scholarship, it seems clear that by the year 1150, there were studia at Bologna in which Roman law was taught on the basis of quite good editions of virtually all of the Justinianic corpus and in which canon law was taught on the basis of Gratian's Concordance of Discordant Can-

ons, a work that may still have been growing at this date but

which was shortly to receive, if it had not already received, its vulgate edition.22 That a systematic arrangement of Lom- bard laws, known as the Lombarda, was made, probably in the late eleventh century, suggests that this body of law was also being studied, probably at Pavia.23 A source book of feudal law, known as the Libri feudorum, was being compiled at this time, and was almost certainly being used for study in northern Italy, though it is unclear where.24There was also study of Roman and canon law going on in the south of France, though, again, it is difficult to determine precisely

where.25 The method of teaching, at least of Roman and canon law in Italy, was that the master read the basic text (slowly, many students did not own the book and were trying to memorize it); he then commented on individual passages. These comments were recorded in the manuscripts as glosses.26

The glossatorial effort could have given rise to a consider- able amount of comparative work. It certainly did within each tradition. Texts within the four corners of the basic texts were sought, and their differences expounded. But the fundament- al thrust of the glossatorial effort was to harmonize the texts, not to outline different systems of law. That the Corpus Iuris

Civilis provides insights into Roman law in many different

periods seems obvious enough to us, and today we sharply distinguish the classical law from the post-classical and from that of Justinian. The glossators were aware that Justinian had made changes (they could hardly be unaware of it, be- cause he says so in many places), but their vision seems to have been one that sought, if at all possible, to reconcile the texts within the Corpus and form them into a coherent whole. The same may be said of canon law. It seems obvious to us that the canons of the church councils and the writings of the

fathers of late antiquity envisage a rather different system of law from that of the penitentials and councils of the early middle ages, different again from that of the writings and papal decretals of the reform movement of the eleventh and twelfth centuries. But comparing these systems is not what the canonists were trying to do. They had a system for pre- ferring one authority over another in the case of irreconcil- able conflict, but they rarely saw irreconcilable conflicts. Most of the material proved to be malleable into a single system by means of clever distinctions and creating a hierarchy of general rules and exceptions.

When it came to comparisons between Roman law and can- on law, the effort at harmonization continued. This is particu- larly noticeable in the case of the canonists of the glossatori- al period, because the basic canonical sources were defi- cient, particularly in what we would call private law. Since the church was said to live by Roman law, it was relatively easy to borrow whole areas of Roman law and incorporate them into the canonical system. A particularly remarkable achieve- ment of this period was the creation of a system of Romano- canonical procedure, an effort in which both canonists and civilians participated, and which resulted in the procedural

system which is the direct ancestor of that in Continental Europe today.27

The system of land-holding described in the Corpus Iuris

Civilis was quite different from that of twelfth-century Italy.

The glossators reacted to this fact in two ways. They manip- ulated the Roman-law texts to create adominium directum for the lord and a dominium utile for the tenant.28 They also elaborated the Libri feudorum, but confined its reach to land that could be clearly identified as a fief. The Libri feudorum was thus brought into the overall system in such a way that in the sixteenth century it could be printed without embar- rassment as part of the Corpus Iuris Civilis. The Lombard law proved to be more intractable. While some effort was made to interpret it in the light of Roman law, it was never brought into the Romano-canonical system as fully as were the Libri

feudorum.

Differences between Roman law and canon law and between the developing Romano-canonical system and cus- tomary law remained. Two examples may suffice to show how the glossators, or at least some of the glossators, dealt with them. In Roman law there was apparently some debate,

pitting, as we are told, the Republican jurist Trebatius against the Antonine jurist Gaius, as to whether mortally wounding an animal was sufficient to give title to it, or whether one must actually seize the animal.29Justinian resolved the de- bate in favour of the latter (Gaian) view, on the ground that ‘it may happen in many ways that you will not catch it’.30That does not seem to have been the customary law of northern Italy in the twelfth and thirteenth centuries, where priority was almost certainly given to the huntsman who had wounded the animal and perhaps even to one who was simply in hot pursuit.31Accursius interprets Justinian's quite clear ruling to mean that the judge must inquire into the likelihood that the huntsman will catch the animal.32 If it is clear that he will, then priority goes to the first huntsman. It is hard not to see customary law as exerting a pressure, to put it mildly, on Ac- cursius' interpretation.

The canon law, which had jurisdiction over the formation of marriage, differed from what seems to have been the Roman law on the issue. The glossators of the Roman law bent their interpretations of the Roman law of marriage to accommod- ate the canon. For example, the Bolognese civilian Azo early in the thirteenth century suggested that when it came to the

question whether a sacramental marriage had been formed, canon law prevailed, but a leading of the bride into the house of the groom was required for the marital property con- sequences of marriage to ensue.33Hence, as in the case of the Libri feudorum, the two laws are accommodated under one roof by creating a category to which each will apply. In one area, however, the civilians did not bend the Roman law. In Roman law the father of a child in power (who could be of any age) had to consent to that child's marriage. Canon law did not require parental consent. Although a number of ways to do so were available to them, the civilians did not attempt a reconciliation in this instance, perhaps because they sided with fathers in the generational battle that has a long history in the West.34