Customary law

The text had the authority of its own intellectual force, but it had also the authority of its imperial origin. For the imperial idea, imperfectly realized in the Holy Roman Empire, was still a force in men’s minds. Both intellectual and imperial authority played a part in the process which accompanied the work of the Glossators and, still more, of the Commentators, and which we call the Reception of Roman Law—the process by which it became the common law of western Europe. But the course of this Reception was very different in different parts of the Continent.

In the south—in Italy, Spain, and southern France—the Roman law had, never wholly died out, and therefore the gloss and the doctrines of the Commentators could be accepted as simply an enlargement of the law which had been preserved in the lex Romana Visigothorum and other compilations. (Buckland, 1963) There was here no catastrophic reception of a new system of law but rather a gradual revival and rediscovery of an old. In northern Europe, however, customary law alone survived, varying from place to place.

The acceptance of Roman law was therefore much longer delayed and, when it came, much more sudden. The hostility to the new learning came partly from the local lay courts, jealous of their customary law, and partly sometimes, as in France, from the Crown. For outside the Holy Roman Empire it was precisely the imperial origin of the Corpus Iuris that was an obstacle to its acceptance, until it was seen that the King or Prince could, by presenting himself as Emperor within his own territory, apply to himself all the texts which propounded the absolute power of the Emperor.

As the Middle Ages drew to a close the inconvenience and inadequacy of the innumerable local customs and the incompetence of the local courts made the claims of Roman law, and of the lawyers who had been educated in it, irresistible. The resulting Reception was most sweeping in Germany and the Netherlands. In the later fifteenth century new courts with wider jurisdiction and composed of judges trained in the Roman law appeared, and in the course of the sixteenth century the Reception was completed.

(Borkowski, 1997) Much local custom survived, particularly in matters of family law and inheritance, but the structure of the law and the lawyer’s ways of thought and terminology were derived from the Roman law. The rules of customary law were a local variant intruding upon a universal system. In northern France (the pays des coutumes, as opposed to the pays de droit ecrit in the south) the Reception began earlier than in Germany and was both more gradual and less sweeping.

The customs were codified in the sixteenth century and were thus better able to withstand the infiltration of Roman law, but nevertheless its influence on the methods and ‘grammar’ of legal thought was inescapable. In England, on the other hand, though the Roman law was early known and taught, it never obtained a foothold in the practice of the ordinary courts. The Humanist Revival The culmination of the Reception was accompanied, however, by a reaction against the methods and purposes of the Commentators.

The Humanist revival of classical learning produced scholars to whom the Commentators’ bad Latin, their total lack of historical sense, and their neglect of the original texts were deplorable. ‘Back to the texts’ was now the call. (Kunkel, 1966) And the revival of interest in the text was accompanied by an emphasis on the historical character of the Corpus Iuris, a desire to rediscover the Roman law as it was in Roman times. This in turn led for the first time to an attempt to detect the interpolations in the Corpus Iuris and thereby to uncover the true classical law.

This Humanist movement was particularly strong in France, where its principal representatives we re Jacques Cujas (Cujacius, 1520 or 1522-90), Hugues Doneau (Donellus, 1527-9I), and Antoine Favre (Faber, 1557-1624). The revival of interest in the Roman law as such led also to the recovery of some of the post-classical works which had survived independently of Justinian, and to a renewal of interest in the Theodosian Code, of which Jacques Godefroy (Jacobus Gotho-fredus, 1587-1652) published a great edition with commentary to which reference is still made. (Zimmermann, 1996)