A Short History of European Law PDF

A Short History of European Law _______ THE LAST TWO AND A HALF MILLENNIA Tamar Herzog Cambridge, Massachusetts London, England 2018  Copyright © 2018 by Tamar Herzog...

A Short History of European Law _______ THE LAST TWO AND A HALF MILLENNIA Tamar Herzog Cambridge, Massachusetts London, England 2018  Copyright © 2018 by Tamar Herzog All rights reserved Jacket design: Tim Jones Jacket art: The Court of Chancery during the Reign of George I, by Benjamin Ferrers, circa 1725, courtesy of the National Portrait Gallery, London 978-0-674-98034-1 (alk. paper) 978-0-674-98175-1 (EPUB) 978-0-674-98176-8 (MOBI) 978-0-674-98174-4 (PDF) The Library of Congress has cataloged the printed edition as follows: Names: Herzog, Tamar, author. Title: A short history of European law : the last two and a half millennia / Tamar Herzog. Description: Cambridge, Massachusetts : Harvard University Press, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017019315 Subjects: LCSH: Law—Europe—History. | Common law—History. | Civil law systems— History. | Law—Europe—International unification—History. Classification: LCC KJ147.H47 2018 | DDC 349.409—dc23 LC record available at https://lccn.loc.gov/2017019315  Contents Introduction: The Making of Law in Europe PART ONE Ancient Times 1 Roman Law: Now You See It, Now You Don’t 2 The Creation of Latin Christendom PART TWO The Early Middle Ages 3 An Age with No Jurists? 4 Lords, Emperors, and Popes around the Year 1000 PART THREE The Later Middle Ages 5 The Birth of a European Ius Commune 6 The Birth of an English Common Law PART FOUR The Early Modern Period 7 Crisis and Reaffirmation of Ius Commune 8 Crisis and Reinvention of Common Law 9 From Ius Gentium to Natural Law: Making European Law Universal I PART FIVE Modernity 10 North American Developments 11 The French Revolution  PART SIX The Nineteenth Century 12 Codifying the Laws of Europe: Making European Law Universal II 13 Codifying Common Law Epilogue: A Market, a Community, and a Union Notes Further Reading Acknowledgments Index  Introduction THE MAKING OF LAW IN EUROPE A FEW YEARS AGO, an undergraduate student reported to me with excitement that she had just visited Washington, D.C., where she saw a copy of the great charter of liberties, the Magna Carta. Not wanting to dampen her enthusiasm, I asked myself how I could explain to this student that what she saw was a feudal document whose original intent had very little to do with what it came to symbolize, and whose importance was acquired over time because, centuries after it was enacted, it was given new meaning and a new role. The question I first had to tackle was whether this mattered at all. Was it significant that an early thirteenth-century document such as the Magna Carta was misread by a twenty-first-century student? What would this student stand to gain had she understood what the Magna Carta really was and why and how it had come to acquire the status it now has? Was this history relevant to her present-day concerns? Was myth-breaking as important as myth-making? Is the past gone, or does it tell us something essential about the present and the future? Understanding the thirteenth-century Magna Carta would entail remembering a feudal past in which powerful lords sought to protect their jurisdiction and property against an expanding monarchy. It would require imagining how society changed over time—mainly, how the privileges of a few barons became the rights of all Englishmen—and how, in the process, claims for rights limited what kings could do. Given its projection in the United States, this narrative would also include the story of how these ideas crossed the Atlantic and mutated. Within a larger history of European law, the explanation would have to engage with the question of not only why the Magna Carta acquired this mythical status but also why similar feudal charters, abundant and frequent elsewhere in Europe, did not. As a legal historian I know that what the Magna Carta currently stands for has nothing to do with the text itself and everything to do with how it was used and remembered. If my student knew this history, I reasoned, she might understand the past better, but she might also acquire a means to imagine differently her present and future. It could supply her with instruments to question narratives, understand the processes that led to their formation, and suggest where they could take us next. The Magna Carta, of course, is not the only legal remnant that still determines our present or allows us to imagine our future. Plenty of other instruments, institutions, and texts inherited from the past fulfill the same role. As both relics of a time gone and important features of our everyday life, they give things certain meanings, they supply solutions, and they offer techniques through which to analyze and understand reality. Take, for example, “due process”—the obligation of courts to follow a particular procedure. Intuitively, many among us would consider it a relatively modern phenomenon linked to society’s ambition to ensure the implementation of justice. Yet, due process, if not in name then at least in practice, was born long ago in medieval England. The story of its emergence is linked not so much to guaranteeing the right result (which it did not) but to the insistence that judges of common-law courts obey very strict procedural rules. Understanding why procedural rules became so important in English law and how, over the years and because of very odd transformations, they came to be seen also as instruments protecting litigants, would allow us to have a better grasp, for example, of why certain things were covered by due process while others were not, or why this set of rules developed in England rather than elsewhere. Engagement with the past would also enable us to comprehend how European law came to refashion itself both as the epitome of reason and as a system with potentially universal applicability. The enormous influence European law has had around the globe could of course be explained by political and economic factors, but it also required an intellectual elaboration. Ancient Romans already linked community membership to law and both of these to the extension of political hegemony, but these links metamorphosed dramatically in the Middle Ages. The advent and propagation of Christianity allowed the projection of Roman law to new areas in Asia, Africa, and Europe. With colonialism, new explanations were adopted to justify the imposition of European law on non-European territories and peoples. The same happened during the eighteenth-century revolutions and nineteenth-century construction of nation-states. Tracing the evolving need to explain the relevance of European law elsewhere would illuminate, for example, some scholars’ criticism of contemporary international law, which they trace back to Europe and which they consider a European rather than a truly global human heritage. Having taught legal history for some twenty years in both law faculties and history departments in various countries and universities in Europe and the United States (at the University of Chicago, Stanford, and now Harvard), I often felt the need for a short, useful introduction to European legal history that could be used to discuss the evolution of law over time. Weary of big surveys that were heavy on details but light on explanation or on tracing development and change, and unhappy with those that endlessly repeated stereotypes and misconceptions or were provincial in their outlook, I intentionally wrote this book with both my history and law students and my colleagues in mind. What would they need to know to appreciate both how foreign and nonetheless familiar the past was? In a field so abundant with nationalistic affirmations, which myths needed to be put to rest and how could this be done? How could one integrate the history of law in Europe in a single narrative that would allow for local variations while also respecting the profound unity across Europe, including England? How could one communicate the preoccupations of Continental legal history with which I grew intellectually (and which seeks to establish overreaching principles) to an audience more familiar with other types of legal history that are traditionally focused on concrete examples? How can a short book reproduce what we know and what we don’t, what we are sure of and what we hesitate to affirm, and yet give a narrative of how things have changed over time and (sometimes) why they did? This book attempts to answer some of these questions in manageable and clear language. Its main goal is to give readers useful instruments with which to understand both the present and the past. Rather than supplying endless details, it engages with the most essential elements required to rethink our own standards by indicating when and how they emerged and developed. Denaturalizing our present-day legal systems, it demonstrates that we reached these systems after a haphazard and complex progression whose trajectory into the future is far from evident. Today we might take it for granted that law is something that is created and can be changed, but as I demonstrate in this book, this vision is a relatively recent invention. For many centuries, law was said to exist because it simply did, because it was spontaneously created by the community, or because God had handed it down. Even if these perceptions were untrue, in the sense that law was always made by someone somewhere, the fact that people believed them was of great significance to how they viewed, interpreted, or obeyed the law, to whom they listened, and why. If today we take it for granted that each country has its own law, this too is a relatively recent phenomenon, law in the past being embedded in communities that shared things other than political allegiance. Knowing which factors justified legal obedience and why they mattered is essential for understanding how law functioned historically, as well as how it does today. To describe the complexities of the past and demonstrate its relevance to the present, in this book, which surveys almost two and a half millennia, I ask how in different moments in time Europeans constructed their legal systems, where they thought norms came from, who they allowed to make, declare, or implement these norms, and what the results were. Rather than describing specific legal institutions or rules, I am interested in deciphering how norms were generated, in order to indicate how they should be read and understood given their particular historical context. I am also keen on demonstrating that their comprehension may tell us something important about whom we came to be. Throughout the pages of this book, I constantly engage with two major narratives that have accompanied most research on legal history. The first portrayed law almost as a given. Sensitive to how particular solutions changed over time, for example, how contracts were drawn up or what proving a case in court required in different periods, on most accounts it implicitly assumed that law was law. It was as if society had changed, and so had its rules, but law as a field of action and a depository of knowledge and techniques remained the same. For most authors, law included norms that people obeyed, as if where these norms originated, how they were comprehended, which other types of norms existed, and who implemented them and in which way mattered very little. This narrative often seemed to imply that it was almost inconsequential whether law was attributed to communal creation (as in customary law), God (as in canon law), legislators, or judges. Neither did it matter whether law aimed to innovate or maintain the status quo, or whether lawyers and jurists presumed to interpret it literally or believed it represented a higher truth, which was not directly evident and which they sought to uncover. As already indicated in my treatment of the Magna Carta, in this book I do the exact opposite. I describe the development of law in Europe as a phenomenon that involved not only choosing between rival solutions (as most scholars supposed) but also identifying basic assumptions regarding the rules themselves. Returning to the Magna Carta, to understand its meaning one has to comprehend, not only what it dictated, but also the normative system in which it operated. It is only by considering contemporary notions regarding the making, modifying, and imposition of rules that we can appreciate what the Magna Carta sought to institute. Its changing meaning over time was likewise linked to transformations not so much in the text itself (which remained surprisingly uniform despite constant copying and corrections) but in the legal contexts in which it was read. That it came to symbolize what it does today, in short, has everything to do with context (or, rather, contexts), which radically altered over time and which this book seeks to uncover and reconstruct. The Magna Carta also teaches us that, in their quest to obtain certain goals, agents often played with continuity and change. They argued for continuity when they innovated, or they clamored for change when in reality they allowed for none. To understand the past, we need to know not only what happened but also how it was reconstructed, used, and comprehended both by contemporaries who lived through these events and by future interpreters who looked back to them in order to reform their present. Over the course of history, law was elaborated, re-elaborated, and reworked once again, as different individuals, communities, and institutions sought to identify, construct, reconstruct, manage, and re-manage different rules to regulate their activities. If my first aim is to destabilize the idea that legal solutions changed but the legal framework (who imaged these solutions, who implemented them, which was their authority, and how they gained it) was inconsequential, the second narrative I wish to question is the presupposition that English common law and Continental law (also known as civil law) were utterly distinct. My own experience as a lawyer trained in a universe that used both of these legal systems and as a historian working in both Europe and the United States suggested that this separation could not be true. Instead of treating either one system or the other, as most legal histories do, or observing the specific instances and ways by which the two systems on occasions influenced one other, I adopt an analysis that observes English and Continental law at the same time by using a similar methodology. To do so, in my description of developments from the late Middle Ages to the present, I deliberately alternate between Continental and English law, with the intention of placing them into dialogue with one another. My aim is to showcase both what these systems shared and how they differed. Above all, I wish to demonstrate the degree to which, even when they took different paths, they were largely propelled to do so in response to similar developments and pressures. I also suggest that the paths they took were inspired by a common tradition that supplied not only questions but also a horizon of possible solutions. Thus, I examine the formative period of Continental ius commune alongside common law, I analyze how both systems responded to challenges and changed in the early modern period, I compare their eighteenth-century mutations, and I scrutinize them throughout the nineteenth century and into the formation of the European Union in the second half of the twentieth century. Rather than being foreign to each other, as many previous authors concluded, I argue that English common law and Continental civil law formed part of a single European tradition from which they both drew and were enriched. They were, in fact, substantially much more similar than meets the eye. I begin my analysis with Roman law because of its continuing presence throughout European history. Among the endless ways in which Roman law’s hegemony is still felt today is our constant dependence on presumptions, which were a Roman invention allowing one to assume the existence of things without having to prove them first. Not only was the employment of presumptions a Roman technique, some of the presumptions we currently use originated in Roman times. Take, for example, the legal presumption that children born to a married couple are the natural offspring of both spouses. This presumption allowed parents to register their children without having to prove their descent, a function it still fulfills today despite scientific advances allowing us to prove ancestry. Constantly present throughout history, this presumption, however, could come to satisfy new needs. Used under radically different social conditions, in present-day Spain, for example, it authorizes the registration of a child born to a legally married gay couple as the natural offspring of both spouses. Roman law is an important point of departure for European legal history not only because of its ongoing legacy but also because this legacy was eventually shared by most (if not all) Europeans. Penetrating slowly, first with the expansion of the Roman Empire and then with the conversion to Christianity, it became the common stock in Europe most particularly after it was taken up by medieval scholars and reworked to fit contemporary needs. Forming the basis also for the initial development of English common law, its validity and influence were tested during the early modern period and were affirmed or denied with the coming of modernity. Over the course of this history, paradoxically, even those who rejected adherence to Roman law often argued their case by analogy to it. The understanding of Roman law, of course, changed over the course of history, and so did its use. What it meant in the classical period had very little to do with how medieval jurists used it, or what English common-law lawyers and German nineteenth-century jurists made of it. Despite this huge variation in the way it was understood and incorporated, Roman law nevertheless maintained its prestige, and so did some of its basic methodologies and tenets. As usually happens, this interpretation and reinterpretation of the past enabled a creative engagement, not only with what had transpired in the past, but also with constructing the present and the future. The constant invocation of Roman law also required as well as explained the permanent strain experienced in Europe between stability and universality, on the one hand, and dynamism and local responses, on the other. If Roman law supplied the backbone for a common European legal tradition, it could not solve the constant tensions between local and global, individual solutions and overreaching principles. These tensions were already present in Rome itself, where historians distinguished between law as practiced in the center and as followed in the provinces, but they continued throughout European history. It was precisely in order to overcome such tensions that in the eleventh, twelfth, and thirteenth centuries, efforts were made, in both Continental Europe and England, to create a unifying common law (Chapters 5 and 6). This ius commune, a term the English initially also used to designate their common law, was meant to cement and give coherence to a legal world that in reality comprised hundreds of thousands of local arrangements. Whether the search for commonalities succeeded, and to what degree, is part of the story I describe. Another is how the struggle for unification affected how communities were defined. Moving from personal associations (that encompassed people according to their relations with one another) to territorial jurisdictions (that imposed law on all those who inhabited a certain territory) and sometimes adopting midway solutions, communities expanded or contracted according to the perceived sameness of members. Sometimes family was the factor that justified the imposition of a common law, but often as important were a shared religion, a shared subjection to a lord, the sharing of fields, or the maintenance of trade relations, to mention just a few examples. The struggle to unite people under the same law was also taken up by the Church, whose authorities were the first to designate the law that was common to all Christians as a ius commune. Yet, if the Church played a major role in propagating Roman law (Chapters 2–4), it also affected European normativity in other ways. After the Roman Empire converted to Christianity, the distinction between secular and religious lost much of its saliency. This was particularly true in late antiquity and the early Middle Ages, but it continued to be a fairly accurate description of European law even in later centuries because of the omnipresence of canon law and the commanding role of Christian morality. At a certain moment in time, some European actors began searching for a system that would no longer depend on external authorities or traditions but instead would be self-explanatory. The reign of self-evident truth, where rules could be justified not because they had an authoritative foundation but because they made sense to those who created them, propelled what we now identify as modernity. But this modernity was not necessarily secular. In the minds of many of its eighteenth- and nineteenth-century proponents, human reason and a natural law that was said to be imposed by nature on humans could perfectly cohabit with a belief in God. Modernity brought about major transformations, but regardless of the interesting question of whether these were revolutionary or not, legally, at least, these changes were often more radical in intent than in practice. In the end, their most pressing legacy was the belief in human agency and the conviction that humans were capable of improving themselves as well as their societies. Thereafter, law would come to exemplify the general drive to move away from the art of conserving a status quo (as has been the case before) to the art of innovating in order to create a seemingly better world. Having started this book with Roman law, I end it with the establishment and growth of the European Union, which for me is both a point of arrival and a point of departure. To what degree can Europe today have a common law, and who are the agents and interests propelling such a legal unification? Are these processes of unification particular to Europe or do they also operate on a global scale? How can the nation-state, invented in the late eighteenth century, cope with the challenges of both Europeanization and globalization? To answer some of these questions and make some of these points, the individual chapters that follow each address a certain topic, as well as describe its evolution. In order to make the narrative clearer, I sometimes sacrifice chronology for the sake of illustrating better what I describe. I do so, for example, in Chapter 1, where I discuss provincial Roman law codes that were enacted after the empire converted to Christianity. Similarly, in Chapter 2, which describes the Christianization of Rome, I deal with some of the issues also covered in Chapter 3, which focuses on the early Middle Ages. In Chapter 6, where I study the foundational period of common law, I sometimes venture into the early modern period. If chronology is complex, so is the geographical and political entity I identify as Europe. Evidently, over the course of the period I cover, Europe and the definition of what belonged to it were both invented and had greatly mutated. An idea rather than a continent, Europe changed forms and shapes and eventually ventured overseas to territories we now identify as colonial. The projection of European law was just as amorphous. During Roman times, parts of the Mediterranean and Asia were subjected to it, as were European overseas domains later on. By the eighteenth, nineteenth, and twentieth centuries, the legal tradition I describe as European reached its utmost expansion due to the growing hegemony of the Continent but also because elites around the globe chose to use and adapt European law to their own needs and desires. Because of this extension, some of the most important developments in European law happened outside the Continent, as when the law of nations was turned into natural law in the colonies, or as in the constitutional innovations introduced in North America. These not only were a consequence of European law, they also greatly modified it.  Precisely because I was looking to describe the most fundamental developments, rather than all developments, not all European countries feature equally. In my story, some parts appear as protagonists, whereas others are only mentioned in notes. The places and times I describe sometimes were chosen because of their importance, but more often they were selected because they illustrate some of the main arguments I wish to make.  PART ONE Ancient Times  1 Roman Law NOW YOU SEE IT, NOW YOU DON’T THE CITY OF ROME was probably founded in the early part of the seventh century BCE. Initially ruled by monarchs, at around 509 BCE it had converted into a republic, in which a senate (an assembly of elders) appointed annually two public magistrates (consuls) to govern the community. This system of government lasted until 27 BCE, when the senate declared Augustus emperor. Having traded and fought extensively with its neighbors, Rome gradually expanded its control, first throughout the Italian peninsula and then throughout the Mediterranean and into parts of central and northern Europe. In 285 CE, the empire was divided into a western and an eastern part. This division, justified by the enormous size of the territories under Roman control, gradually gained political saliency. In 476 CE, Germanic troops invaded the city, forcing the abdication of the emperor, thereby bringing about what has come to be known as the “fall of the Roman Empire.” Despite these developments, which terminated Roman political hegemony in the west, the Eastern empire, with its capital in Constantinople (present-day Istanbul), survived until its conquest by Ottoman tribes in 1453. Rome left an enduring legacy in many areas and multiple ways. However, one of its clearest bequests was its influence over the development of law. There is a saying attributed to Goethe according to which Roman law was like a diving duck. It could be swimming on the surface or diving deep in the water, but whether you saw it or not, it was always there.1 This belief in the persistence of Roman law throughout European history was not unique to Goethe or the nineteenth century in which he lived. It is currently shared by most historians, who usually begin the story of the development of law in Europe with Roman law. Of course, Romans were not the first people to have a normative system, and, like all other societies, they constantly borrowed from neighboring polities, most particularly from the Hellenistic world. It is also clear that Roman law evolved dramatically over time, continuously adapting to new circumstances and challenges. Yet there is a general agreement among scholars that Roman law, most particularly as practiced in the six hundred years between the third century BCE and the third century CE, featured some of the most important elements we identify today with law as practiced throughout European history. Among them was the emergence of a secular law (even if applied by believers), the centrality of conflict resolution, and the emphasis on private law. Rome also experienced the emergence of specialists in law. As I will argue below, these specialists, identified as jurists, transformed the normative system into a professional field involving specifically designed procedures that had to be followed if the right answers were to be obtained. They coined terms and elaborated concepts that allowed them to translate everyday life into legal formulations. Roman law, in short, supplied new ways to think about normativity, which Europeans ever since have followed in different intensities according to time, place, and subject. Ancient Courts and Divine Judgment Experts of Roman law disagree about genealogy and dates, argue about the meaning of terms, and differ over why certain developments took place. However, most approve of a narrative that points to a gradual process that led to the secularization of the law, the creation of new remedies, their subsequent abstraction, and the rising importance of jurists and juridical training, which featured organized methods for understanding the law as well as generating and applying it. Most point out that, as far as we can tell, Roman law began as a system to adjudicate conflicts among individuals that, from archaic times (eighth to fourth century BCE), was centered on society’s responsibility to guarantee order. This was done by providing mechanisms ensuring that, rather than engaging in violence, those who disagreed could find redress at the courts. Initially the use of courts was optional and required the consent of plaintiffs and defendants. Over time, however, courts acquired additional powers allowing them sometimes to compel litigants to appear before them as well as to impose their decisions.  This emerging system was identified as the ius civile, that is, the communal law (the law of the civitas). In the archaic period, questions of law as well as actual conflicts could be presented to a body (college) of patricians who were also priests (pontifices). Guardians of communal norms, as well as experts in ritual performance, these patricians ruled on whether certain behaviors conformed to social expectations, and they suggested what could be done in order to obtain remedy. As far as we can tell, patricians who served as pontifices followed oral traditions that captured unwritten customs (mos) that were both religious and secular in orientation. Their responses to litigants, formulated as revelations of a secret truth, were considered by definition final and required no external proof. Supreme interpreters of the law, pontifices closely guarded their knowledge, passing it from one generation to the next.2 During this period, law was rigid and formal. Rather than a free narrative of what had transpired and what required remedy, there was a closed list of causes of action (legis actiones) that litigants could invoke. These acknowledged that the plaintiff was injured in ways that should be investigated and redressed. Different causes of action entailed different procedures, with some sending plaintiffs to a judge and others allowing him or her to obtain immediate reparation. The decision to adopt one cause of action or another was determinant. Not only did it define what the parties wished to achieve, but choosing an inadequate cause of action could lead to the termination of the proceedings. Litigants invoked these causes of action before the pontifices. This invocation required the taking of a ceremonial oath, the utterance of certain words, and the performance of certain acts. Defendants responded in the same way, using preset responses. Religious in origins, this ritual had to be followed accurately, as pronouncing the wrong words or doing the wrong thing could lead to dismissal.3 The pontiffs then determined whether the cause of action that was invoked was correct and whether the parties used the right rules and procedures. The oldest written source we have from this period is a fifth-century BCE set of rules best known as the Twelve Tables. Although no complete copy of the Tables has been found to date, several reconstructions made by historians are available. These historians sought to recreate the Tables by arranging the quotations found in the writings of subsequent jurists. It is unclear, however, how much was lost and what the original design of the Tables was. Neither is it completely clear that all that was said to have originated in the Tables was indeed included in them. Allegedly written down in order to diminish the monopoly of pontifices by making the law better known, the Twelve Tables list the obligation of litigants to appear in court, sanctioning them if they did not. The Tables also spell out procedural rules, regulate forms of legal transactions, and list other basic norms of communal life, enumerating elements of family law and the management of property (contracts, torts, inheritance, loans, real estate, theft, and so forth). Casuistic, partial, and incomplete, according to testimonies dating from later periods the Tables were nevertheless considered sufficiently fundamental to the proper functioning of Roman law that their contents were memorized and recited by children, and copies were inscribed on bronze, ivory, or wood panels that were displayed in public places. The publication of the Twelve Tables was an important turning point in the history of Roman law not only because a secret law, collectively shared by the pontifices, was made public but also because it marked the appearance of lex, that is, of a law that was distinguishable from the religious order controlled by priests. This law would operate not between the community and its gods but among community members, and it would eventually designate a new secular and political sphere of action controlled by lawmakers who published the law rather than religious experts who guarded it. It took some time, however, before the Twelve Tables fulfilled this potential of creating a sphere of legality that would be distinguishable from the religious order. Initially their interpretation and application was still in the hands of the pontifices, who were seen as those most capable of understanding and implementing their instructions. Around the end of the fourth and the beginning of the third century BCE, though, secular officers began taking their place. Also during this period, giving answers (responsa) as to what the law included became an aristocratic prerogative that was no longer based on religious expertise. The Rise of Civil Litigation From around 367 BCE, special officials called praetors (later identified as praetor urbanus) were nominated annually in order to oversee the resolution of conflicts.4 Initially praetors mostly followed existing procedures, ensuring that the right cause of action was employed and that it was employed correctly. However, soon after—the debate continues as to when exactly— significant modifications were introduced, instituting adjudication the way we think about it today. The first and most important change for which historians have had difficulty establishing a time line—there is a debate whether it happened in the archaic period, in which pontifices ruled over the procedures, or afterward—was the division of adjudication into two distinct parts, the first dealing with questions of law and the second with questions of fact.5 In the former, praetors decided on the admissibility of the case. In what today would be conceptualized as a preliminary hearing, they determined whether the courts would be willing to hear the case and which remedy should be given. This first part (in iure, that is, “within the law”) was concerned with identifying the legal issues at stake and the appropriate remedy; in the second part (apud iudicem, “in the presence of a judge”), actual adjudication took place. In this part, the presiding judge (called iudex) had to ascertain the facts of the case, that is, what actually happened. The iudex heard the parties and considered their evidence. After he determined what had transpired, he proceeded to apply the solution that the praetor had identified in the previous stage. The division of adjudication into two parts, the first concerned with establishing the legal question and the second with applying it to concrete circumstances, was essential to the development of law. This division registered the institutionalized awareness that it might be useful to isolate the normative order (the rule) from the chaos of everyday life (the particular circumstances of each case). Freed from the burden of the details specific to place, time, and parties, thereafter pontifices and / or praetors (depending on when this division took place) could begin formulating general rules that could be applied to all similar cases. While the division of the process into two parts was important, the second innovation, which was as crucial and which most historians date to the third century BCE, was the introduction of new causes of action. No longer were praetors forced to follow the old causes of action and the religious rites that dominated the work of the priests. Instead, they were now at liberty to create new solutions embracing both the admissibility of cases as well as the types of remedies that the courts would supply.  This development was gradual. It probably began as a procedure specifically targeting the adjudication of conflicts involving foreigners, who were ineligible to use legal actions reserved for citizens.6 However, sometime around the second or first century BCE (exact dating is still unsettled), it was also introduced into litigation among citizens after praetors were allowed to create new legal actions. These new actions—identified as “formulas”—usually consisted of short pronouncements that categorized the issue legally. Praetors drew these up after they heard litigants’ claims and understood what they aimed to achieve. Offering ad hoc solutions to specific conflicts and often adopted after negotiation between the parties, most formulas included the identification of the person who should act as a iudex, a summary of the questions at stake, the facts required to support it, and an order stating how to proceed if the facts of the case were proved. For example, if there were a case of a conflict between individuals named Titus and Agrippa over the ownership of a horse, a formula would begin by stating who would be the judge (say, a citizen named Marcus). It would continue by declaring that it appeared that the horse in dispute belonged to Titus. If Agrippa, who held it, refused to return the horse to Titus as he was instructed by the judge, he should pay Titus its just price. If, on the other hand, it appeared that the horse was not Titus’s, then Agrippa should be absolved. The formula could also specify the defenses (excuses) litigants could use; for example, it could allow Agrippa to argue that Titus had promised not to sue him. After praetors clarified the legal issues at stake and prepared the formula, the parties would take their business to a iudex, whose role was to decide whether the facts of the matter justified the application of the rule set by the praetor. Unlike praetors, who were public officials nominated to a yearlong term, iudex were private individuals usually chosen by the praetor from a list of eligible men. A typical iudex would hear witnesses and consider other evidence. In the case mentioned above, he would verify whether the horse belonged to Titus and what its just price was. If Agrippa raised a defense, the iudex would decide on its veracity and would or would not free him from his obligation. Decisions of the iudex could not be appealed. A Growing List of Formulas It is possible that in the first few decades in which this system operated, formulas were mostly tailored to the parties and their specific concerns and reflected the evolution of Roman society and its needs. However, we know that relatively soon, praetors began drawing up standardized formulas that no longer included reference to the particular conditions of the case. Worded hypothetically, these formulas could specify, for example, that the praetor could rule against a seller who refused to hand to the buyer what was agreed upon, unless the seller showed no fault. As formulas became more abstract, they could easily apply to more than a single case. Realizing this potential, some praetors began issuing lists of formulas that they would be willing to use in the future. Praetors working in Rome tended to post these lists in the Forum Romanum, the main square of the city, for all to read. The lists enumerated, seemingly in random fashion, the cases the praetor would agree to hear. For example, going back to Titus and Agrippa, the list could include the praetor’s promise to rule in favor of a person whose property was taken away without compensation. Identified as edicts (edictum), eventually the lists of remedies were published annually by praetors before they assumed office. From the mid-first century BCE they were considered binding on the individual praetor who published them. Initially each praetor published his own edict, with his particular list of remedies that would be valid only during the year in which he was in office. Yet gradually, first in the provinces and then in Rome, most praetors began copying earlier lists and referring to formulas already in existence. By the first century CE, repetition was so common and edicts were considered so prescriptive that praetors could no longer disregard what they had included by adding or subtracting from them. This became the rule in the second century CE when, under Hadrian (r. 117–138 CE), edicts were collected in an official compilation that was declared to be sufficient and final. This development marked both the maturity and the end of an important period of Roman law. Before formulas were fossilized by the continuous repetition of the same edicts, praetors could create new formulas as well as deny the admissibility of old formulas. By granting or refusing to grant access to the courts, by indicating which circumstances deserved a remedy and which did not, and by allowing defendants to invoke certain defenses but not others, praetors intervened in the legal order by creating or denying what today we would identify as rights. Their intervention was so important and so massive that the norms they created by granting or refusing to grant remedies were identified as forming a new source of law, which paralleled the old ius civile and was later designated as ius honorarium, literally, the law that was made while they exercised their office (honos). The importance of ius honorarium as a legal source allowed historians to characterize Roman law as a “law of remedies.” Focused on how to redress the breach of peace and guarantee the return of the status quo, ius honorarium was mainly concerned with what individuals could do when they were wronged. It prescribed where they could go and which remedies they could receive. Much less interested in coining general principles or developing guidelines, this law was practical and casuistic. It collected the accumulated experience of Roman praetors but also authorized legitimate expectations as to what a wronged person could do. Alongside the existing law (ius civile), this magistrate-made law (ius honorarium) shaped Roman law as a synthesis between expert opinion based on customs, rituals, and systematic presentation (ius civile), on the one hand, and everyday conflicts and their resolution (ius honorarium), on the other. The Emergence of New Procedures Over time, new procedures emerged. Most important among them was the cognitio (literally, “investigation”), which reserved both the preliminary hearing of the case and the reception of proofs to an imperially nominated and salaried judge. Having begun during the reign of Augustus (27 BCE–14 CE) (or earlier, according to some historians) as a measure taken only in certain types of cases, cognitio eventually expanded to include most litigation. This marked the end of the division of the process into two distinct parts, one assigned to a praetor (and perhaps pontifices) and the other to a iudex. With the gradual institution of cognitio, and most particularly starting in the third century CE, new officers were selected to serve as judges, and the emperor himself began hearing some cases, as did Roman governors in the provinces. The result was that conducting trials was no longer part of the public duty of prominent individuals (who could be appointed for one year as praetors or be nominated iudex) and litigation was no longer based on an agreement between parties who consented to the way their discord would be translated into a formula and agreed to subject themselves to the jurisdiction of the praetor and iudex. Instead, trials were now under the privy of officially appointed judges that both investigated the case and delivered the sentence. The Contribution of Jurists Sometime in the late third century, or during the second or first century BCE (the exact timing is still under debate), the work of praetors was accompanied by deliberations by a group of intellectuals we now identify as jurists (iuris consultus or jurisprudentes). Roman jurists were men who engaged with the normative order as part of their public duty. Many were members of the Senate, and some might have served as consuls. They had no particular training or official appointment, nor were their activities remunerated, yet they advised praetors on how to proceed by suggesting new formulas. They also answered questions from individuals who sought advice on which remedies could be requested or on how to manage their affairs or draw up documents in ways that would be legally useful and efficient. Jurists sometimes analyzed real cases, but they also gave their opinion on hypothetical cases meant to help interested parties plan their activities. Although jurists were private individuals, many of whom held no official appointment, their influence on Roman law cannot be overestimated. Jurists guided the praetors and the parties, they creatively interpreted the formulas, and, above all, they profoundly transformed the law by molding its different tenets into a professional knowledge that only they shared. They elaborated a method to think about legal phenomena, invented a terminology, coined principles, identified organizing units, and referenced a series of ideas that would guide European law ever since. The way jurists set about to create this new knowledge was both simple and ingenious. Beginning with a set of individual cases and a long list of casuistic solutions, jurists compared real cases against one another as well as against hypothetical cases. They asked what were the similarities and the differences. They distinguished between elements that, although mentioned in the rule or formula, were not normative and those that, on the contrary, were normative, by identifying the legal problem (quaestio iuris) that the case, norm, or formula was meant to resolve. Going back to Titus and Agrippa, rather than simply ruling that Agrippa had to give Titus the just price for the horse, by comparing his case to others, jurists came up with the concept of “good faith” (bona fides). According to that, agreements must be settled on without simulation or dissimulation. If Titus retained the horse because Agrippa agreed not to sue, Titus could be accused of committing fraud. Employing these procedures, Roman jurists elaborated many essential concepts that are still with us. They typified an enormous range of activities and social relations into a list of preset categories, including such things as “obligations,” “contracts,” “guardianship,” “partnership,” “inheritance,” and “sale,” to mention just a few examples. This enabled them to distinguish between different forms of sale, or a variety of ways to obtain ownership. It also allowed coining rules that would be valid for all sales or all ownerships, and others that would not. According to some historians, this process resulted in a true metamorphosis that conceptually transformed “acts of will” (the actions of individuals) to “acts of knowledge” (which translated what had happened into an intellectual abstraction). The result was a new model for thinking about social relations. This new model, which we now identify as legal, consisted of a method to comprehend how people dealt with one another and what the consequences of their actions should be. This method was said to operate abstractly and adopt procedures that were completely indifferent to and independent of attachment to particular people, places, or times. In other words, regardless of its specific stipulations, where and when it was agreed to, or by whom, according to Roman jurists a sales contract was a sales contract. As such, it could include elements that were individual to this particular contract, but it was also subject to common rules that applied to all sales contracts of that type. Roman jurists also invented quintessential juridical instruments, such as legal presumptions (praesumptio iuris). Legal presumptions allowed jurists to assume that certain things were true without having to prove their existence. Reversing the burden of proof by placing it, not on the person who wished to demonstrate the presumptions, as is usually the case, but on the person who wanted to refute them, presumptions allowed jurists to infer, from what they knew, what was not known or could not be proved. A typical presumption from this period involved the conclusion that all property possessed by a married woman was given to her by her husband. A commonsense observation in that particular society and time, it could be used in legal proceedings and be adopted as a truism unless there was proof to demonstrate the contrary. Other presumptions included the idea that cancellation of a deed testified to the extinction of the debt, or for resolving questions of inheritance, that various individuals who died in a shipwreck all died at exactly the same time. Although much of this scholarly production was oral, by the second century BCE some jurists began collecting their responses (responsa), summarizing important cases, and recording court decisions. Others produced commentaries or treatises on certain topics or wrote general essays on Roman law. As this literature proliferated, new genres appeared. In the second century CE, a jurist named Gaius proposed a practical manual to introduce the uninitiated both to the law and to legal thinking. The manual, titled Institutes, divided Roman law into three parts: the law of persons (personal status), the law of things (including obligations), and the law of actions (what kinds of actions were available to litigants who wanted to achieve certain things). Although not particularly important when it was written, this manual became a model to follow. By the fifth century, it was also subject to interpretation and commentary. Jurists and the Law Although jurists were not formally appointed and their advice had no binding force, their answers could be normative. This was the result not of an official appointment (which they lacked) but of the reputation and prestige of the jurists themselves and the belief that their analyses embodied reason. Because the degree to which their advice was followed depended on how renowned the person who gave it was, not all opinions by all jurists were considered equally prescriptive. The fact that private individuals could express opinions about the law and that these opinions were abided by was not always agreeable to the Roman authorities. Several emperors attempted to control these processes by instituting, for example, a system of licenses to give advice, or by drawing up lists that prescribed which jurists were to be followed and in which order of preference. Best known among these efforts was Augustus’s listing of jurists having the right to give responses, Constantine’s (r. 306–337 CE) fourth- century-CE instructions that only certain works by certain classical authors could be cited in Roman courts, and the fifth-century (426 CE) Law of Citations that allowed only the use of the opinions of five selected jurists. The Law of Citations also instructed that if these jurists disagreed, the majority opinion would prevail and that, if there was no majority because the various jurists pointed at various (rather than only two) solutions, the opinion of Papinian (140–212 CE) should be followed.7 Despite their persistence, these imperial efforts at controlling juridical creation were mostly in vain. Juridical literature continued to develop, and its usage continued to depend mainly on the reputation of jurists, not on imperial decision making. In the long run, imperial control over this legal source was achieved more efficiently by co-opting jurists, not by attempting to manage the normative reception of their opinions. To this end, several emperors employed prestigious jurists in their court or arranged for them to give responses on their behalf. Some jurists even became members of the council that advised emperors on the most important matters of state. This cooperation between jurists and the emperor led to important changes. By the third century CE, most juridical activity was centered on jurists giving responses as members of the imperial bureaucracy. In their capacity as imperial officials, their determinations were now binding not because of their inherent goodness but because they were considered orders of the emperor. Juridical Training Initially jurists had no special preparation other than living in the community and being involved in its affairs. As members of the Roman elite, most were trained in rhetoric, the art of persuasion, but they had no legal training per se. With the growing importance and number of jurists, however, something akin to a professional preparation began appearing. Instruction mostly took place orally, with a group of apprentices following a master as he gave advice or delivered speeches. As this practice became popular, individual preparation was replaced by communities, or groups of people, who came to listen to jurists publically expound their opinions on points of the law. Although teaching continued to be informal and voluntary, those habitually listening were sometimes identified as “students” who formed “societies” and paid some remuneration to their “teachers.” By the first century CE, the following of masters became so institutionalized that two rival schools of thought made their appearance. Identified as the Proculians and the Sabinians, these schools were named after the jurists who founded them. Historians disagree as to the difference between the two schools. Most believe that they were probably distinct in their approach to legal analysis, one adhering more closely to the letter of the law and the other caring more about material justice. The congregation of students around masters was particularly noticeable in the second century CE, when several locations were identified as places where law teaching habitually took place. In these locations, teachers gave courses on a variety of subjects, including juridical thought and imperial legislation. At the end of their studies, students received a certificate. By the fourth century CE these schools came under the control of emperors, who appointed the teachers and gave them the status of civil servants. In 425 CE, Theodosius II (r. 408–450 CE) declared illegal the teaching of law outside these state-sanctioned institutions. Legislation Another means to create legal norms was legislation. Assemblies (meetings of all male, adult, Roman citizens) could pass statutes (leges) as well as plebiscita (laws made in assemblies of plebeians). According to some historians, the Senate, where leading men of the republic met to discuss the affairs of the day, was a legislative body that not only recommended but also prescribed certain solutions (senatus consulta), most particularly under the Republic (ca. 509–27 BCE). In the late Principate (ca. 27 BCE–284 CE), a new form of legislation, the oratio principis, appeared, allowing emperors to deliver speeches telling the Senate which norms it should adopt. These various legal sources fared differently in diverse periods. Laws and statutes passed by assemblies were an important source of law until the first century BCE. Senate decrees were important in the first and part of the second century CE. The accumulation of imperial legislation led to the appearance of collections of imperial constitutions such as the third-century CE Codex Gregorianus, which included legislation from Hadrian to Emperor Diocletian (r. 284–305 CE), or the more famous early fifth-century Codex Theodosianus, formally promulgated by Theodosius II and including sixteen books divided into titles and covering legislation dating from 306 to 437 CE. But even at the height of their prominence, these sources were of little weight when compared to the production of praetors and jurists. Among other things, legislation tended to add to and explain, rather than change, the legal situation. Furthermore, its most frequent field of action was public, not private, law. Legislation also covered such issues as criminal law, testamentary succession, and family law. The relatively secondary role of legislation in the making of Roman law was paradoxically confirmed with the advent of the empire. Roman emperors, who sought to influence the legal order, legislated massively. However, to justify their growing legislative powers they often disguised themselves as judges and jurists. They published edicts (as the praetors once did), rendered judgments (decreta), or gave answers to questions of law presented to them either by the interested parties or by praetors (rescripta). These answers were often written not by the emperors themselves but by jurists working for them and in their name. Contemporary jurists consented to these practices, yet they continued to uphold the centrality of juridical thought and insisted on their role as custodians of a legal methodology. The emperor, they argued, was free to legislate, but examining the legitimacy of his enactments rested with jurists. After all, jurisprudence, not imperial pronouncements, embodied knowledge of matters divine and human and distinguished what was just from what was not.8 Ius Gentium Owing to the conviction that polities depended on agreement among members to live together under the same normative order, Roman law was applied exclusively to the citizens of Rome. Because each community had its own laws, which were the laws of its civitas (its community of citizens), in theory foreigners (peregrini) had no right to Roman law even when they were present in Rome. Foreigners of the same group were to use their own ius civile, that is, their own communal law. But what would happen when individuals of distinct communities came into contact? Which laws would apply? To take care of such situations, a different system had to be devised. Born sometime in the fourth or third century BCE—the dates are not very clear— this system was eventually identified as ius gentium (literally, the Law of Nations, Peoples, Gentiles, or Tribes). Managing it would be a new figure, a special praetor for foreigners (praetor peregrinus), a post created in 242 BCE.9 The emergence of ius gentium rested on the assumption that while some norms were particular to a specific community, others were common to all. Ius civile represented the former; ius gentium represented the latter. From its birth, therefore, ius gentium was imagined as a universal system that could fit any person of any community or legal tradition. To discover what it included, in theory the praetor peregrinus (or provincial governor) was to identify the legal principles shared by all humans. Because what this meant in practice was not always clear, those dealing with ius gentium had a much greater liberty to add, subtract, or change the law than did other officials who were charged with applying Roman law. Thus, although much is unknown about how the praetor peregrinus proceeded to identify the contents of ius gentium and whether his understanding of it truly differed from his understanding of Roman ius civile, it is nevertheless clear he enjoyed a relative liberty that allowed him to, for example, abandon the old causes of action and, as we saw earlier, and introduce new formulas. The quest to identify a ius gentium also allowed the praetor peregrinus the pioneering adoption of important principles, such as the obligation to have good faith (bona fides) in contracts. The formulas the praetor peregrinus created, the remedies he supplied, and the edicts he published established important new practices and doctrines soon imitated by other praetors and since used by jurists. Imagined as a law that was not based on the specific historical experience of a particular community but instead was anchored in human experience, eventually ius gentium was said to represent human reason and the nature of things. As a result of this understanding, on occasions Romans considered it also as embodying a natural law (ius naturale). They suggested that it was so reasonable and compelling that nature, rather than human convention, was responsible for its creation. The Extension of Roman Law throughout the Empire Conceived as the law of a particular community, Roman law was thus tied to citizenship, which was an inherited status exclusive to the inhabitants of the city and their descendants. However, in a long process extending from the fourth to the first century BCE, Roman citizenship was extended to most individuals living in the Italian peninsula and Gaul (present-day France). In 212 CE, Emperor Caracalla granted it to all free residents of the empire. As a result of this extension, Roman law was no longer the exclusive system of the citizens of the city, but instead the common stock of all imperial subjects.  The way this legal extension took place was particularly interesting. Rather than reimagining Roman law as a territorial law that ruled first over a city, then over a region, then over an empire, as eventually many powers would do, what Romans did in order to broaden the validity of their legal system was to grant Roman citizenship. In other words, rather than making the territory Roman, they transformed foreigners into citizens, and rather than arguing that Roman law should be universally applied, they redefined the extension of the Roman community by including in it all the inhabitants of the empire. Roman law theoretically remained the same; what changed was the definition of who Romans were. The expansion of citizenship and, with it, of Roman law, throughout the empire led to important developments. One that has drawn the attention of many scholars was the emergence of a series of peripheral or provincial Roman legal systems. These included local expressions of Roman law, which were radically different from place to place and vastly diverse over time. Once portrayed as “vulgar” because of their distance from the centers of creation and from juridical debates, their more salient feature was that they were greatly influenced by local conditions and customs, most particularly in the Hellenistic East, where Romanization was harder to achieve than elsewhere. Although the emergence of local variations of Roman law probably predated the extension of Roman citizenship to all the inhabitants of the empire, it is generally believed that this extension accelerated the fragmentation of Roman law. By ordering that Roman law would immediately replace all previous legal traditions, the Antonine Constitution, which sanctioned the extension of citizenship in 212 CE, unilaterally imposed the trappings of Roman law onto preexisting native systems. In theory mandating a complete legal overhaul, in practice, however, this goal was unattainable. The result was an extremely complex structure that allowed the development of multiple and parallel legal systems that, although formally identified as Roman and sharing some characteristics, were nevertheless radically different from one another. This extreme pluralism was not formally acknowledged. Roman jurists, of course, knew that differences, sometimes substantial ones, existed among the laws operating across the empire, but they did their best to conceal this. They did so by redefining the scope of customary law. They argued that, after the imposition of Roman citizenship, all persisting differences between the (original) Roman law and the (local) Roman law were but exceptions anchored in local customs. Reimagining all legal differences as part of a local customary law allowed jurists to sanction and legitimize the survival of a vast body of native law despite the fact that, in theory, the empire tolerated only the existence of one common (Roman) law. Whether they predated the imposition of Roman law or emerged after it was imposed, paradoxically, the reclassification of legal differences as customs greatly transformed Roman law. By recognizing as legitimate (Roman) customs what were in reality foreign norms, and by giving them normative value within Roman law, Roman jurists opened the door for the massive penetration into their legal system of non-Roman concepts and legal arrangements. One example is that Hellenistic forms of contract or foreign understanding of possession could thereafter give rise to a ius civile litigation even in Rome itself. The complexities that resulted could be demonstrated by observing developments in the Iberian Peninsula. Rome intermittently controlled Iberia from the end of the third century BCE, and its final conquest is said to have been completed in the year 19 BCE. Roman domination persisted until the end of the fourth century, when Iberia was conquered by the Visigoths. This convoluted history was reflected in the way local law developed. Initially several systems coincided in the territory. There was Roman law for Roman citizens, indigenous law for the natives, and complex rules, based on different principles, for assigning cases involving Romans and non-Romans. None of these systems, however, existed in isolation. They interacted to such a degree that indigenous law gradually became Romanized to the point that, rather than ensuring separation, its imposition led to acculturation. Its employment allowed indigenous people to familiarize themselves with Roman law and accept some of its basic tenets under the guise of their being local. Provincial edicts and pronouncements added to this growing body of local law, as did Senate decisions that specifically targeted Hispania. Over time the number of local inhabitants recognized as Romans grew substantially through individual concessions of citizenship to “worthy” natives. Several indigenous cities received the status of Latin municipalities, and their inhabitants acquired Roman citizenship. After all free residents of the empire were made Roman citizens, then, at least in theory, only Roman law persisted in Hispania. Yet this transition was neither immediate nor complete. Customary indigenous law persisted because it was considered known or good, because there was an insufficient number of experts in Roman law, and because it was gradually merged with Roman law. This amalgamation of Roman and non-Roman was further enhanced after the Western Roman Empire fragmented. This became particularly evident in the early sixth century, when the Visigoths (who conquered Hispania at the end of the fourth century) proceeded to recompile the local Roman law. The Lex Romana Visigothorum (also known as the Breviary of Alaric), which they elaborated, was in the Middle Ages considered a trustworthy source for late Roman law. However, although the Lex Romana reproduced some essential Roman texts, such as abstracts from the second-century Institutes of Gaius or the fifth-century Theodosian Code, compilers of this law selected which parts to include and how to interpret them. They incorporated and reproduced in their collection a simplified and abbreviated version of Roman law based on very few sources that were repeatedly used and cited. It is also possible that by the time the Lex Romana was enacted, Roman law was already under the influence of not only local Iberian customs but also the laws and customs that the Visigoths brought with them to Iberia. If this was true, then not only did the Lex Romana capture only some parts of Roman law, but it is possible that it contained a not particularly faithful representation of how Roman law fared in Iberia before, during, or after the Visigoth conquest. If the extension of citizenship was one challenge, another was Emperor Diocletian’s (r. 284–305) decision in 285 CE, in the midst of a prolonged crisis, to divide the empire into two parts. Diocletian apparently wished to facilitate the administration of this vast polity by naming two rulers and building two capitals. Yet what began as a mere administrative and political tool ended up forming a true divide. In the post-Diocletian period, Constantine (r. 306–337) materialized the division of the empire by erecting in the east a New Rome, which he called Constantinople, where he transferred his residence. The growing distinction between East and West was also noticeable legally with the gradual emergence of an Eastern and a Western Roman law. It became particularly prominent after the Western empire fragmented in the fifth century and was overrun by a great variety of tribes we now identify as Germanic (see Chapter 3). Thereafter, Western Roman law became heavily influenced by Germanic legal traditions. Meanwhile in the East, Roman law came under the renewed yet intense influence of Hellenistic culture.  Most historians tend to categorize the survival of Roman law in the East as marking the emergence of a separate and distinct legal tradition, which they identify as Byzantine. Yet, paradoxically, this so-called Byzantine law eventually gave rise to the most important compilation of Roman law that survives to date, the Corpus Iuris Civilis. The Corpus Iuris Civilis The Corpus Iuris Civilis, as it came to be known in the sixteenth century, was a collection of various pieces of Roman law.10 Sanctioned by Justinian (r. 527–565), emperor of the Eastern empire in the sixth century CE (that is, after the fragmentation of the Western empire), in reality the Corpus included several independent compilations that were enacted successively. Common to all of them was that they were prepared by a committee of experts with the aim of guarding, even restoring, the glory of Roman law as well as supplying a practical code for the Eastern empire and a teaching tool for students. First among these compilations was the Code (Codex), which in a first edition of 529 and a second edition of 534 outlined various texts of imperial legislation, some ancient, some less so, some general and some pertaining specifically to the Eastern empire. The Codex mostly sought to fuse selectively three preexisting compilations (the Codex Gregorianus, the Codex Hermogenianus, and the Codex Theodosianus), adding to them the most recent imperial legislation and omitting what was considered obsolete or contradictory. The second edition of the Codex also included decisions by Justinian as to how to solve certain conflicts and promote reform. The Code, which was meant to replace earlier collections, was arranged according to subject matter, and inside each subject the laws were arranged chronologically. The second compilation carried out under the auspices of Justinian was the Digest (or Pandects). Finalized in 533 CE, it reproduced extracts from the writings of some of the most influential Roman jurists who had worked between the first century BCE and the fourth century CE. Arranged by topic, the Digest dealt with important areas of private law, mostly family law, property law, contract law, and inheritance.11 It was divided into fifty books that followed the arrangement of the Code. The third compilation, titled Institutes, was promulgated in 533. Mainly based on the manual for students authored by Gaius in the second century CE as well as containing elements from other students’ manuals, Justinian’s Institutes described the principles of Roman law and divided them by the law of persons, things, and actions. Although meant to collect and reproduce the law, the Corpus Iuris Civilis nevertheless innovated a great deal. The quantity of material considered for inclusion was enormous, forcing the editing committee to choose what should be incorporated and what not. Historians have estimated that, to prepare the Digest, which compiled jurists’ opinions, some thirty-eight authors and two thousand books were consulted but that only about 5 percent of this material made it into the last version. Committee members were also told to settle conflicts and produce a unitary body of law and were mandated to adapt this law to the conditions and legislation of their time. If the process of elaboration implied change, so too did the inclusion of this material in legislation sanctioned by the emperor as the law of the realm. The juridical opinions that were reproduced in the Digest now acquired the status of law. The same happened with the Institutes, a manual for students that thereafter was authorized as the formal vehicle with which to understand Roman law. Justinian was so adamant about giving his collections the power of law that he prohibited references to the original material or to previous recompilations. He also forbade the elaboration of commentaries and glosses, forcing jurists to center their attention on his compilations and on them alone. Often unsuccessful, these measures nevertheless exemplified the degree by which Justinian desired to ensure the beginning of a new age. The Afterlife of the Corpus Iuris Civilis Despite the fragmentation of the Western Roman Empire in the fourth and fifth centuries CE, what we now identify as the Byzantine Empire (the Roman empire of the East) survived until the conquest of Constantinople by the Ottomans in 1453. From the sixth century (when the Corpus was elaborated) to the fifteenth century, therefore, in theory at least, Roman law as compiled in the Corpus continued operating in the East. Formal continuity, however, could not mask what were in reality substantial mutations. Most remarkable among these was the gradual adoption of Greek rather than Latin. Used since the mid-sixth century— Justinian himself began legislating in that language—ultimately Greek became the legal language of the East, forcing jurists and practitioners to translate, summarize, and interpret some of the major Latin texts. The adoption of Greek, the continuing reference to the Justinian codification whose presence in the West was at best patchy, and the need to apply Roman law to constantly evolving new circumstances, gave rise to the creation of a distinct Roman legal system that was particular to the East. The eleventh-century schism that enshrined a distinction between a Latin and an Orthodox Christian Church, the former observed in the West and the latter observed in the territories of the Byzantine Empire, also contributed to a widening gap between Western and Eastern traditions of Roman law. Despite this growing divergence, practitioners in the East constantly asserted their ongoing association with and reliance on Roman law. Subsequent Byzantine emperors presented their legislation as amendments (rather than derogation) of the Corpus, and the Institutes, the manual for law students included in the Justinian compilation, also maintained its place in legal education. It is therefore paradoxical that the division between East and West, which was not particularly clear in the early Middle Ages, would eventually become clearer and to some degree definitive only after the Eastern Justinian Corpus would reemerge in the West, where it would fuel the “revival” of Roman law in the eleventh and twelfth centuries.12  2 The Creation of Latin Christendom IN THE FIRST CENTURY CE an important agent appeared on the horizon of what was to become European law. Its initial impact was timid and partial, but by the fifth century it became a major player. This transforming agent was a new religion, Christianity, and it was about to turn the ancient world upside down. Christianity was born as a Jewish sect sometime in the early part of the first century CE. With relatively humble beginnings, it expanded rapidly, first in the Eastern Mediterranean and then along its western shores. Roman officials initially rejected the new religion and, thinking it subversive in both method and creed, persecuted its followers. But by the fourth century CE, the tide had turned. In 312 Constantine recognized Christianity as one of the permissible religions, and in 383 Theodosius I declared Christianity the official religion of the empire. The combining of Christianity with the Roman Empire produced an earthquake. It shook some of the basic foundations of Roman law, and once the seismic activity was over, what emerged was a new system. This system no longer linked law with citizenship. Nor did law become territorial. Instead, normativity was now tied to a shared creed. In theory, it united all Christians, regardless of their origin or location. This new system was also propagated by new actors, the believers. It was through the missionary activities of these individuals and following their path that, in the early medieval period, both Christianity and Roman law were introduced across Europe. Gradually forming part of the legal and cultural stock even in territories that never formed part of the empire, this introduction created a space we now identify as Latin Christendom.1 What it meant for European legal development is the subject of this chapter.  The New Religion Historically, the new religion was an offspring of Judaism. Although eventually moving away from it, Christianity shared the Jewish vision of God as a lawmaker. According to this tradition, at the basis of the relationship between the believers and the divine was an agreement (a covenant) that ensured that if the believers obeyed God’s law, they would be rewarded. Their observance of that law would guarantee that God would favor and protect them. This understanding of the relationship between God and believers, which Judaism introduced and Christianity then followed, portrayed God not as a capricious being that reproduced human faults and passions but instead as a virtuous power that acted through legislation. God’s rules were, in theory, clear, and those who entered into the covenant knew what they included. This conceptualization of lawgiving was new with respect to Roman law. Whereby Roman law focused on conflict resolution, Christianity featured a law that was based on a contract, an agreement between parties. Rather than being anchored in customs and elaborated by praetors and jurists as in Rome, the Christian law was divine in origin. And rather than being open to all citizens of an imperial polity, this law was offered by God only to the Israelites.2 Roman and Christian law were also distinct because the norms they adopted were radically different, as were their identification of right and just behavior and their conceptualization of what the community consisted of and what it was destined to achieve. The Christianization of Roman Law? Given these vast differences between Roman and Christian law, many historians rushed to assume that the advent of Christianity greatly and immediately affected Roman law. They expected to conclude that the rise of Christianity in Rome brought about major changes and that these would be easily traceable in the historical record. They also anticipated that after Rome Christianized, Roman law and the behavior of Romans would have substantially mutated. But many historians now disagree about how important or pervasive the influence of Christianity on Roman law was or, most particularly, how immediate. They also question whether legal changes (even when they occurred) affected practices, or whether they remained a dead letter, more revealing of the intentions of a small elite than of what happened in society at large. Those holding the view that little changed after the Christianization of the empire argue that the new conceptualization of law as divinely mandated did not immediately influence Roman law. As long as the empire lasted, Roman officials continued to operate as before, inventing, reinterpreting, and applying the existent law. Criminal law also continued to uphold Roman traditions and was not greatly affected by the new, radically distinct, Christian morality. Families continued to function as they did in the past, with children maintaining their role as guardians of familial memory despite the new Christian promise of afterlife and Christian criticism of Roman earthly commemorations. Social stratification and status were essentially preserved despite the new ethos that Christians were to live in brotherly and nonhierarchical communities. While many historians sought to answer the question whether the conversion of the empire affected Roman law by comparing the norms before and after it took place, others suggested that not all contemporary legal changes were necessarily tied to the adoption of the new religion. Mutations, they argue, could easily be motivated by an evolution common to both Christians and non-Christians. After all, Roman law had constantly changed even when the religious belief of Romans did not. Was it possible, for example, that some innovations, such as demands for female chastity, reflected notions coming from the provinces and from non-aristocratic circles that adhered to customary practices rather than to the new Christian beliefs? Some historians reached the conclusion that Christianity introduced no substantial or immediate changes. Others affirmed that even if the authorities, modalities, and language remained the same, the contents of Roman law shifted in what was to become a long and slow process of integrating Christianity with Roman law. These scholars point to legal adjustments adopted after the conversion of the empire, mainly through imperial legislation. For example, beginning in the fourth century CE, sins were added to the existing lists of crimes, and new regulations were made regarding pious bequests. Also innovative was the distinction between appropriate and inappropriate public entertainment, the idea of indissoluble marriage, the legitimization of natural children, and the duty to pay alimony to wife and offspring. Beyond imperial legislation, it is possible that Christianity might have influenced the way Romans conceptualized and sought to control sexual conduct. It might have led to new practices regarding charity and welfare. In short, Christian elements and a Christian agenda may have gradually penetrated Roman law, and Christianized Romans behaved (at least to some degree) differently than pagans. Historians of late Roman law also debated why Roman emperors introduced Christian ideas into their legislation (when they did). Some argued that the emperors were motivated by true religious belief; others said that they were politicians seeking to maximize their power and capitalize on new societal trends that were beneficial to them. For example, was Constantine’s legislative work motivated by Christian zeal or by traditional Roman concerns? By referencing customary legal practices, was it possible that Constantine nevertheless created new norms that introduced Christian ideas, fusing them with Roman precedents and values? Taking into account his legislation regarding the emancipation of slaves, was his support for the idea of freedom a result of his wish to free individuals who were enslaved because of their Christian belief (as some have argued), or was it part of a more general move against his opponents, allowing him to portray these opponents as tyrants and himself as a liberator? How did introducing new methods for emancipation, mainly by allowing Christian masters to free their slaves in church, affect Roman laws on slavery? How did it help the propagation and consolidation of Christianity? The Romanization of the Church If historians disagree on whether the introduction of Christianity led Romans to reconsider their legal traditions and adapt them accordingly, and to what degree, there is nevertheless a general consensus that the empire’s espousal of the new religion radically affected Christianity. The first and clearest sign of that was the Romanization of the Church. Born in the Eastern Mediterranean and prospering in Asia Minor and the Near East, early Christianity was deeply influenced by Hellenistic culture. It was predominantly Greek-speaking and took on many Hellenistic traits. Yet once it reached Rome and became the official religion of the empire, Rome gradually emerged as an important Christian center, and in many areas Latin replaced Greek as the main vehicle of communication.  Other important changes also took place. Early Christianity was very local in character and contained many different communities who agreed on hardly anything. These communities were self-regulated and often confronted one another. After Christianity became the religion of the empire, this extremely nucleated structure gradually came under attack. Now that Christianity was endowed with a state (the Roman state), an additional system of law (to Church law was now added Roman law), and a series of authorities (Roman authorities), these began regulating Christian life. What followed was a slow process of centralization that eventually led to the formation of the Church as we think of it today—a structure of authority with a more or less fixed canon of beliefs and a set of authorized texts. The institutionalization of Church authorities and the definition of a common creed was a mission that late Roman emperors undertook with great expediency. This imperial positioning vis-à-vis the Church had Roman precedents. Pagan Roman emperors were considered representatives of the gods, with whom they were believed to have direct communication. Because the gods favored them, the emperors were under the obligation to ensure that the gods would be worshipped. Applying this understanding to Christianity, late Roman emperors presented themselves as defenders of the correct faith and as leaders responsible for its propagation. As benefactors of the Church, they adjudicated conflicts among Church members and among different Christian communities and decided who was right and who was wrong in matters of faith. Following these beliefs, from as early as the fourth century CE emperors also called meetings to declare the basic tenets of Christianity. The Council of Nicaea (325 CE), organized by Constantine, settled the issue of who Jesus was and what his relationship to God was. It adopted the so-called Nicene Creed, later expanded at the Council of Constantinople (381 CE), which affirmed the divinity of Jesus and the existence of a trinity (the father, the son, and the Holy Spirit). The Council of Carthage (397 CE) identified the official canon of the Church and selected the texts that would be included in the authorized scripture.3 Early councils also provided procedures to ordain the clergy and to call for meetings of bishops (synods) and adopted some of the principal liturgical practices. Over time, imperial intervention grew exponentially. Subsequent emperors interfered with Church matters not only by dictating solutions but also by forcing them on opponents by persecuting and punishing them. By the end of this process, Christianity and its dogma became a matter of imperial law. Imperial law determined, as the fifth-century Theodosian Code did, what true Christianity was and which religious practices were to be followed. Defining Heresy The gradual definition of what Christianity was and what believers should follow also led to the identification of what it was not. This process of delegitimizing certain positions began long before the conversion of the empire, but it greatly accelerated thereafter. It was so quick and powerful that, disregarding past divisions, by the fifth century CE Christian authors could argue that Christianity included “all which has been believed everywhere, always, by anyone.”4 Recognizing some debates among the faithful as legitimate (these were identified as schisma) and others as not (heresy), the result was the division of Christians into orthodox (those who believed correctly) and heterodox individuals (those who did not). As these opinions propagated, Roman emperors began legislating against heretics. Because of the identification between empire and Church, they defined heretics as criminal offenders. Their disobedience, it was argued, constituted contempt for the emperor and his imperial law and endangered the community. It therefore could, and indeed was, equated with treason and was punishable by death. Thereafter, St. Augustine (354–430 CE) could advocate persecution of heretics, believing that they were dangerous dissenters whose opinions could pollute the community and bring about its downfall. Promoting Conversion If the union of empire and Christianity generated mechanisms leading to a single dogma imposed on all believers and punishment of those who refused to adhere to its tenets, it also provided opportunities to promote conversion. Wishing to achieve this goal, different emperors legislated in this direction, granting converts special privileges. They also inflicted on pagans legal and economic limitations, such as prohibiting their rites, ending state subsidies to support their religion, and removing the immunities of their priests. On occasion, emperors confiscated treasures found in pagan temples or consented to the destruction of these temples. In the 340s and 350s, laws were enacted prohibiting pagan worship under penalty of death. Many regulations favored Christians in public office or prohibited the employment of pagans. Particular pressure was place on elites, who were to be rewarded or punished because of their creed in ways that were much more severe and meaningful than the treatment meted out to simple folk. As a result of such measures, by the early fifth century St. Augustine, one of the fathers of the Church, could openly advocate the use of coercion and violence to promote conversion, arguing that Roman emperors had the unquestionable right to employ all means at their disposal to prohibit paganism. External pressure, he argued, could provoke a genuine change of heart and could lead to true faith. His views were accepted by emperors such as Justinian, who in the sixth century legalized the forced conversion of pagans. Thereafter, Roman law became an instrument for advancing, even imposing, conversion, a move presented as a necessary means to ensure the well-being of all humankind. The Church as a Roman Institution From the perspective of European legal history, however, the most meaningful development during this period was the growing identification between the Church and the law and structures of Rome, which the Church continued to uphold even after the Western Empire fragmented. Bishops, for example, were fashioned after Roman consuls or praetors. They received similar judicial, administrative, and legislative powers in both the religious and the secular realms, they were to follow procedures that originated in Roman law, and they were expected to take into consideration what Roman law instructed. Like Roman officials, bishops also met in assemblies to coordinate their activities as well as to legislate, and they were exempt from public service, controlled extensive properties, and enjoyed great prestige. In the absence of local government, most particularly after the Western empire fragmented, bishops often undertook responsibilities as state officials, such as overseeing inheritance and succession, supervising public works, settling private disputes, and operating schools. The Church’s adoption of Roman structures and laws was also clear in other ways. Dioceses were conceptualized as Roman units, and the Church itself was legally constructed as a corporation (universitas), a status that in Roman law was held by the state and other public bodies, allowing them to own property, receive gifts, and make contracts. Church buildings were called basilicas after the old Roman spaces where assemblies met and where praetors rendered judgments on elevated platforms. Church canons (rules) used the imperial style and were read, interpreted, and obeyed as if they were imperial decrees. Roman jurisprudence became a vehicle through which to discuss theological questions, and bishops responded to petitioners by using the forms and formulas of Roman jurists. One result of this merger was various books, such as a fourth-century discussion of why paganism was false and Christianity was true that was titled “Divine Institutes” after Gaius’s manual for law students. This allusion was purposeful, according to the author, because just as Roman jurists used Gaius’s Institutes to settle juridical disputes, his book would do the same with regard to religious creed. Historians thus conclude that early ecclesiastical law grew out of the constant interaction between Roman legal practices and the requirements and needs of the Church. The Church, of course, also preserved the Roman language (Latin) as well as Roman forms of oratory, expression, literature, architecture, and art. By the time of Pope Gregory I (590–604) some authors portrayed their world as one “in which most Romans had been Christened, the empire itself sometimes was called a res publica christiana and the Church long since granted peace (tranquilitas).”5 Criticizing this situation a thousand years later in 1651, Thomas Hobbes remarked that “the papacy is no other than the ghost of the deceased Roman empire, sitting crowned upon the grave thereof.”6 As for historians, they have long asked if the empire was swallowed up by the Church, or the Church by the empire. Most agree, however, that Christianity transformed Rome and that Roman society transformed Christianity, and that, in the process, law acquired a new character. Christianization and Romanization after Rome In the centuries following the fragmentation of the Western Roman Empire (during a period we now identify at the early Middle Ages), Christianity spread throughout Europe and so did Roman culture and law. This process of diffusion was long and complicated. Initially, conversion efforts were fairly feeble. As long as the Church consisted of a multiplicity of bishops, each working in his diocese, there were insufficient means or coordination with which to bring about the conversion of large populations. However, with the foundation of the monastic orders (which produced dedicated missionaries, most particularly from the sixth century onward) and the gradual affirmation of the papacy (during approximately the same period) the Church moved into an expansionist mode. From the sixth to the twelfth century, Christianity gradually established itself in most of central, northern, and eastern Europe. Expanding westward from the Italian peninsula to present-day France and Germany, it reached the British Isles, and to the east it spread into Moravia, Slovakia, Serbia, Bulgaria, Poland, Hungary, and the Baltic states. Next came northern Europe, with the Netherlands, Denmark, Sweden, Norway, and Iceland. At times incremental, at others advancing and retreating, by the end of the twelfth century this process of conversion produced an important homogenizing effect that, among other things, introduced Roman law and Roman structures all over Europe. As a result of these processes, the new Christianized understanding of Roman law, which initially was limited to the territories of the empire, won primacy throughout much of European territory. Missionaries and Church officials responsible for this dissemination might have cared about the conversion of the so-called pagans, but while they spread the word of the gospel, they also propagated the language, rhetoric, art, ceremonies, culture, and law of Rome. They introduced Roman administrative structures, formulas, and procedures and imposed Roman ways of thinking, arguing, and resolving conflicts. Particularly transformative in this regard were the processes taking place in territories that had not been part of the Roman Empire. There, the accumulated effect of Christianization and Romanization was especially noteworthy, eventually replacing earlier traditions. According to some historians, the diffusion of Romanized Christianity throughout much of the Continent resulted in the “making of Europe.” That is, it brought about the gradual buildup of the cultural, administrative, legal, and political characteristics that enabled Europe to cohere.7 By the tenth century if not earlier, Europeans of very distinct regions with vastly diverse pasts and cultures could feel themselves identified with Christianity and present themselves as heirs to Rome.  While this was happening in much of southern, western, central, and northern Europe, in the East a different strand of Romanization made inroads. There as elsewhere, converts to Christianity were introduced not only to a new religion, but also to Roman trappings. Yet these trappings were distinct. They were mostly Hellenistic in orientation and conducted in Greek and disseminated an Eastern, rather than a Western, Roman tradition.8 Their effect, however, was as important and as enduring. After the conquest of Constantinople, the capital of the Byzantine Empire, by the Ottomans in 1453, Eastern Roman law survived in the institutions and laws of the Orthodox Church. Applied to the Greek population living under Ottoman occupation, it was administered by the patriarch of Constantinople and other Church officials who, by implementing Orthodox canon law, also preserved a Roman legacy.  PART TWO The Early Middle Ages  3 An Age with No Jurists? THE APPROXIMATELY FIVE HUNDRED YEARS between