I. The Fontes Juris Civilis.
II. Roman and Barbarian Codification.
III. The Mediaeval Appropriation.
IV. Church Law.
V. Political Theorizing.
Classical studies, and the gradual development of mediaeval prose and verse, discussed in the preceding chapters, illustrate modes of mediaeval progress. But of all examples of mediaeval intellectual growth through the appropriation of the antique, none is more completely illuminating than the mediaeval use of Roman law. As with patristic theology and antique philosophy, the Roman law was crudely taken and then painfully learned, till in the end, vitally and broadly mastered, it became even a means and mode of mediaeval thinking. Its mediaeval appropriation illustrates the legal capacity of the Middle Ages and their concern with law both as a practical business and an intellectual interest.
I
Primitive law is practical; it develops through the adjustment of social exigencies. Gradually, however, in an intelligent community which is progressing under favouring influences, some definite consciousness of legal propriety, utility, or justice, makes itself articulate in statements of general principles of legal right and in a steady endeavour to adjust legal relationships and adjudicate actual controversies in accordance. This endeavour to formulate just and useful principles, and decide novel questions in accordance with them, and enunciate new rules in harmony with the body of the existing law, is jurisprudence, which thus works always for concord, co-ordination, and system.
There was a jurisprudential element in the early law of Rome. The Twelve Tables are trenchant announcements of rules of procedure and substantial law. They have the form of the general imperative: “Thus let it be; If one summons [another] to court, let him go; As a man shall have appointed by his Will, so let it be; When one makes a bond or purchase,[341] as the tongue shall have pronounced it, so let it be.” These statements of legal rules are far from primitive; they are elastic, inclusive, and suited to form the foundation of a large and free legal development. And the consistency with which the law of debt was carried out to its furthest cruel conclusion, the permitted division of the body of the defaulting debtor among several creditors,[342] gave earnest of the logic which was to shape the Roman law in its humaner periods. Moreover, there is jurisprudence in the arrangement of the Laws of the Twelve Tables. Nevertheless the jurisprudential element is still but inchoate.
The Romans were endowed with a genius for law. Under the later Republic and the Empire, the minds of their jurists were trained and broadened by Greek philosophy and the study of the laws of Mediterranean peoples; Rome was becoming the commercial as well as social and political centre of the world. From this happy combination of causes resulted the most comprehensive body of law and the noblest jurisprudence ever evolved by a people. The great jurisconsults of the Empire, working upon the prior labours of long lines of older praetors and jurists, perfected a body of law of well-nigh universal applicability, and throughout logically consistent with general principles of law and equity, recognized as fundamental. These were in part suggested by Greek philosophy, especially by Stoicism as adapted to the Roman temperament. They represented the best ethics, the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[343]
The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the jus gentium, or the law inculcated among all peoples by natural reason or common needs.
The supposed origin of the jus gentium was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome’s jus civile. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the jus civile. So this edict became the chief source of the jus gentium so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the jus gentium came to be regarded as consisting of universal rules of law which all peoples might naturally follow.
The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea naturalis ratio was in the air, and the thought of common elements of law and justice which naturalis ratio inter omnes homines constituit, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the jus gentium became identical with jus naturale, which Ulpian imagined as taught by nature to all animals; the jus gentium, however, belonged to men alone.[344]
Thus rules which were conceived as those of the jus gentium came to represent the principles of rational law, and impressed themselves upon the development of the jus civile. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a jus naturale and a jus gentium became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of aequitas, which is the principle of progressive and discriminating legal justice. Law itself (jus) was identical with aequitas conceived (after Celsus’s famous phrase) as the ars boni et aequi.