The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Changeby James Q. Whitman
Well after the process of codification had begun elsewhere in nineteenth-century Europe, ancient Roman law remained in use in Germany, expounded by brilliant scholars and applied in both urban and rural courts. The survival of this flourishing Roman legal culture into the industrial era is a familiar fact, but until now little effort has been made to explain it outside the province of specialized legal history. James Whitman seeks to remedy this neglect by exploring the broad political and cultural significance of German Roman law, emphasizing the hope on the part of German Roman lawyers that they could in some measure revive the Roman social order in their own society. Discussing the background of Romantic era law in the law of the Reformation, Whitman makes the great German tradition of legal scholarship more accessible to all those interested in German history. Drawing on treatises already known to legal historians as well as on previously unexploited records of legal practice, Whitman traces the traditions that allowed nineteenth-century German lawyers like Savigny to present themselves as uniquely "impartial" and "unpolitical." This book will be of particular interest to students of the many German thinkers who were trained as Roman lawyers, among them Marx and Weber.
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The Legacy of Roman Law in the German Romantic Era
Historical Vision and Legal Change
By James Q. Whitman
PRINCETON UNIVERSITY PRESSCopyright © 1990 Princeton University Press
All rights reserved.
LAW IN THE FOURTH MONARCHY OF MELANCHTHON
At the close of the 1814 pamphlet that would make him world famous, his On the Vocation of Our Time for Legislation and Legal Scholarship, the great early nineteenth-century leader of German law, Friedrich Carl von Savigny, quoted a long passage by Phillip Melanchthon. There is something unexpected in reading this ending to Savigny's pamphlet: Melanchthon's elegant Latin, two-and-three-quarter centuries old, comes as a surprise after pages of German focused on the urgent legal situation of post-Napoleonic Germany. But Savigny was typical of his time in invoking a glorious name from the Reformation. As the national revolutionary armies of the French were driven off, many Germans were persuaded that Luther's reformation had been their own great German revolution, that their own national consciousness had been formed in the sixteenth century decades of religious upheaval. Moreover, the nationalist fascination with the Reformation came particularly easily to Roman lawyers. For the break with the papacy had come just when Roman law penetrated Germany on a large scale, and Roman law had penetrated Germany largely under Melanchthon's intellectual leadership. To Savigny, the founding moment of German religious and national identity had been the founding moment of his own scholarly and political mission.
In this chapter, I wish to show how Roman law took on its political significance during the religious struggles of the sixteenth century, a significance that it still retained in Savigny's time. The powerful sense of tradition among Savigny and his fellow professors, the conviction that they were the continuators of the work of Roman lawyers of the past, made them faithful to a recognizably Melanchthonian conception of Roman civilization, a conception that had, in turn, roots deep in the Middle Ages. Because Roman law in Melanchthon's time was praised as a law of "peace" and "impartiality," Romanist lawyers of the romantic era would be able to proclaim themselves the guardians of peace and impartiality in the decades after Napoleon's expulsion.
German lawyers began using the great collection of Roman legal texts, the Corpus Iuris Civilis, on a large scale around 1500, only about twenty years before the upheavals of the Reformation. Roman law thus spread through Germany during a period when the threat of religious civil war was always present. That ever-present threat left its mark on the German — and, in particular, the Lutheran — idea of Roman law. Melanchthon and his many followers, fearful of a destructive conflict with Emperor Charles V, put their hopes in the new Roman law as a force for peace and order, for civilization in its most fundamental sense: a force that could quiet violence. They cultivated and revitalized old medieval associations between Roman law and the peaceful arbitration of disputes. And they worked to associate Rome with a particular Christian vision of peace: in Melanchthon's influential interpretation of world history, Rome was the last of the Four Monarchies of the Book of Daniel, a universal empire embodying a God-given peace. As the sixteenth century progressed, Melanchthon's historical visions and juristic doctrines made him both the pre-eminent interpreter of Roman history and the pre-eminent spokesman for Roman law. His work inspired a flourishing tradition of secular historiography, and his scholarly disciples spread the teaching and study of history all through Germany. At the same time, his orations and pamphlets made him chief among the advocates of Roman law. In this first chapter, I wish to show how Melanchthon's influential political-religious vision of universal empire and his understanding of the practice of law were linked, and how his writings established a vocabulary of praise for Roman law that survived for centuries.
Melanchthon's Rome and Melanchthon's Roman law both had roots deep in the medieval history — in centuries of German efforts to build a state apparatus that could put an end to the private wars that had always afflicted central Europe, and in centuries of belief that the Germans were the heirs of the Roman Empire. Long before Melanchthon's time, Germans had begun to claim that the Holy Roman Empire was the political successor to ancient Rome. Melanchthon adopted this claim as his own. Through a translatio imperii, a transfer of political majesty, Germany had become the modern locus of the Fourth Monarchy. As Melanchthon understood it, this translatio imperii had been achieved largely through Germany's submission to Roman law; accordingly, his understanding of Roman law shaped his understanding of the nature of a Romanized German society. His understanding of Roman law, too, was fundamentally medieval. Like medieval Germans, he thought of a society ruled by Roman law as, first and foremost, a society ruled by written law. And written law, as Melanchthon described it in his "De dignitate legum oratio" of 1538, transformed the world into a place of justice and peace:
It is fitting to give thanks unto God, for giving to the Empire such law once again. ... For written law is a firm fortress against tyranny, and the more learned it is, the more justice it gives [quo eruditius est, eo plus conhnet aequitatis]. ... Indeed, there would be far more uncertainty, if there were no written law. ... [T]herefore we must ask the Lord to preserve this learning for the peace of the country.
I will take this passage as my text in tracing Melanchthon's relationship to the traditions of jurisprudence, of medieval state-making and of Reformation peacemaking. Why did Melanchthon believe that the more learned a legal system, the more just? Why did written law bring peace and certainty to the Holy Roman Empire? An intricate tangle of jurisprudential traditions and German constitutional history lay behind Melanchthon's association of writing, justice, and peace. And it was largely because he associated writing, justice, and peace that Melanchthon linked the laws of Rome with the mission of the Holy Roman Empire of the German Nation.
Roman law was a law of peace. This statement acquired its meaning in the extraordinarily violent world of late medieval Europe — the world of the feuds, private wars, and class persecutions that descended on Europeans unceasingly in the centuries before the rise of modern states. Melanchthon inherited his idea of law from this late medieval society, a society whose primary legal need was for peaceful arbitration of endless and debilitating violent conflict.
The idea that Roman law was suitable for settling the violent conflicts that afflicted European life dates back to the earliest period of the revival of Roman law. Roman law vanished from most of Europe after the fall of the Roman Empire, and, where it survived, it did so only in fragments and abridgments. The modern history of Roman law began only late in the eleventh century, when Italian scholars began systematically studying a copy of the Digest, a compilation of texts made by order of the emperor Justinian in the sixth century A.D. The recovery of the Digest rapidly stimulated a great revival of learned jurisprudence centered at the University of Bologna. As this revival gathered momentum, northern Italian cities began to seek out scholars trained in Bologna for arbitration of their civic strife. Sometimes they sent their disputes to the new universities for resolution; often, they established institutions of learned justice within the cities themselves. In the twelfth century, this Roman law of peace coalesced with Canon law to form a common learned law used for the arbitration of the violence endemic to Italian cities.
In this medieval tradition of arbitration lie the origins of the idea I wish to trace, the idea of Roman law as a law of peace. Roman-Canon law was applied in peacemaking adjudication by learned arbitrators called, in a somewhat obscure phrase," "arbiter, arbitrator seu amicabilis compositor" — "arbitrator bound by formalities, arbitrator not bound by formalities, or peaceful composer of disputes." Such learned arbitrators appeared everywhere as Roman-Canon law spread northward into the warring countries across the Alps in the twelfth and thirteenth centuries. Indeed, the usefulness of learned law for purposes of peacemaking was one of the major factors in its diffusion: in Switzerland, Austria, and the Rhineland, the medieval records of the use of learned law show a heavy disproportion of appeals to an "arbiter, arbitrator seu amicabilis compositor." Traces of the same reliance on the learned law of peace can also be found in the legal history of the cities of the Midi. Learned law had many and varied uses. But in medieval Europe Roman-Canon law made its way largely as a peacemaker's law.
A number of features made learned law attractive as a peacemaker's law. First of all, it was written law, and therefore it promised to provide certain and final disposition for disputes: as the Italian commentators on the Roman texts in particular often declared, "ius scriptum" was "certum et finitum." The certainty of written law accounted for much of its attractiveness down into Melanchthon's time and beyond. But if learned law was definite and ascertainable, learned lawyers were also uniquely willing to depart from its strictures when considerations of justice so required. Peculiarly Christian-classical traditions of Canon law had, from an early date, emphasized "equity" — the doing of justice to the parties regardless of the rigor of legal prescriptions. This tradition of considering "equity" made learned jurists particularly suitable for service as arbitrators. Moreover, both Roman and Canon law included provisions for the recusal of judges — something unknown to other available bodies of law. Furthermore, the Corpus Iuris included two extensive titles on the law of arbitration. But most important for my purposes was the place of learned law within the complex choice-of-law jurisprudence of the later Middle Ages. Learned law was ius commune — an often misunderstood choice-of-law technical term. Out of the technical subtleties of the application of ius commune, I suggest, rose much of Melanchthon's conception of Roman law as the law of peace in a universal empire.
To understand the idea of a "ius commune," and the implied cosmology it carried with it, we must understand how deeply the use of learned law was at odds with settled European views of the legal world. The use of Roman-Canon law conflicted fundamentally with the conceptions medieval Europeans had about their rights. Law in the Middle Ages was generally thought of as local or personal law, embodying local or personal rights. Dwellers of a given medieval city or territory would expect the law of that city or territory to be applied to them in whatever court they might find themselves; they might also expect the law of the nation to which their distant ancestors had belonged — for example the law of the Lombards or the law of the Burgundians — to be applied to them. Such law was local law, personal law, "one's own" law. "One's own" law conferred upon a person rights — grants of special privilege from a monarch, tax exemptions, marital property rights, rights of reciprocity from other cities and territories, and so on. None of these local or personal rights could, of course, be found in the texts of the learned lawyers. Nevertheless, Italian courts of the later Middle Ages would recognize these rights. In particular, the theory of learned lawyers preserved a priority for local customs and statutes. But the learned lawyers put the burden on the litigant to prove that he or she did indeed enjoy the rights he or she claimed. Such proof could be made by the testimony of witnesses or by the presentation of written documentation. Only when a litigant could not prove that he or she had cognizable local or personal rights would courts turn to learned texts, as sources of a more general body of law, a presumptively universal "ius commune."
This "ius commune" was not exclusively Roman-Canon law. Italian courts used a number of written sources, which they ranked according to the extent of their territorial application. Roman-Canon law was first in rank. It was presumed to be universal, in the phrase of the earlier Middle Ages a "lex omnium generalis," a "general law of all parties." Statutes of larger territories were less general than Roman-Canon law but more general than local statutes; local customs and local statutes shared a place on the lowest level of generality. A chart may help illustrate this ranking of bodies of law:
Roman-Canon Law (Territorially Universal)
Statutes of Larger Territories
Statutes of Smaller Territories/Local Customs
This chart greatly simplifies and stylizes an intricately complex choice-of-law system, but it gives a generally accurate picture of the medieval choice-of-law universe. This universe, as first conceived in Italy, was made up of concentric sovereign circles. As a rule, the innermost circles, the realms of local customs and local statutes, were realms of local and personal law, embodying the rights of litigants. Courts would always recognize those rights if their applicability could be proven, sometimes giving local customs priority over local statutes, sometimes giving local statutes priority over local customs. However, if the applicability of local or personal rights could not be proven, the court would move outward in the universe of concentric circles — upward on the chart I have shown — to choose a legal system of a larger territory. (Because proof of rights could be very difficult, one can say that in practice, local law was substantively favored, but general law was procedurally favored.) The term "ius commune" referred to the wider of any two circles, the higher of any two bodies of law on the chart; that is to say, "ius commune" referred to that body of law in any litigation whose applicability did not need to be proven. If a litigant alleged but could not prove that he or she had some right by local custom, and the court applied Roman law, Roman law was the ius commune; by the same token, if a litigant alleged a statute of a smaller territory and the court applied a statute of a larger territory, the statute of the larger territory was the ius commune. Accordingly, the content of "ius commune" fluctuated widely from case to case. Ius commune was not so much the law common to all Europe, as the law common to both litigants in any given proceeding; the phrase might best be translated, not as "common law," but as "shared law." Most often "ius commune" would refer to Roman-Canon law; but the phrase could refer, depending on the litigation, to any written form of law.
This ius commune was perfectly suited to the arbitration of violent conflict, because it was, in the most literal sense, "impartial": whether jurists applied the Roman law, Canon law, or some form of "equity," what they applied was not the personal law of either party, but rather a law common to both parties. It was presumably a reflection of this jurisprudence that Italian learned lawyers acquired, during the Middle Ages, a reputation for being uniquely "impartial." Roman law, in its first European incarnation — submerged as one element of the learned ius commune — thus took on the character of a law of peace from the very beginning. At the same time, it became, in legal minds, the law of an universal empire, an empire of peace.
Two special features marked the diffusion of the ius commune into the violent German periphery of Western Europe. First, the learned law that penetrated Germany during the Middle Ages was primarily Canon law (although to be sure, Roman law had penetrated Germany to some extent by the thirteenth century). In practice only Canon law was taught at the German universities; the teaching of Roman law began, for the most part, only at the very end of the fifteenth century. Although courts of arbitration in medieval Germany did apply Roman law, they relied principally on Canon law, and when Germans sought an "arbiter seu arbitrator" it was almost always to clerics that they turned. Only at the very end of the medieval period did the Corpus Iuris enter German practice on a large scale.
Excerpted from The Legacy of Roman Law in the German Romantic Era by James Q. Whitman. Copyright © 1990 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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