The Italian Legal Tradition

Thomas Glyn Watkin

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138387355
• eBook ISBN: 9780429760532
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1997, this volume provides the reader from a common law background with an introduction to the Legal System and basic private law institutions of contemporary Italy. It aims to afford a basic understanding, rather than a detailed presentation, of Italian law, through an appreciation of its historical development within the civil law tradition and its place in that family of legal systems descended from Roman law. Having described Italy's place in European legal history and identified the main features of civil law systems generally, it examines the structure of the modern Italian State, its legislative process. Constitution, legal professions and systems of civil, criminal and administrative justice. The last third is devoted to private law, in particular the law relating to the family, property, contracts and civil wrongs, particular attention being paid to differences between the civil and common law approaches to these subjects. It is a readable, lucid and systematic account of its subject.

1 The Italian Legal Tradition

1 Justinian and the Corpus Iuris Civilis

Italy has a strong claim to being considered the cradle of European legal culture. This is so because it was in Italy that Roman civil law was first developed in the ancient world and also in Italy that that system re-emerged in the Middle Ages to become the foundation upon which the majority of European states chose to erect their modern legal systems. Indeed, the influence of Roman law stretches even farther afield in that it is the basis of the legal systems of all those nations across the world which have established their legal orders upon the tradition received when they were the colonies of European countries.

Roman civil law began as the legal system of a small city state upon the banks of the river Tiber in central Italy. As Rome grew from these modest beginnings to become the centre of the largest empire that the world had then seen, so also its legal system came to hold sway over the whole of southern Europe, much of Europe north of the Alps, much of the Middle East and North Africa. The Roman genius for law was closely allied to the great Roman feats in engineering. In both disciplines, the Romans were not great theorists like the Greeks, but rather endowed with a tremendous practicality, for ever conquering the problems they encountered with practical, workmanlike answers. Their system of private law endured the change of republican to imperial government under the Caesars, the rise and fall of a vast empire, the conversion of the people from paganism to Christianity, and finally the shifting of the centre of government itself from Rome in the west to Constantinople in the East. It is a remarkable tale of survival, and of the fitness of Roman law to survive and serve a much changed and much changing social order.

When the emperor Justinian ascended the imperial throne in 527 AD, the empire of which he became emperor was Roman mainly in name. Control of the western empire, including France, Spain and Italy itself, had already been lost, Rome herself having fallen to the invading tribes from northern Europe during the last quarter of the previous century. The empire which Justinian was to govern was centred in the east, his capital being Constantinople or Byzantium. Justinian set himself two great goals at the outset of his reign. Firstly, he wished to restore to his dominions those territories of the western empire that had been lost, and secondly to restore to his subjects the classical law of Rome as their rightful legal heritage. Justinian was well aware that the law by which the inhabitants of his Christian, mainly Greek-speaking empire now lived was but a poor reflection of the great system which had been developed in ancient Rome itself and which had reached its apogee in the first half of the third century AD.

In the first of these ambitions, he enjoyed but limited success. His generals did manage to reconquer some of the lost lands of the western empire, particularly in Italy, but their success was of short duration. Ultimately, the Byzantine emperors were only able to retain control of a relatively small portion of these reconquered territories. For many centuries, they did manage to retain control of the region around Ravenna in northeastern Italy which to this day bears in its name the evidence of its reconquest for the Roman people, that is Romagna. However, not even Justinian could possibly have foreseen the extent of the success which he was to achieve in the pursuit of his second goal, the restoration of Roman jurisprudence.

The problems which faced Justinian with regard to this second goal were considerable. The sources of Roman law by his time were to be found mainly in two places: the enactments of his imperial predecessors and the works of the classical jurists. Both sources were vast and previous attempts at systématisation had met with only very limited success. The array of source materials to be mastered must have appeared particularly daunting to those who were setting out upon a legal career in the law schools of Constantinople and Beirut. Justinian therefore determined to appoint a series of commissions to examine these voluminous sources and to extract from them those rules which were to remain valid, to amend those which required up-dating, to discard those which were no longer necessary or desirable, arid finally to present their product in a systematized, accessible form. The immensity of the task confronting these commissions can be readily appreciated by a common lawyer were he to imagine being faced with learning or discovering his law from the assembled mass of all the statutes passed since Magna Carta together with all the reported cases from the Year Books onwards, the whole having no order other than the chronological and no really systematic guide to the contents being available.

Such was the task which faced the commissions appointed by the emperor Justinian. The first was appointed to examine the enacted laws in 529. Its work was probably aided by the existence of previous attempts at this task, which had produced the codex Gregoriánus and the codex Hermogenianus. both in the third century, and also the Theodosian Code of the late fourth century. However, the task was still considerable and took them the best part of a year. The end result was the first code of the emperor Justinian, known as the codex Vetus, promulgated in 530.

Another commission was then appointed to examine the writings of the great jurists of Roman law. The work of this commission was much more onerous in that there were no previous attempts at systematization of any significance to assist it. Instead, the commissioners, six in number, were faced with having to wade through the whole range of juristic literature from roughly the third century BC to their own day, being assisted in their task by ten barristers from the Constantinople bar. When they completed their work in 533, it was said that they had worked wonders, in that the job had been expected to take ten years. Modern scholarship, however, suggests that they had worked from the outset to a strict timetable and that from this it was clear all along that the work would be done by 533.¹ The end product of their prodigious research, assimilation and ordering is known as the Digest or Pandects, both titles adequately describing the nature of their achievement: Pandects illustrating its comprehensiveness, while Digest points to the degree of assimilation achieved.

However, the work was far from being small, (he Digest consists of fifty books, each divided into titles. By means of these books and titles, the various legal subjects are presented in a systematic, indeed scientific, manner. Thus, for instance, all the authorities on property are brought together and are then presented so that means of acquisition are dealt with first, then modes of transfer, and so on. The whole nevertheless is a massive work, being one and a half times as long as the Bible. Justinian quickly realized that whatever the merits of the Digest, and they were indeed considerable, the work was hardly one which could be placed in the hands of an aspiring law student in the hope that from it he could easily acquire the requisite legal knowledge. Accordingly, Justinian asked three of the commissioners who had worked on the Digest - Tribonian, Dorotheus and Theophilus, the last two being law professors at Beirut and Constantinople respectively - to produce a smaller work, suitable as an introduction for the "young desirous of learning the law" as he put it, and these three produced by the end of 534 a student textbook in four books, based largely on the second century Institutes of the Roman jurist, Gaius. This work was known as Justinian's Institutes, and has remained a basic textbook for aspiring civil lawyers to this day. This work, along with the Digest and the Code, was given the full force of enacted law, a somewhat remarkable fate for a student text.

Meanwhile, the changes to the law which had been made by way of up-dating during the compilation of these works had rendered the original Code out of date. It was therefore revised to incorporate the legal innovations and amendments of these jurisprudentially hectic years and republished as the Codex repetitae praelectionis. This revised Code, together with the Digest and the Institutes, was now to be the sole source of law in the Byzantine empire, all previous authorities being deprived of legal authority. It is these three works which a later age was to term the Corpus Iuris Civilis, but they did not bear this name in Justinian's time. Justinian's reign ended with his death in 565, but his legal codification was to survive to form by far the most important source of knowledge of Roman law for subsequent generations in western Europe.

2 The Dark Ages in Western Europe

While Justinian's great work of codification was taking place, knowledge of Roman law in western Europe was sinking to its nadir. Justinian had recognized that the jurisprudence of his age was but a pale shadow of that of the earlier classical age three centuries before. That is why he sought to revive those earlier standards through his codifications. However, the long-term failure of his other great goal, the reconquest of the western empire, meant that the sometime Roman citizens of western Europe had but little appreciation of the legal heritage that was theirs and the cause of which was being advanced at Byzantium.

In the west, Italy had been invaded during the fifth century by a tribe known as the Ostrogoths, or eastern goths, who moved down from the north to dominate the peninsula. Their leader, Theodoric, perhaps following the example of earlier Roman emperors such as Theodosius, promulgated a law code for his people, a code which is known as the Edict of Theodoric. Compared however to the compilations of the Roman emperors, let alone those of the emperor Justinian, Theodoric's enactment is crude and simplistic in the extreme. It consists in the main of lists of compensation payments, detailing the fixed amounts that had to be paid in compensation for wrongs committed - so much for a broken arm, so much for a broken leg, and so on. In terms of legal sophistication, the Edict of Theodoric marks a return to the level achieved at Rome in the XII Tables, promulgated by tradition in 450 BC. In other words, the clock of legal culture had been turned back nine hundred years.

In the following century, the Ostrogoths were themselves displaced by northern invaders, this time the Lombards, who settled Italy rather more permanently, giving their name to that portion of north central Italy, Lombardy, which contains the cities of Milan and Pavia. The sixth-century Lombard leader, Rothari, also gave his people a code of laws named after him the Edict of Rothari, a compilation which belongs in roughly the same category as that of Theodoric.

Similar codes of laws to those of Theodoric and Rothari were appearing at this time all over Europe. These codes were meant to be binding upon those who were the followers of the rulers in question, being tribal rather than territorial in nature. Thus, it was possible for more than one system of law to operate in a given geographical area if that area was occupied by more than one people. This was indeed the case in much of southern France and eastern Spain, lands which had been invaded by the Visigoths, or western goths, but which were still inhabited in part by those who regarded themselves as Roman by descent and cultural allegiance. While the Visigoths lived by their own customs and laws, these remnants of the Roman empire clung to what they were able to remember of the Roman way of life in their legal affairs. Their customs, codified for them by their Visigothic ruler, Alaric, in the so-called Breviary of Alaric, are in truth but a crude approximation of what classical Roman law had really been like. It is known for that reason as the Vulgar Roman law. Nevertheless, it gave Roman law a foothold for survival in the west, even if that foothold was really no more than a rough memorial.

The main vehicle for the survival of Roman values, and indeed of classical culture generally, in the western Europe of the post-Roman period was the Christian Church. It alone of the great institutions of the Roman empire survived the fall of that empire in the west and continued to govern western Christendom from Rome itself, the seat of the Papacy. What little was known of classical literature, history and philosophy in the Europe of the early Middle Ages was transmitted via the Church, the cathedrals and monasteries of which preserved and copied the classical texts which were to survive for posterity. These monasteries and cathedrals were the only centres of learning in Dark Age Europe, and the clergy and religious were the only learned class.

The main subject of study in the cathedral schools and monasteries was not however classics but theology, and the text for that study was the Latin version of the Bible, translated from the original languages by St. Jerome in the fourth century and known as the Vulgate. Students of theology studied the Bible with reverence as the revealed truth of God, divinely inspired and divinely ordained. It would be difficult to describe the theological study of these centuries as critical in the modem sense, but the work of this age preserved the sources which were to form the basis of critical studies in later generations. As well as the Bible, the works of the Fathers of the Church - men like St. Jerome, St. Ambrose, St. Augustine and St. Gregory - were also studied, as commentaries upon and development of the Biblical text. These works too were thought to be inspired by the Holy Spirit, and therefore authoritative and beyond question.

As well as theology, the Humanities were also studied in the cathedral schools, particularly after that revival of learning which took place in the ninth century and which is known as the Carolingian renaissance. Law was also studied in certain centres, and during the tenth century, the cathedral school at Pavia emerged as a very important centre of legal studies, the law studied being primarily the feudal law of the Lombard kingdom. Modern scholarship has shown how the techniques developed at Pavia may well have formed the basis of the methodology which was to develop subsequently at Bologna in the revived study of the Roman law of Justinian.²

Before dealing with the revival of Roman law in eleventh-century Bologna, it is worth noting how the influence of the Italian cathedral schools was felt even in northern Europe. The career of Lan franc bears eloquent testimony to this phenomenon. Lanfranc was born in Lombardy and educated at the cathedral school in Pavia. He may even have been active in the teaching of law in that city. He was a brilliant teacher who eventually left Italy to found a new cathedral school at Avranches in Normandy. There, once more, he enjoyed tremendous success. So successful was he that he is said to have become bored with his triumph and abdicated his control of the school at Avranches. Leaving that city, he crossed Normandy to the newly founded monastic community of Herluin at Bee. There, he became an influential figure, his talents again receiving recognition, becoming prior of the monastery. He came to the attention of Duke William, who invited him to become the first abbot of Duke William's new abbey of St. Etienne in the Νorman capital, Caen. When William conquered England in 1066, it was only six years before Lanfranc was invited to follow his royal master across the Channel and assume the office of archbishop of Canterbury.

Lanfranc's career shows the pan-European nature of scholarship and ecclesiastical life at this time. It would be difficult even today to imagine such an 'international' career outside perhaps of science. Nor was Lanfranc's career extraordinary. His successor in the see of Canterbury, St. Anselm, was born in Aosta, also travelled to France and to Bee, where he was abbot before being summoned to his English archbishopric. One of the factors assisting this mobility of scholars and churchmen was the existence in Latin of an international language of the educated classes.

This international flavour to learning in the eleventh century makes it difficult to ascribe an important development of the period definitely to northern or southern Europe. The development in question was the use of a particular method in the study of authoritative texts. The method has become known as dialectic, and it was certainly used in the study of theology and philosophy in Paris by the end of the eleventh century, at which time it was also being applied to the study of the Corpus Iuris Civilis at Bologna. It is not possible to say whether the Parisians influenced the Bolognese or vice versa, or even whether alternatively the technique was developed independently at both places.

In Paris, the dialectic method is associated with the name of the gifted philosopher, Peter Abelard. He it was who had the temerity to confront the question of whether there were contradictions in the divinely inspired works of the Church Fathers. As has been said, the Bible was regarded as revealed truth and could not therefore contain error or self-contradiction. Abelard faced up to the awkward fact that there appeared to be passages in the Bible and in the works of the Fathers which contradicted each other. This, he argued, could not in fact be the case given their divine inspiration. Instead, the fault must lie in the defective understanding of the reader. Abelard therefore composed a book, entitled Sic et Non in which he presented one hundred and fifty pairs of apparently contradictory passages from the works of the Fathers and, by pitting them against each other in adversarial mode, sought to harmonize them, that is to show how by reason each could be shown to be correct in its proper sphere. Indeed, the proper understanding of each passage was increased as a result of this treatment. However, there was no disguising the fact that it was reason, and Abelard's personal reason at that, which was now responsible for this deeper understanding of the divinely inspired works. Not surprisingly, Abelard suffered criticism at the hands of the ecclesiastical authorities and was twice tried for heresy. The dialectic technique, however, was destined to triumph. It was to be one of the basic techniques of scholastic philosophy, and even in the twentieth century has been much used to resolve 'apparent' contradictions in the works of Karl Marx and other Marxist thinkers. It was at Bologna, however, in the eleventh, twelfth and thirteenth centuries that this method was particularly important in the development of European jurisprudence.

3 The Glossators of Bologna

Bologna, according to tradition, was the first university to be established in Europe. Although its claim to this title is sometimes questioned, particul...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Table of Legislation
• Table of Cases
• Preface
• 1 The Italian Legal Tradition
• 2 The Hallmarks of Civil Law Systems
• 3 The Sources of Modern Italian Law
• 4 The Modern Italian State
• 5 The Legislature and the Legislative Process
• 6 The Italian Constitution
• 7 Civil Justice
• 8 The Italian Legal Profession
• 9 Criminal Justice
• 10 Administrative Justice
• 11 The Family and the Law
• 12 The Law of Property
• 13 The Concept of a Law of Obligations
• 14 Contractual Obligations
• 15 Delicts or Wrongful Acts
• 16 Quasi-Contracts
• Select Bibliography
• Index
• Appendix