Prof. Dr. Walter Ullmann (1910 -1983) Rezension Troje, Graeca leguntur.

The late appearance of this review is due to circumstances beyond my control (I did not receive the book until October 1975). Nothing, however, must be allowed to diminish the cordiality of the welcome with which this work should be greeted. The author clearly belongs to the younger generation that likes a direct, forthright, robust and vigorous presentation which is nonetheless underpinned by immense learning, indeed an erudition which reveals maturity of thought as well as depth of reflection and absorptive integration. It is altogether a very good piece of research whose author will no doubt leave his mark on historical jurisprudence.

The subject of the book is a segment of Renaissance studies which is deplorably neglected among Anglo-Saxon historians. In the early modern period, humanist jurisprudence was that branch of legal studies which concerned itself with the restoration of the "true", "authentic" text. And the law that was in need of a "cleansing" operation was the Roman law in the shape of Justinian's codification. Doubts about textural matters had already assailed medieval jurists, but for the Digest there was only one manuscript available, which was first at Pisa and later, most jealously guarded, at Florence. The need arose to compare the Vulgate, that is, the Bologna version, with the Florentina in order to establish a sensible text: there were innumerable variants, quite apart from scribal errors, misreadings, omissions, and insertions (especially of negations). Correction and supplementation by explaining the Greek texts obviously became an imperative necessity: hence Graeca leguntur in the service of schoolarship. The new critical orientation practiced in virtually all intellectual disciplines in the fifteenth and sixteenth centuries suggested the application of textual criticism to jurisprudential pursuits. This is the topic of the book.

The work shows the checkered story of the humanist efforts to understand Roman law in a historical context. The author admirably combines analytical with descriptive powers. His analyses of textual problems in the Digest and also of the working methods of a great number of scholars, such as Dumolin on the one hand and Cujas or Gribaldus on the other, are models of clean, piercing scholarship which brings into clear relief the core of difficulties that confronted the interpreters. There is nothing pedantic, labored, "academic", anemic, or antiquarian in all this: in the hands of a less able scholar, the book could easily have become a shambles. Masterly dexterity of handling primary and secondary material enables Troje to demonstrate the phases of which eventually culminated in the final product of humanist editorial endeavors: the work of Gothofredus. No less interesting are the chapters which deal with the dissemination and influence of the "new juristic learning". These chapters prove how necessary it is to integrate jurisprudence into the general framework of the Renaissance: after all, jurisprudence was at all times earthbound, originally the governmental science par excellence which also later, in the age of naturalism and the Renaissance, never lost its links with the new science of politics. This feature explains the numerous ramifications of the new jurisprudence which are very well depicted in this book.

The initial impulse by Alciatus at the turn of the fifteenth and sixteenth centuries was followed by rapid progress in editing and translating Greek works, notably the Novellae and the Basilika. Thereby wholly new perspectives and horizons releaved themselves. In the lectures and works of, say, Cujas and his school there was a veritable enthusiasm for everything Greek which clearly communicated itself to other disciplines and fructified them. Indeed, a new world was discovered which, especially now that the Byzantine legislative works were available comprehensibly depicting, as they did, the descending theme of government in practice, began to give sharply defined contours to contemporary exigencies in politics. As a result of this Byzantine impact, the investigation into the changing concepts of rulership seem to claim high priority in research projects.

The restorative effects in regard to civil law inspired similar steps in the field of common law. The result was the authoritatively, officially fixed text of the canon law in 1580 in which (and in the adjoined gloss) no editorial or other changes were permitted. The difference between this and the civil law is obvious: the latter was not officially or authoritatively decreed, but was a private effort, and the gloss that appeared in Gothofredus's edition in reality was a gloss not specifically written on this text but on its corrupted predecessor. (As a curiosum may be mentioned the occasional American today who tries to explain medieval glosses with the clinical Mommsen edition at his elbow.) The significance of this difference between civil and canon law is very great: the author rightly says that "one of the partners of the ius utrumque was tied to a medieval text in perpetuity" (pp. 85-86). Paradoxically enough, the new jurisprudence was also instrumental in making available to the West early Christian texts (albeit spurious), and it also influenced some of the Tridentine decrees (pp. 194 ff., 209 ff.).

Troje fairly and squarely faces up to the question of why it was in France, and not in Italy or anywhere else, that humanist jurisprudence flourished. Alciatus evoked no response in his native Italy but took Bourges virtually by storm, which then became the center of humanist jurisprudence. The author attributes this French hegemony to Francis I's patronage, inspired as it was by Budé. I cannot say that this explanation is satisfactory. However involved jurisprudence was, it still was jurisprudence, that is, a science that by definition had strong social, governmental, cultural, and political affiliations: it certainly was no mere "academic" pursuit. In fact, there is no doubt that general Byzantine historical studies came first to flourish in France, and this as a result of the juristic impetus which began the "global" historical reorientation in the mid-seventeenth century. Assuredly, Bourges was a very young university and had a somewhat insecure existence in its infancy: new sees can compensate for deficiencies by attracting new blood and initiating new intellectual developments. Francis I was to Alciatus and Bourges what Countess Mathilda had been to Irnerius and Bologna.

The author omits to consider that Roman law lacked the aura of venerable sanctity that it had in Italy and Germany and that its study had in fact been prohibited at Paris since 1219. The replacement in some French medieval copies of the Corpus of the names of Roman emperors by French kings shows how little the text was respected. Roman law was not ius scriptum in France but an all-the-stronger ratio scripta. Hence, there was very much more freedom in France than in the Italian universities, tied as they were to a hallowed tradition which precluded change. It was not want of ability on the part of the italian academics that accounted for the stuffiness of the universities there in the early modern era: men such as Jason, Decius, Clarus, et al., indubitably had the talent, but curricula, university statutes, and the demands of judicial practice proved insuperable barriers to the inauguration of new methods. As to royal patronage, the specific foundation of regius chairs for civil law by Henry VIII at Oxford and Cambridge at the very time when Bourges was burgeoning forth failed to produce effects comparable to those in France. Here indeed a comparison of the jurisprudential situation in England and France at this very time - the mid-sixtieenth to the mid-seventeenth centuries - would certainly yield most rewarding results: Gentili, Duck, Zouche, et al., on the one hand, and Cujas, Pithou, Hotman, et al., on the other.

As technical points require too much space, I confine myself to a few critical remarks on minor points. It is too sweeping to say that only the first nine books of the Code counted in the medieval period (p. 51) or that the idea of a gloss on a gloss was "good humanistic tradition" (p. 159) (it had a distinguished medieval parentage). The "vires doctissimi" (p. 269) should have been spotted at the proofing stage. Burgundio as translator had been identified by Mommsen (1). Justinian's influence on medieval common law was tangible not only in formal but above all in material aspects (2). A little more effort might have been devoted to the index. But I cannot end this review without giving full credit to the historical vision that pervades the theme of this book: the influence of Byzantium on the West. It is a feature to which I myself have repeatedly drawn attention over a period of many years: without taking into account the challenge presented by Byzantium, one cannot comprehend the history of Western Europe and hence the modern age. That after the demise of Byzantium its influence actually intensified was mainly owing to its reservoir of cultural wealth, intellectual maturity, fiber, and resilience.

(1) Cf. p. 17, N. 40. See Th. Mommsen, Iustiniani Digesta, vol. 1 (Berlin, 1870), appendix, pp. 35* ff. See now P. Classen, "Burgundio von Pisa: Richter, Gesandter, Übersetzer", in Sitzungsberichte der Akademie zu Heidelberg (1974), fasc. 4, esp. pp. 45 ff.

(2) Cf. p. 76, n. 4. The author rightly expresses some reservations on S. Gagnér's book, about which see my review in Tijdschrift voor Rechtsgeschiedenis 29 (1961): 118-29.

University of Cambridge WALTER ULLMANN
 

 

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