During the Middle Ages, law loomed large in efforts to manage life situations, beginning with the adaptation of late imperial law to the successor or barbarian kingdoms of the West. Alongside local law and custom, the learned law was increasingly used to answer questions and settle disputes about family issues such as marriages and dowry, property and inheritance, contracts, and crime. Study of the law, not only as taught at the universities but as used to advise judges who lacked formal training, illuminates the status of women and children under patriarchy. Although Roman law was geared more to private than public law, political issues were addressed. Moreover, Romanistic procedure had a wide influence across Europe. Even where Roman law was not received, it had its influence via canon law and specialized courts. This is evident in England, where the common law governed real property, but canon law introduced the possibility of testamentary disposition of certain possessions. Similarly, the admiralty courts dealt with issues such as navigation and salvage on the basis of civil law. Roman law began in the Republic, beginning with the Twelve Tables of the Law (450 bce), resulting from struggles between patricians and plebeians. Under the Republic certain men knew the laws; but there were no legal careers. The most important judicial document was the praetor’s edict about procedure, the foundation of later jurisprudence. Both the popular assemblies and the Senate legislated for both the private and the public spheres, and the jurisconsults of the imperial period commented on their enactments. The Roman Empire produced jurisconsults able to give authoritative advice, and some wrote on the laws. Emperors legislated, and collections of their laws were compiled. The most important, the Theodosian Code (438–439 ce), influenced the Latin churches and the codes of the Western barbarian kingdoms. In the East, the study of law continued. Eventually Justinian I ordered systematization of centuries of jurisprudence. The Institutes served as a textbook. The works of the jurisconsults were divided topically in the Digest (Pandects). Imperial decrees were collected in Justinian’s Code with supplements in the Novellae. This Corpus iuris civilis (529–534 ce) was diffused throughout Justinian’s empire but had little influence in the West for centuries. The largest part of Justinian’s corpus is concerned with private, rather than public, law. Later jurists retained that focus in most of their writings. Revived study of Roman law in the West is tied traditionally to recovery of the Digest (c. 1070 ce). The teaching of law took root at the University of Bologna. The Glossators expounded texts and annotated (glossed) them. The Bolognese curriculum divided the Digest into Old Digest, Infortiatum, and New Digest. The first nine books of the Code were treated together, while the Institutes, last three books of the Code and Authenticum, a version of the Novellae, with two books on feudal law, made up the Volume. The direction of study changed in the 14th century. The Commentators (Post-Glossators) created detailed expositions of the entire corpus. The Commentators predominated even after humanists criticized their Latin and their interpretative methods. Works on procedure or specific topics, records of disputations, and opinions (consilia) on cases were written. All of these genres originated in the manuscript milieu, but many texts were printed beginning in the 15th century. Lawyers trained at the universities taught, provided advice, served as judges, and worked as bureaucrats. In much of Italy, the learned law was fused with elements of feudal law in the ius commune (common law). Most consilia engaged both the common law and the ius proprium of localities to be relevant in specific contexts. The Roman law was received through much of Europe in the late medieval and Early Modern periods, but its influence in England was mostly indirect.
BARKING UP THE WRONG TREE ‒ THE ACTIO DE PAUPERIE REVISITED Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)
