Berman 1977

The Origins of Western Legal Science
Author(s): Harold J. Berman

Source: Harvard Law Review, Vol. 90, No. 5 (Mar., 1977), pp. 894-943
Published by: Harvard Law Review Association
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THE ORIGINS OF WESTERN LEGAL SCIENCE t
Harold J. Berman*
The late eleventh, twelfth, and thirteenth centuries were years
of intense political, economic, and religious change. In this Article,
Professor Berman argues that the period also witnessed a revolution-
ary transformation in the nature of Western law. Three elements -
the growth of university law teaching, the rediscovery of the ancient
Roman law texts, and the new dialectical method of interrelating
cases and concepts and of harmonizing contradictory authorities -
were at the root of that development. The result was the birth of a
transnational legal science -a system whose basic postulates sur-
vived without serious challenge until the twentieth century.
rT HEhistorian is always keenly aware of the danger of speak-

ing about "origins." Wherever one starts in the past, one
can find still earlier beginnings - a fact which may testify to the
continuity of the entire history of the human race. In the famous
words of Maitland's opening paragraph of Pollock and Maitland's
History of English Law:
Such is the unity of all history that anyone who endeavours to
tell a piece of it must feel that his first sentence tears a seamless
web. The oldest utterance of English law that has come down
to us has Greek words in it: words such as bishop, priest, and
deacon. If we search out the origins of Roman law we must
study Babylon .... A statute of limitations must be set; but
it must be arbitrary. The web must be rent . . .
t Copyright 1977 by Harold J. Berman.

* James Barr Ames Professor of Law, Harvard Law School. B.A. Dartmouth,
1938; M.A. (History) Yale, 1942; LL.B., Yale, I947. This Article is part of a large
work in progress, tentatively entitled The Western Legal Tradition- Its Relation
to the Great Revolutions of Western History and to the World Revolution of the
2oth Century. The scope of the entire work is briefly indicated in two lectures
given by the author, see Berman, The Religious Foundations of Western Law, 24
CATH.U.L. REV. 490 (i975); Berman, The Crisis of the Western Legal Tradition,
9 CREIGHTON L. REV. 252 (I975). The present Article is adapted from the third
chapter of the first volume, following a first chapter on European folklaw prior to
the eleventh century and a second chapter on the birth of the Western legal tradition
in the Papal Revolution of the late eleventh and early twelfth centuries (on the
Papal Revolution, see also note 4 infra). The fourth chapter, on the theological
sources of the Western legal tradition, will be published in a forthcoming issue of
the Puerto Rico Law Review dedicated to Helen Silving. Subsequent chapters of
the first volume will deal with the new system of canon law and the emerging
systems of secular law (feudal, manorial, urban, mercantile, and royal) in the late
eleventh, twelfth, and early thirteenth centuries. Special thanks are given to Peter
Banos, Edward Gaffney, Grace Goodell, Barnabas Johnson, and Bostjan Zupancic
for their valuable comments and suggestions in the preparation of the chapter from
which this Article is adapted.
1 F. MAITLAND & F. POLLOCK, THE HISTORYOF ENGLISHLAW I (2d ed.
I959).
894
1977] WESTERNLEGALORIGINS 895
Despite this warning, I am prepared to argue that there are

seams, there are new things under the sun, and where one starts
is not necessarily arbitrary. More particularly, it is the thesis
of this Article that at one time what we know today as a legal sys-
tem did not exist among the peoples of Europe, that in the twelfth
century and thereafter Western legal systems were created for
the first time, and that the creation and early development of
those legal systems was made possible, in part, by the fact that
the first universities were also created in the twelfth century
and in those universities law was studied and taught as a science,
that is, as a distinct and coherent body of knowledge with its
own methodology.
I. HISTORICAL
CONTEXT
The term legal system is used here to mean something more

narrowand more specific than a legal order. There was, of course,
a legal order in England and elsewhere in the West prior to the
eleventh and twelfth centuries, in the sense that there were
legally constituted authorities which applied law. Indeed, we
know of no time in the history of the peoples of Western Europe
when there was not a legal order in that sense: the earliest written
records of their history are collections of laws, and Tacitus,
writing in the first and second centuries A.D., describes Germanic
assemblies acting as courts. Also, ecclesiastical authorities from
early times declared laws ("canons") and established procedures
for deciding cases. Lacking, however, in the secular sphere was a
clear differentiationof law from social custom and from political
and religious institutions generally. Similarly, the law of the
Church was largely diffused in the whole life of the Church- in
its theology, its moral precepts, its liturgy - and it, too, was
primarily local and regional rather than centralized or enacted.
In addition, secular and ecclesiastical law were intermingled
with each other. No one had attempted to organize the prevailing
laws and legal institutions into distinct structures. Very little
of the law was in writing. There was no independent, integrated,
developing body of legal principles and procedures, clearly differ-
entiated from other processes of social organization, and con-
sciously cultivated by a corps of persons specially trained for
that task.
The relatively unsystematized character of legal regulation
and the relatively undeveloped state of legal science in the West
prior to the twelfth century were closely connected to the pre-
vailing political, economic, and social conditions. These included
the predominantly local character of tribal, village, and feudal
896 HARVARD LAW REVIEW [Vol. 90:894
communities; their relatively high degree of economic self-

sufficiency; the fusion of authorities within each; the relative
weakness of the political and economic control exercised by the
central imperial and royal authorities; the essentially military
and religious character of that control; and the relative strength
of informal community bonds of kinship and soil and of military
comradeship.2
In the late eleventh and twelfth and early thirteenth centuries,
however, a fundamental change took place in Western Europe
in the very nature of law both as a political institution and as an
intellectual concept. Politically, there emerged, for the first time,
strong central authorities whose control reached down, through
delegated officials, from the center to the localities; partly in con-
nection with that there also emergeda class of professionaljurists,
including professional judges and practicing lawyers. Intellec-
tually, Western Europe experienced, at the same time, the crea-
tion of its first law schools, the writing of its first legal treatises,
the conscious ordering of the huge mass of inherited legal ma-
terials, and the development of a concept of law as an autono-
mous, integrated, developing body of legal principles and pro-
cedures.
A combination of these two factors, the political and the in-
tellectual, helped to produce modern Western legal systems, of
which the first was the new canon law of the Roman Catholic
Church.3 On the backgroundof the new canon law, and often in
rivalry with it, the European kingdoms began to create their own
new secular legal systems. At the same time, there emerged in
many parts of Europe free cities, each with its own governmental
and legal institutions, forming a new type of urban law. Also
in these centuries feudal and manorial legal institutions under-
went systematization, and a new system of mercantile law was
developed to meet the needs of merchants engaged in intercity,
interregional,and internationaltrade. The emergence of systems
of feudal law, manorial law, mercantile law, and urban law
strongly indicates that not only political and intellectual but also
social and economic factors were at work in producing what can
only be called a revolutionary development of legal institutions.
2An excellent description of the English experience may be found in H.R.
LOYN,ANGLO-SAXON ENGLAND ANDTHENORMANCONQUEST (1962).
3 The phrase ius novum, "new law," was used to characterize the legislation
promulgated by popes and Church councils from the late eleventh century on, as
contrasted with the earlier canons of the Church collected and systematized by
Gratian in about II40, which were then for the first time called the ius antiquum.
Gratian's treatise, discussed at pp. 92I-26 infra, was considered authoritative and
largely replaced the original sources. The "new system of canon law" referred to
in the text included both the ius novum and the (new) ius antiquum.
1977] WESTERN LEGAL ORIGINS 897
In other words, the creation of modern legal systems in the late

eleventh, twelfth, and early thirteenth centuries was not only an
implementationof policies and theories of central elites, but also
a response to social and economic changes "on the ground."
Religious factors were also at work. The creation of modern
legal systems was, in the first instance, a response to a revolu-
tionary change within the Church and in the relation of the
Church to the secular authorities. And here the word "revolu-
tionary" has all the modern connotations of class struggle and
violence. In 1075, after some twenty-five years of agitation and
propaganda by the papal party, Pope Gregory VII declared the
political and legal supremacy of the papacy over the entire
Western Church and the complete independence of the clergy
from secular control. Gregory also asserted the ultimate su-
premacy of the Pope in secular matters, including the authority
to depose emperors and kings. Increasingly these events have
been recognized as constituting the Papal Revolution.4 The
4 The concept of the Papal Revolution as a fundamental break in the historical
continuity of the Church, and as the first of the Great Revolutions of Western
History, was pioneered by Eugen Rosenstock-Huessy in DIE EUROPXISCHENREVO-
LUTIONEN(1931, 3d ed. revised I960) and in OUT OF REVOLUTION: THE AUTO-
BIOGRAPHY OF WESTERNMAN (I938). See also E. ROSENSTOCK-HUESSEY, THE
DRIVING POWER OF WESTERN CIVILIZATION: THE CHRISTIAN REVOLUTION OF THE
MIDDLEAGES(1949) (Preface by Karl W. Deutsch). Among Church historians, see
also G. TELLENBACH, LIBERTAS: KIRCHE UND WELTORDNUNG IM ZEITALTER DES IN-
VESTITURSTREITES (1936), translated with an introduction by R. F. Bennett under the
title CHURCH, STATEAND CHRISTIANSOCIETYAT THE TIME OF THE INVESTITURECON-
TEST (reprinted as a Harper Torchbook I970). Tellenbach uses the traditional
terminology of "the Gregorian Reform" and "the Investiture Struggle," rather
than "the Papal Revolution"; nevertheless, he states that Pope Gregory VII "stands
at the greatest-from the spiritual point of view perhaps the only--turning
point in the history of Catholic Christendom." See id. at 164 (Harper Torchbook
I970). In 2 D. KNOWLES& D. OBOLENSKY, THE MIDDLEAGES: THE CHRISTIAN
CENTURIES I69 (I968), the authors state that in the course of the Gregorian Re-
form "there emerged in the West, for the first time, an organized class, the clergy
or great body of clerks, tightly bound together under bishops who themselves were
tied tightly to the bishop of Rome, with a law and interest that separated them
from the laity, who were to occupy a lower place." "Speaking loosely," the same
authors write, "it may be said that it was the Gregorian reform that finally
separated the clergy from the laity as two divisions within the church. This
separation was emphasized more and more, and in a short time 'the church' and
'churchman' came to stand for the clergy as opposed to the laity." Id. at 260. See
also B. TIERNEY, THE CRISIS OF CHURCH AND STATE, I050-I300, at 2, 33-34, 45-95
(I964); R. SOUTHERN, WESTERN .SOCIETY AND THE CHURCH IN THE MIDDLE AGES
(I970).
Among secular historians the significance of the Papal Revolution has been in
part illuminated and in part obscured by the rediscovery of the "twelfth century"
as the formative period of modern Western institutions, thought, art, etc. The
English-language literature goes back to C.H. HASKINS,THE RENAISSANCE OF THE
TWELFTH CENTURY (I927). See also M. CLAGGETT,G. POST, & R. REYNOLDS,
Emperor - Henry IV of Saxony- responded by military ac-

tion. Civil war between the papal and imperial parties raged
sporadically throughout Europe until I 122, when a final compro-
mise was reached by a concordat signed in the German city of
Worms. In England and Normandy, the Concordat of Bec in
II07 had provided a temporary respite, but the matter was not
finally resolved there until the martyrdomof ArchbishopThomas
Becket in 1170.
It was out of the explosive separation of the ecclesiastical
and the secular polities that there emerged the modern Western
legal tradition. I propose in this essay to tell one part of the
story, namely the origins of Western legal science.
To say that law was taught and studied in the West as a dis-
tinct science, at a time when the prevailing legal orders were
only beginning to be clearly differentiated from politics and
religion, raises a number of questions. What did the first law
teachers teach? How was it possible to teach law when the pre-
vailing laws and legal institutions, both ecclesiastical and secular,
were largely local and customary and largely merged in religious
beliefs and practices and in political, economic, and social life
generally?
The answer surely sounds curious to modern ears. The law
that was first taught and studied systematically in the West was
not the prevailing law; it was the law contained in an ancient
manuscriptwhich had come to light in an Italian library toward
the end of the eleventh century. The manuscript reproduced
the enormous collection of legal materials which had been com-
piled under the Roman Emperor Justinian in about 534 A.D.
over five centuries earlier.
The Roman law compiled under Justinian in Constantinople
had at one time prevailed in the Western Roman Empire as well
as the Eastern. In 476, however, the last of the Western Emperors
was deposed, and even before then Roman civilization had been
supersededin the West by the primitive, tribal civilization of the
Goths, the Vandals, the Franks, the Saxons, and other Germanic
TWELFTH-CENTURY EUROPE AND THE FOUNDATIONS OF MODERN SOCIETY (I96I);
S. PACKARD,TWELFTH CENTURY EUROPE: AN INTERPRETIVEESSAY (I973). In fact,
the great events and movements of the twelfth century had their beginnings in the
last part of the eleventh century- but not before.
Social and economic historians have also stressed the fundamental character of
changes that occurred in Western Europe in the late IIth and I2th centuries, in-
cluding the emergence of hundreds of chartered cities and towns, the rapid ex-
pansion of commerce, the development of new technology, especially in agriculture,
the systematization of feudal relations and the spread of the manorial system. See
M. BLOCH,FEUDALSOCIETY (L.A. Manyon trans. 1961); R. LOPEZ,THE COMMER-
CIAL REVOLUTIONOF THE MIDDLE AGES, 950-1350 (I97I); H. PIRENNE, MEDIEVAL
CITIES(I952); L. WHITE,MEDIEVALTECHNOLOGYAND SOCIALCHANGE(I96I).
I977] WESTERN LEGAL ORIGINS 899
peoples. After the sixth century Roman law survived in the

West only in fragments, although it continued to flourish as a
system in the Eastern Empire, called Byzantium (including
southern Italy). Some of its individual rules and concepts ap-
pear in the occasional enactments of Western ecclesiastical and
secular authorities as well as in the customary law of the peoples
inhabiting what we call today France and (northern) Italy. The
Carolingian and post-Carolingian idea of the succession of the
Frankish king to the authority of the Roman emperors also
fostered the survival of individual maxims and rules of Roman
law, especially some concerning imperial authority. But Roman
law as such, that is, as a system, had no validity in Western
Europe when Justinian's work was rediscovered in Italy. The
texts had disappeared. There were no Western counterparts to
the Roman magistrates (praetors), legal advisers (jurists), or
advocates (orators). The prevailing legal institutions were
largely Germanicand Frankish. Thus it was the legal system of
an earlier civilization as recorded in a huge book or set of books
that formed the object of Europe's first systematic legal studies.
Two other ingredients were also necessary to the creation of
the Western legal tradition. One was the method of analysis and
synthesis which was applied to the ancient legal texts - a method
which in modern times has been called, somewhat disparagingly,
"scholasticism." The second was the context in which the schol-
astic method was applied to the books of Roman law - namely,
the context of the university.
These three elements - the rediscovery of the legal writings
compiled under the Roman Emperor Justinian, the scholastic
method of analyzing and synthesizing them, and the teaching of
law in the universities of Europe- are at the root of the Western
legal tradition. The Roman law gave all Europe (including
England) its basic legal vocabulary. The scholastic method has
remained the predominant mode of legal thought throughout
the West to this day. The universities brought together legal
scholars-teachers and students-from all over Europe;
brought them in contact not only with each other but also with
teachers and students of theology, medicine, and the liberal arts;
and made of them a calling or, as we would say today, a profes-
sion.
In the following pages I shall consider the structure of the
first- or at least the first historically important- Western
law school, at Bologna; its curriculumand mode of teaching; the
scholastic method of legal analysis and synthesis; and the ways
in which the structure, curriculum, and method of analysis at
Bologna and other medieval universities formed the basis for the
creation of a legal science.5
II. THE LAW SCHOOLAT BOLOGNA

The newly discovered texts of Roman law were copied and
began to be studied in various cities of Italy and elsewhere at
the end of the eleventh century. Students would come together
and hire a teacher for a year to expound them; the legal form
adopted was that of a partnership (in Roman law, societas) of
professor and students. One teacher in particular, named Guar-
nerius but historically known as Irnerius (about 1055-II30),
who taught at Bologna in northern Italy, gained preeminence,
and students began flocking to him from all over Europe. Even-
tually, thousands came each year to him and to the other teachers
who joined him. By about II50 there were some ten to thirteen
thousand law students in Bologna.
Being aliens, most of the students were in a precarious legal
situation. Any alien might be liable, for example, for the debts
of any of his fellow-countrymen. To protect themselves against
such hazards, the students banded together in "nations," on the
basis of their ethnic and geographical origin - the Franks, Pi-
cards, Provencals, Alemanns (Germans), Angles, Spaniards,
and others-in all, some twenty or more nations. Finally,
they united in two corporate bodies, or guilds, one comprising
all students from north of the Alps (ultramontanes), the other
those from south of the Alps (cismontanes). Each of the two
groups was organized in the form of a universitas- a term of
Roman law then given the meaning of an association with legal
personality or, as we would say today, a corporation. The pro-
fessors (doctores, or teachers) were not members of the student
universitas.
The virtues of incorporationwere obvious to the students of
Bologna, teen-agers who by medieval standards were mature
young men ready for an active political life. United, they could
bargain effectively with the city government and also dominate
the administrationof the school. Bologna was the archetype of
5 The best account in English of the law school at Bologna is i H. RASHDALL,
THE UNIVERSITIESOF EUROPE IN THE MIDDLE AGES 87-267 (2d ed. F.M. Powicke
& A.B. Emden I936). The classical work on the subject remains 3 F. SAVIGNY,
GESCHICHTE DES R6MISCHEN RECHTS IM MITTELALTER I37-419 (2d ed. I834). An
excellent short account is that of D. KNOWLES, THE EVOLUTION OF MEDIEVAL
THOUGHT I53-84 (I962). An invaluable study not only of law teaching at Bologna
but also of the transplantation of the Bologna system to other European universities
is that of Helmut Coing in i HANDBUCH DER QUELLENUND LITERATUR DER NEUEREN
EUROPAISCHENPRIVATRECHTSGESCHICHTE 39-I28 (H. Coing ed. I973).
I977] WESTERN LEGAL ORIGINS 90o
the medieval student-controlled institution of higher learning-

in contrast to the professorially controlled university that was
founded a little later in Paris.6
The student universitas, or corporation, or guild, received
from the city of Bologna a charter which permitted it to make
contracts with the professors, to regulate the rents of student
lodgings, to determine the kinds of courses to be taught and the
material to be covered in each, to set the length of lectures and
the number of holidays, to regulate prices for the rent and sale of
books, etc. The professors were paid directly by the students in
their respective classes. The student guild was also given wide
civil and criminal jurisdiction over its members. Thus students
were exempted from the civil disabilities of alienage - they ac-
quired, in effect, an artificial citizenship of their own. The
charter of Bologna provided that the student guild should be re-
sponsible for
the cultivation of fraternal charity, mutual association and
amity, the care of the sick and needy, the conductof funerals
and the extirpationof rancorand quarrels,the attendanceand
escortof our candidatesfor the doctorateto and fromthe place
of examination,and the spiritualwelfareof members.7
The professors formed their own association, the college of
teachers (collegium doctorum), which had the right to examine
and admit candidates for the doctorate- and to charge examin-
ation fees. Since the doctor's degree was in effect an admission
into the teaching profession, the professors retained the power to
determine the membership of their own guild-but that was
about all. If the students felt that a professor was not fulfilling
his teaching duties, they would boycott his classes and refuse to
pay him. And if a lecture did not begin promptly when the open-
ing bell rang, or if it concluded before the closing bell, or if the
course of lectures was not covered by the end of the term, the pro-
fessor was fined by the student guild.8
Only much later was the name "university" given to all such institutions; in
the twelfth century and thereafter, the term applied to the university in our sense,
that is, the entire institution or enterprise, was studium generale, "general educa-
tion," signifying education available generally.
7 Quotedin i H. RASHDALL, supra note 5, at I59-60.
8These and other matters were governed by the University Statutes, which
were adopted by the student council. Each "nation" elected two members of the
student council, whose decisions were taken by majority vote. The Statutes regu-
lated the economic affairs of the institution, including fees and salaries, cost of
renting books, housing, conditions of moneylending, and the like; they also regu-
lated both student and professional discipline, as well as many aspects of the
curriculum itself. A committee of students, called Denouncers of Professors (De-
nunciatores Doctorum) was appointed by the Rector to report professorial irregu-
The source of student power was in part economic. The

students - sons of wealthy families or else supportedby founda-
tions (usually monasteries) brought a very large income to
the city. If they were dissatisfied they could easily migrate, tak-
ing the professors with them. Since the dormitories, dining halls,
and lecture halls were owned by the city or by local entrepreneurs
rather than by the students, the departure of the students could
cause a severe economic crisis. In later times the professors
came to be paid by the city and were bound by oath to the city
not to depart. With that there came a sharp decline in student
control over the university.
The ecclesiastical hierarchy also played an important role in
controlling legal education. Except in the Italian cities, educa-
tion throughoutEurope in the twelfth century was chartered and
supervised by the ecclesiastical rather than by the secular au-
thority. However, in I219, more than a century after Bologna
was founded, the Pope decreed that nobody at Bologna could
be installed in the office of teaching (that is, should receive the
degree of doctor) without being examinedby, and without receiv-
ing the license of, the Archdeaconof Bologna. Thus, the doctors
were deprived of their independent role in granting degrees, and
the Church's licentia docendi - "license to teach" - was hence-
forth required in Italy as elsewhere. In many parts of Europe
remote control of universities by bishops led to periodic student
revolts.
Historically more significant than episcopal control of the
universities, however, was their relative freedom from such con-
trol, as compared with preexisting educational institutions. Prior
to the eleventh century, formal education in Europe was carried
on almost exclusively in monasteries. In the eleventh and twelfth
centuries, cathedral schools were formed and gradually achieved
preeminence. The cathedral being the seat of the bishop, the
cathedral school was under his immediate supervision,just as the
monastic school was under the immediate supervision of the
abbot. A teacher would hardly dare to contradict his bishop or
his abbot. Bologna, on the other hand, was founded by Matilda,
Duchess of Tuscany and friend of Pope Gregory VII; it was
she who invited Irnerius to teach Roman law there. For over a
hundredyears, the teaching at Bologna was free of direct ecclesi-
astical control. There was, to be sure, substantial indirect pres-
larities. (The Rector himself was elected by the student council.) A major limitation
placed on student self-government, however, was the requirement that the Statutes
could be revised only once every twenty years, and in the interim changes could
be made only by unanimous consent of the students and the professors. See i
H. RASHDALL,supra note 5, at 176-97.
I977] WESTERN LEGALORIGINS 903
sure; Irnerius himself was apparently excommunicated because

of his support of the imperial cause against the papacy. Yet in
general, Bolognese jurists were free to support opposing views
concerning the extent to which various provisions of Roman law
justified imperial and papal claims. Meanwhile, in Paris in the
early IIoo's, Peter Abelard dared to contradict his bishop and
to teach a "countercourse"against him. It was out of this con-
frontation that the University of Paris emerged in the twelfth
century.9 Thus the European universities established themselves
from the beginning as educational institutions where professors
were free to take opposing positions. This was in contrast to the
earlier system, known since antiquity, under which each school
had been dominated by a single teacher or a single theory.
The structure of legal education at Bologna was transplanted
to the dozens of universities which sprang up throughout Europe
in the twelfth and thirteenth centuries.10 At Oxford, Vacarius,
who had been trained at Bologna, taught Roman law in the mid-
I oo's, although apparently law faculties as such were established
at Oxford and Cambridgeonly in the next century.
III. THE CURRICULUM

AND MODEOF TEACHING
What was taught from the beginning at Bologna was the
manuscript of the Roman law compiled by Justinian's jurists in
the sixth century. Indeed, it is likely that the law school was
founded primarily for the purpose of studying that manuscript.
The manuscript consisted of four parts: (i) the Code
(Codex), comprising twelve books of ordinances and decisions
of the Roman emperors before Justinian, (2) the Novels (No-
vellae), containing the laws promulgated by Emperor Justinian
9 See generally id. at 50-54, 275-78.
10North of the Alps, most universities, although they followed Bologna's law
curriculum and mode of teaching, adopted the general type of organization that
was initiated in Paris, where doctors and students from various faculties (theology,
law, medicine, the arts) were embraced in a single body and were subject to a
common head and a common government. Bologna in contrast did not at first
embrace any faculty other than law, and when eventually other faculties formed
there, there was no constitutional connection among them except that all students
received their degrees from the same chancellor, the Archdeacon of Bologna. It
should be noted further that Bologna, like the other universities throughout
Europe that were founded thereafter, was a graduate school in the sense that most
of the students had previously received an education in the liberal arts, usually at
a monastic or cathedral school. Where, as at Paris, the liberal arts became a fourth
university discipline, its study remained a prerequisite to the other three. The
liberal arts were grammar, rhetoric, logic (or dialectics), arithmetic, geometry,
astronomy, and music. The most important were the first three, called the Trivium,
which were based chiefly on the Bible, the writings of the Church Fathers, and
some parts of Plato, Aristotle, Cicero, and other Greek and Roman works.
himself, (3) the Institutes (Institutiones), a short textbook de-

signed as an introduction for beginning law students, and (4)
the Digest (Digestum), whose fifty books contained a multitude
of extracts from the opinions of Roman jurists on a very wide
variety of legal questions. In a modern English translation, the
Code takes up 1,034 pages, the Novels 562 pages, the Institutes
173 pages, and the Digest 2,734 pages."
While the outlook of the medieval European jurists - which
will be discussed in the next section-dictated that they treat
all these writings as a single body, the Corpus Iuris Civilis
("Body of Civil Law"), primary focus was placed on the Digest
(also called the Pandects (Pandectae)). The Digest was a vast
conglomeration of the opinions of Roman jurists concerning
thousandsof legal propositionsrelating not only to property,wills,
contracts, torts, and other branches of what we today call civil
law, but also to criminal law, constitutional law, and other
branches of law governing the Roman citizen. It was "munici-
pal" law (ius civilis, "the law of the city"), covering everything
except "the law of nations" (ius gentium), which applied to non-
Romans. The Digest was not a code in the modern sense; it did
not attempt to provide a complete, self-contained, internally con-
sistent, systematically arranged set of legal concepts, principles,
and rules. It was only in the West, after the founding of the uni-
versities, that together with the Code, Novels, and Institutes it
came to be called Corpus Iuris Civilis - "the body" of civil law.
The legal propositions which the Digest set forth were very
often "holdings,"as we would say today, in actual cases. Others
were statements ("edicts") of magistrates, called praetors, of
how they would rule in prospective cases. For example:
The Praetorsays, "If you or your slaveshave forciblydeprived
anyoneof propertywhichhe had at that time, I will grantan
action only for a year, but after the year has elapsed I will
grantone with referenceto what has [subsequently]come into
the handsof him who dispossessedthe complainantby force."12
Such propositions are then followed by quotations from opinions
of various jurists. For example, concerning the statement of the
praetor presented above, the jurist Ulpian is quoted as saying:
11 See THE CIVILLAW (S. Scott ed. I932) (I7 volumes). Manuscripts of the
Code and the Novellae had survived in the West and the Institutes of Gaius, upon
which the Institutes of Justinian was patterned, had also survived. The Digest,
however, which was by far the most important of the four books, had completely
disappeared.
12 DIGEST42.16 (Concerning the Interdict Against Violence and Armed Force),
translated in 9 THE CInL LAW,supra note ii, at 308.
This interdict was established for the benefit of a person who

has been ejected by force, as it is perfectly just to come to his
relief under such circumstances. This interdict was devised to
enable him to recover possession .... This interdict does not
have reference to all kinds of violence but only to such as issued
against persons who are deprived of possession. It only relates
to atrocious violence, and where the parties are deprived of the
possession of soil, as, for instance, to a tract of land, or a build-
ing, but to nothing else .... 13
Other jurists also comment on the same interdict - for example,

Pomponius is quoted as saying: "If, however, you are ejected by
armed force, you will be entitled to recover the land, even if you
originally obtained possession of it either by force (vi), or clan-
destinely (clam), or under a precarious title (precario)." 14
The Roman jurists, as John P. Dawson has written, directed
most of their attention
not to theoretical synthesis, but to the consistent and orderly
treatment of individual cases .... Their whole impulse was
toward economy, not only of language, but in ideas. Their
assumptions were fixed, the main purposes of the social and po-
litical order were not to be called in question, the system of legal
ideas was too well known to requiremuch discussion. They were
problem-solvers, working within the system and not called
upon to solve the ultimate problems of mankind's needs and
destiny. They worked case by case, with patience and acumen
and profound respect for inherited tradition.15
Professor Dawson notes the Roman jurists' "intense concentra-
tion on specific cases," sometimes hypothetical but often drawn
from actual litigation:
13 Id.
14 Id. at 316.
15J. DAWSON,THE ORACLES OF THE LAW 114-15 (I968). Professor Dawson
adds: "Despite the long centuries that have intervened, despite our vastly different
hopes for mankind and its future, we in the twentieth century can still profit from
their work. Those who should feel the strongest affinity for them are persons
trained in American case law." This statement should be read against the back-
ground of the transformation of Roman law in the late iith and i2th centuries
by the glossators, which is one of the principal subjects of this Article. The
glossators were less interested in working "case by case" and more interested in
solving "ultimate problems," although, being more or less confined to Justinian's
texts, they usually did not philosophize as much as the canonists did. Professor
Dawson's statement should also be read against the background of the crisis of the
Western legal tradition in the twentieth century. It is very likely that persons
trained in American case law would feel the strongest affinity for the classical
Roman jurists quoted in Justinian's Digest -if they could only look away from
American cases in order to read Justinian; but whether or not they should feel
such an affinity is another matter.
The casesarebrieflystated,likewisethe jurists'ownconclusions.

No elaboratelyreasonedjustificationwas needed,for to persons
outside the elite group the jurists' own authoritywas enough
and those inside would understandthe reasonswell enough.
There were many assumptionsthat were unspokenor merely
hinted at and that have only been disclosedthroughcenturies
of later patient study. The primarytask of the jurists as they
conceivedit was to providesolutionsfor casesthat had arisenor
mightarise,testingand revisingtheircentralideasby observing
theireffectson particularcases.16
Modern European law students, who study Roman law as it
has been systematized by Western university professors since
the twelfth century, sometimes find it hard to believe that the
original texts were so intensely casuistic and untheoretical. They
are able to show that implicit in the myriad of narrow rules and
undefined general terms was a complex system of abstract con-
cepts. It is this very conceptualism of Roman law that is held
up by way of contrast to the alleged particularismand pragmatism
of English and American law. But that is to view the Roman
law of Justinian through the eyes of later European jurists; it is
they who first drew the conceptual implications, who made a
theory of contract law out of the particular types of Roman con-
tracts, who defined the right of possession, who elaborated doc-
trines of justification for the use of force, and who, in general,
systematized the older texts on the basis of broad principles and
concepts.
The curriculum of the twelfth-century law school consisted
in the first instance of the reading of the texts of the Digest.
Since the text was very difficult, it would have to be explained.
Therefore, after reading the text the teacher would "gloss" it,
that is, interpret it, word by word, line by line. (Glossa, in Greek
means both "tongue," or "language,"and "unusual word.") The
glosses were copied by the student between the lines of the text;
as they became longer, they spilled over into the margins. Soon
written glosses had authority almost equal to that of the glossed
text itself.17
The glosses were of several kinds. Some (called notabilia)
gave short summaries of the contents of the passage glossed.
Others (nicknamed brocardica) were statements of broad legal
rules (maxims) based on the part of the text that was being
glossed. In addition, the teachers would annotate the text by
16 Id. at II6-I7.
17 In about
I250, the Glossa Ordinaria of Accursius became the standard au-
thoritative work on the Digest as a whole. Thereafter came the "post-glossators,"
or "commentators," with their "commentaries" on the texts and the glosses.
classifications called distinctiones: they would start with a gen-

eral term or broad concept and then divide it into various sub-
ordinate species, which in turn would be subdivided and further
subdivided, the writer "following these ramificationsof sense and
terminology into the most minute details." 18 Finally, in addi-
tion to making "distinctions," the teacher would pose quaes-
tiones, testing a broad doctrine by its application to particular
problems or "questions."19
In addition to the readings of the texts and the glosses, and the
analysis of them through distinctions and questions, the curric-
ulum at Bologna and other medieval law schools included the
disputatio, which was a discussion of a question of law in the
form of a dispute between two students under the guidance of a
professor or else a dispute between professors and students. It
has been compared to a modern moot court, but the questions
were always questions of law, not actual or hypothetical fact
situations.
As time went on, the law curriculum at Bologna, Paris, Ox-
ford, and other universities of Europe expanded to include more
than the Roman law contained in the Corpus luris Civilis. The
principal new subject added in the latter half of the twelfth
century was the newly developed canon law of the Church; in
contrast to Roman law, canon law was current, prevailing law,
replenished by decrees of Church councils and applied by eccle-
siastical courts. Also as the secular legal systems of the cities,
principalities, and kingdoms of Europe developed - usually
under the guidance of jurists trained at Bologna or elsewhere-
the curriculum was enriched by references to current problems
of secular law. In analyzing the texts of Justinian, the professors
would introduce legal questions of current practical significance
and would analyze them in the light of the Roman texts as well
as of the canon law.
Thus the revival of the study of the Roman law of an earlier
time led to the analysis of current legal problems. Roman law
18
P. VINOGRADOFF, ROMANLAW IN MEDIEVAL EUROPE59 (I968).
'9 The curriculum and the form of lectures, disputations, etc., were prescribed
by the statutes of the university. There has survived the introduction to a lecture
in which the professor states:
First, I shall give you summaries of each title [of the Digest] before I
proceed to the text. Second, I shall pose as well and as clearly and as
explicitly as I can the examples of the individual laws [given in the title].
Third, I shall briefly repeat the text with a view to correcting it. Fourth,
I shall briefly repeat the contents of the examples [of the laws]. Fifth, I
shall solve the contradictions, adding general principles (commonly called
brocardica) and distinctions or subtle and useful problems (quaestiones)
with their solutions, so far as Divine Providence shall enable me. And if
any law shall seem, by reason of its celebrity or difficulty, worthy of a
Repetition, I shall reserve it for an evening Repetition.
Odofredus, quoted in 3 F. SAVIGNY, supra note 5, at 553.
served at first as an ideal law, a body of legal ideas, taken as a

unified system; current legal problems, previously unclassified
and inchoate, were analyzed in its terms and were judged by its
standards. In a sense, Roman law played a role for the medieval
legal mind similar to that which legal history played for the
modern Anglo-Americanlegal mind from the seventeenth to the
early twentieth century. It gave a perspective for analyzing pre-
vailing laws, and it provided ideals for testing the validity of pre-
vailing laws. This is not to say that Roman law was thought to
be something other than prevailing law. It prevailed, alongside
the newer laws, and in a sense over them. But it had a funda-
mental quality which they lacked. The newer laws were in the
flux of becoming; the rules of Roman law were present to be
concorded.
IV. THE SCHOLASTIC METHOD OF ANALYSIS AND SYNTHESIS
Underlying the curriculum and the teaching methods of the

law school at Bologna and of the other Western universities of
the twelfth and thirteenth centuries was a new mode of analysis
and synthesis, which later came to be called the scholastic method.
This method, which was first fully developed in the early IIoo's,
both in law and in theology, presupposesthe absolute authority of
certain books which are to be comprehendedas containingan inte-
grated and completedbody of doctrine. But, paradoxically,it also
presupposesthat there may be both gaps and contradictionswithin
the text, and it sets as its main task the summation of the text,
the closing of gaps within it, and the resolution of the contradic-
tions. The method is called "dialectical,"in that it seeks the rec-
onciliation of opposites.20
Both in law and theology,21 and later in philosophy, the
scholastic mode of analysis and synthesis was promoted by the
20In the nineteenth and twentieth centuries, the concept of dialectic as a
method of synthesis of opposites has been generally derived from Hegel via Marx.
However, the method itself goes back to the early twelfth century, especially to
the works of Abelard and Gratian. See notes 21, 65 infra.
21 The relationship between jurisprudence and theology in the eleventh and
twelfth centuries is the subject of a companion article, to be published in a forth-

coming issue of the Puerto Rico Law Review. See note * supra. It needs to be
said here, however, that at the very time Western jurists were beginning to create
what they conceived to be a science of law, Western theologians were beginning
to create what they conceived to be a science of theology. Indeed, Peter Abelard
(IO79-I42), who was the first to use the word "theology" in the modern sense
of a systematic analysis of the evidence of divine revelation, see D. KNOWLES, THE
EVOLUTION OF MEDIEVAL THOUGHT126 (I962), was also one of the great pioneers
of scholastic logic, and is sometimes called the father of scholasticism. Abelard
sought by means of scholastic methods of analysis and synthesis to apply rational
method of teaching in the university, particularly the method of

"glossing" the text and posing "questions" for disputation. "The
principal books of law and theology were the natural outgrowth of
22 In other words, science -scholarship-
university lectures."
came from teaching, and not vice versa.
In law, the scholastic method took the form of analyzing and
synthesizing the mass of doctrines, many of them in conflict with
others, found in the law of Justinian as well as in the prevailing
law and custom of ecclesiastical and secular authorities. As in
the case of theology, the written text as a whole, the Corpus
luris Civilis, like the Bible and the writings of the Church
Fathers, was accepted as sacred, the embodiment of reason. But
the emphasis on reconciliationof contradictionsgave the twelfth-
century Western jurist a greater freedom and flexibility in deal-
ing with legal concepts and rules than his Roman predecessors
had had. Like them, he was, to be sure, concerned, in Professor
Dawson's words, with the "consistent and orderly treatment of
individual cases." But he was also concerned, as they were not,
with finding "elaborately reasoned justifications" and a "theoret-
ical synthesis." 23 And in seeking justifications and synthesis, he
often sacrificed the narrower kind of consistency which the
Romans prized.
A. The Relation of the Scholastic Method to

Dialectical Reasoning in Greek Philosophy and in Roman Law
The method of the twelfth-century European jurists was a
transformation of the methods of dialectical reasoning charac-
teristic of ancient Greek philosophy and of classical and post-
classical Roman law. "Dialectic," in Greek, means "conversa-
criteria for judging which revealed truths were of universal validity and which
were of only relative validity. This was not, then, the kind of fundamentalism
which takes every word of the text as being equally true under all circumstances;
the whole is taken to be true, and within the whole the parts are assigned various
shades of truth. Indeed, one of the most important books of Abelard, Sic et Non
("Yes and No"), documents by successive quotations a list of over 50o inconsis-
tencies and discrepancies in the Bible and in the writings of the Church Fathers and
other authorities, assuming them all to be true and leaving it to the reader to
harmonize them. P. ABELARD, SIC ET NON: A CRITICAL EDITION(B. Boyer & R.
McKeon eds. I976). In the Prologue, Abelard indicates several possible ways of
reconciling the contradictions (for example, the same words may have been used
in different senses), but if not he himself, at least his followers, recognized that a
mechanical reconciliation may be impossible and that the meaning of contradictory
passages is often to be found only in the interconnections and purposes of the
whole body of scriptural and patristic writings. See M. GRABMANN, 2 DIE GE-
SCHICHTE DER SCHOLASTISCHEN METHODE I68-229 (I9I1).
22 C.
HASKINS,THE RISE OF UNIVERSITIES 53 (I923).
23 J.
DAWSON,supra note I5, at II6, 114.
91o HARVARDLAW REVIEW [Vol. 90:894
tion" or "dialogue." Ancient Greek philosophers referred to the

"art of conversation" (tekhne dialektike) as a method of reason-
ing; indeed, Plato viewed it as the only sure method of arriving
at knowledge of the truth. The Socratic dialogues reported by
Plato involved several basic "dialectical"techniques: (a) the ref-
utation of an opponent's thesis by drawing from it, through a
series of questions and answers, consequences that contradict
it or that are otherwise unacceptable; (b) the deriving of a gen-
eralization - again, by questions and answers - from a series
of true propositions about particular cases; (c) the definition of
concepts by the techniquesof distinction, that is, repeatedanalysis
of a genus into its species and the species into their subspecies,
and synthesis, that is, repeated collection of species intol their
genus and the genera into larger genera. Through such reasoning
Plato sought to achieve sure knowledgeof the nature of Goodness,
Justice, Truth, Love, and other "Forms" existing, as he thought,
in the universe.
Aristotle greatly refined Plato's concepts of dialectical rea-
soning. He distinguished, first, between reasoning from premises
that are known to be necessarily true (such as "all men are mor-
tal" or "fire burns") and reasoning from premises that are gen-
erally accepted, or propounded by experts, but are nevertheless
debatable (such as "man is a political animal" or "philosophy is
desirable as a branch of study"). Only the latter kind of reason-
ing is dialectical, according to Aristotle, and since its premises are
disputable it is not capable of arriving at certainty but only at
probabilities. The former kind of reasoning, on the other hand,
called "apodictic," is alone capable of demonstrating necessary
truths since only from indisputable premises can indisputable
conclusions be drawn.
In both apodictic and dialectical reasoning, Aristotle said,
either inductive or deductive logic may be applicable. Neverthe-
less, in Aristotle's view inductive logic is to be preferred in dia-
lectical reasoning, since it is clearer and more convincing to most
people, whereas in apodictic reasoning deductive logic is appro-
priate to certain kinds of science (e.g., mathematics) but not to
others (e.g., biology). Inductive logic moves from experience
either to certainty or to probability, by finding the common ele-
ment in the particular cases that have been observed.24
The special distinguishing feature of dialectical reasoning,
however, is not that it is partial to inductive logic, for, as Aris-
totle showed, apodictic reasoning also inclines toward the in-
ductive method in many fields. Dialectical reasoning is dis-
24 See ARISTOTLE,TOPICS,bk. I, ch. i, iooa 25 to ioob 23, ch. 12, IO5a IO-I9,
in THE BASIC WORKS OF ARISTOTLEi88, 198 (R. McKeon ed. I941).
I977] WESTERNLEGALORIGINS 911
tinguished above all by the fact that it does not start with "propo-
sitions," that is, with declarative statements that must be either
true or false, but rather with "problems,"or "questions," about
which people may differ, although ultimately the disputed ques-
tion will be resolved conclusively by a proposition, or first prin-
ciple, in favor of one side or the other if valid methods of dialec-
tical reasoning are used.25
Aristotle's distinction between apodictic and dialectical rea-
soning was accepted by the Stoics of the third century B.C. and
thereafter. However, the Stoics viewed dialectical reasoning not
as a method of arriving at first principles but as a method of
analyzing arguments and defining concepts by distinction and
synthesis of genus and species. And they lacked Aristotle's over-
riding concern for systematic exposition; dialectics now became
an independent discipline, not essentially different from logic
but with strong elements also of rhetoric and grammar.
It was in its Stoic form, with the writings of Plato and Aris-
totle in the background, that Greek dialectics was imported into
Rome in the republicanperiod (second and first centuries B.C.).
There it was taken up among the educated classes, including
the jurists, who applied it for the first time to prevailing legal
institutions.26 However, the Roman jurists took an intensely
25 See L.
WITTGENSTEIN,ON CERTAINTY (G.E.M. Anscombe & G.H. von Wright
eds. I969).
26 The Greeks had never
attempted such an application. The reasons for that
are complex. The Greek cities did not experience the rise of a prestigious class of
jurists entrusted with the development of law. Adjudication was by large popular
assemblies, and those who argued before the assemblies practiced a mode of
declamation that relied less on legal argument than on appeals to moral and politi-
cal considerations. Moreover, the Greek philosophers did not recognize legal rules
as starting points for reasoning. They professed an allegiance to a higher philo-
sophical truth, attainable by observation and reason alone. See W. KUNKEL,AN
INTRODUCTION TO ROMANLEGALAND CONSTITUTIONAL LAW 98-IO3 (2d ed. J.M.
Kelley trans. I973); J. DAWSON,supra note 15, at 114. Legal rules and decisions
were, for them, not authorities to be accepted, or at least to be reckoned with, as
embodiments of the community's sense of justice; they were, instead, merely data
to be used, or not used, in constructing their own philosophical theories. Thus
Greek philosophers would gladly debate questions concerning the nature of justice
and whether a ruler should govern by law or by his own will, but they considered
it unimportant to debate whether, for example, the law should give a remedy to
an owner of goods against one who has bought them in good faith from another
who had fraudulently persuaded the owner to part with them. When they did
consider such questions of civil law, they generally treated them as matters of
personal ethics. Conversely, questions of constitutional law were generally treated
as matters of politics.
In Rome on the other hand, a prestigious class of jurists came into existence
quite early. From the fifth century B.C. on, priests (pontiffs) kept records of
various legal remedies ("actions") available for various causes. Thereafter there
emerged the practice of electing each year praetors who, in the form of an annual
practical approach to law. Their importationof Greek dialectical

reasoning, although it was the first scholarly inroad into Roman
law, was not the intermarriageof Roman law with Greek philos-
ophy that took place over a thousand years later in the univer-
sities of Western Europe. The Roman jurists refused to adopt
the Hellenistic system of education; legal training continued to
consist chiefly of very informal individual apprenticeship in the
house of an older practitioner.
The [Roman] jurisconsults did not discuss with their pupils
basic conceptions like justice, law, or legal science, though to the
Greeksthese seemedproblemsof the highest,nay almostof sole
importance.The student was plunged straight into practice,
question:What, on
wherehe was facedwith the ever-recurrent
the facts stated, ought to be done?27
Nevertheless, it was in this period- before the great flowering
of so-called classical Roman law in the first to third centuries
A.D.-that jurists first attempted systematically to classify
Roman law into its various kinds (genera and species) and with
precision to define general rules applicable to specific cases.
Perhaps the earliest example of the systematic application
of dialectical reasoningto law was the treatise on ius civile by the
Roman jurist Q. Mucius Scaevola (d. 82 B.C.).28 In this work,
which is said to have "laid the foundationsnot merely of Roman,
but of European, jurisprudence,"29 civil law was classified into
four main divisions: the law of inheritance, the law of persons,
the law of things, and the law of obligations. Each of these was
subdividedinto two or three broad categories and the subdivisions
themselves were further subdivided.30Under the various genera
edict, declared general rules of law applicable to private disputes, and who received
individual complaints concerning violations of rights laid down in the edict. The
praetor would transmit such a complaint to a judge (iudex), who was a layman,
appointed by the praetor ad hoc, with instructions to hold a hearing and, upon
proof of the facts alleged in the complaint, to grant a remedy. In addition to
praetors and judges there existed a third group of laymen who participated in
legal proceedings, the advocates (oratores), who argued before the judges. Finally,
and ultimately most significant, there were the jurists (also called jurisconsults).
These were the only professionals. It was their chief task to give legal advice-
to praetors, to judges, to advocates, to litigants, to clients wishing to engage in
legal transactions, and so forth. See W. KUNKEL, supra at 84-86, 95-I24.
27 F.
SCHULZ,HISTORY OF ROMANLEGALSCIENCE 57-58 (i946).
28 See F. OF ROMANLAW 53 (1936); P. STEIN,REGULAE
SCHULZ,PRINCIPLES
IURIS36 (1966).
29 F.
SCHULZ, supra note 27, at 94.
30See id. at 95. Inheritance was divided into testaments and intestate succes-
sion; persons into marriage, guardianship, free status, paternal power, and some
others; things into possession and nonpossession; obligations into contracts and
delicts. These were further subdivided: thus contracts were subdivided into real
and species, each characterized by its governing principles, legal

materials were reproduced- above all, the decisions of praetors
in particular cases, but also legislative enactments, authorities
from older collections of documents, and also authorities from
the oral tradition. The major task which the author set for him-
self was to present "definitions,"as he called them,31that is, pre-
cise statements of the legal rules implicit in decisions of cases.
In the work of Q. Mucius Scaevola, and of his fellow jurists
of the second and first centuries B.C., not only the classification
system but also the method of arriving at the formulation of
specific rules was dialectical in the broad Greek sense. Questions
were posed, various answers of jurists were collected, the author's
own solutions were offered. For example, an earlier jurist had
summarizedvarious decisions concerning the scope of the law of
theft by saying that one who borroweda horse was guilty of theft
if he took it to a place other than that agreed when he received
it or if he took it further than the place agreed. Q. Mucius
Scaevola reviewed the same decisions, and others, and achieved
a broader, and at the same time a more precise, formulation:
whoever receives a thing for safekeeping and uses it, or receives
it for use and uses it for a purpose other than that for which he
receives it, is guilty of theft.32 Here not only loans but deposits
are included, and "thing" is substituted for "horse."
Professor Stein writes: "Following the Aristotelian techniques
[Q. Mucius] saw his task as that of explaining what actually
happened in legal proceedings."33 He sought to achieve that task
by subdivision of genera and species until he reached specific
decisions which, having classified, he was able to explain by
finding "a form of words which included all the relevant cate-
gories and excluded all others." 34 His aim, and that of other
jurists who followed him, was, as Professor Stein has said, to
declare the preexisting law and to define its precise limits.35 One
would not look to the Roman jurists of the republicanperiod for
a discussion of legal concepts; "indeed the notion of a concept was
not found in their mental equipment."36
Subsequently, in the classical and postclassical periods, the
Roman jurists refined and developed the dialectical techniques
contracts, purchase and sale, letting and hiring, and partnership, while delicts were
subdivided into assault, theft, and damage to property.
31 See P. STEN, supra note 28, at 36.
32 See id. at 45-46.
33 Id. at 37.
34 Id. at 41.
35 Id. at 48.
3 Id.; see Behrens, Begriff und Definition in den Quellen, 74 ZEITSCHRIFTDER
SAVIGNY-STIFTUNG FUR RECHTSGESCHICHTE, ROMANISTISCHE ABTEILUNG 352 (I957).
that had been applied by their republican predecessors, without

changingthem fundamentally.There was a tendency towardsome-
what greater abstraction. In the first part of the second century
they began to speak expressly of "rules" (regulae), and not only
of "definitions" (definitiones). The difference between the two
terms is a subtle one. The "definitions"seem to have been more
closely connected with the cases which they generalized. The
"rules," though derived from cases, were capable of being con-
sidered separately. Sometimes they were collected in "books of
rules" (libri regularum), which were especially useful to the
numerous minor officials of the Empire. Also a few law schools
were founded in this period, and although their orientation re-
mained intensely practical, they undoubtedly contributed to a
tendency to search for broader rules. Aristotelian concepts of
the "nature" of a thing were used, for example, to summarize
rules concerning what may be omitted from the express terms
of agreements of purchase and sale: it was said that terms that
"naturally belong" (naturaliter insunt) to the case require no
express agreement.37However, only one kind of term was given
as "naturally belonging" to all types of purchase and sale-
namely, that the vendor had title. Various other specific "im-
plied warranties" (as we would call them today) for individual
types of purchase and sale were then listed - for example, that
an animal is healthy, or that a slave is not in the habit of run-
ning away. Sometimes common rules were developed to govern
diverse types of contracts, such as sales and leases. Only oc-
casionally would Roman jurists go so far as to postulate broad
principles that seemed to embrace the entire law. Thus Gaius, the
great jurist and law teacher of the middle second century, wrote
that agreements concluded "against the rules of the civil law"
are invalid,38thereby implying, but only implying, what was first
spelled out in the twelfth century by the scholastic jurists of the
West: that the law forms a whole system, a whole "body."
This implication was also present in some very broad regulae
which, when abstracted from the cases from which they were first
gereralized, have the form of succinct, epigrammaticstatements
of fundamental legal principles. In Justinian's Digest the con-
cluding title 50.I7, "Concerning various rules of the ancient law,"
collects 211 such broad rules. Examplesare: "No one is considered
to defraud those who know and consent," "In doubtful matters
the more benevolent interpretationsshould always be preferred,"
"Good faith confers as much on a possessor as the truth, when-
37 DIGEST
19.1.11.1.
38 Id. at 2.14.28.
ever the law (lex) offers no impediment."39 However, as Pro-

fessor Stein has recently shown,40these "legal maxims," as they
came to be called in the twelfth century, have a wholly different
meaning when taken as abstract principles from that which they
had in the context of the types of cases in which they were origin-
ally uttered and which are generally reproduced in the earlier
parts of the Digest itself. Thus the first of the "rules" quoted
above originally referred to the case of one who acquires some-
thing from a fraudulent debtor with the consent of the creditors:
the creditors may not later claim that they were defrauded. The
second originally referred to legacies: the "more benevolent in-
terpretations"are those that are more benevolent to legatees. The
third originally referred to the good faith possessor of another's
slave: if the slave stole from another, the victim has an action
against the possessor. In 530 A.D. Justinian issued a constitu-
tion clarifying the older law on the subject. This constitution
is the lex which is obliquely referred to in the concluding phrase
of the regula.
The collection of 211 bare statements of abstract "rules"
was not intended by Justinian to deceive anyone into believing
that they had a meaning independent of the concrete situations
to which they were originally applied. The very first regula
presented in title 50.I7 makes this clear: the jurist Paul is
quoted as having said, "A rule is something which briefly relates
a matter. . . . [B]y means of a rule a short account of matters
is passed on and . . . if it is inaccurate in any respect, it loses
its effect." In other words, rules must not be considered outside
the contexts of the cases which they summarize. This is also
shown by the fact that each rule is preceded by a citation to its
original context. Moreover, except that the first one belongs
where it is, they are arrangedentirely unsystematically, and some
of them are contradictory to each other.41 Justinian added the
"regulae of the ancient law" partly, at least, as an ornamental
index to his great collection. It is also likely that they were in-
tended to be useful in argument, possibly as presumptions that
could be used to shift the burden of proof. Finally, they served
a didactic purpose as an aid to memory of the vast text. But no
39 Id. at
50.I7.I45, .56, .136.
40See P. STEIN, supra note 28, at II8-23.
41 Thus, according to DIGEST 50.I7.67, "Whenever a sentence has two meanings,
that should be accepted which is better adapted to the case," while according to
DIGEST50.17.114, "When words are ambiguous, their most probable and ordinary
signification should be adopted." According to DIGEST50.I7.I25, "Defendants are
regarded with greater favor than plaintiffs," while according to DIGEST50.I7.I26,
"When a question arises with reference to the claims of two persons, the position
of the possessor is preferable."
Roman jurist treated them as abstract principles. Indeed, the

entire title 50.I7 of the Digest must have demonstrated beyond
a doubt to the Roman lawyers of Justinian's time the validity of
the famous "rule" of Javolenus, also contained in title 50.I7:
"All rules [definitiones] in civil law are dangerous, for they are
almost always capable of being distorted." That, too, was prob-
ably aimed at a specific "definition."42
The classical and postclassical Roman jurists thought of a
legal rule as a generalization of the common elements of de-
cisions in a restricted, specified class of cases. Only by thus
limiting the scope of legal rules did they hope to achieve their
objective of using Greek methods of classification and generaliz-
ation as a rational basis for deciding cases. The Greeks had
never attempted any such rationalization of legal decisions and
rules. For them, dialectical reasoning was a technique for deriv-
ing valid philosophical conclusions - "propositions" - from
agreed-uponpremises. The Romans converted the Greek dialec-
tic from an art of discovery (ars inveniendi) to an art of judging
(ars iudicandi).
It is important to distinguish Roman legal casuistry from the
legal casuistry of the later Western European jurists of the
eleventh and twelfth centuries and thereafter, as well as from
the "case method" of analysis characteristic of the English and
Americancommon law to this day. On the one hand, the Romans
did not use cases in order to illustrate principles, or to test them
by going back a step, so to speak, in order to see their applications.
On the other hand, they reduced their cases to bare holdings,
without treating them in their fullness - without discussing am-
biguities or gaps in their fact situations, alternative formulations
of the legal issues involved, and the like.43 Max Weber undoubt-
edly went too far when he referred to the classical Roman jur-
ists' use of rules as a "merely paratactic and visual association
of the analogy."44 Yet their failure to articulate the assumptions
and deeper reasons on which the analogies were founded, indeed,
their failure even to define the most important legal terms,45led
to a narrowness,or woodenness, in case analysis - which is just
what the Roman jurists wanted! When Cicero argued for a more
complex systematization of the law, with clear definitions and
abstract legal rules, the jurists "answered these strictures by
42 See P. STEIN, supra note 28, at 70.
43 See T. VIEHwEG,TOPIKUNDJURISPRUDENZ 74-76 (5th ed. I954).
44 M. WEBER,KAP. vii, ? i, at 395, quoted in F. SCHULZ,supra note 28, at
51-52; see 2 M. WEBER,ECONOMY ANDSOCIETY787 (G. Roth & C. Wittich eds.
I968); T. VIEHWEG,supra note 43, at 46-61. But see P. STEIN,supra note 28, at
74-89.
45 F. SCHULZ,supra note 27, at 43-48.
polite silence." 46 They had no reason to try to transform the

Roman genius for consistent adjudication into a philosophical
system. They had every reason to be suspicious of the applica-
bility of the higher ranges of Greek philosophy to the practical
needs of adjudication.
The Western Europeanjurists of the eleventh and twelfth cen-
turies carried the Greek dialectic to a much higher level of
abstraction. They attempted to systematize the rules into an
integrated whole - not merely to define elements common to par-
ticular species of cases but also to synthesize the rules into prin-
ciples and the principles themselves into an entire system, a
"body"of law, or corpus iuris.
One of the techniques which the scholastic jurists used to
achieve this objective was to treat the Roman regulae, found in
title 50.I7 of the Digest and elsewhere, as legal "maxims," that
is, as independent principles of universal validity. The word
"maxim"was drawn from Aristotelian terminology; it referred to
a "maximum proposition," that is, a "universal." The sixth-
century Roman writer Boethius, from whose Latin translations
and commentaries Western scholars from the sixth to the mid-
twelfth centuries learned their Aristotle, wrote that Aristotle pos-
tulated certain self-evident propositions, and that from these
"maximum, that is, universal . . . propositions . . . the conclu-
sions of syllogisms are drawn."47 In the twelfth century, Peter
Abelard, in his Dialectica, described such a maximumproposition
as one that summarizesthe meaning and the logic common to the
particular propositions that are implied in it. For example, the
propositions (a) that what may be said of a man may be said of an
animal, (b) that what may be said of a rose may be said of a
flower, (c) that what may be said of redness may be said of a color,
and other similar propositions, are summarized in the "maxim"
that what may be said of a species may be said of a genus. "The
maxim," Abelard wrote, "contains and expresses the sense of all
such consequences and demonstrates the mode of inference com-
mon to the antecedents."48 In the same way, the jurists of Bolog-
na, contemporariesof Abelard, adduced universal principles from
the implications of particular instances. This was just the op-
posite of the older Roman concept of a rule as merely "a short
account of matters"; now it was assumed that the whole law, the
entire ius, could be adduced by synthesis from the common char-
acteristics of specific types of cases.
46 Id. at
65.
47 See P.
STEIN,supra note 28, at I57.
48 P. ABELARD, DIALECTICA,cit. 263 (L.M. De Rijk ed. I956), quoted in P. STEIN,
supra note 28, at I57-58.
It was this belief and this method that characterized the ap-
proach by which the scholastic jurists analyzed and synthesized
the rediscovered texts of Justinian. This was Aristotelian dia-
lectics-even before the translation of Aristotle's principal
works on logic - carried over to law at a level of synthesis far
higher than that of the Roman jurists whose writings were being
studied.49
Yet there was another side to it. Aristotle had denied the
"apodictic" character of dialectical reasoning. It could not
achieve certainty because its premises were uncertain. The
twelfth-century jurists of Western Europe, on the other hand,
used the Aristotelian dialectic for the purpose of demonstrating
what is true and what is just. They turned Aristotle on his head
by conflating dialectical and apodictic reasoning and applying
both to the analysis and synthesis of legal norms. In contrast to
the earlier Roman jurists and the earlier Greek philosophers,they
supposed that they could prove by reason the universal truth
and universal justice of authoritative legal texts. For them, the
edicts and responsa of Roman law, taken both individually and as
a whole, constituted what they certainly had not constituted in
the minds of the Roman lawyers themselves- a written natural
law, a ratio scripta, to be taken, together with the Bible, the
patristic writings, and the canons of the Church, as sacred. Since
they were true and just, they could be reasoned from, apodictic-
ally, to discover new truth and justice. But since they contained
gaps, ambiguities, and contradictions, they had to be reasoned
from dialectically as well; that is, problems (quaestiones) had
to be put, classifications and definitions made, opposing opinions
stated, conflicts synthesized. The scholastics added another
49For example, whereas the Justinian texts made passing references to "the
nature of a contract" in a very limited sense, as illistrated at p. 914 supra,
the glossators debated whether the naturalia of a contract can be excluded by ex-
press agreement. In the fourteenth century Baldus developed an elaborate theory
which distinguished between substantialia, i.e., those elements of a contract which
give it its "being," and without which it cannot exist (e.g., in a contract of pur-
chase and sale, the thing sold and the price), the naturalia, i.e., those elements
which are inferred from the contract and which may be altered by express terms,
and the accidentalia, i.e., those elements which derive solely from the express ordi-
nation of the parties. See BALDUSD.2, 14, 77. No. i; cf. Gloss to Extra naturam
D.2, 14, 7, 5; Coing, Zum Einfluss der Philosophie des Aristoteles auf die Ent-
wicklung des riimischen Rechts, 69 ZEITSCHRIFTDERSAVIGNY-STIFTUNG FURRECHTS-
GESCHICHTE,ROMANISTISCHEABTEILUNG 24 (1952). Although he cites this passage
from Baldus, Professor Coing does not in this essay distinguish medieval European
from Byzantine legal reasoning but rather traces the influence of Aristotle as though
it moved in a straight line.
A brilliant example of the way in which the glossators used a maxim to derive
a wide variety of specific kinds of results may be found in G. OTTE,DIALEKTIK
UND JURISPRUDENZ 214-15 (197I).
methodological "topic": where possible, legal maxims, the bro-

cardica, were to be formulatedas autonomousuniversal principles.
Thus Aristotle's contradiction between dialectical reasoning and
apodictic reasoning was itself resolved. The dialectical method
became the scientific method in law - as it eventually became
the scientific method in other branches of learning as well, in-
cluding the natural sciences.
The scholastic jurists differed from the Greek philosophers
not only in their belief that universal legal principles could be
derived by reasoning from authoritative texts but also in their
belief about the nature of such universal principles. Plato postu-
lated that universals exist in nature - that the idea of justice or
beauty, the idea of a triangle, the idea of color, the idea of a rose,
and other general ideas in people's minds are imperfect reflections
of "paradigms,"or "forms," that exist in external reality. Aris-
totle accepted this "Realist" view of universal ideas, as it was
later called in the West (today we would call it "Idealist"), al-
though he modified it somewhat, distinguishing universals that
are self-evident maxims, and that form starting points for apodic-
tic reasoning, from universals of a dialectical nature that are
only probably true. In the West, Christian philosophers had
raised some questions concerning the "reality" of universals, but
the first sharp and systematic attack on the Realist position was
taken in the eleventh and twelfth centuries, above all by - again
- Peter Abelard.5? Abelard denied the external reality of the
common characteristics that define a class of individual sub-
stances. He argued that only the individual substances exist
outside the mind, and that universals are names (nomina) in-
vented in the mind to express the similarities or relationships
among individual things belonging to a class. Some "Nominal-
ists" denied that universals have any meaning at all. Abelard,
however, asserted that the names do have meaning, in that they
characterize the individuals in the class, but that they do not
"exist" except as they inhere in the individuals. Thus "goodness,"
or "society," or "color," or "rose," are not to be found either in
the physical world or in some ideal world of forms. They are
simply general qualities that the human intellect attributes to
good acts, or to individual people living in social relations with
each other, or to particular pigments or individual roses.
Nominalism played an indispensable role in the movement to
systematize law; for Realism in the Platonic sense, however
convincing or unconvincing it may be as metaphysics, was wholly
alien to the effort of twelfth-century jurists to classify, divide,
5 For a brief summary of Abelard's views, see 2 F. COPLESTON,
A HISTORYOF
PHILOSOPHY I70-72 (1962).
distinguish, interpret, generalize, synthesize, and harmonize the

great mass of decisions, customs, canons, decrees, writs, laws, and
other legal materials that constituted the legal orders of that
time. To have postulated, in Platonic style, the external reality
of justice, equality, consistency, procedural regularity, and other
universal principles, and to have attempted to deduce from them
specific legal rules and institutions, would have been a futile aca-
demic exercise. None of the emerging polities, ecclesiastical or
secular, could have accepted or used such an abstract system.
On the other hand, to have attempted to proceed by Aristotelian
induction from the mass of existing legal institutions toward the
same Platonic ideals would have also been misguided, since the
existing legal institutions did not, in fact, necessarily imply those
ideals.
What was needed was the Greek genius for classification
and generalization but without the Greek belief that the classi-
fications and generalizations reflect the realities of the external
world--without, in short, Greek naturalism. In law, such
naturalism could not go much beyond the casuistic regulae of the
Roman jurists. The Nominalists, on the other hand, although
they shared with the Realists (including Plato and Aristotle) a
deep concern to establish general principles and to prove the
validity of general concepts, nevertheless denied that such prin-
ciples and concepts exist as such. For the Nominalists, univer-
sals are invented by the mind, by reason and will, and therefore
can be revised by reason and will; at the same time, they inhere
in the particulars that they characterize, and can therefore be
tested by those particulars. Extreme Nominalism denies that
"the whole is greater than the sum of its parts," but a more
moderate Nominalism such as that of Abelard asserts that the
whole is in the parts, holding them together, so that the parts
taken in isolation from each other (rather than as "parts") are
not as "great" as the parts taken in relation to each other. Thus
the parts are not, strictly speaking, derived from the whole (de-
duction), nor is the whole, strictly speaking, derived from the
parts (induction), but rather the whole is the parts interacting
with each other. Therefore Nominalism was congenial to the sys-
tematizing and synthesizing of law; for in law there can be no
such separation of the whole and the parts, the general and the
particular, the form and the substance, the ends and the means,
as is inherent in both Platonic and (though to a lesser extent)
Aristotelian philosophy.
The paradoxes implicit in the combining of universals and
particulars were closely related to the paradoxes implicit in the
combining of apodictic and dialectical reasoning. Both were
1977] WESTERN LEGAL ORIGINS 92I
closely related, in turn, to the paradoxes implicit in the scholastic

synthesis of faith and reason. The scholastic dialectic was more
than a method of reasoning and more than a way of organizing
thought. Its criteria were moral as well as intellectual; it was a
way of testing justice and not only truth. Thus the scholastic
antitheses included not only general versus special, object versus
subject, argument versus reply, but also strict law versus dispen-
sation in exceptional cases, precept versus counsel, absolute rule
versus relative rule, justice versus mercy, divine law versus hu-
man law. These and similar "oppositions"were used as means of
logical reconciliation of contradictory texts, but they were also
used for shaping the legal institutions of both the Church and the
secular society in such a way as to manifest alternate values.
For God himself was conceived to be a God both of justice and
of mercy, both of strict law and of equity. The paradoxes of
divine justice were now for the first time systematically applied
to human laws. Thus "scholasticism"was not only a method but
a jurisprudenceand a theology.
B. The Application of the Scholastic Dialectic to Legal Science

Probably the most striking single example of the role of the
scholastic dialectic in the formation of Western legal science is
the great treatise of the Bolognese monk Gratian,51written in
about II40 and entitled, characteristically, A Concordance of
Discordant Canons (Concordia Discordantium Canonum). This
work, which in a modern edition fills over I400 printed pages,52
was the first comprehensive and systematic legal treatise in the
history of the West, and perhaps in the history of mankind-
if by "comprehensive"is meant the attempt to embrace the entire
law of a given polity, and if by "systematic" is meant the ex-
press effort to present that law as a single body, in which all the
parts are viewed as interacting to form a whole.
Prior to the eleventh century, there had been no effort to col-
lect all the laws of the Church into a single book or books, and
in such partial collections as existed the laws (typically called
canones, "rules") were arranged chronologically. Near the end
of the eleventh century, Ivo, Bishop of Chartres, made a collec-
tion arranged not chronologically but according to various cate-
gories, although he only loosely adhered to his categories. He also
included a large number of rules concerning homicide, theft, cer-
tain types of voluntary transactions,possession, adjudication, and
51 What is known of Gratian's life is recounted in Kuttner, The Father of the
Science of Canon Law, I JURIST2 (I94I).
52 GRATIANUS, CONCORDIA DISCORDANTIUM CANONUM (DECRETUM), in I CORPUS
IURIS CANONICI
(E. Friedberg ed. I879).
a variety of other matters.53 Ivo was one of the first to set forth
conflicting passages in the authorities and to suggest some stan-
dards by which they could be reconciled. Gratian built on Ivo's
work. He also had before him the work of the glossators of the
Roman law, above all his fellow citizen Irnerius.
Gratian, however, pursued a method of systematization dif-
ferent from that of any of his predecessors. Unlike the Roman-
ists, he did not have a predeterminedtext but had to dig out for
himself from many written sources the canons that he wished to
systematize. He collected and analyzed approximately 3800
canonical texts, including many from early periods of Church
history. He did not, however, group them according to the con-
ventional categories of earlier canonical collections (ordination,
marriage, penance, etc.) or of Roman law (persons, things, obli-
gations, succession, crimes, etc.). His categories were, on the
one hand, more comprehensive: the first third of his work was
arranged in I50 "divisions" (distinctiones) analyzing and syn-
thesizing authoritative statements concerning the nature of law,
the various sources of law, the relationship between the different
kinds of law, the jurisdiction of various offices within the Church,
and so forth. On the other hand, Gratian's categories were also
more functional than those that had previously been used in legal
literature, for in the second part of his work he posed specific
legal "questions," often in the form of complex cases, in the
context of which he presented authorities pro and con, recon-
ciled the contradictions where possible or else left them unre-
solved, offered generalizations,and sometimes sought to harmon-
ize the generalizations.54
The best example of his more comprehensivemethod of anal-
ysis and synthesis is found in the first twenty "divisions" of the
text, in which various kinds of law are identified (divine law, hu-
man law, natural law, the law of the Church, the law of princes,
enacted law, customary law), and relationships among them are
defined. Gratian did not, of course, invent these categories: the
Roman jurists had adapted to their own use Aristotelian distinc-
tions between natural law and positive law, universal law and
national law, customary law and enacted law, and the distinction
between divine and human law had always existed within the
Church. But Gratian was the first to explore systematically the
legal implications of these distinctions and to arrange the various
53 Ivo died in 1116. In the Prologue to his Decretum, written about I095, he
stated that he was attempting to unite the ecclesiastical rules "into one body."
i66 MIGNEPATROLOGIA LATINAcol. 47.
54 See S. KUTTNER,HARMONY FROMDISSONANCE: AN INTERPRETATION OF MED-
IEVALCANONLAW (1960).
sources of law in a hierarchical order. He started by interposing

the concept of natural law between the concepts of divine law and
human law. Divine law is the will of God reflected in revelation,
especially the revelation of Holy Scripture. Natural law also
reflects God's will; however, it is found both in divine revelation
and in human reason and conscience. From this Gratian could
conclude that "[t]he laws [leges] of princes [that is, of the secu-
lar authorities] ought not to prevail over natural law [ius natu-
rale]." 55 Likewise ecclesiastical "laws" may not contravene nat-
ural "law."5 "lus," he wrote, is the genus, lex is a species of
it." 57
Gratian also concluded that, as a matter of natural law,
"princes are bound by and shall live according to their laws." 58
This was a wholly new legal principle, unknown to the older law,
whether Roman or Germanic. There were passages in the earlier
texts to the effect that a good prince or emperorought, as a moral
matter, to observe his own laws, but it was uniformly stated that,
as a matter of law, he was absolved from them.59 Under the new
theory, on the contrary, although the lawmaker could change the
old laws in a lawful manner,he could not lawfully disregard them
at will. This principle is one which cannot adequately be ex-
plained by positivist theories that derive law ultimately from the
will of the sovereign.
Moreover, special laws (leges) and enactments (constitu-
tiones) of princes were, according to Gratian, to be subordinate
to ecclesiastical leges and constitutiones.60 Further, customs
(consuetudines), he wrote, must yield not only to natural law but
also to enacted laws, whether secular or ecclesiastical.61
The theory that customs must yield to natural law was one
of the greatest achievements of the canonists. When Gratian
55 GRATIANUS,
supra note 52, at Dist. IX, Pars. I, c.I.
56 Id. at C.II.
57 Id. at Dist. I, c.2.
58 Id. at C.2.
59 F. Schulz has argued strenously that such classical Roman law texts as
"What has pleased the prince has the force of law" and "The prince is absolved
from the laws" are to be construed narrowly, and that only in the postclassical
period did the Emperor come to be above the laws generally. See Schultz, Bracton
on Kingship, 60 ENG. HIST. REV. 136 (I945). Nevertheless, no statement of any
Roman jurist claiming that the Emperor was bound by the laws has survived (or
as Peter Banos has said, perhaps no jurist ever made such a statement and sur-
vived). The position taken in the text is supported, rather than refuted, by the
provision of Justinian's Codex 1.14.4: "It is a statement worthy of the majesty
of a reigning prince for him to profess to be subject to the laws; for Our authority
is dependent upon that of the law."
60
GRATIANVS,supra note 52, at Dist. X, c.I & Pars. II.
61 Id. at Dist.
XI, Pars. I.
lived, most law in the West was customary law; that is, most
legal norms were binding not because they had been promul-
gated by political authorities, whether ecclesiastical or secular,
but because they were practiced and accepted as binding by the
communities in which they prevailed. Enacted laws were rela-
tively rare. Also, enacted laws were still justified, for the most
part, as restatements of preexisting custom. The theory of Gra-
tian and of his fellow canonists provided a basis for weeding out
those customs that did not conform to reason and conscience.
Elaborate criteria were developed to determine the validity of a
custom: its long duration, its universality, its uniformity of appli-
cation, its reasonableness, and the like---tests still used in the
twentieth century. This meant that custom lost its sanctity; a
custom might be binding or it might not.
Thus the canon lawyers "markedoff," in the words of Gabriel
Le Bras, "from the principles of eternal validity the variable
elements of the law, which had been suggested by particular cir-
cumstances, whether of time, place, or persons, and enforcement
of which other conditions might render unseasonable. This
amounted to the recognition of the relativity of rules and pro-
vided a technical method of harmonizingcontradictions."62 Two
contradictoryrules could both be true if, in the words of Gratian's
Prologue to the Concordanceof Discordant Canons, they related
to a law which was "variable," and the contradiction was due
to a dispensation in a special case.
Gratian'semphasis on natural law and on reason was derived
in part from Greek, and especially Stoic, philosophy. In addi-
tion, the newly rediscoveredRoman law of Justinian had included
many references to and remarks about natural law and equity,
but had not developed those concepts into any sort of system.
The sources of law were classified but they were not organized
into a hierarchy or pattern. As we have seen, the Roman lawyers
were not philosophers; the Greek philosophers were not lawyers.
However, in the twelfth century the canonists and Romanists of
Western Europe combined the Greek capacity for philosophy
with the Roman capacity for law. In addition, they deepened the
earlier concepts of reason and equity by adding to them Judaic
and Christianconcepts of conscience, which they related to mercy
and love.
Moreover, the division between positive law and natural law
was now for the first time specifically identified as a division
between lex, that is, an enacted law, and ius, that is, the system
of Justice, of Right. Not only princes and other secular authori-
62 Le OF THE MIDDLEAGES321, 326 (C.G.
Bras, Canon Law, in THE LEGACY
Crump & E.F. Jacob eds. I926).
ties, but also ecclesiastics -popes, local councils, bishops-

enacted individual leges and constitutiones, but the body of ius,
whether the "body of Roman law" (corpus iuris Romani), as it
now came to be called, or the new "body of canon law" (corpus
iuris canonici), was sacred, and the validity of an enacted law
depended on its conformity to the body of law as a whole, which
in turn reflected the natural ius and the divine ius.
The subordination of positive law to natural law was re-
enforced by the dualism of secular and ecclesiastical law as well
as by the coexistence of conflicting secular authorities. The
Church claimed that secular laws which contradicted the law of
the Church were invalid. Princes did not always yield to that
claim. Nevertheless, they themselves made similar claims with
respect to laws of competing secular authorities (feudal lords,
city councils, and others) and occasionally also ecclesiastical
authorities. Given plural legal systems, victims of unjust laws
could run from one jurisdiction to another for relief in the name
of reason and conscience!
The laws of the Church itself, as has already been indicated,
were to be tested by their conformity to natural law. Gratian
wrote: "Enactments [constitutiones], whether ecclesiastical or
secular, if they are proved to be contrary to natural law, must
be totally excluded."63 However, only rarely was anyone in a
position to say authoritatively that an ecclesiastical enactment
was contrary to natural law, for the Pope was not only the
supreme legislator in the Church but also the vicar and repre-
sentative of Christ on earth. In the twelfth and thirteenth cen-
turies, at least, most of the men who served as officials and judges
and counselors of kings and emperors were clerics who owed at
least half their allegiance to the Pope. Nevertheless, secular
authorities did sometimes challenge ecclesiastical enactments on
the ground that they were contrary to natural law.
The theory of the relativity of rules was thus based partly on
the politics of competing legal systems. But it was also based
partly, as I have tried to show in the preceding pages, on the
scholastic dialectic, which provided a method for placing both
customary laws and enacted laws within a larger theoretical
frameworkof the nature and sources of law.
A good example of Gratian's second principal method of
systematization- the analysis and synthesis of conflicting solu-
tions to a particular legal "question"- is his discussion of
whether priests should read profane literature.64 After posing
63 GRATIANUS,
supra note 52, at Dist. IX, Pars. I, c.ii.
64 See id. at Dist.
XXXVII, translated in A. NORTON,READINGS
IN THEHISTORY
OF EDUCATION 60-75 (AMS Press ed. I97I).
the problem, Gratian quotes the statement of Church Councils,

Church Fathers, and others, as well as examples from scripture
and Church history, tending to show that priests should not read
profane literature, followed by similar authoritative statements
and examples to the opposite effect. After each authoritative
statement or example is given, Gratian introduces his own inter-
pretation. Thus he starts with the pronouncementof the Cartha-
ginian Council, "A bishop should not read the books of the
heathen." His commentary notes that nothing is said about
books of heretics, which may be read "carefully, either of neces-
sity or for some special reason." The gloss comments further on
the word "necessity," interpreting it as signifying that priests
may read the books of heretics "in order that they may know
how to speak correctly." A more significant gloss accompanying
the statement of the question itself sums up the interpretation
of all the authorities against reading profane literature: "pleasure
alone seems to be forbidden." Ultimately Gratian offers his con-
clusion, "solving the contradiction"by stating that anyone (and
not only priests) ought to learn profane knowledge not for
pleasure but for instruction, in order that what is found therein
may be turned to the use of sacred learning. Thus general prin-
ciples and general concepts were used to synthesize opposing
doctrines- not only to determine which of two opposing doc-
trines was wrong, but also to bring a new, third doctrine out of
the conflict.65
65This is an example of the kind of synthesis referred to at note 20 supra.

The simple choice of one of two contradictory solutions is characteristic of the
philosophical method of Thomas Aquinas (late I3th century), who in that respect
took a backward step. Another, even more striking example of synthesis of op-
posites, as contrasted with choice between them, is found in the development of
legal standards for testing the legitimacy of the use of force. Both the Old Testa-
ment and the New Testament forbid killing. Yet both give examples in which
the use of force is approved. Roman law, on the other hand, although it did not
purport to lay down moral standards, contained the rule "Vim vi repellere licet,"
"Force may be used to repel force." Like Roman legal rules generally, this was
not conceived as embodying a general principle or concept but was limited to the
specific types of situations in connection with which it was found, chiefly the rule
of the Lex Aquilia that a man could use physical force to protect his property
from seizure. The European jurists of the twelfth and thirteenth centuries con-
verted the Roman law regula into a general principle, which they juxtaposed with
the so-called pacifistic utterances of Jesus ("turn the other cheek"), and from the
opposing maxims they developed a general concept of justification for the limited
use of force applicable to a whole series of interrelated categories systematically
set forth, such as force necessary to execute the law, to defend oneself, to defend
another, to protect one's own property, to protect another's property. These
principles were applied not only to civil and criminal law but also to political and
theological questions concerning a "just war." See F.H. RUSSELL,THE JUST WAR
IN THEMIDDLEAGES(1975).
This is a rather simple example of the scholastic technique of

posing a quaestio relating to contradictorypassages in an author-
itative text, followed by a propositio stating authorities and
reasons in support of one position, followed by an oppositio,
stating authorities and reasons for the contrary view, and ending
with a solutio (or conclusio) in which it is shown that the reasons
given in the oppositio are not true or, alternatively, that the
propositio must be qualified or abandoned in light of the op-
positio. In fact, the scholastic method of posing "disputed
questions" was usually much more complex.66 The teacher or
writer would often pose not one but a series of interconnected
problems, one after the other. Arguments were then made on
opposite sides, as though by a plaintiff and a defendant in a law-
suit. The pros and the cons would be "arranged in two battle
fronts." 67 In support of each argument rules of law were cited;
sometimes dozens of such allegationes were made to support a
single argument pro or con. Most of the characteristic terms of
the argument, as Hermann Kantorowicz has shown, were derived
either from the available literature on Greek dialectics or from
the Roman law texts of Justinian or from both.68 What was
wholly new, according to Kantorowicz, when the method was
first invented by the jurists in the second quarter of the twelfth
century,69was the putting together of all these terms in a highly
complex structure resembling pleading and argumentation in
difficult cases in court. The resemblance was not accidental.
Kantorowicz, at least, believes that the style was first developed
in litigation and then imitated in the classroom and in the liter-
ature - just as the style of the English Yearbooks of I280-I535
was probably derived from student notes of arguments in cases
in the king's courts.70 That still leaves the question, why did
argument in court take the form of a whole battery of positions
pro and con, with multiple citations, intricate refutations, and
complex syntheses? Surely an important part of the answer is
that, again in Kantorowicz's words,
66 See
Kantorowicz, The Quaestiones Disputatae of the Glossators, i6 TIJD-
SCHRIFT VOOR RECHTSGESCHIEDENIS/REVUE D'HISTOIRE DU DROIT 5 (I939).
67
Id. at 23.
68
Id. at 55-56. Kantorowicz lists the following: titulus, rubrica, summaria,
exordium, casus, causa, materia, thema, ponere, queritur, questio, controversia,
disputatio, actor, argumentum, decisio, definitio, determinatio, iudicium, sen-
tentia, responsum, distinctio, divisio, problema, solutio, and others. But see Pring-
sheim, Beryt und Bologna, in FESTSCHRIFT FUR OTTOLENEL 204, 252 (I92I).
Kantorowicz points out that Pringsheim errs in attributing many of these terms
to the Roman law that developed in the East after the time of Justinian.
69 Kantorowicz, supra note
66, at i-6.
70 Id. at 43.
the questionesdisputataewerethe chieflink betweenthe written

law of Justinianand its applicationin the contemporarycourts
of justice. Thus was developedthe courageto drawaudacious
analogies,to handle far-flungprinciplesof equity, to fill the
lacunaeof the law by intuitionand imagination.Therefore,the
historicalimportanceof these questionsas a dynamicfactorin
the adaptationof the Romanlaw to changedand everchanging
viewsand conditionswas greatindeed.71
The same audacity, and the same techniques, were applied in
adapting Biblical, patristic, and canonical principles to the new
conditions of life.
In addition to elaborating general legal principles that under-
lie the rules applicable to concrete cases, the jurists of the twelfth
and thirteenth centuries, both canonists and Romanists, also de-
fined general concepts, such as the concept of representation,the
concept of the corporation, the concept of jurisdiction, and the
like. Here again, while the Roman law of Justinian provided the
basic terminology and the Greek dialectics of Plato and Aris-
totle provided the basic method, the combinationof the two - in
a wholly differentsocial context - producedsomethingquite new.
For example, the Roman jurists had laid down various rules
under which a slave could act in behalf of his master, as his agent,
and the master would be liable, but they offered no general
definition of agency or of representation. Similarly, they had
stated a variety of situations in which a group of people were to
be treated as a collective unit, such as a societas ("partnership"),
but they offered no general definition of group or corporate per-
sonality and they did not develop the idea of limited liability.
Justinian's Roman law lacked even a general concept of contract;
it provided for certain specific types of contracts, but they were
not subordinated to a general concept of binding promises, so
that an agreementwhich fell outside the types of contracts named
by law was ipso facto not a contract.7
It would be wholly incorrect to say that there were no gen-
eral concepts in the Roman law of the time of Justinian and be-
fore; on the contrary, Roman jurists eagerly discussed situa-
tions in which a contract would be void because of "mistake,"
situations in which the enforcementof an informal obligation was
requiredby "good faith," and various other types of situations in
which legal results involved a reference to concepts. Indeed,
Roman law from early times was permeated by such concepts as
"ownership,""possession,""delict," "fraud,""theft," and dozens
of others. That was its great virtue. However, these concepts
71
Id. at 5-6.
72
See F. SCHULZ, supra note 28, at 43-44.
were not treated as ideas which underlay the rules and deter-
mined their applicability. They were not considered philosophi-
cally. The concepts of Roman law, like its numerous legal rules,
were tied to specific types of situations. Roman law consisted of
an intricate network of rules which was not presented as an in-
tellectual system but rather as an elaborate mosaic of practical
solutions to specific legal questions. Thus one may say that al-
though there were concepts in Roman law, there was no concept
of a concept.
In contrast, the European jurists who revived the study of
Roman law in the eleventh and twelfth centuries set out to
systematize and harmonize the huge network of Roman legal
rules in terms both of general principles and of general concepts,
using methods similar to those which their colleagues in theology
employed to systematize and harmonize the Old and New Testa-
ments, the writings of the Church Fathers, and other sacred
texts. The jurists took as a starting point the concept of a legal
concept and the principle that the law is principled.
The conceptualizationof general legal terms, like the formula-
tion of general principles underlying the legal rules, was closely
related not only to the revived interest in Greek philosophy but
also to contemporaneous developments in theology;73 and both
the philosophical and the theological aspects were closely related
to the great changes in political, economic, and social life which
constituted the Papal Revolution. Above all, it was the coexis-
tence and competition of newly emerging centralized polities, ec-
clesiastical and secular, that made it important to articulate the
principles underlying the rules and the concepts underlying the
principles. The Church led the way. Thus the Church in the
eleventh century was the first collective to call itself a corporation
(universitas). The authority of bishops and priests, formerly
derived solely from the sacrament of ordination, was now held
to be derived also from jurisdiction: they were now for the first
time appointed with the consent of the papacy ("by grace of God
and of the Apostolic See") and could be removed only by the
papacy. A bishop was now an official of the corporate Church.
His "jurisdiction" included the power and duty to try cases in
his court, under the rules of a universal body of procedural and
substantive law, with an automatic right of appeal by the losing
party to the papal curia.74
73 There seems to be no
published work that examines in detail the relation of
legal reasoning to theological reasoning in the formative era of Western legal
thought. Some excellent hints may be found in F. WIEACKER, PRIVATRECHTSGE-
SCHICHTEDER NEUZEIT 54-56 (2d ed. I967).
74 In his Dictatus
papae of I075 Pope Gregory VII stated that the bishop of
Rome alone (that is, without a synod) has the power to depose and reinstate
A similar process of conceptualization took place in the de-

velopment of secular legal systems. The same terms, derived
largely from Roman law, were used in the articulation of general
principles and eventually in the formation of general concepts.
The principles and concepts were then used as a basis for ex-
trapolation of new applications. This development revolutionized
the science of law. It meant that the validity of a legal rule could
be proved by showing its organic consistency with the principles
and concepts of the system as a whole.
V. LAW AS THE FIRST MODERNWESTERNSCIENCE

The scholastic jurists created a legal science in the modern
Western sense, rather than in the Platonic or Aristotelian senses.
For Plato, "science" (episteme) was knowledge of the truth
derived by deduction from the general to the particular. Al-
though Aristotle recognized a whole series of separate and dis-
tinct sciences, all sharing in common the method of observation
and hypothesis,75 he nonetheless focused on finding the true
cause or necessity that produces a certain substance or conclu-
bishops, that he alone has the power to issue new laws, that no general council
may be called without his consent and no action of a general council may be
considered canonical without his authority, and that the most important cases of
every church may be appealed to the papal curia. The document is translated in
B. TIERNEY,THE CRISISOF CHURCHANDSTATEI050-I300, at 49-50 (I964).
Concepts of jurisdiction and of corporate personality also involved the concept
of representation. The institution of agency, which had always existed in a rudi-
mentary way, was now conceptualized in scholastic terms. The person represented
was absent, yet he was also present in his representative. Thus the Pope was for
the first time acting not only as one of Christ's agents but also as his unique
deputy. At the same time he was now said to represent the Church as a corporate
person. In that capacity he sent out "legates" to administer and adjudicate in his
name. When an unordained, subordinate member of the clerical hierarchy, such
as a subdeacon, was appointed by the Pope to be a legate to judge a bishop, for
example, one may see the new concepts of representation, corporate personality,
and jurisdiction working in combination with each other. See H. HOFMANN,
REPRASENTATION (1974).
5 Aristotle divided Platonic "science" into physics, biology, geometry, ethics,
politics, metaphysics, and other sciences, each of which had "its own distinctive
archai or 'principles' [literally, "beginnings"] and its own determinate subject
matter," and each had its own method of investigation, "growing out of the
subject-matter itself." J. RANDALL, ARISTOTLE 33, 54 (g960). Once the postulates,
or first principles, of a science are given, its reasoning may proceed by the apo-
dictic method of demonstration of scientific truths, rather than by the dialectical
method of reasoning from disputable premises to probabilities. See id. at 162-65.
Medicine was for Aristotle an "art" (techne) rather than a science, since it applies
scientific truths but does not itself lead to the demonstration of such truths. Law,
for Aristotle, was not even an "art" but was dissolved in ethics, politics, and
rhetoric.
sion. Thus, for Aristotle the ultimate model of science was geo-
metry.
For modern Western man, however, the very certitude of
mathematics,the fact that it is based on its own inner logic rather
than on fallible human observation, makes it appear more like a
language or a philosophy than a science. A science in the modern
Western sense, unlike Aristotelian science, focuses on formulating
hypotheses that can serve as a basis for ordering phenomena in
the world of time, and hence in the world of probabilities and
predictions rather than certitudes and necessities. The legal sci-
ence of the scholastic jurists was just that kind of science. It
used a dialectical mode of establishing general legal principles
by relating them to particulars in predication. It was not, to be
sure, an "exact" science, like modern physics or chemistry, nor
was it susceptible to the kind of laboratory experimentationthat
is characteristic of many (though not all) natural sciences, al-
though it did (as I shall explain) utilize its own kinds of experi-
mentation. Also it was concerned with constructing a system out
of observed social phenomena - legal institutions - rather than
observed phenomena of the world of matter. Nevertheless, like
the natural sciences that developed in its wake, the new legal sci-
ence combined empirical and theoretical methods.
A science, in the modern Western sense of the word, may be
defined by three sets of criteria: (a) methodological criteria, (b)
value criteria, and (c) sociological criteria. By all three sets of
criteria, the legal science of the twelfth-centuryjurists of Western
Europe was the father of the modern Western sciences.
A. Methodological Characteristics of Legal Science
A science in the modern Western sense may be defined in
methodologicalterms as: (a) an integratedbody of knowledge (b)
in which particular occurrences or phenomena are systematically
explained (c) in terms of general principles or truths ("laws"),
(d) knowledge of which (that is, of both the phenomena and the
general principles) has been obtained by a combination of (i)
observation, (ii) hypothesis, (iii) verification, and (iv) to the ex-
tent possible, experiment. However, (e) the scientific method of
investigation and systematization, despite these common char-
acteristics, is not the same for all sciences but must be specifically
adapted to the particular kinds of occurrences or phenomena
under investigation by each particular science.
By all the criteria listed above, the scholarly researches and
writings of the Italian, French, English, German, and other jur-
ists of the late eleventh, twelfth, and thirteenth centuries, both
canonists and Romanists, constituted a science of law. The
phenomena studied were the decisions, rules, customs, statutes,

and other legal data promulgatedby Church councils, popes, and
bishops, as well as by emperors,kings, dukes, city magistrates,and
other secular rulers, or found in Holy Scripture, the Roman law
texts of Justinian, and other written sources. These legal ma-
terials were treated by the jurists as data to be observed, classi-
fied, and systematically explained in terms of general principles
and general concepts or truths. The explanations were subjected
to verification in terms of both logic and experience. To the ex-
tent that positive examples of their application could be adduced,
and the effects measured, a kind of experimentationwas also in-
volved.
To take a specific example, the jurists observed that in all
the various legal systems under examination the question arose
whether one who was forcibly dispossessed of his goods has the
right to take them back by force. One solution was reached by
interpretationof the Roman law texts of Justinian, where it ap-
pears that the Roman praetor had decreed that one who has been
forcibly dispossessed of his land (nothing is said about goods)
may not take it back by force after a certain period of time has
elapsed. The twelfth-century jurists concluded that the rule is
equally applicable to goods, since the same purposes are involved
in both classes of cases. Further, it had been laid down by cer-
tain Church councils and in individual ecclesiastical cases that a
bishop forcibly ousted from his bishopric must not resort to force
to recover it. A bishopric, it was noted by the twelfth-century
jurists, includes not only rights in land but also rights in goods
and, in addition, rights in perquisites- rights in rights ("choses-
in-action")! Such instances gave rise not only to analogies but
also to hypotheses. It appeared that underlying the various
rules was a basic legal principle- nowhere stated in the law but
now stated by the legal scientist to explain the law - that per-
sons whose rights are violated are required to vindicate them by
legal action rather than by "taking the law into their own hands."
This was verified logically by the proposition that it is a basic
purpose of law to provide an alternative to force as a means of
settlement of disputes. It was further verified by experience,
including experience of the circumstances that gave rise to the
rule, namely, the disorder and injustice that existed when dis-
putes over rights in land, goods, and choses-in-actionwere settled
by a series of violent acts of dispossession first by one of the dis-
putants and then by the other. Such experience reached the level
of experimentationwhen the jurist was able to compare the con-
sequences of diverse legal rules and of changes in legal rules.
Rules that were considered unsatisfactory sometimes were
amended or repealed or fell into disuse. Rules that were con-

sidered satisfactory were often continued. Such "experiments"
lack the exactness of laboratory tests; yet they are a kind of so-
cial experimentation, a "laboratory of history" -what modern
scientists would call "natural experiments." Using modern ter-
minology we may say that experience, including the experience of
applying rules in concrete cases, was viewed as a process of con-
stant feedback concerning the validity both of the rules and of
the general principles and concepts thought to underlie them.
The verification of general legal principles by logic and ex-
perience constituted legal science at its highest intellectual levels;
usually, however, the legal scientist of the twelfth century, like
his counterpart today, was concerned with what much later was
called "legal dogmatics," that is, the systematic working out of
the ramifications of legal rules, their interconnections, their ap-
plication in specific types of situations. To go back to the ex-
ample of forcible dispossession: once a principle was established
forbidding a person to recapture his property by force, knotty
questions arose concerning the remedy of the person forcibly
dispossessed. May he be restored to possession even if he had
previously taken possession by force, and even if the person now
dispossessing him was the true owner? Are the remedies to be
the same with respect to goods as with respect to land? Is there
a time limit within which the victim of the dispossession may law-
fully defend his rights by force ("hot pursuit")? Such questions
were not viewed by the jurists primarily as moral or as political
questions but rather as legal questions; they were questions to be
resolved on the basis of the interpretation of legal authorities-
decisions, rules, customs, statutes, scriptural texts, and the like,
authoritatively laid down. The authoritative texts were taken as
objectively given; no attempt was to be made to show that they
were contrary to reason or that they were not useful or that they
were historically conditioned. The jurist's task was to organize
and make sense out of them. As I have tried to indicate, his
methods of doing so were not essentially different from those later
used by natural scientists to explore and synthesize other kinds
of data.
B. Value Premises of Legal Science

Although science, in the modern Western sense, has usually
been defined only in methodological terms, there has been an
increasing recognition that it must also be defined in terms of the
attitudes, convictions, and fundamentalpurposes of those engaged
in the scientific enterprise. One may, indeed, speak of a scientific
code of values,76which includes (a) the scientists' obligation to

conduct research with objectivity and integrity, and to evaluate
their own and each other's work solely on the basis of universal
standards of scientific merit; (b) the requirementthat scientists
adopt a position of doubt and of "organized skepticism" toward
the certitude of their own and each other's premises and con-
clusions, together with a tolerance of new ideas until they are
disproved and a willingness publicly to acknowledge error; and
(c) a built-in assumption that science is an "open system," that
it seeks "increasinglyclose approximationsto the truth ratherthan
final answers," and that "science cannot be frozen into a set of
orthodox conceptions . .. but is an ever-changingbody of ideas
with varying degrees of plausibility."77
Many would doubt the likelihood, or even the possibility,
that a "lawyer"could meet these three standards. His objectivity,
integrity, and universality seem questionable, since he is called
upon both by political and by private partisans to promote and
justify their interests. Further, if he is to be skeptical of his own
conclusions he may place difficulties in the way of their accep-
tance, and it is often part of his professional responsibility to
persuade people to accept them. The same difficulty obstructs
the conception of legal science as a body of ever-changingideas:
society itself seems to demand that law be something more than
that. Finally, if we speak of science in the West during the period
when not only the authority and the power of the papacy, but
also its dogmatism, were at their height, it seems incredible that
"lawyers"- even though they might have been legal scholars and
not practitioners (in fact many of them were both) - or, indeed,
any other pursuers of knowledge, could have had the disinter-
estedness and open-mindednessthat is at the basis of the code
of values of modernWestern science.
These doubts raise fundamentalquestions concerningthe free-
dom not only of legal science in the twelfth century but of any
science in any society.78 The scientific code of values is always
precarious; it must always be defended against political and ideo-
logical pressures from without and from the prejudices and parti-
sanship of scientists themselves. What is striking about the twelfth
century is that at the very climax of the movement to centralize
authority and power in the Church, and at the very time when
76See Cournand & Zuckerman, The Code of Science: Analysis and Some Re-
flections on its Future, 23 STUDIUMGENERALE 941, 945-61 (1970). I am indebted
to Grace Goodell for calling this invaluable essay to my attention.
77
Id. at 945.
78 See Berman, The "Right to Knowledge" in the Soviet Union, 54 COLUM.L.
REV. 749 (I954).
dogma itself first became legalized and heresy defined in terms

of criminal disobedience,79 there emerged the belief that the
progress of science depends on the freedom of scientists to take
opposing points of view on matters of scientific truth. It was
presupposed, of course, that such dialectical reasoning from con-
tradictory positions would result in a synthesis, and that the
synthesis would correspond to authoritative declarations of the
true faith; nevertheless, it was also presupposedthat the dialecti-
cal reasoning must proceed scientifically or else it would be worth-
less. Thus at the same time that unorthodox doctrines were
legally proscribed, and heretics who persisted in "disobedience"
were put to death, the values of scientific objectivity, disinter-
estedness, organized skepticism, tolerance of error, openness to
new scientific truths, and others, were not only proclaimed but
given expression in the very form of the new sciences that then
emerged.
Doubts concerning the capacity of "lawyers" to adhere to
such values rest on several misconceptions. It is true, of course,
that when a lawyer is an advocate for a party or cause, he must
act as a partisan and not as a scientist. However, this role is an
essential part of legal proceedings in which opposite points of
view are presented to a tribunal charged with making a decision.
Indeed, the legal proceedings themselves are, in one sense, scien-
tific, since the contest is designed to bring before the tribunal all
relevant considerations. In a trial, the court is supposed to decide
the case "objectively," on the basis of "the evidence" presented
on behalf of the disputants. Yet a trial, or legislative debate, or
other such legal proceeding, has other characteristics that are
quite unscientific. For one thing, the tribunal must act under the
pressure of given time limits, whereas the scientist may wait in-
definitely until he is ready to draw conclusions. Beyond that, the
tribunal is a political body; it stands too close to community
prejudices and pressures to maintain the kind of "distance" re-
79 Heresy had been denounced by the Church from the first century on and
it had been persecuted at various times both by secular and ecclesiastical authori-
ties. However, it did not assume the character of a legal offense until the Papal
Revolution established the Western Church as a legal entity. In the eleventh and
twelfth centuries the inquisitional procedure was used for the first time to expose
heresy as an ecclesiastical crime and the death penalty was for the first time made
applicable to it. The gist of the offense was dissent from the dogmas of the
Church. If the accused was willing to swear an oath to adhere to those dogmas,
he was to be acquitted, although he was still subject to penances if he had sworn
the oath only because of torture or other duress. Of course, if he persisted in
heresy he remained liable to prosecution. See generally H. GRUNDMANN, KETZER-
GESCHICHTEDES MITTELALTERS(1963). Valuable documentary sources are given in
English translation in R.I. MOORE,THE BIRTH OF POPULARHERESY(1975) and
J.B. RUSSELL,RELIGIOUS DISSENTIN THEMIDDLEAGES(1971).
quired of scientists. However, it is neither the "lawyer" nor the

"tribunal" (whether it be a judicial or legislative or administra-
tive body), but the law teacher and legal scholar who is asked
to adhere to the scientific code of values. He, too, has difficulties
in doing so - greater difficulties, perhaps, than scholars in fields
that are more remote from everyday political, economic, and
social life. Yet by the same token he may be more aware of the
outside pressuresupon him as well as of the inside pressuresof his
own passions and prejudices, and hence better able than others to
resist them, or at least more sensitive to the precariousnessof his
own scientific freedom.
Ultimately, however, the extent to which the values of science,
including legal science, are upheld depends not only on the
determinationand self-discipline of scientists themselves but also
on social factors, including the legal institutions which safeguard
those values. I shall discuss in the next section some of the social
factors underlying the new legal science of twelfth-century
Europe. My concern in this section, however, has been to show
that the values themselves were implicit in the dialectical method
of analysis and synthesis of legal problems created by the
scholastic jurists of the eleventh and twelfth centuries. The in-
tense concentration on contradictions in the law, on "dialectical
problems,"quaestiones disputatae, and the intense effort to recon-
cile them by legal principles and concepts on ascending levels of
generalization- could only succeed, as a method, by adherence
to the very values that characterize science itself: objectivity,
integrity, universalism, skepticism, tolerance of error, humility,
openness to new truth - and, I would add, a special time-sense
that is associated with the coexistence of contradictories. Since
it was believed that the whole of law was informed by a common
purpose, a ratio, it was taken for granted that the paradoxes
would ultimately be resolved; meanwhile, the corps of jurists
would patiently cope with the uncertainties that the paradoxes
created.
C. Sociological Criteria of Legal Science

In addition to its methodology and its value premises, a sci-
ence, in the modern Western sense of that word, must be defined
in terms of sociological criteria. There are certain social pre-
conditions that not only are indispensableto its existence but also
help to form its character.80These include (a) the formation of
scientific communities, usually coextensive with the various dis-
80See R. Merton, Science and Democratic Social Structure, in SOCIALTHEORY

AND SOCIAL STRUCTURE550-6I (I957).
ciplines, each of which has a collective responsibility for the

conduct of research, the training of new recruits, the sharing of
scientific knowledge, and the authentication of scientific accom-
plishments within the discipline and outside it; (b) the linking
of the various scientific disciplines in larger scholarly communi-
ties, and especially in universities, whose members share a com-
mon concern for both the advancement of learning and the edu-
cation of the young as well as a common implicit assumption that
all branches of knowledge rest ultimately on the same founda-
tions; and (c) the privileged social status of the communities of
scientists, including a high degree of freedom of teaching and
research,which is correlative to their high degree of responsibility
to serve the cause of science itself, its methods, its values, and
its social function.
That Western legal scholarship was, in the twelfth century,
and still is, a collective enterprise, and that legal scholars did, and
still do, form a community of shared interests and concerns will
scarcely be seriously disputed. That legal scholars also formed,
and still form, a profession, in the sense that the individual mem-
bers have a public responsibility and are pledged to place the ad-
vancement of their discipline above their personal self-interest or
profit, is perhaps only slightly less obvious. These truisms of
Western historical experience may also be applicable to all
sciences wherever and whenever they have existed. What is
especially characteristic of Western science since the twelfth
century, however, including legal science, is its close historical
connection with the institution of the university; it was born in
the university and the university bestowed upon it its precarious
heritage of freedom of teaching and research.
Here is another key to the solution of the question why modern
Western scientific concepts and scientific methods emerged in the
late eleventh and early twelfth centuries. It was because the
universities emerged then. This may seem simply to put the
question back one step. But it does more; it removes the question
from the realm of history of ideas to the realm of history of com-
munities. The scientific methodology and the scientific values
that I have described in the two preceding sections of this
chapter, and that characterize what I have called "science in
the modern Western sense," are to be explained not in terms of
the unfolding of ideas in some Platonic or Hegelian sense, but as
social responses to social needs. It takes more than the pro-
gressive translation of the works of Aristotle to explain why, in
the year II50, ten to thirteen thousand students from all over
Europe could be found in the town of Bologna in northern Italy
studying legal science.81 They were there because society made

it possible - indeed, made it urgent - that they be there; more
than that, the social conditions that made it both possible and
urgent also inevitably played a critical part in determining the
nature of the legal science that they were there to study.
The scholastic dialectic, and consequently modern science, it
is submitted, was produced by the contradictionsin the historical
situation of Western European society in the late eleventh and
twelfth centuries, and by the overwhelming effort to resolve
those contradictions and to forge a new synthesis. It was pro-
duced, in short, by the Papal Revolution. Surely that is true
of the scholastic dialectic as it was applied in legal science. A
learned profession of jurists emerged in Western Europe in
response to the need to reconcile the conflicts that raged within
the Church, between the Church and the secular authorities, and
among and within the various secular polities. Formed primarily
in the universities, the legal profession produced a science of
law; that is, the jurists constituted a community in which that
science was the expression of the community's reason for being.
Through its legal science, the legal profession helped to solve
the contradictions in the social and historical situation of West-
ern Europe by solving the contradictions between that situation
and the preexisting legal authorities. Legal science was, in the
first instance, an institutionalization of the process of resolving
social-political conflict by resolving conflicts in authoritative
legal texts.
This can be demonstratedby reference to the principal social
characteristics of Western legal science in its formative period
in the late eleventh and twelfth centuries, especially as they were
influenced by the universities.
In the first place, the universities helped to establish the trans-
national character of Western legal science. As David Knowles
has written:
For three hundredyears, from Io5o to I350, and above all in the
century between 1070 and II70, the whole of educated Europe
culturalunit. In the lands
formeda singleand undifferentiated
81 Historians of ideas sometimes turn
things around the other way. Cf. A
SCHOLASTIC MISCELLANY: ANSELMTO OCKHAM27 (E. Fairweather ed. & trans.
I956) ("Indeed, the whole history of medieval thought can be organized in terms
of the progressive rediscovery of Aristotle."). In fact the major works of the
founding fathers both of the new theology and the new legal science, especially
those of Abelard and Gratian, just antedated the translation of Aristotle's major
works on logic. This is not to say that Aristotle's theories of logic, as they had
been transmitted by Boethius in the sixth century, were unimportant. The ques-
tion is: why did they suddenly acquire a new significance? Why was it suddenly
so important that his major works be translated?
between Edinburgh and Palermo, Mainz or Lund and Toledo,

a man of any city or village might go for education to any school,
and become a prelate or an official in any church, court, or uni-
versity (when these existed) from north to south, from east
to west .... In this period a high proportion of the most
celebrated writers, thinkers, and administrators gained greatest
fame and accomplished the most significant part of their life's
work far from the land of their birth and boyhood. Moreover, in
the writings of many of them there is not a single characteristic
of language, style, or thought to tell us whence they sprang.
True, we are speaking only of a small educated minority, to
which the land-owning aristocracy in general, many monarchs,
and even some bishops, did not belong. The world of Church
and State was often rent by schisms and wars, while the bulk of
the population, fast rooted in the soil, knew nothing beyond
the fields and woods of their small corner. But on the level of
literature and thought there was one stock of words, forms, and
thoughts from which all drew and in which all shared on an
equality. If we possessed the written works without their au-
thors' names we should not be able to assign them to any country
or people ... . " 82
What Knowles writes of scholarship in general in that period

was equally applicable to legal scholarship in the fields of canon
and Roman law. These were disciplines without national bound-
aries. They were taught in the universities to law students gath-
ered from all the countries of Europe. They all, of course, spoke
Latin, which was the universal Western language not only of the
law but also of teaching and scholarship and of worship and
theology.
Second, in addition to giving legal scholarship a transnational
character, the European universities helped to give the law itself
a transnational vocabulary and method. The graduates of the
university law schools went back to their own countries, or moved
to other countries, where they served as ecclesiastical or lay
judges, practicing lawyers, legal advisors to ecclesiastical, royal,
and city authorities and to lords of manors, and as administra-
tive officials of various kinds in both church and state. To the
extent that they were involved with canon law, they could use
82 D. KNOWLES, supra note 21, at 8o-8I. As Knowles writes, it was
the age of Lanfranc of Pavia, Bec, and Canterbury [Lanfranc was William
the Conqueror's chief advisor and Archbishop of Canterbury]; of Anselm
of Aosta, Bec, and Canterbury [Anselm succeeded his former teacher Lan-
franc under William's successor]; of Vacarius [a famous professor of Roman
law] of Lombardy, Canterbury, Oxford and York; of John of Salisbury,
Paris, Benevento, Canterbury and Chartres [an intimate associate and coun-
selor of kings, archbishops, and popes, "the most accomplished scholar and
stylist of his age"];... of Nicholas Brakespeare of St. Albans, France,
Scandinavia and Rome [son of English peasants who became Pope Hadrian
IV]; of Thomas of Aquina, Cologne, Paris and Naples ....
940 HARVARDLAW REVIEW [Vol. 90:894
their university training directly; to the extent that they were

concernedwith secular law, they applied to it the vocabulary and
the method of the Roman and canon law that they had studied.
Third, the legal method which was taught in the European
universities was one which made possible the construction of
legal systems out of preexisting diverse and contradictory cus-
toms and laws. The techniques of harmonizing contradictions,
coupled with the belief in an ideal "body of law" (corpus iuris),
made it possible to begin to synthesize canon law (corpus iuris
canonici) and then feudal law, urban law, commercial law, and
royal law.
Fourth, the universities exalted the role of the scholar-
the scientist -in the shaping of the law. The law was to be
found, in the first instance, in the ancient texts, and hence it
was necessary to have a class of learned men who could explain
the texts to those who wished to be introduced to their mysteries.
The "doctor,"that is, the university teacher, became the authori-
tative expositor of the "true rule." This, too, gave a universality
to legal science that helped to overcome the contradictions of
laws.
Fifth, the juxtaposition of law and other university disci-
plines - especially theology, medicine, and the liberal arts - also
contributed a breadth to law studies that would otherwise have
been lacking. The scholastic method was used in all the dis-
ciplines, and the subject matter of all the disciplines overlapped.
Thus the law student was conscious that his profession was an
integral part of the intellectual life of his time.
Sixth, law, though linked to other university disciplines, also
was separate and distinct from them; it was no longer, as it had
been before the rise of the universities, a branch of rhetoric, on
the one hand, and of ethics and politics, on the other. In the
Roman Empire, the autonomy of legal thought had been main-
tained by practitioners- especially, praetors and professional
legal advisers; in Western Europe that autonomy was maintained
by the universities.
Seventh, the fact that law was taught as a university disci-
pline made it inevitable that legal doctrines would be criticized
and evaluated in the light of general truths, and not merely
studied as a craft or technique. Even apart from the universities,
the Church had long taught that there was a divine law and a
moral law by which all human law was to be tested and judged;
but the university jurists added the concept of an ideal human
law, the Roman law of Justinian's books, which - together with
the Bible, the writings of the Church fathers, the decrees of
Church councils and popes, and other sacred texts - provided
basic legal principles and standards for criticizing and evaluating

existing legal rules and institutions. These inspired writings of
the past, and not what any lawgiver might say or do, provided
the ultimate criteria of legality.
Eighth, the Western universities raised the analysis of law to
the level of a science, as that word was understood in the twelfth
to fifteenth centuries, by conceptualizing legal institutions and
systematizing law as an integrated body of knowledge, so that the
validity of legal rules could be demonstratedby their consistency
with the system as a whole.
Ninth, the universities produced a professional class of law-
yers, bound together by a common training and by the common
task of guiding the legal activities of the Church and of the sec-
ular world of empires, kingdoms, cities, manors, and merchant
and other guilds. The law students themselves, initially at least,
formed a corporation, a guild, and although upon graduation
they scattered to many countries, they remained bound together
informally by their common training and their common task.
It is true that in England in the fourteenth century there
grew up alongside the university law schools of Oxford and Cam-
bridge a different mode of legal education, in the Inns of Court.
Nevertheless, in England as in other countries of Europe the
system of university law teaching established in the twelfth
century had a profound influence on legal thought. It is also
true both that the growth of nationalism in modern times has
made inroads into the transnational character of Western legal
education and that the links between law and other university
disciplines have been substantially weakened. Yet something
of the Bologna tradition, and something of the scholastic dialectic,
survive nine centuries later- even in the law schools of America.
Indeed, they have spread throughoutthe world. Only in the latter
part of the twentieth century have they come to be seriously
challenged.
VI. CONCLUSION
I have discussed what may be called, from one point of
view, the "formal" aspects of the Western legal tradition as it
emerged in the late eleventh and twelfth centuries: its logic, its
"topics," its style of reasoning, its levels of generalization, its
techniques of interrelating particulars and universals, cases and
concepts. I have tried to show that the new legal methodology
was an essential part of the conscious systematization of law as
an autonomous science, which, in turn, was an essential part of
the creation of autonomous legal systems for the new polities
942 HARVARDLAW REVIEW [Vol. 90:894
that emerged from the Papal Revolution: the new church-state,

the emerging secular kingdoms, the chartered cities and towns,
the newly systematized feudal and manorial relationships, the
translocal community of merchants. The emphasis on conflicting
authoritative legal texts, and on their reconciliation by means of
general principles and concepts, was a creative intellectual re-
sponse to the felt need to reconcile the sharply conflicting ele-
ments that coexisted and competed within the structure of the
society itself. To recognize the legitimacy of each of the con-
tradictory elements-ecclesiastical and secular, royal and feu-
dal, feudal and urban, urban and guild-and yet to recognize
the structural unity of the total society-Europe, the West,
Western Christendom- of which they were parts, and to find
a genuine synthesis, that is, a way of dealing with the ambiguities
and conflicts without destroying the autonomy of the factors that
constituted them-that was the revolutionary challenge of the
times. And that was the challenge which was confronted in legal
science by the glossators and the canonists, just as it was con-
fronted in the development of the new legal systems that were
created with the help of that science.83
By the same token, however, the new Western legal science
was much more than an intellectual achievement- much more,
as was said earlier, than a method of reasoning or a method of
organizing thought. Its criteria were moral as well as intellec-
tual. The "form" expressed "substantive" values and policies.84
83My colleague Roberto Unger has attributed the emergence of the concept
of law as an autonomous system in European history to the convergence of a
theology of transcendence, a belief in group pluralism, and the idea of the liberal
secular state. See R. UNGER,LAW IN MODERNSOCIETY:TOWARD A CRITICISM OF
SOCIALTHEORY66-76, 83-86, 176-81 (1976). There are some striking parallels
between his analysis and the account given above, despite the sharp contrast be-
tween his more philosophical and this more historical interpretation. However,
in dating the origins of the Western concept of an autonomous legal system from
the I7th century, and in linking it with the emergence of a positivist political and
legal theory, Professor Unger avoids the crucial questions of the political and
legal character of the Church and the interrelations of church and state, ques-
tions which were central to Western political and legal thought from the late
eleventh to the nineteenth centuries and which, in disguise, still haunt Western
secular religions, including both liberalism and socialism. See H. BERMAN,THE
INTERACTION OF LAW ANDRELIGION (I974).
84 A similar belief in the interdependence of form and substance in legal thought,
but a different view of the nature of each, has been presented recently by my
colleague Duncan Kennedy in his article, Form and Substance in Private Law Ad-
judication, 89 HARV. L. REV. 1685 (1976). Professoer Kennedy asserts that in
contemporary American private law adjudication all forms of law fall into two
opposed categories, namely, "rules," which are relatively narrow and specific and
are supposed to operate with objectivity and generality, and "standards," such as
fairness, reasonableness, and due process, which are relatively broad and which
permit persons and situations to be dealt with on an ad hoc basis. Professor
The reconciliation of opposing legal rules was part of a larger

process of attempting to reconcile strict law and equity, justice
and mercy, equality and freedom.
Above all, the effort to combine these conflicting norms and
values was seen in the eleventh and twelfth centuries as part of an
even more formidable reconciliation- the reconciliation of God
and man. It was a new vision of his ultimate destiny, more than
anything else, that first led Western man to put his faith in legal
science.85
Kennedy further asserts that all substantive goals of law fall into two opposed
categories, namely, "individualism," which he identifies with self-interest, party
autonomy, reciprocity, etc., and "altruism," which he identifies with sharing, sacri-
fice, and communal involvement. To complete the circle Professor Kennedy asserts
that a preference for legal argument cast in the form of rules is connected with
the substantive goal of individualism, while a preference for legal argument cast in
the form of standards is connected with the substantive goal of altruism. There
is an overlap, he writes, but at "a deeper level ....the individualist/formalist
and the altruist/informalist operate from flatly contradictory visions of the uni-
verse." Id. at I776. This analysis represents a sharp break with the traditional
Western conception that conflicting rules and standards (as well as other con-
flicting forms of legal utterance, such as doctrines, concepts, and analogies) are
ultimately reconcilable by the legal system as a whole. Similarly, it breaks with
the traditional Western belief that conflicting purposes of law, including not only
individualism and altruism but also other polar values (for example, diversity and
unity, change and continuity, freedom and equality) are ultimately reconcilable
within the values of the whole legal system. Moreover, it is a postulate of tradi-
tional Western legal thought that the extent to which a particular purpose of law
is served by a particular legal form cannot be answered in the abstract but can
only be answered in a historical context. In some societies' (for example, Com-
munist societies) and in some areas even of so-called private law (for example,
community property law) the rules may be more altruistic and the standards more
individualistic, in Professor Kennedy's sense of those words.
By reducing the framework of analysis to a series of dualisms, which are
themselves ultimately reduced to a single dilemma, Professor Kennedy gives
dramatic expression to a widespread skepticism regarding legal rules and a wide-
spread faith in what may be called the "adhocracy" of decisions based on legal
standards. Contemporary Western man finds it hard to believe in rules since he
tends to view them in isolation from the entire system of which they are integral
parts. He finds it easy to believe in values since he sees them unencumbered by
the rules required for realizing them in various types of cases. This "antinomy
of rules and values" has been exposed by Roberto Unger as a dead end of modern
liberal thought. See R. UNGER,KNOWLEDGE AND POLITICS88-Ioo (I975).
One purpose of exploring the origins of Western legal thought in the eleventh
and twelfth centuries is to show, by implication, the contrast between the syn-
thesizing legal science which is at the root of the 9oo-year-old Western legal tradi-
tion and the fragmenting jurisprudence that has become prominent, if not domi-
nant, in the West in the twentieth century.
85As indicated in notes * & 2I supra, a companion article will deal more
systematically with the relation of Western legal thought to theology.

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The Origins of Western Legal Science

Author(s): Harold J. Berman

rT HEhistorian is always keenly aware of the danger of speak-

t Copyright 1977 by Harold J. Berman.

Despite this warning, I am prepared to argue that there are

The term legal system is used here to mean something more

communities; their relatively high degree of economic self-

In other words, the creation of modern legal systems in the late

Emperor - Henry IV of Saxony- responded by military ac-

peoples. After the sixth century Roman law survived in the

II. THE LAW SCHOOLAT BOLOGNA

the medieval student-controlled institution of higher learning-

The source of student power was in part economic. The

sure; Irnerius himself was apparently excommunicated because

III. THE CURRICULUM

himself, (3) the Institutes (Institutiones), a short textbook de-

translated in 9 THE CInL LAW,supra note ii, at 308.

This interdict was established for the benefit of a person who

Other jurists also comment on the same interdict - for example,

The casesarebrieflystated,likewisethe jurists'ownconclusions.

classifications called distinctiones: they would start with a gen-

served at first as an ideal law, a body of legal ideas, taken as a

IV. THE SCHOLASTIC METHOD OF ANALYSIS AND SYNTHESIS

Underlying the curriculum and the teaching methods of the

twelfth centuries is the subject of a companion article, to be published in a forth-

method of teaching in the university, particularly the method of

A. The Relation of the Scholastic Method to

tion" or "dialogue." Ancient Greek philosophers referred to the

practical approach to law. Their importationof Greek dialectical

and species, each characterized by its governing principles, legal

that had been applied by their republican predecessors, without

ever the law (lex) offers no impediment."39 However, as Pro-

Roman jurist treated them as abstract principles. Indeed, the

polite silence." 46 They had no reason to try to transform the

methodological "topic": where possible, legal maxims, the bro-

distinguish, interpret, generalize, synthesize, and harmonize the

closely related, in turn, to the paradoxes implicit in the scholastic

B. The Application of the Scholastic Dialectic to Legal Science

sources of law in a hierarchical order. He started by interposing

ties, but also ecclesiastics -popes, local councils, bishops-

the problem, Gratian quotes the statement of Church Councils,

65This is an example of the kind of synthesis referred to at note 20 supra.

This is a rather simple example of the scholastic technique of

the questionesdisputataewerethe chieflink betweenthe written

A similar process of conceptualization took place in the de-

V. LAW AS THE FIRST MODERNWESTERNSCIENCE

phenomena studied were the decisions, rules, customs, statutes,

amended or repealed or fell into disuse. Rules that were con-

B. Value Premises of Legal Science

code of values,76which includes (a) the scientists' obligation to

REV. 749 (I954).

dogma itself first became legalized and heresy defined in terms

quired of scientists. However, it is neither the "lawyer" nor the

C. Sociological Criteria of Legal Science

80See R. Merton, Science and Democratic Social Structure, in SOCIALTHEORY

ciplines, each of which has a collective responsibility for the

studying legal science.81 They were there because society made

between Edinburgh and Palermo, Mainz or Lund and Toledo,

What Knowles writes of scholarship in general in that period