Transcript: 220. Caroline Humfress on the Roots of Medieval Law

Note: this transcription was produced by automatic voice recognition software. It has been corrected by hand, but may still contain errors. We are very grateful to Tim Wittenborg for his production of the automated transcripts and for the efforts of a team of volunteer listeners who corrected the texts.

Peter Adamson: Longtime listeners will know that you came on one of the special double episodes before, to talk about ancient society, together with Mike Trapp. 

Caroline Humfress: It’s great to be invited back. Thank you. 

Peter Adamson: And this time we're going to be talking about the legal tradition. This is something I've just touched on in the previous episode, because I was talking about Gratian, the great systematizer of law in the 12th century. And we're going to be talking about where that tradition of medieval law came from, which in the first instance really means talking about Roman law. So maybe you can start by telling us what sorts of works in the legal tradition came out of the Roman era. 

Caroline Humfress: So I think we have to remember, first of all, that the Roman era is a very long era. So we're looking at the Twelve Tables in terms of the first compilation of written law, which we have extant. So that's around about 450 BC. And then we go all the way through to the Justinianic compilation, which is in the 530s AD. So there's almost a millennium worth of legal development there and an incredibly diverse set of legal sources, and also a very important, particularly Roman tradition of jurisprudential literature. So by that, I mean commentaries by legal experts on particular texts and also on the works of each other. So there's a really broad kind of distinction there between the Twelve Tables, which gives rise to what gets called the Roman jus civile, the law of the citizens, the cives. Moving on from that, you then get the Praetorian developments in what's known as the jus honorarium. So that's centered on the city of Rome itself, the praetors, urban praetor, and also the praetor for the Peregrines, the foreigners developed a huge branch of civil law, which related to non-citizens. So you have these various different strands of development. Then you have this jurisprudential tradition, these legal experts who really get going in the late Republic into the first century AD. They produce commentaries on the jus civile. They produce commentaries on the Praetorian law. They also give responses. So a really important part of Roman jurisprudence is these jurists giving responses to concrete situations to petitioners, but also giving opinions on particular legal matters arising out of a kind of casuistic approach to thinking about law. So you don't so much get Roman jurists as great systematizers, in the sense of sitting down writing treatises about a particular topic in Roman law. What they do is that they take concrete cases and then they try and reason out from those cases and do it in a kind of professionalized body. 

Peter Adamson: Okay. So there's this broad distinction then between actual laws, lists of laws. So the earliest one is these Twelve Tables that you mentioned, and then reflecting on the laws. And as a philosopher, what I immediately want to know is when they reflect on the laws or comment on the laws, do they reflect on them in a particularly theoretical way, or are they just saying, well, this terminology here is unclear, so let me explain to you what this word means, or I mean, how high level does it get? 

Caroline Humfress: So I should also have mentioned of course that the Roman system really got going and developed because it's a remedy-based system. So we shouldn't think about the Twelve Tables as a set of laws. They are more a set of scenarios or remedies which people can expect the Roman state to take care of. So part of the reasons why the Twelve Tables were formalized was to say what it's okay to do via self-help and what it's okay to actually go and to ask the state to give redress for if you have a legal problem. 

Peter Adamson: So this would be something like if someone steals my horse …

Caroline Humfress: Exactly.

Peter Adamson: … then I can expect the state to come in and do such and such to them. Demand that they pay me back or something. 

Caroline Humfress: Yes. So at an early period, for example, if you were a householder and somebody came along to your house, and you actually caught them in the act of stealing something, you could kill them and the state wouldn't be interested in that. So that changes as the Roman state increases and expands and grows and becomes literally an empire, albeit an empire with a monarch ruling over it. You very much see that these sorts of things develop and change, but it really does stay remedial. So if we then move to the jurists, what the jurists are interested in doing is still keeping that kind of remedial basis. So they look at cases. These are either cases which are practical, they're really happening out there – Gaius has a case against Cestus and they come and they ask a jurist for advice about that, and the jurist will give advice – or they're hypothetical cases. So this is where your question about the theorizing comes in. So Roman jurists definitely were interested in theory, as we might call it. They're interested in frameworks, developing particular ways of seeing law and understanding law. But what they're not interested in, mostly, is actually then writing that up in a treatise. They want to see those sorts of discussions as emerging out of concrete cases, whether those cases are real or invented, if you like. 

Peter Adamson: And the hypothetical case is then to tie it down to, at least in theory, a potential decision that could be made in a real-life legal situation. So they never just try to isolate the principle at stake. It's always about what would we do? 

Caroline Humfress: Exactly. So it's not like a common law idea about precedent. Certainly that's not what the jurists are about. They're not saying, here we have all of these various precedents to do with case law. So the judge who comes along and judges in a similar case is bound by that. That's not part of Roman law. What the jurists are really, I think, interested in, what you can see if you look at their texts, is that they're developing a particular methodology, a scientific methodology. And that bears a lot of relation and crossover, I think, to philosophical method, and ways of thinking about dialectic, for example. 

Peter Adamson: And the use of thought experiments, actually. 

Caroline Humfress: Absolutely. So the jurists, you know, some of the jurists argued that law was a science. Others argued that it's an art. So it's one of those kind of distinctions. But they all agree that it has a system. 

Peter Adamson: It's like medicine, in that respect. 

Caroline Humfress: Exactly. 

Peter Adamson: And where does the standing of these legal judgments come from? I mean, if a reputable jurist says, well, the correct understanding of such and such a law, or the correct decision in such and such a case, is the following, does that have any binding force on later decisions? Or is it just his opinion? 

Caroline Humfress: So again, it depends which period of Roman history you're looking at. But if we go for the kind of the imperial period, so the early Empire into the late Empire, then definitely there were jurists who had more of a standing than others did. And we've got to remember that jurisprudence up until perhaps the  third, fourth, fifth centuries was quite cliquey. These guys are well-educated. Most of them come from pretty good families. Most of them before the Severan dynasty in the third century end up at Rome. They usually know each other. They move in the similar kinds of circles. So there's very high reputational stakes. There's also from the first, second century onwards, the idea that some emperors actually gave specific jurists what's called the jus respondendi, the right to respond. Now, there's some problems about how historically concrete that is, because our real evidence for that, apart from a couple of inscriptions, comes from the early sixth century and the emperor Justinian, who had various reasons of his own for wanting to make it look like the only jurists who were authoritative were the ones who had been given imperial opinions. But even before Justinian, you get in the later Roman period in particular, emperors ruling about jurists who are more authoritative than others. So very famously, the emperor Theodosius II picked out five Roman jurists from the earlier Empire, from the second, third centuries AD, and said that these were the guys whose opinions should be particularly well respected in court and established various rules and methodologies for reading them against each other and what you were to do if they all agreed or all disagreed, et cetera, et cetera. 

Peter Adamson: Okay. Well, that actually brings us on to something that I obviously need to ask you, which is how this all relates to medieval law and in particular, to what extent these texts survived into the medieval period and were read or when they started to be read again. So could you tell us something about that? 

Caroline Humfress: Yeah. So really it comes down to Justinian, as I mentioned, emperor in the early sixth century, emperor in the eastern half of the Empire based in Constantinople in the late 520s, early 530s. He produced a very big compilation of law, which included a text known as the Digest. Now the Digest is pretty much our source for Roman juristic literature. So Justinian assembled all of the works of the jurists previous to that epoch, got a commission to go through and did a kind of cut-and-paste job harmonizing them, putting them within specific books and titles and systematically reorganizing them. And then announced in preambles to the Digest that the work was a work of reason and a kind of written reason – there was no incoherence within it, which was very important for the Middle Ages. So the Digest is one of the texts, which when it gets rediscovered in the West in the later 11th century into the early 12th century, it's a game-changer in terms of the systematic professional study of law in the medieval West. The continuation of the tradition in what we would term the Byzantine Empire is slightly more straightforward. So you have the Justinianic compilation, which later gets known as the Corpus Juris Civilis. Then you have the Byzantine emperors who come along and redo that compilation at various points in Byzantine imperial history. You also in the East have a continuing tradition of legal expertise. So the jurists as they're known under the earlier Roman Empire become referred to as the antecessores. So that's more of a straight connection there. But that's not to say that the Roman legal texts didn't actually have a kind of presence in that period between the sixth century and the 11th, 12th centuries in the West. Certainly the Christian church acted as a kind of a carrier for lots of Roman legal ideas and in fact also Roman legal texts. So some of these Roman legal texts were being copied in monasteries and scriptoria around medieval Europe. There are also the so-called libri legales, as they were later known, what we refer to as the barbarian law codes. So some of those are more Roman than others, for example, in the Lombard kingdoms, where again you have that kind of more straight relationship with the Justinianic compilation because Justinian, even though he issued his legal compilation from Constantinople, was urged by the then Pope Vigilius to also authorize it for use in Italy, because Justinian was busy trying to reconquer Italy and reconquer the West. So again, there's kind of more of a straight overlap there. So there's quite a lot of Roman law in Lombard law, but what you tend to lack, I think this is true to say, is that straight kind of sense of legal expertise that you get in the jurisprudence of the earlier period. 

Peter Adamson: It seems actually like a kind of microcosm of medieval culture's relationship to ancient culture in general. So we see it in philosophy as well, that in the Byzantine Greek-speaking world, things just kind of march on as if nothing has happened, because in a sense nothing has happened, whereas in the West, the Empire falls apart, and so you have a period of loss, which is then followed by a period of recovery, which in many fields seems to happen in the late 11th and the 12th century, and so this would be another case of that. 

Caroline Humfress: Yeah, although I wouldn't want to suggest that nothing changes in the Byzantine period, because there are huge changes in terms of what Leo the Emperor in the 9th century is doing with Roman law. So it's not so much that you've got a kind of stagnation as far as the law is concerned in the East. They're developing Roman legal ideas. Big questions about whether they're actually applying them – that's something else which we might want to think about. But definitely the rediscovery of the Digest in the sort of late 1070s into the 1080s and the systematic study of it at the University of Bologna really introduces a whole different way of thinking about law. 

Peter Adamson: And I suppose, by the way, that that also explains why law emerges in such a big way in northern Italy, because that's where Justinian had promulgated his Digest. 

Caroline Humfress: Yeah, although again, there are lots of scholarly debates and arguments about how direct that lineage is. I mean, some scholars would argue that the text of the Digest that was recovered, and it wasn't recovered en masse as a kind of something which floated down from heaven complete, there were various different stages to recovering what's known as the Corpus Juris Civilis. But some scholars argue that it was brought from Constantinople. Some say that it was lying in a library, neglected. So yeah, it's a really complex area, but a very interesting one too. 

Peter Adamson: And by the way, it was promulgated in Latin already in the ancient times, right? So it's not like they had to translate it from Greek into Latin. 

Caroline Humfress: Yeah, although there are some technicalities of Justinian's Corpus. There are some uses of other languages in the Roman Jura. So as the Empire expanded and you get Roman jurists who have perhaps provincial backgrounds, and who maybe are even writing for a provincial audience, you do get little bits of Greek within the predominantly Latin text. Justinian, though, who remember is based in Constantinople in the early sixth century, he decides after having put together the Digest, the Institutes and his Codex, he's still issuing new constitutions, what's known as Novels, and he makes a decision in the 540s that they will be issued in Greek. So you do have this sort of shift in the early sixth century from Latin into Greek. Now again, there are big questions. Scholars have pointed out that the official texts of imperial constitutions may have been Latin, but there must have been Greek translations, because the texts which are actually used as working texts in the Eastern Empire are in Greek. So that kind of bilingualism is already there. It's just not there on the surface when you look at the great big late Roman compilations like that of Theodosius II or Justinian's Codex. 

Peter Adamson: Okay, so this all then shows us something we've been seeing over and over in the podcast so far, which is the continuity between antiquity and the medieval period. On the other hand, I'd like to ask you about something that seems to me to be a very striking feature of medieval law starting at least in the 12th century, which is that they have two systems of law, as far as I know, namely what we might call secular law on the one hand and what's usually called canon law on the other hand, which is basically the law within the church. And that makes me wonder whether that distinction really is new in the medieval period or whether there was already a distinction between religious law and non-religious law in the Roman time. 

Caroline Humfress: Yeah, so as ever with these kinds of scholarly questions, it depends which context you ask that question from. So I'll try and enumerate what I mean by that. So if we take, for example, the 438 compilation of Theodosius II, very famously in Book 16 of that compilation, the Theodosian Code, you have a number of imperial constitutions relating to what we would term religion. So there are various titles within Book 16 concerning monks, concerning bishops, concerning the Catholic faith. So definitely it's a book about religion. Now again, this is not wholly new because even though in a narrow sense, Roman civil law means private law, because that's what the Roman jurists tend to focus on, in a broader sense, the Roman civil law had always included public law and religious law too. So depending on if you're seeing the Theodosian Code as a product from the earlier period, you could actually argue that Book 16 should be there and it fits. But if you're looking back on it from the medieval period, it looks strikingly new, because this is the first time that you get imperial constitutions legislation relating to the Christian church. Now at the same time as all this is going on, the Christian church, of course, is growing and developing institutionally. So it's kind of creating an institutional structure for itself. The first use of the term, the body of canon law – so the corpus here is canonicae – comes from the 12th century. But there is definitely something that we can call canon law earlier. So for example, the Council of Nicaea, that met in 325, very quickly compilations of the canons that were agreed at that council. So the things which the bishops actually said, okay, it pleases us to have these issued, they get circulated, and they're known as the canons of the church. There's also a body of literature, both from the earlier period and going through into the Middle Ages, relating to apostolic constitutions. So some of that is pseudepigraphal. People are saying this is what the Council of Jerusalem, when it met in AD 46, put together. So you've got this kind of pushing back of this idea that individuals in the church meeting council come up with decisions, and they are the kind of things which the church then has to abide by. So that idea of apostolic constitutions, apostolic canons goes right the way through to the Middle Ages. 

Peter Adamson: But it's called pseudepigraphy because it's not really from the earlier period. 

Caroline Humfress: Yeah, although again, we need to remember that that's from a modern perspective looking back. If we'd asked Pseudo-Isidore, whoever Pseudo-Isidore was, in the 6th or 7th centuries, is this pseudo stuff? Is this pseudepigraphy? I think he probably would have said no. So that needs to be remembered. 

Peter Adamson: But on the other hand, you can't trust a guy whose name is Pseudo-Isidore. 

Caroline Humfress: Yeah, whose name wasn't even Pseudo-Isidore. But the other thing to remember about canon law, if you can call it that, before the 12th century, is also papal decretals. So we have evidence for basically popes acting like emperors, people sending questions to them saying, can I do x? Is it okay to do y? And the pope writes back and gives an opinion about that, and the opinion has authority. So the point at which this begins in the late 4th century, the pope is of course the bishop of Rome, and the whole idea that the pope is the pope is something which is going to be developed into the early medieval period and into the high Middle Ages. But there is a real precedent there for those later papal decretals, which becomes such an important part of canon law. 

Peter Adamson: Okay, so all that explains why it is that when Gratian comes along towards the end of the 12th century, he doesn't think that he's inventing canon law, he thinks he's summarizing and collecting canon law. 

Caroline Humfress: Absolutely, but the collecting part I think is really crucial. So you will find excerpts from Roman law in the work of Ivo of Chartres, for example, or in Burchard of Worms, but what they're not interested in doing so much – they're interested in gathering together these texts because they're authoritative in some way and they can use them in a specific context. I think what's different with Gratian is that he's actually starting out with big questions such as what is law? What does it have to do with God? What does God want us to think of law being? What's justice? And he's producing this incredible concordance of discordant texts. He wants to put them together and then come up with some sorts of answers at the end. And that's partly because of the scholastic method too. 

Peter Adamson: And here we're pretty clearly getting closer to philosophical territory. And there's a lot of different things we could focus on here, including the question of what law is. But I'd like to start by looking back to something that I covered a few episodes back, which is questions about political authority and legitimacy, and in particular the relative standing of the pope or the church in general on the one hand, and the secular king or emperor on the other hand. And that raises a question again about what the situation would have been in antiquity. So certainly we find emperors like Justinian, for example, or already Constantine, attempting to intervene in what we might call religious affairs. So they call councils, they express an opinion, to say the least, about theological points. So for example, Trinitarian controversies and so on. To what extent does that create an important precedent then running into the medieval period, where it is accepted that what we would think of as a secular authority is able to sort of lay down the law, in this case the religious law, and not just the secular law? 

Caroline Humfress: So first of all, I would just want to maybe kind of problematize this idea of there being the secular and the religious or the secular and the sacred. So a lot of bishops in the later Roman Empire, as in the early Middle Ages, were landowners. So they have a secular authority, they have various fiefs and vassals. 

Peter Adamson: They have armies. 

Caroline Humfress: Yeah, they do, absolutely. So I think that's one area. The other way that I want to kind of reframe the question a little is, of course it's important, and you do get late Roman emperors stepping in and, you know, saying this is going to be the case. Most famously, supposedly Theodosius I, you know, who was made, according to some of the late Roman sources, to do penance by Ambrose of Milan. So there you have this really stark humbling of an emperor by a bishop because an emperor had overstepped the mark and needed to be brought back into the fold, the right way of thinking. But from the research that I've done, I think it's much more of a question of the church bringing the imperial authorities in. So what you usually find in the late Roman period is some kind of ecclesiastical individual who has a problem and then asks the emperor to bring their authority to bear on solving that problem. So perhaps not invariably, but I think a lot of times, we're not seeing so much the emperor stepping in, we're seeing the church inviting imperial authorities to come in and give weight to whatever. And then of course the thing expands and becomes much more widespread than I think that the individual ecclesiastics ever envisaged,

Peter Adamson: They let the genie out of the bottle, basically. 

Caroline Humfress: Exactly, exactly. 

Peter Adamson: Okay. And what about the standing of the emperor himself? I mean, obviously Augustus had plenty of authority in the early Roman Empire and so did his successors. To what extent was that authority legitimized in a legal way? Was it just, oh, he's got all the swords and he's got all the money, so he's in charge. Or did they actually claim to have some kind of legal standing as emperor as well? 

Caroline Humfress: So what we know really comes down to some texts that Justinian exerted in the early sixth century in this work called the Digest that I was mentioning before. So in this sense, Roman law and especially the kind of imperial Roman law, it's like a toolkit. So if you go to Book One of the Digest, you'll see a statement by Ulpian saying that the prince is above the laws. So the prince can do whatever he likes, to put it more bluntly than Ulpian does. But if you go to Book One of the Codex, which is the collection of imperial constitutions put together by the same Emperor Justinian, you will see that a constitution from Theodosius II has been exerted and included, saying that it's part of the imperial authority, part of the imperial magistrate that the emperor should be bound by the laws. So depending on what argument you want to make, you can go to these Roman legal sources, these Justinianic texts, and you can develop an argument about how the emperor is above the law, or you can develop an argument about how the emperor is bound by the law. 

Peter Adamson: Does that by the way literally mean that the emperor could, for example, be arrested for murder? So if the emperor turned around and ran someone through with his sword, then in theory, at least according to the second theory, the guards could come along and drag him away? 

Caroline Humfress: Yeah, although the Roman jurists would never have developed that as a theory. So it's much more likely that those statements from Ulpian were very concrete statements, which then got exerted by Justinian and made to look more general. And then that opens the way for the 12th, 13th, 14th centuries, those statements to be put into situations which they were never envisaged to be used in. So Bartolus de Saxoferrato, one of the medieval so-called commentators, took these statements and tried to use them as justification for Italian city republics having the right of self-governance above emperors. Now, this is not something which the Roman jurists or Justinian ever envisaged. The other really important text which arose out of the Justinianic compilation is the so-called text on the lex regia. So this is a text written by a Roman jurist which states that Roman emperors were granted their authority by the people, basically at the beginning of their imperial rule. And this has a huge afterlife in medieval debate, because obviously if you focus on that text then you can begin to justify the notion that communities are the ones who give power to rulers to rule. 

Peter Adamson: I see. That actually to some extent already answers the next question I was going to ask, but I think I'll ask it anyway, because what I was going to ask is that there seems to be a kind of paradox that, if the emperor is somehow bound by the law, you might have thought that the emperor is also the source of the law or that his authority is what makes the law or what gives the law its standing in the first place. And then that would be at least circular if not worse. But of course if the emperor's legitimacy stems from the people, then that would, as it were, be the place where the buck stops. 

Caroline Humfress: Yeah. Well I think when Justinian puts all these texts together, he very famously states at the beginning of the Digest – remember these are loads of excerpts of different juristic authorities that he's putting together – but he states at the beginning, in one of the preambles, that it now proceeds as if straight from his divine mouth. So this idea that he is in fact the complete source and fount for the law, at the same time as respecting the Roman civil law, etc., etc., so it's a fine balance I think. Salvius Julianus wrote a text, a very important proof text about whether it's custom that makes law, and can custom actually circumvent statute. So if you have a community or a city that has practiced something for a very long time, and then you have a piece of statute legislation which overturns that, is there an argument there for overturning the statute? So these sorts of debates, questions were certainly known to the Roman jurists, but the medieval jurists really ran with them, working within the new universities, applying scholastic methods. They were used in contexts which you just couldn't imagine in the sixth century, when Justinian actually put this stuff together. 

Peter Adamson: Those examples give us some different models for understanding how law comes about or how it comes to have the standing that it has. We've mentioned the idea that the emperor might just declare it to be the case, we've mentioned custom, we've mentioned the will of the people. But there's another important idea that we're going to see numerous times in episodes to come, which is the idea of a natural law. And then the human law as Aquinas calls it would in some way be a formalization or a specification of what's already naturally legal, so to speak, and again I'm wondering to what extent that is already prefigured in the ancient world, is that a theme that the medievals were picking up and running with from these legal texts themselves? 

Caroline Humfress: I think it is but it would be a mistake to think that all of the medieval reasoning somehow stemmed out of the ancient world, and again there are texts there which medieval thinkers could use, both canonists and civilians, individuals who are working with canon law traditions or early ecclesiastical traditions. So for example the idea within early Christian thought of natural law as revelation, I think that's very important. Gratian of course is to come along and argue that natural law is not just about revelation, it's also about reason, and it's accessible to human reason, so that's something we also find being picked up by Thomas Aquinas and developed in different ways by Bonaventura and other different medieval thinkers. And certainly the individuals in the medieval period working somewhere like Bologna with these newly rediscovered Roman legal texts would have seen the beginning of Justinian's Digest, as well as elsewhere, that the Roman jurists thought about natural law, and they kind of left these very suggestive sentences which scholars ever since have argued about, so it's not just the medievals, it's also the early moderns, and indeed today the whole natural law tradition is influenced to some extent by Roman Stoic ideas, which I think you can also see coming through in various different ways in the Roman jurisprudential tradition too. 

Peter Adamson: But they're more picking up on suggestions than a well-developed theory that was present in Justinian's Digest or something like that. 

Caroline Humfress: Yes, I think that they're putting it together. Peter Stein once said that Justinian's Digest is like a kind of giant supermarket where you can go around sort of shopping for ideas, and that's a really useful model.  All those later thinkers are like magpies and they go for the shiny bits. 

Peter Adamson: Yeah they do the same thing with Augustine. 

Caroline Humfress: Yeah indeed. 

Peter Adamson: Let me finish by asking you a more specific question about two groups of people in particular in Roman society, and then how ideas regarding these groups then evolved in the medieval period. This is actually something we talked about in the previous interview as well I think, namely slaves and women. So these are the maybe lower groups of people than the male citizens, at least from the Roman point of view, and they were presumably covered quite extensively in the Roman legal literature. What did the legal literature say about slaves and women? That's probably a big question, but in brief. And what did the medievals then do with that material when they picked it up? 

Caroline Humfress: So I think that there is a big difference, and I'm going to sort of put my neck out and just say that I think that with if you're looking at the Roman Empire into the late Empire, you have a kind of societal structure there which is the paterfamilias which is a legal institution, so this notion that you have the male head of the household and that the children and his wife and slaves are part of the familia, and they are all dependent basically on the paterfamilias, unless they can get out of his power in various different ways. I think that kind of societal, I don't know if you even want to call it sociological, type of set-up, is not something that continues on balance into the early Middle Ages and the medieval world. But you definitely have again that use of the kind of the shiny bits from the texts which relate to that notion of patriarchal authority, and also authority of slave over master, being picked up and used in medieval contexts. So a very straight application that I can think of would be the kind of Aquinas's argument, which is also there I think in a nascent form in Gratian, that slavery is part of the jus gentium, so it's part of the law which is common to all peoples. But it's not actually part of natural law, except in the sense that it's an addition to natural law. That's something which they're developing using Roman materials, so you can see how again the Roman materials would never have envisaged that kind of argument being made within the Christian context that Aquinas and Gratian are interested in making it in. Although Augustine makes some moves towards that direction, yet the sort of raw materials for that argument, the authority if you like, is coming out of that earlier tradition in those texts.