If there is one field in which Hermann Kantorowicz was the world expert,
probably during the whole 20th century, it was as publicist of the Glossators,
of the scholars who during the Middle Ages kept alive our knowledge of Roman
Law. It is to them we owe the fact that half the countries of the world (in fact
all except countries where Anglo Saxon Common Law systems obtained ) now have
legal institutions based on Roman Civil and Penal Law.
Without their work Napoleon would have been unable to create his famous
Code.
The creator - or at least the midwife - of codified Roman Law was of course Justininan the Great, Emperor of the Eastern Empire (AD 527 - 565), reconqueror of North Africa, Italy and Spain. His greater merit is the elaboration of a coherent and complete legal system based on the well developed law of the Roman Empire. The original has been lost, as the laws were collected on handwritten sheets in unbound bundles. Since his days the work has been divided into ‘institutiones’ , i.e. the laws proper; the ‘Digest’, a series of articles written by expert jurists of the time explaining the laws, the codex which were imperial edicts, and the novellae, i.e. Justininan’s own additions. These law books were spread throughout the Empire and also became the basis of law in the states invaded by barbarians such as Visigoths, Ostrogoths, Lombards and Franks. Tribes whose tribal law was adequate on the steppes or in a military camp, but failed when applied to the sophisticated townships they took over from the Romans. So they pretended to run the countries they conquered in the name of the Roman Emperor in Constantinople, and largely applied his laws.
During the Middle Ages studying
law meant studying Roman Law, even
Saxons sent their students to Italy to gain a good grounding, though they came
back to a country applying Common
Law, i.e. English law.. The greatest of the community of scholars were the
school of Glossators who studied and taught in Bologna University in the
12th and 13th centuries. Their first master and founder was probably Irnerius.
Another name that reappears is that of Azo who was known to be an inspiring
teacher, and was visited even by students
sent by the English and Irish. Unfortunately
their documents require real sleuthing to publish.
Written and copied by hand, (printing
came in 200 years later) often
amended in subsequent years by the author,
often illegible and faded, mostly carelessly copied by under-paid clerks,
some of whom added and eliminated when they thought fit.
Originals have nearly always been lost,
no two copies are identical. Mostly the documents remained forgotten,
unedited, uncatalogued in libraries and law-courts throughout the Western World.
Hermann Kantorowicz learnt how to unravel the web. He read Latin with ease, deciphered the mediaeval handwriting, compared versions until he could logically establish a valid definitive text. His essay on textual criticism 1927 (“Einführung in die Textkritik”) became the standard work on how to deal, not only with Glossators, but with obscure texts in any subject. A Hebrew scholar admitted he had used the Kantorowicz method when dealing with pre-Christian Syriac texts.
Hermann Kantorowicz’s first venture in the field was a study of Albertus de
Gandino. (ca 1250 - 1320) Italy then was divided into numerous city states, many
like Florence, Venice or Siena were republics run by an elected Podestà or
Doge, who in turn would bring in learned jurists to be judges.
Gandinus, this was his professional
name, was brought in by the Podestà of Lucca but at the end of his career held
the prestigious post of judge in Florence.
In 1300 he wrote the first edition of his Tractatus de Maleficiis
(treatise on evil doings). Copies
have since been found in Barcelona, Nuremberg, Paris.
The work heavily influenced the development of German Law.
HK published the Tractatus with his comments in 1907;
this was mainly a discussion of his most important cases. Then followed
in 1923 the theoretical part of the work with procedural discussions.
In 1923 HK published the life and a critical account of the work.
We now have a clear view of the work and life of Albertus Gandinus.
Hermann Kantorowicz’s next target was Thomas Diplovatatius. Constantinople
had just fallen (1453). One of the
heroes who fell in defence of the last bastion of Byzantium was Konstantin
Diplovatatius, Thomas’s uncle. George,
his father moved to his estates in Greece and Corfu where Thomas was born. He
tried to reach Italy but was captured by Turkish pirates. Luckily the Duke of
Milan paid the ransom. Now Thomas toured Italian Universities studying - what
else? - Roman Law in Palermo, Padua
and finally Perugia where he was awarded a doctorate. Nominated judge in Pesaro,
he cultivated the Sforzas who became his patron.
When Giovanni Sforza married Lucrezia Borgia, he did not forget his young
protégé and obtained for him a wealthy and fair bride.
He now had riches, status
and prestige. 1513 he made a clever move to Florence to work under the Medici,
in 1517 he ended up as a senior judge in Venice.
He published his major work “De Claris Jurisconsultis” in 1511. And
it is this work Hermann Kantorowicz edited and published.. Thomas Diplovatatius
died in 1548, back home in Pesaro.
Hermann Kantorowicz, now exiled
in England, turned his attention to the earlier Glossators
as he had found a manuscript in the British Museum that contained key
articles from the Bologna school and from some of their pupils in France.
This document, 37 articles
long had largely remained unexamined and certainly unedited in Britain.
Some of the articles and
glosses were of course known from copies
in other countries, some were unique; but this valuable document was largely
unusable in its then state. Articles
had been numbered, but no consistent headings, no attributions to the writers, partly illegible handwriting, clear corruptions from
inefficient clerks.
HK now applied all the techniques he had developed and achieved a model of
the “textual Criticism” he had promoted in his article
“Einführung in die Textkritik”.
He compared the known texts with copies in Naples, Paris, Carpentras, Basel. Berlin, Grenoble and the Vatican. This helped him to establish sense-making texts. He substituted words that resembled words making nonsense, he picked what colleagues had said to repair longer pieces of rubbish created by clerks. He looked at handwriting to date and situate the copying exactly much as archaeologists now engage in carbon dating. Decidedly it was between AD 1175 and 1205 probably in Normandy or Southern England. He examined from the contents and style where the document could have been compiled and showed conclusively that only the University of Montpellier could have done so, even if they must have used Bologna trained scholars for the purpose. He then wrote a bibliography - the first for all writers on Mediaeval Roman Law, tables to show where each of the articles or copies could be seen in the world, a complete and headed index. He wrote an introduction on each of the authors / Glossators giving their life, the reasons why they must have been the authors and a critical view of their particular slant.
The Manuscript contains major contributions by the founder of the School
Irnerius, who had written the famous “exordia” (introduction) to the Roman
Law.
Also by his successors the ‘four doctors”
Bulgarus and Martinus who were traditionalists ; Rogerius and Hugo who
were innovators. There were also contributions from Petrus of Provence and
Placentinus of Valence. A very comprehensive anthology.
Some of HK’s discoveries deserve mention.
He noticed that wherever there was space left at the end of any folio an
unknown glossator had added perceptive and learned comments in a noble beautiful
script. The same hand, but here and
there almost illegible added shorter comments, presumably only for his own
consumption. HK decided that only an owner would have dared to behave in
this way, so the unknown whose handwriting suggested Northern France or England
must have been the owner at some stage. Who
was he? Only once he writes “Ego
G...” so HK calls him
“Master G” and
reproduced for posterity all his major glosses.
This work, published in 1939 as “Studies in the Glossators of the Roman Law
“ with W W Buckland.
was in fact recognised as the most valuable single contribution to an
understanding of the Glossators and to their contribution to Jurisprudence.
HK published separately findings on various aspects of the work of the
Glossators.
“De Pugna” (1938) discusses
how the Glossators recommended pleadings. “Quaestiones et Disputatae”
(1938) showed how they liked
to teach their students. They would formulate a case in law, appoint one student
“Actor” (plaintiff or
prosecutor) another “Reus” (Defendant ) and
then make them role play. The other
students would then criticise the arguments raised, and suggest a judgment.
Must have been fun.
In 1939 he was invited to give the annual David Murray lecture in Glasgow,
and decided to deal with the work of Henry de Bracton (1200?
- 1268) -
often called the father of English
Jurisprudence. Unfortunately
Hermann Kantorowicz fell ill and was never able to deliver the lecture though it
had been almost fully written. Posthumously
(1941) the
lecture called “Bractonian
Problems” was published by Doris Stenton with the help of Hilda Kantorowicz.
Henry Bracton was born about 1200, studied law while holding various benefices in the church. That was a normal way of paying civil servants and keeping barons in their place. He even spent one year in Bologna studying Roman Law under Azo - everyone’s favourite teacher at the time - whose “Summae” on Justinian’s Code he certainly digested and often quoted.
Where did he study? Oxford would
like to claim him as one of their products.
But as HK mentions Oxford then was stagnant and uninspiring, “had he
studied in Oxford” writes HK, “Oxford would not now be studying Bracton”.
Exeter diocese, which had a good library,
is a more likely site for his initial studies.
The usual way of becoming a judge was to be a clerk.
Bracton acted as clerk to Judges Robert de Pattinshall, then to his
brother Martin de Pattinshall and finally to William Raleigh
(an ancestor of Walter?). He
kept their rolls and classified their cases. In 1245 he became an Assize Judge
himself and thus was able to add his own cases to the several hundred he noted
as significant from his days as a clerk.
Bracton wanted to publish a treatise on English and Roman Law, unfortunately
he was given too many jobs in the 1250s and then died prematurely before getting
his materials into good order.
The Clerk who tried to edit the work found single sheets in quantity but not in order. Many of the decisions are commented and then additionally altered years later. The clerk was particularly inept as HK shows and was capable of writing pure nonsense. The work was so important that copies were made from copies and finally 300 have been traced - a best seller for those days!
The work on English Law
was published by W W Maitland under the title “De Legibus Angliae”
He had the advantage of many copies to help restore corrupted texts.
Maitland looked at the work on Roman Law and decided that, as so much of
it was quite meaningless, Bracton must have been an ignoramus in that field.
This is important as it not only means that since Maitland no one really
estimates Bracton as highly as he deserves,
but that the ‘father of English Jurisprudence” laid foundations
unconnected with the principles of Roman Law.
Hermann Kantorowicz to the rescue! First he examines Bracton’s Latin style which he found to
be not only exceptionally good, but highly persuasive when Bracton felt
strongly. How could such a good latinist make such elementary mistakes of
interpretation when reading the original Roman Law?
On constitutional matters HK
shows that Bracton not only fully understood the Imperial meaning of the Roman
Law, but could skillfully adapt the principles to fit into the post Magna Carta
English monarchical system. An ignoramus? Then
HK discovers that what Maitland failed to see, that all copies on Roman Law -
unlike the documents on English Law - were identical, i.e. must go back to a
single archetype. If that archetype were compiled by a particularly lax clerk it
would account for the difference in quality between English and Roman texts.
Assuming that this rogue clerk made all the classical mistakes possible
HK readjusts some of the texts and they suddenly make clear even astounding
sense. How is it that Maitland did not see that the clerk had been
faced with loose leaf notebooks and had attached the wrong comments on the right
laws and right comments onto the wrong laws.
What is needed is a new edition of Bracton’s work. Preferably done by two or more experts with different skills and the patience to play at a frustrating jig-saw puzzle until it cohered. Henry de Bracton would come out as a thinker who based his decisions on Common Law on a clear understanding of Roman Law on its merits and on the areas where English Law had to follow a different path. I wonder whether Hermann Kantorowicz hoped to be given this task. Rehabilitating one of its heroes would have been for him a satisfying contribution to English scholarship.