Bryn Mawr Classical Review 2009.10.07
Kaius Tuori, Ancient Roman Lawyers and Modern Legal Ideals: Studies on the Impact of Contemporary Concerns in the Interpretation of Ancient Roman Legal History. Studien zur europaeischen Rechtsgeschichte, Bd. 220. Frankfurt am Main: Vittorio Klostermann, 2007. Pp. xii, 220. ISBN 978-3-465-04034-7. €46.00 (pb).
Reviewed by Carlos Sánchez-Moreno Ellart, University of Valencia and CEIPAC, University of Barcelona (email@example.com; firstname.lastname@example.org)
Word count: 1363 words
It is a kind of paradox that romanists do not regard the study of their own past to be useful. There is, of course, a study usually called the 'romanistic tradition', but this approach is highly indebted to some conventions whose criticism is precisely the core of the book under review. Although it is fairly commonplace to say, by quoting Croce, that history necessarily implies present history, there is probably more than a grain of truth in such a statement. The study of modern ideas and anachronistic prejudices, which have influenced on our interpretation of classical Antiquity, is always a fascinating approach and a particularly constructive one when Roman juristic sources are implied and the use of Roman law in textbooks is considered. Kaius Tuori deals acutely with this matter in a suggestive, witty and refreshing volume.1
Tuori starts by considering the important part played by Justinian as the traditional image of the founder of contemporary civil law. This example is present everywhere in the book, since its three chapters correspond to three highly controversial subjects regarding Roman law where modern ideas are involved: the concept of system in Roman jurisprudence and, at the same time, the origin of law conceived as a science ("The Birth of Legal Science" 21-69), the sense of the ius respondendi ex auctoritate Principis as a matter related to the autonomy of the so-called "legal science" ("In Defence of Autonomy of Law" 71-134) and, finally, the codification of law around the controversial codification of the Edict, i.e. the Edictum Perpetuum ("The Disputed Codification of Law"135-179). Tuori explores these topics, insisting on their complex backgrounds, unconsciously assumed by research. It is worth underlining that from the introduction (1-19) to the conclusions (181-194) Tuori bases his argument on a thorough knowledge of the literature devoted to these matters.
As Tuori rightly points out, the study of how contemporary problems have influenced the historical research of ancient Rome should mostly be found outside the field of legal history (7) and that is why such a research requires a very critical approach which includes both knowledge of Roman legal sources and the questions that have determined their interpretation, sometimes as influential as the sources in themselves, together with an acute sensibility to methodological problems.2 From the introduction, Tuori highlights that the particular position of Roman law in Germany (formally in force until 1900) conditions a great deal the inquiry. Therefore, the Historical School incorporated in its study "several themes relevant to contemporary law at the time": some of them had been traditionally treated and some were incorporated at that time, but both obviously have deeply influenced the subsequent research. The "legal paradigms" of the nineteenth century are still behind the present historiography of Roman law or, in other words, Romanistic tradition has influenced Roman legal history by including and selecting some specific topics into its scope or even by making use of mere hypotheses as though they were matters of fact. Starting from this context it becomes obvious that "the shared values and ideals of today are founded in the presentation of the past" and that the very notion of a shared past and consequently the continuity from Antiquity to the present are notions deeply rooted in the Historical School (112).3 Scholars have demonstrated that the Historical School is an ambivalent point of departure, since its foundations are deeply rooted in the iusnaturalistic jurisprudence despite its insistence on concepts such as Volksgeist.4 By bearing in mind this apparent paradox, Tuori is critical with the stereotypical division between the Historical School and Pandectism. In some ways both approaches are related insofar as both are concerned with the idea of system: Pandectism stressed the constructivist side of system and the Historical School starts from system as a way to reconstruct an immanent unity.5 Jhering was one of the first to detect that Pandectists were projecting their own concepts on Roman jurisprudence, but as Tuori warns Jhering was actually "closely involved in the process of strengthening the systematic and dogmatic sides of the Historical School". Thus the quest for the actual contents of classical law is affected by the systematic conceptual framework of Pandectism.6
In the second chapter Tuori starts from the common continential assumption that the body of legal norms together form a legal system (21). System is one of the features normally used to define a discipline as a science and in the case of Roman law its use has traditionally been traced to Roman times and specifically attributed to Mucius Scaevola. The author traces this attribution back to the Spanish erudite of eighteenth century Gregorio (or Gregori) Mayans i Siscar, best known by his humanistic name Gregorius Maiansius (39). As is widely known, this old tradition in interpreting Q. Mucius Scaevola as the founder of so-called Roman legal science is based on poor pieces of evidence, essentially D. 50. 17. 73 (Pomp. Ench.).7 Through the manner of comparison (whether with Q. Mucius or with Servius Sulpicius) that scholarship tackled complicated points such as the concept of system in Roman jurisprudence or the influence on it of Greek thought and the degree of this influence, but in many aspects we are considering what Tuori calls an invented tradition. The author concludes that the interest of the Romans in classifying or in using schemes such as genus and species must be purely differentiated from matters which are projections of the obsession with science and system, an obvious inheritance of the Historical School.
In the third chapter the author comments upon a remarkable feature of Roman jurisprudence according to traditional scholarship, its autonomy. This concept has made a hit thanks especially to Fritz Schulz, who in his widely spread book, in my opinion today rather slightly useful as a handbook Prinzipien des römisches Rechts8 The debates on the ius publice respondendi ex auctoritate Principis -- from the radical scepticism of Schulz to the more balanced of Magdelain, Kunkel or Wieacker -- are a good point of reference to outline the anachronistic interpretations of the autonomy of Roman jurisprudence and the projections from the present to the past. Tuori interprets many of these ideological elements as "narrative tendencies" which condition the research, essentially the belief, rooted in the Historical School, of a cumulative progress, which would act as a "constant feature of Western historical thought" and in its turn as a sign of rationality (133). Starting with this view, many propagandistic elements can be discovered in the confrontation between Labeo and Capito, which has served as a model to stress the part played by the jurists in their relationship with political power.
Similar too is the treatment of the Edictum Perpetuum. The nature of the alleged final edition of the praetor's edict by Salvius Iulianus was significantly brought up for discussion during the nineteenth century, when the classic editions (Rudorff's edition and the first edition by Lenel) were carried out. As is widely known, the impact of this measure on the structure of legal sources has been analysed from different points of view and even its reality has been investigated through different sources, including the epigraphical (Pupput) and the numismatic. It is significant that the main theories intended to explain its true nature had strong links with the contemporary debates on legal system and the part that jurists should play. Both the theory of codification and the theory of compilation as attempts to elucidate the actual structure of the Edict might be interpreted as a manifestations of those debates.
To sum up, the author tackles in depth the three aforementioned topics not in order to solve the complicated questions implied in them but only to show the conceptual frameworks that have influenced on scholars, whether consciously or not. These "narratives" are still present in many of the present analyses and probably this book could be considered as un-orthodox. Some provocative author's statements -- made only to emphasize his own position9-- might contribute to give this impression, but, as pointed out earlier, Tuori' s book confines itself to underlining the implicit assumptions that have guided and in many ways still condition so-called 'romanistic science' and this approach is always necessary in order to reach a depurated methodology.
1. As the author himself recognizes, some parts of the book (essentially the second and the fourth chapters) had been published before in different versions. Some points of the former had been also developed in Oikeus 2 (2003) and an earlier version of the latter in The Journal of Legal History 27 (2006) 219-237. I partially knew the conclusions of the second chapter through the article published in the Tijdschrift voor Rechtsgeschiedenis / Legal History Review 72 (2004) 243-262. A draft of the third chapter is available in the Revue Internationale des Droits de l'Antiquité 51 (2004) 219-237.
2. The reference (9) to Quentin Skinner ("Meaning and understanding in the history of ideas", History and Theory 8  3-53 = Visions of Politics I, Cambridge 2002 67-29) is in my view quite significant, since this scholar is especially interested in how the contemporary political debates influence interpretation of classical political authors.
3. Tuori states so dealing specifically with the ius respondendi, but this affirmation can be extrapolated to the whole book, insofar as the main subject is to explain how some questions of the present law and its study have conditioned legal history. Matters such as the systematic construction, the autonomy of law or the codification are also projections from the present to the past and were clearly on the horizon of the Historical School.
4. Broadly speaking, taking into account that this paradigm was mainly concerned with the idea of system, Schwarz affirmed that there is a line of continuity in the conception of law from Donellus (perhaps the author belonging to the mos gallicus most focused on system) up to Savigny. See A. B. Schwarz (Zur Entstehung des modernen Pandectensystems ZRG Rom. Abt. 42  578-610), whose main ideas had been highlighted by W. Wilhelm (Zur juristischen Methodenlehre im 19. Jahrhundert, Frankfurt a. M. 1958 9). In spite of the commonplace, the mos gallicus is not only a philological approach to the texts of the Jurists, but also a dogmatic one. In fact, it includes some authors who had shown interest for systematic constructions, but based on different roots, quite different from the framework the scholastic logic. Donelus, for example, was particularly influenced by Ramus. This conception of logic (highly indebted to rhetoric and lesser scientific model compared to aristotelic-scholastic model) and its influence on the systematic method used by Donellus is one of the few points not dealt with by Tuori, but, on the other hand this omission is perfectly justifiable considering the broad scope of the book under review. I should discuss in depth the very problem of the definition of the ''Roman law science'' from Savigny''s days. In the correspondence between this author and Bachofen the discussion is whether Roman law should be studied as a science of antiquity or as a purely juristic matter, cf. B. Müllenbach, "J. J. Bachofen als Rechtshistoriker", ZRG Germ. Abt. 105 (1988) 17-96.
5. Tuori is coherently critical against the "stereotypical and simplistic" portrait offered for example by Wieacker or Koschaker (16).
6. Tuori accurately follows T. Giaro, "Romanistische Constructionsplaudereien: Auf den Spuren eines anachronisten Begriffes", Rechtshistorischen Journal 10 (1991), 209-232.
7. As is widely known, this old tradition in interpreting Q. Mucius Scaevola as the founder of so-called Roman legal science is based on poor pieces of evidence, essentially D. 50. 17. 73 (Pomp. Ench.).
8. Of course, this book, later translated into English, is still useful in many aspects, but hardly ever offers a good introduction to the study of Roman law. Unfortunately it is still widely quoted and used with that aim. About this book and its English translation (more focused on a jurisprudential point of view than the German version), vid. W. Ernst, "Fritz Schulz", in J. Beatson and R. Zimmermann, Jurists Uprooted. German-speaking Émigré Layers in Twentieth-century Britain, Oxford 2004, 130-132.
9. I refer particularly to the sentence that closes the book: "are the Romans of Roman legal history simply us, assembled in a historical toga party?" (194). In my opinion due to these literary licences the well documented and balanced approach of Tuori could be misunderstood.