Comparative Law before the Code Napoléon
Abstract and Keywords
Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, that despite the multiplicity of legal sources it is not often found in the early or high middle ages, that there are hints of it in the commentators of the later middle ages, that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century, and that one can trace a relatively clean line from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.
Modern comparative lawyers, the editors of this Handbook assure me, tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. As a legal historian, I found that notion a bit strange and puzzled as to where I would put the origins. I decided that one could make an argument that comparative law is to be found in the ancient world, that despite the multiplicity of legal sources it is not often found in the early or high middle ages, that there are hints of it in the commentators of the later middle ages, that in a very real sense it can be found in French legal thinkers of the sixteenth century, and that one can trace a relatively clean line from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of (p. 4) the discipline that produced the First International Congress of Comparative Law in 1900.1
I. The Ancient World
There are more than hints of the comparative method in Aristotle's Politics.2 Aristotle, or more likely members of Aristotle's school, compiled the ‘constitutions’ of 158 Greek city-states, and the same school is probably responsible for a lost work in four books on the customs of the Greeks, Romans, and barbarians.3 Only one of the constitutions, ‘the Athenian constitution’, survives, and that by the chance discovery at the end of the nineteenth century of a papyrus in an Egyptian rubbish pit.4 Its authorship is hotly debated, but the most recent commentator concludes that it is the work of a student of Aristotle.5 The uncertainty of the dates of the lost works (and of the one surviving one) makes it equally uncertain whether the influential generalities of the Politics were based on intensive empirical study or whether they were the admittedly brilliant products of a first-rate speculative mind informed by a more casual empirical knowledge. There can be little doubt, however, both that Aristotle espoused the comparative method in the Politics and that he, or his school, or both, engaged in a massive empirical investigation of the governmental systems of a large number of Greek city-states and a somewhat more casual investigation of the world beyond that which spoke Greek.
When we put the Politics together with the information-gathering efforts, there can also be little doubt that what Aristotle and his school were doing should be classified as comparative law. The fact is, however, that all that survives is a treatise written at a rather high level of generality and an exploration of the constitution of (p. 5) one Greek city-state. The former can be regarded as political theory (or, at best, comparative government), and the latter is not comparative and was lost until quite recently. Hence, there is no continuity between the Aristotelian effort and later efforts at comparative law. The method had to be rediscovered.
There is another reason for not making Aristotle the founder of Western comparative law. He shared with all the ancient Greek thinkers a seeming uninterest in private law. We look in vain in the Greeks for the manipulation of middle-level generalities in private law that characterizes the developed legal systems that comparative lawyers are so fond of classifying. Hence, while Aristotle and his school can certainly be said to have been engaged in comparative law, they confined their comparative legal work to what we would call comparative public law.
The Romans certainly were interested in the manipulation of middle-level generalities in private law. Indeed, the Roman jurists devoted the bulk of their efforts, at least the bulk of those efforts that survive, to private law. The one work of a Roman jurist that survives almost complete, Gaius' Institutes (written roughly ad 160), does contain a few comparative remarks. We learn, for example, that the Galatians had an institution that they regarded as similar to Roman patria potestas, though Gaius, seemingly basing himself on a rescript of the emperor Hadrian, argues that the institution of patria potestas is unique to the Romans.6 Such remarks are, however, relatively few, and there is certainly no systematic exploration of the similarities and differences between the Roman and non-Roman institutions to which he refers.
As is well known, Gaius does recognize that Roman law is based in part on what he calls ius gentium, which he describes as ‘the law that natural reason establishes among all mankind [and] is followed by all peoples alike’.7 ‘Thus’, he tells us, ‘the Roman people observes partly its own peculiar law [ius proprium] and partly the common law [ius commune] of mankind’.8 He promises to tell us throughout the work, which institution is which. He does not completely keep his promise, but he gives us enough markers so that we can get a reasonably good idea of what he regarded as the ius proprium of Rome and what the ius commune or ius gentium. Thus, acquiring title by delivery from the owner is an institution of the latter (here he calls it ius naturale), while acquiring title by mancipation, cession in court, or usucapion is an institution of the former (here he calls it ius civile).9 The partnership that is contracted by plain consent is an institution of the ius gentium, but the partnership among heirs that once prevailed among the Romans is proper to Roman citizens.10
Clearly, there lies behind these remarks a comparative effort. Over a quite long (p. 6) period of time, the Romans had engaged in a relatively comprehensive comparison of specifically Roman institutions with those of other peoples, principally those who spoke Greek, in the Mediterranean basin. What Roman law had in common with those other peoples they called ius gentium, or ius commune, or, sometimes, ius naturale, and they conceived of this law as being the product of human reason. It has been suggested that this understanding of the division between what is specifically Roman and what is shared with other peoples in the Mediterranean basin is the product of a specific Roman institution, the praetor peregrinus, whose function was to hear legal cases at Rome between non-citizens or between a citizen and a non-citizen.11
Unfortunately, the process by which the comparison was made was not committed to writing, or, if it was, it has not survived.12 The process had happened by the time of Gaius, and he merely reports some of the conclusions. By Gaius' time, the institutions of the ius gentium had been thoroughly integrated into the Roman legal system.13
Although Gaius' work as a whole was lost to the West until early in the nineteenth century, fragments and epitomes of it were known or knowable throughout Western legal history. Perhaps more important, Gaius' Institutes was the basis of Justinian's Institutes, an elementary textbook of Roman law written in the name of the Byzantine emperor Justinian and published in 533. Gaius' division of the sources of Roman law into ius civile and ius gentium was carried over into Justinian's Institutes, as were most of his identifications of what pieces of Roman law belonged in each category. Justinian also reports a tripartite classification of law, derived from the Roman jurist Ulpian (d. 228), in which ius gentium is sharply separated from ius naturale. The latter is what ‘nature has taught all animals’, whereas the former, following Gaius' definition, is ‘those rules prescribed by natural reason for all men [and] observed by all peoples alike’.14 The confusion between the Gaian and Ulpianic conceptions of natural law in Justinian's Institutes is profound and was to prove provocative of thought wherever the work was studied as virtually a sacred text. Even within the Gaian conception there is a tension, which would become particularly noticeable when it became apparent that there are practically no rules that are ‘observed by all peoples alike’. What ‘natural reason’ prescribes may or may not be evidenced by what all, or even most, peoples observe.
(p. 7) Late antiquity produced a curious comparative work, the Lex Dei quam praecepit Dominus ad Moysen (‘The Law of God which the Lord Commanded unto Moses’), also known as the Collatio legum mosaicarum et romanarum (‘A Comparison of the Mosaic and Roman Laws’).15 The date of the work is controverted, but the basic text seems to have been compiled in the early fourth century with some later additions.16 What survives of the work (it is generally thought that we have only the beginning, but how much is missing cannot be determined) is divided into sixteen titles, each of which begins with a quotation from the Pentateuch attributed to Moses, followed by extracts on the same topic from works of the classical Roman jurists. Title 9 is typical of, if somewhat shorter than, most of the others:17
Concerning [the fact that] the testimony of members of a family is not to be admitted.
[I.] Again Moses [says]: ‘Thou shalt not bear false witness against thy neighbour’.
[II.] Ulpian in the 8th book ‘Concerning the office of the proconsul’ [under the title] ‘On the lex Julia concerning public and private force’: [1.] By the same law, in chapters 87 and 88, certain people are entirely interdicted from testimony and certain from testimony if they are unwilling. [2.] [In chapter 88] in these words for these men: ‘By this law let there not be permitted to speak testimony against the defendant anyone who was freed [se liberaverit ab] by him, his parent, the freedman of either of them or of his freedman, or by a freedwoman [sc. of them], or who is under the age of puberty, or who [has been condemned in a public judgment and who] has not been reinstated [qui eorum in integrum restitutus non est], or who is in chains and public custody, or who has pledged himself for fighting, or who has hired or hires himself out for fighting with beasts, except someone who has been or is sent to the city to fight with javelins, or who has publicly made or makes gain with his body, or who has been adjudged to have taken money to give testimony’. And none of these gives testimony against the defendant according to this law, even willingly. [3.] In chapter 87 in these [words]: ‘Unwilling let them not speak testimony against the defendant who is cousin to the defendant or joined by closer relation, or who is his father-in-law, son-in-law, stepfather, or stepson’. And the rest.
[III.] Paul in the fifth book of ‘Opinions’ under the title ‘Concerning witnesses and torture [quaestionibus]’: It has been decided that witnesses who are suspected [of partiality], and especially such as the accuser produces from his own household, or whose low station in life renders them of bad repute, should not be interrogated; for in the case of witnesses, their style of life, as well as their dignity, should be considered. Witnesses cannot be examined with reference to anyone if they are related to them by either marriage or blood. Neither parents, children, [patrons,] nor freedmen should be admitted to testify (p. 8) against one another, if they are unwilling to do so; for the near relationship of persons generally destroys the truth of evidence.
From the time of its rediscovery by the humanists, the principal interest of this text has been in the fact that it provides evidence of the writings of the classical jurists and of classical Roman law independent of the texts in the Corpus Iuris Civilis. Our concern here, however, is with the comparison between the Mosaic law and the Roman. It is an understatement to say that it is not very exact. The focus of the Mosaic law (Exod 20: 16, Deut 5: 20) is on perjury, particularly on perjury that harms another Jew. The principal concern of the Roman texts is to prevent certain people from testifying, admittedly and in all probability, with an underlying concern that such people will perjure themselves. Hence, our example supports what seems to be the current trend in scholarship on the work as a whole: that the underlying purpose of the compiler was to demonstrate that Roman law was consistent in principle with the Mosaic and that it in some sense implemented the Mosaic.18
II. The Early and High Middle Ages
The entry of the Germanic peoples into the Roman empire produced an awareness of quite radical differences in legal systems and the opportunity for comparison. In at least one instance, we have some evidence that the opportunity was taken. During the brief period in which there was a separate kingdom of the Burgundians, in the late fifth or early sixth centuries, two ‘codes’ were produced, one of which seems to be a law for the Burgundian inhabitants of the area, and the other for the Roman.19 The Roman code is a pastiche of late classical sources, mostly rules, not always accurately stated, from such works as the Opinions of Paul and the Theodosian Code. The Burgundian code is an original work, although some scholars have found echoes in it of the code of the Visigothic king Euric. Both works are arranged into titles, usually with several provisions under each heading. The titles themselves are, however, in no discernible order. What is discernible is that the order of the titles in each work is remarkably similar. Either the compiler (p. 9) of the Roman Law of the Burgundians had the basic text of the Law of the Burgundians before him or vice versa, because there is no other reason for the correspondence of the subject-matter of the titles.20 That the author or authors of these codes were making comparisons is clear enough, but we cannot tell what they made of their comparisons.
Awareness of different sources of law and occasional attempts to lay different sources side by side continued throughout the early middle ages,21 but pressure of space dictates that we skip to northern Italy in the first half of the twelfth century and to the revival of legal study at Bologna. While the origins are obscure, and becoming more obscure as the result of recent scholarship, it seems clear that by the year 1150, there were studia at Bologna in which Roman law was taught on the basis of quite good editions of virtually all of the Justinianic corpus and in which canon law was taught on the basis of Gratian's Concordance of Discordant Canons, a work that may still have been growing at this date but which was shortly to receive, if it had not already received, its vulgate edition.22 That a systematic arrangement of Lombard laws, known as the Lombarda, was made, probably in the late eleventh century, suggests that this body of law was also being studied, probably at Pavia.23 A source book of feudal law, known as the Libri feudorum, was being compiled at this time, and was almost certainly being used for study in northern Italy, though it is unclear where.24 There was also study of Roman and canon law going on in the south of France, though, again, it is difficult to determine precisely where.25 The method of teaching, at least of Roman and canon law in Italy, was that the master read the basic text (slowly, many students did not own the book and were trying to memorize it); he then commented on individual passages. These comments were recorded in the manuscripts as glosses.26
The glossatorial effort could have given rise to a considerable amount of comparative work. It certainly did within each tradition. Texts within the four (p. 10) corners of the basic texts were sought, and their differences expounded. But the fundamental thrust of the glossatorial effort was to harmonize the texts, not to outline different systems of law. That the Corpus Iuris Civilis provides insights into Roman law in many different periods seems obvious enough to us, and today we sharply distinguish the classical law from the post-classical and from that of Justinian. The glossators were aware that Justinian had made changes (they could hardly be unaware of it, because he says so in many places), but their vision seems to have been one that sought, if at all possible, to reconcile the texts within the Corpus and form them into a coherent whole. The same may be said of canon law. It seems obvious to us that the canons of the church councils and the writings of the fathers of late antiquity envisage a rather different system of law from that of the penitentials and councils of the early middle ages, different again from that of the writings and papal decretals of the reform movement of the eleventh and twelfth centuries. But comparing these systems is not what the canonists were trying to do. They had a system for preferring one authority over another in the case of irreconcilable conflict, but they rarely saw irreconcilable conflicts. Most of the material proved to be malleable into a single system by means of clever distinctions and creating a hierarchy of general rules and exceptions.
When it came to comparisons between Roman law and canon law, the effort at harmonization continued. This is particularly noticeable in the case of the canonists of the glossatorial period, because the basic canonical sources were deficient, particularly in what we would call private law. Since the church was said to live by Roman law, it was relatively easy to borrow whole areas of Roman law and incorporate them into the canonical system. A particularly remarkable achievement of this period was the creation of a system of Romano-canonical procedure, an effort in which both canonists and civilians participated, and which resulted in the procedural system which is the direct ancestor of that in Continental Europe today.27
The system of land-holding described in the Corpus Iuris Civilis was quite different from that of twelfth-century Italy. The glossators reacted to this fact in two ways. They manipulated the Roman-law texts to create a dominium directum for the lord and a dominium utile for the tenant.28 They also elaborated the Libri feudorum, but confined its reach to land that could be clearly identified as a fief. The Libri feudorum was thus brought into the overall system in such a way that in the sixteenth century it could be printed without embarrassment as part of the Corpus Iuris Civilis. The Lombard law proved to be more intractable. While some (p. 11) effort was made to interpret it in the light of Roman law, it was never brought into the Romano-canonical system as fully as were the Libri feudorum.
Differences between Roman law and canon law and between the developing Romano-canonical system and customary law remained. Two examples may suffice to show how the glossators, or at least some of the glossators, dealt with them. In Roman law there was apparently some debate, pitting, as we are told, the Republican jurist Trebatius against the Antonine jurist Gaius, as to whether mortally wounding an animal was sufficient to give title to it, or whether one must actually seize the animal.29 Justinian resolved the debate in favour of the latter (Gaian) view, on the ground that ‘it may happen in many ways that you will not catch it’.30 That does not seem to have been the customary law of northern Italy in the twelfth and thirteenth centuries, where priority was almost certainly given to the huntsman who had wounded the animal and perhaps even to one who was simply in hot pursuit.31 Accursius interprets Justinian's quite clear ruling to mean that the judge must inquire into the likelihood that the huntsman will catch the animal.32 If it is clear that he will, then priority goes to the first huntsman. It is hard not to see customary law as exerting a pressure, to put it mildly, on Accursius' interpretation.
The canon law, which had jurisdiction over the formation of marriage, differed from what seems to have been the Roman law on the issue. The glossators of the Roman law bent their interpretations of the Roman law of marriage to accommodate the canon. For example, the Bolognese civilian Azo early in the thirteenth century suggested that when it came to the question whether a sacramental marriage had been formed, canon law prevailed, but a leading of the bride into the house of the groom was required for the marital property consequences of marriage to ensue.33 Hence, as in the case of the Libri feudorum, the two laws are accommodated under one roof by creating a category to which each will apply. In one area, however, the civilians did not bend the Roman law. In Roman law the father of a child in power (who could be of any age) had to consent to that child's marriage. Canon law did not require parental consent. Although a number of ways to do so were available to them, the civilians did not attempt a reconciliation in this instance, perhaps because they sided with fathers in the generational battle that has a long history in the West.34
(p. 12) III. The Later Middle Ages
Except in the case of Roman and canon law, the glossators rarely mention the existence of bodies of law different from the ones that they are expounding. This characteristic of legal writing changed in the period of the commentators (fourteenth through sixteenth centuries) perhaps as a result of university-trained jurists' attempting to come to grips with strong customary legal systems in the north of France. Mainstream Italian jurists of the fourteenth century frequently cite differing customs and statutes of the Italian city-states, and when they cannot reconcile them with their learning (which they normally attempted to do), they simply recognize that they are different. Thus, when Bartolus is discussing the same issue about wounding a wild animal that Accursius had attempted to reconcile with the customary law in a way not true to the Roman-law text, Bartolus holds to the obvious meaning of Justinian's (and Gaius') ruling: ‘The Lombard Law, “On hunters,” next-to-last law,35 is opposed [i.e., suggested as an authority for reaching a contrary result]. Solution: that law is one thing this law is another, but by custom the opinion of Trebatius is approved’.36
Not only did the commentators acknowledge the existence of differing bodies of law, they also began, at first quite tentatively, to explore why there might be such differences. For example, the fifteenth-century canonist Panormitanus considers the difference between Roman law and canon law on the topic of parental consent: ‘Canon law’, he says, ‘considered the freedom of marriage. The civil law, however, considered the crime of the ravisher37 and deception of women’.38 The past tense will be noted; having considered these things, the law became fixed.39
Open acknowledgement of the differences between laws necessitated the creation of a system to deal with conflicts of laws. Bartolus's justly famous repetitio on the (p. 13) imperial constitution Cunctos populos (Code 1.1.1) is not only the first extended treatment of the topic, it also makes considerable use of what we would call policy analysis in an effort to determine the legitimate scope of conflicting laws.40
It has recently been argued, correctly in my view, that in at least one place the Bartolan repetitio shows considerable sophistication in comparative analysis.41 Most of the conflicts with which the repetitio deals are relatively standard ones involving the statutes of Italian city-states. In one example, however, Bartolus poses a conflict between the ius commune, with its provision for equal inheritance in intestacy among children of the deceased, and English law with its system of primogeniture. The relevant variables for determining which law will apply, as Bartolus sees them, are the citizenship of the deceased (English or Italian) and the location of the property (in England or Italy). He then adds one more: ‘The words of the statute or custom are to be carefully examined, for they either make a determination about a thing (circa rem) “The goods of the deceased shall go to the eldest son” … or [they] make a determination about a person (circa personam): “The eldest son shall succeed”’.42 This distinction has long been criticized on two grounds: first, that the English law was customary and not redacted, and second, that a difference as important as this one should not be made to depend on wording. A statute-making body (or a redactor of a custom), aware of this distinction, would always use the personal wording in order to increase the scope of the statute or custom. If, however, we assume that Bartolus was reasonably well-informed about the differences between the English legal system and the Italian ones in his period, and that he phrased the problem in terms of the language of statutes or redacted customs because that is the way his listeners thought about local law, then the distinction may be quite sophisticated. The Italian city-states in Bartolus's period used the Roman system of universal succession. ‘Let the first-born succeed’ to an Italian of Bartolus' period would mean that the first-born was the universal heir, inheriting all the property and the active and passive of the obligations. He was charged with the responsibility of paying the legacies and frequently also charged with fideicommissa, roughly the equivalent of the modern Anglo-American trust. ‘The property shall go to the eldest son’, by contrast, means just that. Nothing is implied about obligations, administration, or trusts. In fact, it is the second alternative that corresponds to the English legal system of (p. 14) Bartolus' day. Primogeniture applied only to land and not even to all land.43 In short, if we focus not on the wording of the ‘statute’, but on the underlying substantive differences between the English and the Italian systems of succession in Bartolus' day, his distinction may be based on an important comparative insight.
Considerable work that can be regarded as comparative is found in the consilia of the fifteenth- and sixteenth-century Italian commentators that deal with conflicts between the statutes of the Italian city-states and between those statutes and the ius commune. Systematic exploration of these consilia is in its infancy. We will have something to say about them when we consider the better-known work of the sixteenth-century French legal thinkers.44
Contemporary with the commentators, but operating in a decidedly different legal tradition is Sir John Fortescue, a mid-fifteenth-century English judge of the Lancastrian party. Fortescue made numerous comparisons between the legal systems of England and France, both in his De laudibus legum Anglie and in his Governance of England.45 The purpose of both works, however, was to show how English law and governance were in all respects superior to those of France. Whether one regards Fortescue as a practitioner of the comparative method depends on whether just making comparisons—which Fortescue surely did—is sufficient. One may, however, argue that the comparative method requires more. In particular, it may require an openness to the comparative process, a willingness to admit that what is on the other side of the comparison is better than what is on one's own side, or—if one does not want to be normative—an openness to seeing that some differences may be more apparent than real and that the remaining differences may have quite intelligible explanations. If that is required, then Fortescue was not a true practitioner of the comparative method. He made comparisons, but the result of his comparisons was a foregone conclusion: English law was better than French.
(p. 15) IV. Sixteenth-Century French Legal Thinkers
And so having compared the arguments of Aristotle, Polybius, Dionysius [of Halicarnassus], and the jurists—with each other and with the universal history of commonwealths—I find the supremacy in a commonwealth consists of five parts. The first and most important is appointing magistrates and assigning each one's duties; another is ordaining and repealing laws; a third is declaring and terminating war; a fourth is the right of hearing appeals from all magistrates in last resort; and the last is the power of life and death where the law itself has made no provision for flexibility or clemency.46
The author of this quotation is Jean Bodin, although the quotation is not from the Six livres de la République but from the earlier Methodus ad facilem historiarum cognitionem. My concern here is not with Bodin's definition of supremacy in a commonwealth, what he elsewhere calls ‘sovereignty’; my concern is with his method, that is to say, with the way by which he arrived at his definition. He did it, he tells us, by comparing ‘the arguments of Aristotle, Polybius, Dionysius [of Halicarnassus], and the jurists—with each other and with the universal history of commonwealths’.
We are becoming increasingly aware that Bodin was not as original in his political and legal thought as he claimed to be.47 The same is true of his method. A number of Bodin's contemporaries engaged in more or less systematic comparison of top-level philosophical and political abstractions like those of Aristotle (Polybius and Dionysius are in exalted company) and of the middle-level generalizations found in the writings of the Roman jurists and of the ‘universal history of commonwealths’, a topic that turns out to include large amounts of more or less accurate history of the ancient Mediterranean world with considerably less accurate histories of the Celtic and Germanic worlds. One has only to mention the names of Éguinaire Baron, François Baudouin, and François Hotman to indicate how common the method of comparative legal history was among the French (p. 16) humanists of the sixteenth century. Indeed, it has been argued that the French legal humanists invented modern historical method.48
Be that as it may be, the use of the comparative method in law and history is certainly a characteristic of the French sixteenth century. The homologation of French customary law in this period produced material that cried out for comparative treatment, and comparisons began even before the effort was finished. Most notably, the comparative method can be found in writers who can be classified as ‘humanists’ in only the most extended of senses. Guy Coquille's (1523–1603) Institution au droict des François is illustrative.49
Coquille was a practising lawyer in the customary courts of Nivernais, but he had been trained in Italy. He mentions Mariano Socini, junior, who taught at Bologna and died in 1556, as one of his teachers. Coquille's Institution begins with the titles of the homologated custom of Nivernais. He first states the rules of that custom relevant to the title, but he immediately broadens out comparatively. Let us examine some of Coquille's comparative arguments, for they show considerable sophistication.
In his title on marital property, Coquille states that the rule in Nivernais is that a married woman must obtain the consent of her husband in order to make a testament.50 The same rule applies in Burgundy. In Poitou, Auxerre, Berry, and Rheims the rule is to the contrary. This is the kind of conflict that comparative analysis uncovered quite quickly in dealing with 285 diverse customs.51 Once the customs had been redacted, it is a relatively mechanical task to lay them side by side to see how the rules are similar and how they differ. But once the conflict has been discovered what are we to do about it? One way to resolve such a conflict would be simply to say that a married woman in Nivernais or Burgundy should get her husband's permission to make a testament but one in Poitou, Auxerre, Berry, and Rheims need not. But in general that is not the way Coquille and most of his contemporaries thought. The question they seem to be asking is what is the ‘true rule’. This would suggest that we are still in a world in which there is a true rule; law is not simply a matter of the will of the legislator or even of the will of the community expressed in the homologated custom. The true rule is that a testament cannot depend on the will of another. That is in the nature of a testament. How does Coquille know that? Because Roman law says so, and he cites relevant passages from the Digest to show it.52 But he will not simply override the custom of (p. 17) Nivernais or Burgundy. The rule still has some force in those areas. But what he will do is limit the scope of the rule. If the custom is abolished, then the rule has no force because the ius commune is to the contrary. But even more important, he will limit the number of people who can raise the objection. If the husband in Nivernais or Burgundy does not raise an objection to his wife's testament, then no one can. A rule contrary to the ius commune will be held to be a kind of privilege, exercisable only by those to whom it has been granted it.
On the basis of this example, it looks as if the ius commune and juristic interpretation always win the day. But the ius commune was malleable stuff. Let us take a look at how Coquille handles the problem of when a marriage is deemed to be complete for marital property purposes.53 Coquille begins with a basic proposition: Almost all the customary jurisdictions have community property. Indeed, almost all of them have the version that is the basic version in France today, community property of movables and acquests. The community does not arise, Coquille tells us, until there are words of the present tense (a requirement of canon law as old as the twelfth century) and solemnization of the marriage in the face of the church (which was not a requirement of the classical canon law for either validity or legitimacy).
Some customs require a nuptial blessing. But this, Coquille tells us, makes no sense because in canon law a blessing can be done privately or clandestinely without assembly.54 Coquille does not derive his requirement that marriages must be public for community property to arise from the decree Tametsi of the council of Trent (1563) or the ordonnance of Blois (1579), both of which might have been used to support such a publicity requirement.55 Rather, he relies on a consilium of his teacher, Mariano Socini, junior, and Socini had, in turn, relied on a consilium on the same topic of Panormitanus.56 Panormitanus was dealing with a different issue: He had interpreted statutes of Italian city-states to require that for purposes of giving the husband a share in the dowry of his predeceased childless wife there must be a leading of the bride into the house of the groom in addition to the canonical requirement of present consent. Panormitanus considered, but apparently rejected, interpreting the statutes to require that the marriage be consummated. But for Panormitanus the policy that the statutes supported was that the husband be compensated for bearing the expenses of the wedding and (p. 18) maintaining his wife in his household. Coquille was concerned about publicity tout court. He simply rejects the customs that call for consummation. He sharply distinguishes the canonic requirements from the civil requirements. He does not say so, but he almost certainly comes to his conclusion because it is critically important in a community property system that creditors know with whom they are dealing. Publicity is essential for community property not only for the relatively rare instances of disputes about the division of the property but for the day-to-day dealings of the couple with others.
What Coquille has done is to take consilia in the tradition of the ius commune that raised the question of what is to be done about local law that seemed inconsistent with the ius commune and interpreted that law in the light of an imagined purpose relevant to the local system of marital property. In the case of Panormitanus that purpose had to do with a dotal system; in Coquille's case the system of marital property was community property. The imagined purpose of the local law is quite different in the two cases: compensating the husband in one case, giving publicity to the formation of the community in the other. What links the two is that in both cases the local law adds something to the present-consent requirement of the canon law (and of the ius commune), and in both cases the teleological interpretation of the local law is connected to the local system of marital property.
My last example shows Coquille at his most radical.57 All the customs that Coquille cites make the contract of a married woman absolutely void. This means that the contract has no effect even after the death of the husband or upon the divorce of the couple. Coquille does not like this rule, although it is not completely clear why. He apparently does not think that there is anything about being a woman that makes her incompetent to contract, and he cites the proposition that an unmarried woman who has reached the age of majority can contract. He also notes that women may be sued for their delicts, that they can trade, and that they have capacity to sue when there has been a separation of goods. We may speculate that Coquille feels that absolute incapacity does not correspond to social reality. In any event the problem is how is he going to get around the unanimous testimony of his customary authorities. He does it by saying that the rule was derived from Roman law. Not only was it derived from Roman law, it was derived by an analogy, from the contractual incapacity in Roman law of the filiusfamilias. Therefore the authorities do not require an absolute rule of (female) incapacity. The true rule, he says, is that a woman is incapacitated from contracting only in respect of the power of her husband. Take away the power, and the rule ceases. In other words, the incapacity is not personal but relational. Hence, presumably, as in the case of the testament, only the husband can object. I am not sure that this is a good argument, but it is interesting that Coquille makes it.
What is also interesting is Coquille's method. Perhaps the easiest of his moves to (p. 19) see is where he makes a comparison and the comparison reveals that there is a difference among the customs. Here he has a tendency to look to the rule of the ius commune, and to privilege that rule. He will not deny that the contrary custom exists, but he will require that it be clearly stated, and he will apply it only in those situations to which it clearly applies. Basically the same techniques were being used by the Italian jurists in the fifteenth century when they were dealing with statutes that were contrary to the ius commune: Statutes in derogation of the common law (ius commune) are strictly construed. But Coquille's search for principle goes further. Sometimes he will ask what the purpose of the custom is and will refuse to apply it in situations where he does not believe that its purpose applies. Again, the same technique was used in the interpretation of the statutes of the Italian city-states. Occasionally we will find an argument that the custom is just flat-out wrong, either that it contradicts other higher principles or that it—this argument is usually only hinted at—does not correspond with social reality. The former argument is found in the fifteenth-century Italian jurists, though it is not often used; the latter is so rare as to be virtually non-existent. Coquille and others writing in the French tradition go beyond what the Italian jurists did in another respect. They attempt to find principles that unite the divergent French customs among themselves when no reference to the ius commune can be made, and they use methods and principles of the ius commune in analysing a customary system of law that, unlike the statutes of the Italian city-states, did not assume the ius commune as its basis.
The comparative method was not universally followed in sixteenth-century France, at least not as broadly as Coquille used it. Christophe de Thou, premier président of the parlement of Paris and the man who more than any other was responsible for the homologation of the French customs, seems to have been hostile to comparisons involving Roman law.58 We must be cautious, however, in making this statement. De Thou's thought is quite difficult to reconstruct. He did not write any general works about his method, and what we know of his thought is largely derived from what he did and what his contemporaries said about him. He was probably not hostile to comparisons among the various French customs, and he was willing to allow Roman law to be called ratio scripta in some of the homologations. On the other hand, he never spoke of Roman law as being the droit commun in France, a phrase that he seems to have reserved for the common elements among the customs, and he seems to have been less open to argument from Roman law than was his predecessor Pierre Lizet. De Thou's discours pronounced on n May 1565 in the presence of the prince de Condé is replete with citations to classical authors, but it contains relatively little Roman law.59 Citation (p. 20) of classical authorities increased markedly in the plaidoyers during de Thou's tenure as president of the parlement (1554–82).60 But citation of classical authorities for rhetorical purposes is not quite the same thing as citing Roman law as authoritative or making comparisons between French customary law and Roman law.61
Pierre Pithou, in what may have been a daring move in 1572, dedicated his edition of the newly discovered Lex Dei to de Thou, arguing in the preface that de Thou had nothing to fear from the authority and sanction of Roman law and much to gain from its reason and equity. De Thou's reaction, so far as I know, is not recorded. Perhaps he did not even notice; Pithou's dedication is dated five weeks after the St Bartholomew's day massacre.62 De Thou may well have had other things on his mind.
De Thou did, in fact, have something to fear from Roman law and from the comparative method, but the source of the danger was not the authority of a Byzantine emperor dead for a thousand years, nor that of Rudolf II, the nominal successor of the Roman emperor in the west. What de Thou had to fear was that compared to Roman law, French customary law was an intellectual mess, and in an intellectual age, intellectual messiness was not a desirable characteristic. Ultimately, of course, French customary law acquired intellectual respectability, but it did so by using the very tools of analysis and comparison that de Thou seems to have feared, tools that by and large had been developed by men like Pithou working on Roman law. In the process French customary law changed; it became less local and less particular. While it retained characteristics that were peculiarly French, there were fewer such characteristics when the process was over than there had been before it began. De Thou may have saved French customary law as a category and its practitioners as a profession, but what emerged was not the same as what he had saved, and, perhaps, what he hoped to save.
I think there can be no doubt that French legal thinkers of the sixteenth century employed the comparative method widely. Unlike Fortescue, they were open to (p. 21) what their comparative sources were telling them. We certainly cannot accuse most of them of jingoism, an accusation that it is not unfair to apply to Fortescue. They also dealt with their sources from the ancient Mediterranean world with considerable sophistication.
Let us return to what Jean Bodin confidently asserted that he had done in order to arrive at his definition of sovereignty. He had, he tells us, compared the arguments of Aristotle, Polybius, Dionysius of Halicarnassus, and the jurists with each other and with the universal history of commonwealths. He had, in short, comparatively examined abstractions of the highest order, comparatively examined the middle-level abstractions found in juristic writing, and had laid both comparisons against the history of the societies in which they emerged. Only then was he able to arrive at his generalizations about the nature of sovereignty. In his day it was just barely possible for a genius and polymath like Bodin actually to execute this programme.
Even Bodin took shortcuts. It is probably just as well that Bodin spent little time examining the Germanic and Gallic background of the French constitution, because the work that his contemporaries, such as Hotman, did on the topic seems today embarrassingly tendentious and amateurish.63 What the sixteenth-century humanists have to say about the Greek and Roman worlds is more solidly based. One can still gain insights into Greek and Roman law and legal thought from reading the work of the humanists. The work of Jacques Godefroy (1587–1652) on the Theodosian Code has, in some sense, not been replaced.64 None the less, the humanists vision of the development of law and legal thought in Greece and Rome is not ours. While they were aware of the problems that interpolation and omission in the juristic texts caused, they did not systematically explore the effects of these phenomena. They knew some of the epigraphic evidence, but not enough. The study, for example, of Roman public law cannot be done today as it was done in the sixteenth century because of the work of Mommsen and his followers.65 I am still old-fashioned enough to believe in progress in knowledge, but progress means that the number of areas that one can cover in a lifetime gets smaller.
(p. 22) What we have just said raises some doubt about whether the French legal thinkers of the sixteenth century can truly be said to be the founders of modern comparative method. As was the case with Fortescue, so too with the case of the French legal thinkers of the sixteenth century, it is a question of definition. If we require that the comparative method be value-neutral, that its practitioners not seek to act on the results of their studies, that they seek only to explain similarities and differences, that they be ‘scientific’ in one of the modern senses of that term, then the French legal thinkers of the sixteenth century, for the most part, were not practitioners of the modern comparative method. Bodin sought not only to understand sovereignty but also to influence French constitutional development in his own time. On a less exalted level, Coquille sought to shape the customs with which he was dealing so that they moved in the direction of what he regarded as right. Both believed in a supranational body of law. For Coquille it was the ius commune; for Bodin and Pithou it was the principles derived from the experience and writings of the ancients. Neither would have agreed that law is solely a matter of the will of the legislator.
If, however, we insist that comparative law be ‘scientific’ in the sense that I have just defined it, then a great deal that passes for comparative law today is not comparative law. Many comparatists look to other legal systems for possible solutions to the problems that are plaguing some legal systems, perhaps even their own, or for explanations of why one legal system, perhaps even their own, has succeeded in an area in which another has not. Many comparatists look to legal systems other than their own to see if it is possible to develop a dialogue across systems, for example, by finding common principles, if not specific rules. Most would agree that the task of the comparatist must involve careful examination of top-level ideas, middle-level legal discourse, and actual practice and development. In all of these endeavours modern comparatists are the descendants of the French legal thinkers of the sixteenth century.
V. The Seventeenth and Eighteenth Centuries
With the decline of French humanist legal thought, the comparative method passed to the natural law school.66 To put the matter too simplistically, the French humanists had shown how classical Roman law was very different from what (p. 23) passed under the name of Roman law in the Italy of their day and suggested that the real lessons to be learned from Roman law were on a level of generality higher than the specific rules of the system.67 It was to this higher level of generality that the natural law school turned its attention. Whether their principles were derived from comparative study or whether they were illustrated and confirmed by comparative examples, many members of the natural law school, among whom Hugo Grotius (1583–1645), John Selden (1584–1654), and Samuel von Pufendorf (1632–1694) provide notable examples, set their natural law principles in a broadly comparative framework.68 The comparative method is also found among writers of the Enlightenment who were not members of the natural law school, for example, Charles de Secondat, baron de Montesquieu (1689–1755),69 and to a lesser, but still substantial, extent, among Enlightenment authors who were only partially members of the natural law school, for example, Robert-Joseph Pothier (1699–1772).70
The previous paragraph avoided the question whether the method of the natural law school was genuinely inductive, so that comparative material was used to derive larger and larger principles until the ultimate principles emerged, or whether these principles were found deductively, so that the comparative material was there simply by way of illustration, example, or confirmation of what had been determined by other means. I am not sure that such a question can be answered when one is dealing with men as complex and learned as Grotius, Selden, and Pufendorf. The distinction, however, is an important one if one defines comparative law as being necessarily empirical. If an author has already made up his mind that the true principle of law is, for example, that man has a natural right to private property as that term is normally understood in the West, then the empiricist is likely to regard that author s comparative material as not truly comparative but as propaganda for the predetermined conclusion.
Certainly some members of the natural law school—Christian von Wolff (1679–1754) (p. 24) comes immediately to mind—wanted to make law a rigorously deductive science.71 In this Wolff was probably following the jurisprudential ideas of Gottfried von Leibniz (1646–1716), but he was also being true to his own formation: He began his career as a professor of mathematics. Some of his work can be regarded as comparative in the sense that he occasionally uses examples drawn from a variety of legal systems, but it is certainly not empirical in the normal sense of that term. He may be a comparatist in the broad sense but his approach does not lead to the method employed by most, if not all, modern comparatists.
As previously suggested, Grotius, Selden, and Pufendorf are more complicated. Their methodological premises are less apparent than Wolffs. All may have realized that at least in the human sciences the distinction between inductive and deductive tends to break down. They certainly ranged very widely indeed with regard to the materials they considered, perhaps no one more so than Selden.
We have space for only one example, but it is one that, I believe, illustrates the mainstream of the natural law school, at least in its seventeenth-century manifestations, quite well. It is also one that will allow the reader to decide for him- or herself whether these thinkers should be classified as comparatists.
Our example is taken from Pufendorf's treatment of the occupation of wild animals, a topic discussed earlier.72 Although Pufendorf struggled against Thomas Hobbes, his thought on property has a decidedly Hobbesian cast.73 For Pufendorf, as for Hobbes, there is no natural right to property in the state of nature. All property is dependent upon the compact among men. According to this compact things seized by one man out of the common stock are protected from seizure by another. But since the core of the compact is that men surrender their autonomy to the sovereign, the sovereign may change the rule about first occupancy, as in most places he had with regard to hunting wild animals. None the less, the law cannot change the rule that what is in no one's dominion cannot be owned.74
This proposition leads Pufendorf to spell out the negative implications of Justinian s text: A wild animal is not reduced to possession except by bodily seizure, either directly or by instruments. That, in turn, brings Pufendorf to the problem of the wounded animal:75
The question is also raised whether, by wounding a wild animal, we seem to make it at once our own. Trebatius once said that we did, supposing that we pursue it, while if we do not do (p. 25) so, it ceases to be ours, and goes to him who first secures it. Others take the opposite position, namely, that it is not ours unless we have caught it, since many things can happen that may keep us from catching it.76 On this Godefroy77 observes that Frederick [Barbarossa] drew some distinctions in cases like this, to wit: ‘If a man has discovered an animal with large deer hounds, or Molossian dogs, and was pursuing it, the animal goes to him rather than to the one who seizes it; and likewise if he wounds or kills it with a spear or sword. If he pursued it with beagles or Spartan dogs, it falls to the seizer. If he slew it with dart, stone, or arrow, it belongs to him and not to the seizer, provided that he is pursuing it’. According to a law of the Lombards,78 he who killed or found an animal wounded by another, may carry off the fore-quarter with seven ribs, the rest belonging to him who had wounded it, though his right endured only twenty-four hours. In my opinion the general statement should be that, if an animal has received a mortal wound or been seriously crippled, it cannot be taken by another so long as we keep up the pursuit of it, and provided we have the right to be in that place; while this is not true, in case the wound be not mortal, nor such as seriously to hinder its flight. Therefore, it was more from affection than right that Meleager allowed Atalanta to share in the glory of the slaying of the Caledonian boar, as the story is given by Ovid.79 But the game which my dogs have killed without any urging is not mine until I seize it.80
Pufendorf is not known to have had a sense of humour, but it is hard to imagine that he did not at least smile when he brought to bear on the problem both the chronicler s account of the elaborate ruling of Frederick Barbarossa and the story of Meleager and Atalanta.81 The Roman legal texts and the Lombard, as we have seen, were already very much in the tradition. Pufendorf s own opinion on the topic is within the mainstream of the Roman legal tradition (though more on the Trebatian than on the Gaian side) but it is also derived from, or is at least consistent with, his Hobbesian view of property. Law has no place where the sovereign does not have power over the subject, and property has no place where the subject does not control the object of property. Now if we ask where this idea comes from, we would say that for Hobbes it is derived from a story about how human beings banded together and surrendered themselves to the sovereign in order to escape from their nasty, mean, brutish, and short existence. Pufendorf replaces that account with one much more based on the account of the original situation of humans found in the book of Genesis, but he retains Hobbes s insistence on sovereign power. There is no natural right to property in the sense that such a right existed in natural law before the compact that created the state, and hence, the sovereign may institute whatever rules he chooses about who is entitled to hunt and where. For Pufendorf, there is a master narrative that trumps all other (p. 26) narratives. From this master narrative, principles are derived, which are then used to control the wide variety of examples that comparative inquiry produces. The principles are, however, derived from a narrative, not from ever more abstract propositions about the nature of man or the nature of human societies.
If we change the master narrative, we get different results. Jean Barbeyrac (1674–1744) accepted John Locke's master narrative about the origins of property (the Indian and his acorns), from which he, like Locke, derived the notion of a natural right to property that antedated the social compact.82 If we say that the purpose of property is to protect human labour in reducing resources to human use, then we will not find any particularly powerful dividing line at the point where the resource is actually seized. We are much more likely to say that the huntsman who has announced his intention to others to pursue a particular animal will be protected in that endeavour so long as he continues the pursuit. And this is precisely what Barbeyrac says in his trenchant and highly critical commentary on the passages of Pufendorf just summarized.83 Methodologically, however, the Hobbes-Pufendorf and Locke-Barbeyrac approaches are the same: Principles derived from the master narrative control the examples produced by comparative inquiry.
When we move from writers in the natural law school of the seventeenth century to Montesquieu, one of the things that is most noticeable is the great increase in the geographical and cultural range of his examples, a product, among other things, of the greater knowledge that was reaching Europe of places like Japan, China, and India. There is correspondingly less emphasis on examples from antiquity, although these are certainly not wanting. Notable too is the absence of a master narrative from which principles are derived and then used to control the examples. Rather than condemning practices that the master narrative has shown to be contrary to reason, Montesquieu seeks to explain the variety of laws and practices that he reports as the product of geographical (or ecological), institutional, and social forces. His method, then, is more like that of modern empirical social science. As such, it is no better than the data on which it is based, and some of what Montesquieu took from travellers' accounts was clearly just wrong.84 Of course, the fact that Montesquieu has no master narrative does not mean that his account is value-free. Perhaps what we see from the vantage point of more than two centuries indicates the impossibility of a totally value-free account in the social sciences.
The following example is atypical only in that it does not range so widely (p. 27) geographically as do many of Montesquieu's. It deals with a topic previously considered, the consent of fathers to the marriage of their children:85
The consent of fathers is founded on their authority, that is, on the right of property. It is also founded on their love, on their reason, and on the uncertainty of that of their children, whom youth confines in a state of ignorance and passion in a state of ebriety.
In the small republics, or singular institutions already mentioned, they might have laws which gave to magistrates that right of inspection over the marriages of the children of citizens which nature had already given to fathers. The love of the public might there equal or surpass all other love. Thus Plato would have marriages regulated by the magistrates: this the Lacedaemonian magistrates performed.
But in common institutions, fathers have the disposal of their children in marriage: their prudence in this respect is always supposed to be superior to that of a stranger. Nature gives to fathers a desire of procuring successors to their children, when they have almost lost the desire of enjoyment themselves. In the several degrees of progeniture, they see themselves insensibly advancing to a kind of immortality. But what must be done, if oppression and avarice arise to such a height as to usurp all the authority of fathers? Let us hear what Thomas Gage says in regard to the conduct of the Spaniards in the West Indies.86 … [Gage's account describes the Spanish as forcing the Indians to marry at a young age in order to increase the amount of tribute that the Spanish receive.] Thus in an action which ought to be the most free, the Indians are the greatest slaves.
In England the law is frequently abused by the daughters marrying according to their own fancy without consulting their parents. This custom is, I am apt to imagine, more tolerated there than anywhere else from a consideration that as the laws have not established a monastic celibacy, the daughters have no other state to choose but that of marriage, and this they cannot refuse. In France, on the contrary, young women have always the resource of celibacy; and therefore the law which ordains that they shall wait for the consent of their fathers may be more agreeable. In this light the custom of Italy and Spain must be less rational; convents are there established, and yet they may marry without the consent of their fathers.
Montesquieu begins with some general assumptions about the way that paternal power is organized the world over and about how fathers and children behave and are disposed. From this he derives the proposition that the laws will require that fathers consent to the marriage of their children. He then notes that there are exceptions in ‘small republics’ and ‘singular institutions’, a phrase that he uses for institutions that are rarely found. In Sparta and in the Platonic Republic, magistrates chose the marriage-partners of the citizenry. Perhaps that might be justified in a tightly knit community where ‘the love of the public might there equal or surpass all other love’. But the ‘common institution’ is that fathers control the marriage of their children, a provision that Montesquieu attributes both to the greater prudence of fathers and also to a natural desire of fathers to see themselves continue in their offspring. Montesquieu regards it as an abuse that a colonizing (p. 28) power has taken over the marriage choices of a subservient population in order to increase its revenue: ‘in an action which ought to be the most free, the Indians are the greatest slaves’. He does not consider the possibility that a parental consent requirement might also be inconsistent with liberty of marriage. He then notices that in England children frequently marry without parental consent. His observation is acute and in comparison with France in his period, he may well be right. He then suggests that the reason for the difference is that English women do not have the alternative of going to the convent, as French women do. His explanation then causes him puzzlement because he also thinks that Spanish and Italian women frequently marry without parental consent, and they, like French women, have the option of going to the convent.
This is not Montesquieu at his best. He has jumped too quickly to an assumption about a common institution without the empirical survey of institutions that we sometimes find in his work. His analysis of the motivations of fathers smacks of natural-law analysis without the rigour of the best of the natural-law thinkers. (He seems to suggest that the desire of fathers to see the prosperity of their offspring is somehow biological rather than rational.) His comparison of England and France is made without careful consideration of the difference in laws between the two countries. (France in his period, at least arguably, did require parental consent for the civil validity of a marriage; England did not.) His proposed explanation for the difference between England and France fails in its own terms when he considers Spain and Italy, and he does not pause to consider whether his generalization about practice in Spain and Italy may be mistaken (as it may well be).
All of this should not, however, obscure the fact that Montesquieu employs something very close to, if it is not the same thing as, modern comparative method. He posits a virtually universal requirement for parental consent. If that is right, then the explanation for it must be virtually universal, perhaps something biological, the lack of prudence of the young, their passion, the desire of fathers to see their line succeed. There are exceptions. They must be explained. Small, tightly knit communities may share a commonality of values and purposes that will lead them to entrust such decisions to the magistracy. Colonial powers may repress subject peoples. Montesquieu then moves from the law to its evasion or violation. He sees a difference among countries and seeks, though he fails, to explain that difference on the basis of religious differences.
We close with a glimpse at a somewhat younger contemporary of Montesquieu's, Pothier. His approach can be seen well in his treatment of the topic of property in wild animals.87 Like Locke and Pufendorf, but with more religious emphasis than either of them, Pothier begins with God's dominion over and creation of the universe and God's grant to humankind of a dominion over (p. 29) creation subordinate to his own.88 He then outlines, as had Pufendorf and others before him, the negative community that existed from the beginning:
… which consisted in that these things which were common to all belonged no more to one of them than to the others and in that no one could prevent another from taking from among these common things that which he judged fitting to take in order to satisfy his needs. While he was satisfying his needs with it, the others were obliged to leave it to him, but after he ceased to satisfy his needs with it, if the thing were not one of those which were consumed in the use that one made of them, that thing returned to the negative community and another could satisfy his needs with it in the same manner.
Humankind having multiplied, men divided the land and the majority of things that were on the surface among themselves. That which fell to each of them began to belong to him to the exclusion of others. That was the origin of the right of property.…
So far as wild animals are concerned, ferae naturae, they remained in the ancient state of the negative community.… [N]o one has property in them so long as they remain in that state, and they cannot be acquired except by seizing them.
Pothier next takes up the Roman law of hunting. He notes the basic proposition that conforming to the natural law, Roman law made the chase available to everyone. He correctly interprets Digest 188.8.131.52 as making it irrelevant whether the capture took place on the hunter s property or on another s land. He notes, as does the same Digest passage, that the landowner may, however, prohibit the hunter from entering on his land (which he takes as a consequence of land-ownership), and seems to support the opinion that if one takes an animal contrary to the prohibition of the landowner, he none the less acquires title to the animal but the landowner has an actio iniuriarum against him. Pothier goes on to point out, as had Pufendorf, that the Romans did not require actual manucaption. An animal caught in a trap, he seems to hold, belongs to the trapper if it cannot get out.
Pothier then proceeds to consider the question of wounding and of interference with the hunt. He notes the conflict between Trebatius and Gaius on the topic. He makes no mention of how Justinian resolved the question, but he reports Pufendorf s resolution, which he describes as allowing the huntsman an action if the wound was considérable and the animal could not escape. He then reports Barbeyrac's opinion that pursuit alone is enough and concludes:89
Barbeyrac … thinks that it suffices that I be in pursuit of the animal, even though I have not already wounded it, in order that I be regarded as the first occupant, with the result that another will not be permitted to seize it from me during this time. This idea is more civil; it is followed in usage; it conforms to an article of the ancient laws of the Salians [5.35]: where it is said: ‘If anyone kills and steals a tired wild boar whom another's dogs have stirred, let him be adjudged liable for 600 denarii’.
So far Pothier has been quite consistent. He has grounded the privilege of the (p. 30) huntsman in a divine grant as a matter of natural law, and he has supported the huntsman at every turn. He prevails over the landowner even when he is expressly forbidden from entering onto the land. He prevails over the later huntsman in the case of wounding, and perhaps simply in that of hot pursuit, following a much more Lockian than Hobbesian version of the story. When Pothier gets to the law of France, however, he is surprising. This broad right of the huntsman does not apply in France. Hunting rights are restricted to the nobility. Proprietary rights prevail everywhere over poachers. How can this be?90
Some of the old doctors have doubted whether the sovereigns had the right to reserve hunting for themselves and to forbid it to their subjects. They argue that God having given men power (lʼ empire) over beasts, as we have seen above, the prince had no right to deprive his subjects of the right that God had given them. The natural law, one says, permits everyone to hunt; the civil law that forbids it is contrary to the natural law and exceeds, by consequence, the power of the legislator, who is himself subject to the natural law and cannot ordain the contrary to that law.
It is easy to respond to these objections. From the fact that God gave power over the beasts to humankind it does not follow that it ought to be permitted to every individual member of humankind to exercise that power. The civil law ought not to be contrary to the natural law. That is true with regard to what the natural law commands or that which it forbids. But the civil law can restrain the natural law in that which it only permits. The majority of civil laws do nothing but make restrictions on what the natural law permits. That is why, although in terms of pure natural law, the hunt is permitted to every individual, the prince was within his rights to reserve it to himself and [grant] it to a certain kind of person and forbid it to others. Hunting is an exercise likely to turn peasants and artisans from their work and merchants from their commerce. It would be useful and for their proper interest and for the public interest to forbid them from it. The law which forbids hunting is therefore a just law which it is not permitted to those who are forbidden from it to contravene either in the forum of conscience or in the external forum.
The distinction between a requirement and a permission of the natural law goes back to the first glossators of canon law, when they were seeking to justify private property.91 Though I cannot recall having seen this argument in medieval authors with regard to wild animals, a medieval jurist would certainly have understood it. Indeed, there is much about Pothier's method that reminds us of the middle ages. Although he cites, and accurately reports, the results in many different legal systems, divine law, natural law, Roman law, the Salic law, the customary law of France, his effort is not one to explore and explain the differences and similarities of these systems, as Montesquieu's had been. His effort is basically integrative. He wants to reconcile all of these systems into one coherent whole. This causes him considerable difficulty when he comes to the customary French law of hunting, for it seems very far from his coherent account integrating all of the other systems. (p. 31) He succeeds in integrating the French customary law by appealing to a general principle of the natural-law tradition concerning property. Remove the supporting superstructure of divine, natural, and Roman law, and one can see how Pothier's statement of the rules could be used—as it frequently was, though emphatically not in this area—as a basis for the Code Napoléon. It is much harder to see a line from Pothier to the comparatists of the nineteenth century and today.
The discovery of the sixteenth-century French humanists was that the comparative method, when applied to law, involves laying two legal systems side by side in all of their aspects. One must understand the top-level generalizations that lie behind the statements of rules and doctrines; one must understand the rules and doctrines themselves; one must understand the history in which they are embedded; one must understand how the society and institutions affect the way in which the rules and doctrines operate. Only when one understands all of these things can one safely make comparisons. The French humanists and the natural lawyers who followed them differed from modern comparatists in that most of them believed that the results of their study would be the discovery of a supranational body of principles, if not rules, that ought to be applied in their own day. Montesquieu may not have been alone among the thinkers of the eighteenth century to emphasize the importance of the geographical, institutional, and social contexts in which different rules were embedded and which in some sense explained the differences in the rules, but he certainly illustrates an approach quite different from that of the natural law school and from that of Pothier. He is at once the most positivistic and the least normative of the writers we have examined. In the former aspect he is the ancestor of virtually every comparative lawyer today; in the latter he is the ancestor of many.
If Montesquieu emphasized the geographical, institutional, and social forces that shaped the laws that he was studying, he tended to underemphasize the intellectual. By contrast, the French humanists, and even more the natural law school, tended to overemphasize the intellectual. Also, because they did not range very far outside the Western context, they failed to see how different the underlying intellectual contexts of different legal systems might be. The methodological vision of Jean Bodin remains ours, but we know a great deal more about different legal systems, and what we know makes us aware that the first comparatists made a lot of mistakes, particularly when they ventured to look at systems outside the Latin tradition. It is a tall order today to examine even one legal system in all the aspects that Bodin regarded as relevant for comparative inquiry. It is a very tall order to do it with more than one system. Thus, one cannot study 'the universal history of commonwealths' and adhere to contemporary scholarly standards.
The history of the discipline of comparative law before the Code Napoléon is not, so far as I am aware, the subject of any monographic treatment. In my focus on France in the sixteenth century, I am indebted to the works of Donald Kelley:
Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (1970)Find this resource:
History, Law, and the Human Sciences: Medieval and Renaissance Perspectives (1984) (collected essays)Find this resource:
For the rest, the essay is based on primary sources, principal among which are (in chronological order):
Aristotle, Politics: Alois Dreizehnter (ed), Aristoteles' Politik, Studia et testimonia antiqua, 7 (1970)Find this resource:
trans Sir Ernest Baker, rev R. F. Stalley as Aristotle, The Politics (1995)Find this resource:
Lex Dei quam praecepit Dominus ad Moysen, sive Collatio legum mosaicarum et romanarum: Theodor Mommsen (ed), in Collectio librorum iuris anteiustiniani (1890), iiiFind this resource:
trans Moses Hyamson as Mosaicarum et romanarum legum collatio (1913, repr 1997)Find this resource:
Bartolo of Sassoferrato, Repetitio ad Cunctos populos (Code 1.1.1), in Bartolus, Commentarius ad C.1.1.1 (Venice, 1602), fol. 4r–7r, nos. 13–51Find this resource:
trans Joseph Henry Beale as Bartolus on Conflict of Laws (1914)Find this resource:
trans J. A. Clarence Smith, as ‘Bartolo on the Conflict of Laws’, (1970) 14 American Journal of Legal History 174–83, 247–75Find this resource:
Sir John Fortescue, De laudibus legum Anglie: S. B. Chrimes (ed) (Cambridge, 1942; repr 1979)Find this resource:
Jean Bodin, Methodus ad facilem historiarum cognitionem (Amsterdam, 1650, repr 1967),Find this resource:
trans B. Reynolds as Method for the Easy Comprehension of History (1945)Find this resource:
Guy Coquille, Institution au droict des François (Paris, 1607), and many times reprintedFind this resource:
Samuel von Pufendorf, De jure naturae et gentium (Amsterdam, 1688), trans C. H. and W. A. Oldfather (1934)Find this resource:
Jean Barbeyrac (trans and annotated) as Le droit de la nature et des gens par le baron Pufendorf (London, 1740), trans Basil Kennet (London, 1749)Find this resource:
Charles de Secondat, baron de Montesquieu, De lʼesprit des lois, Gonzague Truc (ed) (2 vols 1962),Find this resource:
trans Thomas Nugent as The Spirit of Laws (2nd edn, London, 1752)Find this resource:
Robert-Joseph Pothier, Traité du droit de domaine de propriéte, in Jean-Joseph Bugnet (ed), Œuvres de Pothier: annotées et mises en corrélation avec le Code civil et la législation actuelle (1890), ixFind this resource:
(1) A sketch of the argument that is elaborated here is to be found in Charles Donahue, ‘Comparative Legal History in North America: A Report’, (1997) 65 Tijdschrift voor Rechtsgeschiedenis 1–17. That article, however, was devoted to comparative legal history, a somewhat different enterprise from comparative law itself.
(2) The standard edition is Alois Dreizehnter (ed), Aristoteles' Politik, Studia et testimonia antiqua, 7 (1970). I have used the translation of Sir Ernest Baker as revised by R. F. Stalley (1995). For the comparative nature of the work, see, conveniently, R. G. Mulgan, Aristotle's Political Theory: An Introduction for Students of Political Theory (1977), 60–77, 116–38.
(3) On the lost works, including the probability, but not certainty, of the number 158 for the constitutions, see P. J. Rhodes, A Commentary on the Aristotelian Athenaion politeia (rev edn, 1993), 1–2, and Paul Moraux, Les Listes anciennes des ouvrages dʼ Aristote, Aristote, traductions et études (1951), 115–16, 130–3, 199, 200, 265, 303–4, 319.
(4) F. G. Kenyon (ed), Aristotelis Atheniensium Respublica (1920).
(6) Gaius, Institutes [Gai.], 1.55. Of many editions and translations, I have used that of Francis de Zulueta, The Institutes of Gaius (2 vols, 1946–53).
(11) See H. G. Jolowicz and Barry Nicholas, An Historical Introduction to Roman Law (3rd edn, 1972), 103–4.
(12) The edict of the peregrine praetor has not survived, and not enough of the provincial edict has survived to allow a reconstruction.
(14) Justinian, Institutes [Inst.] 1, 2pr, 1. Of many editions and translations, I have used that of J. B. Moyle, The Institutes of Justinian (2 vols, 1913).
(15) The standard modern edition is by Theodor Mommsen in Collectio librorum iuris anteiustiniani (1890), iii. I have used the edition by Giovanni Baviera, in Salvatore Riccobono, Giovanni Baviera, Contardo Ferrini, Giuseppe Furlani, and Vicenzo Arrangio-Ruiz (eds), Fontes iuris romani anteiustiniani (1968), ii, 543–89. There is an English translation by Moses Hyamson (1913). For commentary, see Edoardo Volterra, Collatio legum mosaicarum et romanarum, Memorie della R. Accademia nazionale dei Lincei: Classe di scienze morali, storiche e filologiche, 6.3.1 (1930); Giorgio Barone-Adesi, Lʼ età della Lex Dei, Pubblicazioni dell'Istituto di diritto romano e dei diritti dell'Oriente mediterraneo, 71 (1992), and the bibliographical references in the latter.
(19) The standard edition of both is by L. R. de Salis, Leges Burgundionum, Monumenta Germaniae Historica, Legum 1.2.1 (1892). The English translation of Lex Burgundionum by Katherine Fischer [Drew] (The Burgundian Code, 1949) is unreliable. That into German by Franz Beyerle (Gesetze der Burgunden, 1936) is more reliable. So far as I am aware the Lex romana Burgundionum has never been translated into English.
(21) Notable in this regard is the so-called ‘code’ of the Anglo-Saxon king Alfred (r. 871–99). See Patrick Wormald, The Making of English Law; King Alfred to the Twelfth Century (1999), 265–85.
(22) On the study of Roman law, see most recently, Hermann Lange, Römisches Recht im Mittelalter. 1: Die Glossatoren (1997), with copious references. (He wrote, however, before Winroth.) On canon law, see most recently Anders Winroth, The Making of Gratian's Decretum (2000).
(23) The radical suggestions on this topic by Charles Radding, The Origins of Medieval Jurisprudence: Pavia and Bologna 850–1150 (1988), have not been generally accepted. For the standard account, see Peter Weimar, in Helmut Coing (ed), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichete. 1: Mittelalter (1973), 165–6, with references.
(25) This topic is best pursued in the widely scattered studies of André Gouron: La science juridique française aux Xle et Xlle siècles. Diffusion du droit de Justinien et influences canoniques jusquʼ à Gratien, Ius romanum medii aevi, 1.4. d–e, (1978); La science du droit dans le Midi de la France au moyen age (1984); Études sur la diffusion des doctrines juridiques médiévales (1987); Droit et coutume en France aux Xlle et Xllle siècles (1993); Juristes et droits savants, Bologne et la France médiévale (2000).
(26) A number of other forms of literature were also produced, including treatise-like works called summae.
(27) R. C. van Caenegem, History of European Civil Procedure, International Encyclopedia of Comparative Law, 16.2 (1973).
(28) See Robert Feenstra, ‘Dominium utile est chimaera: nouvelles reflexions sur le concept de propriété dans le droit savant’, (1998) 66 Tijdschrift voor Rechtsgeschiedenis 381–97, with ample references to earlier literature.
(29) Digest [D.] 41.1.5. The standard edition is by Theodor Mommsen. It is conveniently reprinted in Alan Watson (ed), The Digest of Justinian (4 vols, 1985), with an English translation that should be used with caution.
(32) Glossa ordinaria ad Inst.2.1.13 s.v. difficile, ceperis, capias (Lyon, 1604), col 126.
(33) See Charles Donahue, ‘The Case of the Man Who Fell into the Tiber’, (1978) 22 American Journal of Legal History 30–2.
(35) The reference is to the ‘vulgate’ edition of the Lombard laws with the gloss. Lombarda 1.22.6 (Venice, 1537), fol. 56ra–56rb. The standard edition of the original text is Friedrich Bluhme (ed), Leges Langobardorum, Monumenta Germaniae Historica, Legum, 3 (1868). There is an English translation by Katherine Fisher Drew: The Lombard Laws (1973). The law being referred to is Rothair 314 (trans Drew, p 114).
(36) Bartolus, Commentarius ad D.41.1.5 (Basel, 1562), 183.
(37) The man who married a woman, at least a young woman, without obtaining her father's consent was considered to have committed rape (raptus in parentes), the consent of the woman being irrelevant.
(38) Nicholaus de Tudeschis (abbas Panormitanus), Commentarius ad X 5.17.6 (Venice, 1569), iv, fol. 14or.
(39) Some literature developed outlining the differences between Roman law and canon law, eg Galvanus de Bononia, ‘Differentie legum et canonum’, in Modus legendi abbreviaturas ([Strassburg, before 1478]), sig. 24ra–27vb, and many times reprinted. The heyday, however, of ‘difference’ literature lies in the early modern period and is to be associated with the comparative effort of the humanists, discussed below. Eg Christoph Zobel (1499–1560), Differentiae iuris ciuilis et Saxonici (Leipzig, 1598).
(40) Bartolus, Commentarius ad C.1.1.1 (Venice, 1602), fol. 4r–7r, nos. 13–51. The printed text has a number of misprints. The English translation by Joseph Henry Beale (Bartolus on Conflict of Laws, 1914) cannot be recommended. That by J. A. Clarence Smith (‘Bartolo on the Conflict of Laws’,  14 American Journal of Legal History 174–83, 247–75), is better, but it is harder to use because Smith does not repeat the portions of the text that correspond to Bartolus's commentary on D.1.3.32 (which he translates in ibid 163–74).
(41) Nikitas Hatzimihail, Pre-Classical Conflict of Laws (SJD Dissertation, Harvard Law School, 2003), 169–70, 221–7. (Dr Hatzimihail has not yet submitted his dissertation to the Harvard Law Library, and when he does, the page references will probably change somewhat.)
(43) Most land in boroughs and most land held by servile tenure descended according to different systems; much of the land of Kent descended according to a different system.
(45) Christopher Plummer (ed), The Governance of England: Otherwise Called, the Difference between an Absolute and a Limited Monarchy by Sir John Fortescue (1885; repr 1979); S. B. Chrimes (ed), De laudibus legum Anglie: Sir John Fortescue, Cambridge Studies in English Legal History (1942; repr 1979).
(46) I. Bodini Methodus ad facilem historiarum cognitionem (Amsterdam, 1650, repr 1967), 175–6. The translation is derived from J. H. Franklin, ‘Sovereignty and the Mixed Constitution: Bodin and His Critics’, in J. H. Burns (ed), The Cambridge History of Political Thought: 1450–1700 (1991), 302 (based on the edition of P. Mesnard, in Oeuvres philosophiques de Jean Bodin, 1951). Cf Method for the Easy Comprehension of History (trans B. Reynolds, 1945), 172–3.
(47) See, most notably, the first three volumes of Aramand Fell's massive Origins of Legislative Sovereignty and the Legislative State: 1. Corasius and the Renaissance Systematization of Roman Law; 2. Classical, Medieval, and Renaissance Foundations of Corasius' Systematic Methodology; 3. Bodin's Humanistic Legal System and Rejection of ‘Medieval Political Theology’ (1983–7).
(48) Donald Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (1970). cf idem, History, Law, and the Human Sciences: Medieval and Renaissance Perspectives (1984).
(49) 1st edn, Paris, 1607. I have used the edition of Paris, 1608.
(51) They were ultimately published in four massive folio volumes, Charles A. Bourdot de Richebourg (ed), Nouveau coutumier général (Paris, 1724).
(52) Citing D.28.5.32 (on point).
(55) Council of Trent, sess 24 (1563), Canones super reformatione circa matrimonium, c 1 (Tametsi), in Giuseppe Alberigo (ed), Conciliorum oecumenicorum decreta (1972), 755–7; Ordonnance of Blois (May, 1579), arts 40–4, in Recueil des grandes ordonnances, edits et declarations des rois de France (Toulouse, 1786), 173–4.
(56) The numbers that Coquille gives for Socini's consilia (1.31, 1.86) do not correspond to those in Mariano Socini, Consilia (Venice, 1571). The consilium of Panormitanus that he cites is Facti contin-gentia, Nicholaus de Tudeschis, Consilia 1.1 (Lyon, 1562), fol. 2ra–vb. Cf Sante staututo, ibid, 2.79 (Venice, 1569), fol. 162v–163v.
(58) See generally René Filhol, Le premier président Christofle de Thou et la réformation des coutumes (1937).
(59) ed Sylvie Daubresse, ‘Un discours de Christophe de Thou premier président du Parlement de Paris’, (1995) 153 Bibliothèque de lʼ École des chartes 380–7.
(60) The evidence given for this proposition in Professor Elizabeth A. R. Brown's forthcoming study of the subject is powerful. I am grateful to her for allowing me to see the study in draft. She is also the source of the qualifications of de Thou's views given in the previous sentences.
(61) The traditional view, espoused, for example, by Filhol (n 58, at 125–40), that de Thou was opposed to the latter, is shaken but not quite upset. For opposition to Roman law among customary lawyers in the early modern period generally, see Gerald Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany (1986); Daniel Coquillette, The Civilian Writers of Doctors' Commons, London: Three Centuries of Juristic Innovation in Comparative, Commercial and International Law, Comparative Studies in Continental and Anglo-American Legal History, 3 (1988), esp 84–94.
(62) The first printing is Fragmenta quaedam Papiniani Pauli Vlpiani Gaii Modestini … cum Moysis legibus collata (Paris, 1573), 116 ff, separately published as Mosaycarum et romanarum legum collatio (Basel, 1574). I have used the edition in Petri Pithoei opera, sacra, ivridica, historica, miscellanea (Paris, 1609). The dedication is dated 1 October 1572. Pithou, in Opera, 76. The massacre, of course, took place on 24 August.
(63) See eg Donald Kelley, François Hotman; A Revolutionary's Ordeal (1973), 238–52; idem, ‘The Rise of Legal History in the Renaissance’, (1970) 9 History and Theory 187–90, repr, in History, Law, and the Human Sciences (n 48), V179–80; Ralph Giesey, ‘When and Why Hotman Wrote the Francogallia’, (1967) 29 Bibliothèque dʼhumanism et renaissance 581–611.
(64) Published posthumously, Jacques Godefroy (ed), Codex Theodosianus cum perpetuis commentariis Jacobi Gothofredi (Lyon, 1665). For a recent assessment, see Bruno Schmidlin and Alfred Dufour (eds), Jacques Godefroy (1587–1652) et lʼ Humanisme juridique a Genève (1991), 44–5, 259. For a recent work dependent on Godefroy's, see Renate Frohne, Codex Theodosianus. 16, 8, 1–29: über Juden, Himmelsverehrer und Samaritaner, Europäische Hochschulschriften, 3.453 (1991).
(65) In this regard the Mommsen of the Corpus inscriptionum latinarum (1862–) (currently 18 vols in 54 parts) may be more important than the Mommsen of the Römisches Staatsrecht, Handbuch der römischen Alterthümer, 1–3 (3 vols, 3rd edn, 1887), which has recently been challenged as anachronistic. See Jochen Bleicken, Lex Publica: Gesetz und Recht in der römischen Republik (1975).
(66) Limitations of space prevent me from tracing the line that runs from writers like Coquille to the more practically inclined Dutch legal thinkers of the seventeenth century and German practitioners of the usus modernus pandectarum in the seventeenth and eighteenth centuries. These complex lines can be explored in Franz Wieacker, A History of the Private Law of Europe, Tony Weir (trans, of 2nd edn of Privatrechtsgeschichte der Neuzeit (1967)) (1995), particularly at 159–95.
(67) The division of Europe along confessional lines probably also played a role in this search for a higher level of generality. See, somewhat controversially, Harold Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (2003).
(68) A good general account of the natural law school is needed, the relevant volume of the Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte (n 23) having, apparently, been abandoned. In the meantime see Richard Tuck, ‘Grotius and Selden’ and Alfred Dufour, ‘Pufendorf’, in Political Thought: 1450–1700 (n 46), at 499–529, 561–88; Wieacker (n 66), 199–256.
(69) Charles de Secondat, baron de Montesquieu, De lʼ esprit des lois, most recently Gonzague Truc (ed) (2 vols 1962); see eg Robert Shackleton, Essays on Montesquieu and on the Enlightenment (1988); Judith Shklar, Montesquieu (1987).
(70) Jean-Joseph Bugnet (ed), Œuvres de Pothier: annotées et mises en corrélation avec le Code civil et la législation actuelle (10 vols, 1890). See eg Jean-Louis Sourioux and Aline Terrasson de Fougères (eds), Robert-Joseph Pothier: d'hier à aujourd'hui (2001).
(71) I am thinking here more of the Wolff of Jus naturae methodo scientifica pertractatum (8 vols, Frankfurt, 1741–8) than I am of the Wolff of Jus gentium methodo scientifica pertractatum (Magdeburg, 1749). On Wolff s thought in general, see Wieacker (n 66), 253–5.
(72) I have used the edition of De jure naturae et gentium in The Classics of International Law series (1934), a reprint of the Latin text (Amsterdam, 1688), with a translation by C. H. and W. A. Oldfather.
(76) Citing D. 41, 1, 5.
(77) Citing Radevicus [Frisingensis], De gestis Friderici 1.26.
(78) Citing Lombarda 1.22.4, 6 ((n 35), fol. 55vb–56ra, 56ra–56rb).
(79) Citing Ovid, Metamorphoses 8.427.
(80) Citing Alberico Gentili, Pleas of a Spanish Advocate 1.4.
(81) The former certainly gave rise to considerable drollery in the dissenting opinion of Livingston J, in Pierson v Post, 3 Caines 175, 181–2 (New York Supreme Court, 1805).
(82) Jean Barbeyrac (ed and trans), Le droit de la nature et des gens par le baron Pufendorf (London, 1740). The English translation by Basil Kennet (London, 1749) is quite adequate.
(84) See, for example, his remarks on the different proportions of male and female births in different countries. Montesquieu, The Spirit of Laws (trans Thomas Nugent, 2nd edn, London, 1752), 443.
(86) Citing Thomas Gage, A New Survey of the West Indies (3rd edn, London, 1677), 345.
(88) Citing and quoting Ps. 24(23): 1–2; Ps. 8: 4, 6; Gen. 1: 28.
(91) See Brian Tierney, The Idea of Natural Rights (1997), 131–69.