Salvatore Riccobono

Torna indietro

                                                                                                              Visualizza testo in Italiano

Salvo Randazzo

 

Roman Legal Tradition and American Law 

The Riccobono Seminar of Roman law in Washington

 

 

 

in: Roman legal tradition, I, 2002, pp. 123-144.

INDICE

 Upon completion of a course of lectures by Dr. Salvatore Riccobono at the Catholic University of America during the year 1928-1929, a seminar was organized, of which he was elected Honorary Magister ad vitam”*. With these words in the Preamble of the Constitution of the Riccobono Seminar of Roman Law in America[1], we are given an account of the dedication of the new Institution to the Italian scholar. The Seminar came about as the result of a request by the Catholic University of America in Washington D.C., -- the university having been founded  on the Pope Leone XIII’s approval in 1887 --, after Riccobono taught a course there.

In 1928 Riccobono was sixty-four[2]. He had been teaching at the University of Palermo – though soon after in 1932 he would be called to the University of Rome – and he was at the top of an extraordinary career with about sixty publications to his credit[3]. However he was well-known to the Anglo-American academic world: in 1924 he held a lecture cycle at the Universities of London and Oxford[4], while in 1925 his Outlines of the evolution of Roman Law[5] was published in the United States. This brief synthesis  had a great diffusion in the American universities[6]. In nineteen dense pages Riccobono summarized the evolution of Roman Law, from its origins to Justinian and offered to the American reader some ideas which would insinuate themselves into Anglo-Saxon jurists’ technical and mental categories as problematical questions. Riccobono’s “outlines” are simple in their schematism: from the XII Tables to Diocletian they seem to diverge, then gradually to converge in a single line from Constantine to Justinian; in this presentation  ius civile, ius gentium and ius honorarium, vivified by the action of the Law, would have marked the evolution of Roman Law until the coming of the fourth evolutional element, the ius novum, fruit of the meeting of new laws, opinions of the Senate (senatusconsulta), constitutions and decrees of the Emperor and ‘above all of decisions on matters referred to various magistrates, (Cognitio extra ordinem), who felt that they were not bound by the ordinary rules of law’[7].

According to Riccobono the seminar had to house mainly professors from American universities – with some happy exceptions, like in the case of the lecture held by Leopold Wenger on the 5th October 1936[8]- who were concerned with themes of Roman Law which were to be informed by a common denominator: ‘ricercare le tracce più o meno notevoli di Diritto Romano nei vari paesi dell’Unione’[9]. Riccobono was resolutely opposed to a tradition peculiar to ‘Germanists’, who beginning in the 19th century, produced a series of studies affirming the supremacy of German Law, as compared to that of the Romans in forming  both the Continental and Anglo-American legal systems. He expressly intended to promote a research which gathered historical cues and legal elements so as to assert, on the contrary, that the Roman Law had deeply affected the formation of modern legal systems. Therefore the consciousness of this fact would make useful and productive the study of Roman Law also in a country like the United States, ruled by an extremely multiform law, for which Riccobono observes ‘i giuristi dell’America sentono vivamente questi problemi; e basta questo per spiegare come le loro indagini si vadano orientando verso le origini del diritto vigente nei vari Stati dell’Unione’[10].

In other words, in the scholar’s purposes to reflect upon the juridical experience in Rome should demonstrate first of all the debt of modern legal systems and of the American one[11] as well towards that experience, and also the practical utility of Roman Law for American jurists. This usefulness would justify its widespread diffusion in the US universities, where a translation of the Corpus iuris edited by Scott circulated. Riccobono, however, could not consult it and about its author he candidly admitted ‘non so se giurista o filologo’[12]. Riccobono noted that such a usefulness seemed more and more evident to those jurists who had to operate in a non-codified legal system based on strong customs, with a wide space for the normative value of jurisprudential praxis: a system in which in front of anomalous or new situations, the jurist could be enlightened by the wisdom of Roman Law which ‘con la tecnica di una scienza esatta’[13] offered wide case histories from which he could derive the solution of the concrete case.

With these strong scientific and ‘ideological’ premises Riccobono launched in Washington his Seminar, entrusting to the pages of Bullettino dell’Istituto di Diritto Romano the chronicle of the work[14] to reach the statutory aim (art. II) to foster ‘the study and dissemination of the knowledge of Roman Law’[15]. At the first meeting of the ‘Committee on Research with reference to Roman Canon and Civil Elements in the American Legal System’[16], held on 11th November 1934, besides the debate on organizing aspects and on those concerning the creation of a library and the support to the scholars who wanted to contribute  to the Seminar, a preliminary question seemed to emerge, on which they could not reach a unitary position. In the minutes of that meeting[17] one can read as a matter of fact ‘there was a division of opinion among the members as to the scope of the work of the Commitee. Some thought that the classical Roman Law should be emphasized, while others believed that it would be better to include comparative law, from the modern angle. But no decision was made on this point’.

In some measure, the problem which arose among the scholars of the Seminar was the result of a wider scientific but also of a normative policy debate, which affected more and more urgently the US jurists. In those years a renewed sensibility towards the Roman Law study was actually spreading in the American universities[18], in which the teachings of Roman Law in any case were not new: already in the 18th century at Yale a course on ‘Jus civile or Ancient Roman Law, Pandects, and Ecclesiastical or canon law’ (1792) was started, again in 1863 Yale housed a course of Roman Law held by James Hadley[19] not only at Yale College but also, as an obvious consequence, at the Law School of that University, and then it was repeated by Hadley himself also at the Harvard Law School[20]. It would be always the university of New Haven to house important courses of Roman Law, held by scholars of great scientific prominence such as Simeon E. Baldwin[21], Albert S. Wheeler[22], Charles P. Sherman[23] and from there the teaching of Roman Law would spread in the other US universities.

But in those years the intense scientific and academic activity of the American scholars of Roman Law aimed to an ambitious plan: US Law was congestum in a multiplicity of state systems of Common Law (about 46) – a system whose English ancestors[24] and whose tendential contraposition to the civil law[25] began to conflict with the different way of thinking and with the need of finding normative supports fit to sustain the very different concept of economy and progress peculiar to the Americans[26]. These systems were still more complicated by the difficult coordination to a Federal Common Law, an often chaotic corpus of jurisprudential decisions of American Federal Courts, and by an inextricable multitude of non-written and costumary rights, local statutes and jurisprudential rules, single or gathered in ponderous collections: every year over 20000 new decisions and statutes modified the normative frame to US jurists[27].

In such a situation American Roman Law scholars thought more and more to a law whose supposed uniformity was not prejudicial to the principles of self-government of the single States, but that let a systematic evolution of American Law so that it could become from ‘congestum’ to ‘digestum . This was the aim which emerged from Charles P. Sherman’s words delivered on the occasion of the International Meeting held in Bologna in 1933: ‘…the progress made towards the realization of the second and third phases of the world-mission of Roman Law since Justinian: witness the spread of the movement towards uniformity of the American Common Law, and witness the beginnings of embodying American Common Law in the permanent and salutary form of a codification’[28]. However, the idea was not new: think about the plan of a very much-discussed[29] ‘so-called’ Civil Code worked out about 1860[30] by David Dudley Field[31] for the State of New York and for this reason better known as Mr. Field’s Code, proudly contested still 20 years later in a passionate note sent to the editor of the Albany Law Journal on the 22nd March 1822[32] by Theodore W. Dwight, Professor of Law at the Columbia University. So in the articulate debate which, already from the beginning of the 19th century[33], moved both European and American scholars, balanced between common law traditions and a strong codifying tendency, fruit of the prevailing positivist atmosphere of the time, the theoretical and practical querelle is based exactly on Roman Law tradition with regard to the opportunity of introducing a codified system in the law of States which were ruled by a non-codified law, as the State of New York. Such a possibility  was supported with argumentations which got over the geographical limits and had repercussions on the situations of almost every country of the Union, which were not regulated by a code, except Louisiana and in a certain way California.

All this had to find place in a political and legislative will of reformation of US law which in the twenties and the thirties seemed a possible goal. However, to reach it what was necessary was to promote a general sensibilization which had to be entrusted to the academic education, the only institution able to get Law School students accustomed to think of law in scientific terms and not only to let them look for the solution of specific ‘cases’ inductively. The latter approach had to be preceded also by the study of textbooks to give students the control on fundamental principles such as the law of persons, family law, real law[34], obligations, successions[35], law of procedure, as ‘keystones’ of a new substantive law system which harmonized the precious Roman regulae iuris with the pliability of a jurisprudential system surely more flexible and reassuring if sticked to exact and strong foundations of substantive law.

 

 

2.     Therefore this was the context in which Riccobono ‘landed’ in America. The Italian scholar realized that the moment was suitable from an historical point of view and so first in his Exegesis course at the Catholic University of America in Washington and then in his Seminar he spent all his will of influencing scientifically on an evolutional process with the restless awareness of a historian who saw the events happen and knew he could influence them: the science of Roman Law in USA, the teaching of that subject as well and above all the US law itself were at stake.

It is not easy running through the state of the first proceedings of the Seminar in  the years 1934 -1935 though Riccobono’s detailed reports on the Bullettino because there are some difficulties in finding the clue of a way which, as we have just seen, presented already at the beginning some methodological disputes among the scholars who took part in this new academic institution. In the presence of the Magister on 31st May 1935 Fr. Cleary spoke on The Jurisprudential basis of Roman Law starting from a comparative analysis between Justinian’s Novellae and Gregory IX’s Decretales as to the alienation of ecclesiastical properties. The specificity of the proposed cue did not prevent Riccobono from leading a thick discussion on the foundations of Roman juridical experience: the connections among jurisprudential consideration, the influences of the Christianity and Greek philosophy, the ius gentium and the natural law, the fides as a paradigmatic category of the history of Roman Law. H. Milton Colvin’s lecture on 8th November 1935 (Lardone magister pro tempore) enabled to get the heart of the problem which was the assumption of the creation of the Seminar itself, as Riccobono himself would point out in that sitting[36]: Roman and Civil law Elements in Sources of the Law of the United States. The proceedings continued at regular intervals, touching the nerve-centres of the discipline, characterized by an articulate comparison with the law in force: if A.K. Ziegler dwelt upon Isidore of Seville, in the following sitting Dorsey related about his studies on the condition in the Roman Law and in the Anglo-American juridical system, linking up a ‘concrete’ consideration on a classic question of Continental dogmatics with an accurate acknowledgement of doctrine and cases. In the same direction Charles Sumner Lobingier, a famous scholar of anthropological-comparative study of Roman Law[37], developed his reflection on Salient Features of the Lex Rhodia de Iactu – Jettison and General Average, and in a successive sitting on The Roman law in Thirteenth Century England, with a New Interpretation of the Baron’s Reply at Merton. From the drafts of the meetings it is evident a very lively debate among the scholars who dissected topics examining the institutions into the smallest details, but without losing sight of the most general aims of the Institute.

On 18th March 1936 the Seminar housed a distinguished host: Fritz Schulz, who faced a fundamental question in the studies of Roman Law with an evocative title: Invention of the Science of Law at Rome. Jurists’ logic, their creative activity, their role in the dialectics between verba and voluntas interested the people attending the meeting and the debate developed widely, enabling Francesco Giuseppe ‘Franz’ Lardone[38], magister pro tempore, to commend Schulz for his being ‘primarily a lawyer, only secondarily an historian in the matter of Roman law; and … the seminar also approved this point of view’[39]. Also the conclusion of the work of the Seminar for the academic year 1935/1936, entrusted to Frederick J. de Sloovere – who would undertake the functions of magister for the following academic year – moved consistently with the aims of the Institute. The scholar faced the problem of the interpretation of statutes, following the mental process which started from the individuation of the rule, went on with its interpretation and culminated in its concrete enforcement to the considered case. In this hermeneutic-applicatory iter de Sloovere found a hierarchical process which governed the interpretation of the modern rules of civil law and which saw in  the order: Natural Law; Roman Law; Legal Reasoning; Customary Law; Usages; Custom of judicial decision ‘and so on including reasoning by analogy’[40].

The 55 dense pages with which the Bullettino[41] gave an account of the activities of the Seminar in the academic year 1936-37 opened with the report of Wenger’s lecture on The importance of Greek Papyrology in the study of Roman law, a learned occasion to clarify the situation of the studies of juridical papyrology in Europe. Then they went on with meetings which dealt with the themes of the relationship among common law,  Roman-Law-tradition and also other jurical systems: Custom in the Justinian Law and its influence on Canon law was actually the theme with which Merlin Joseph Guilfoyle penetrated in the difficult field of the custom in the Justinian law, through an analysis between the definition of Iust. Inst. 1.2.9 (Ex non scripto ius venit quod usus comprobavit. Nam diuturni mores consensu utentium comprobati legem imitantur) and the progressive assimilation of this concept in the Canon law. And if the lectures by James B. Thayer on Iusta causa in traditione and by Cormack and Brown on Stoic Philosophy and the Roman Law had a more marked historical interest, important reflections were devoted to themes closely linked to the relationship between the Roman Law and Common Law systems. The lucky coincidence of being at the same time a Professor of Roman Law at the Brooklyn Law School and a lawyer allowed to Franklin F. Russel to discuss a subject of disarming concreteness: The Practical Value of the Study of Roman Law. Russel reported about his ‘promotional’ activity for the history of law, both from an academic point of view on the basis of his experience at the University of Oxford where the course is organized so that ‘from one quarter to one third of the legal curriculum be devoted to the study of Roman Law’ and from an empiricist point of view with a digression on the usefulness of the knowledge of the principles of Roman Law to prepare the ‘New York Bar Examination’.

This fact seemed still more urgent because a lawyer in New York could easily come into contact with questions which needed a knowledge of the rules of Roman Law just for the peculiar abundance of interests and contacts with European law which a practical jurist working in New York or in New Jersey could face. In the debate Murdock would point out as ‘a composite picture of law is necessary. The study of Roman Law affords a «relative» approach to the Common law, and dispels the erroneous idea that the Common law is «absolute»[42]. Moreover, the mixture of theoretical principles drawn by the Roman juridical experience with common law rules seemed more and more to emerge in the work of the Seminar: an example of this is Roscoe I. C. Dorsey’s treatment on Roman Sources of some English Principles of Equity and Common Law Rules on 20th April 1937, in which fidei-commissum discipline and the discipline of Aquilian damage in Roman Law and in Anglo-Saxon systems offered the scholar the occasion to mark the relations between these two legal systems on the basis of the relationship between the concepts of aequitas and equity. And the prospect opened up still more in the last lecture of that year in which de Sloovere (1886-1945) himself, the first magister pro tempore who did not live in Washington[43], talked about Teaching Roman Law as a basis for Comparative Law[44]: the account was very dense and it is maybe the true ‘manifesto’ of the Riccobono Seminar of Roman Law, as it discerned in an articulate way the extraordinary role of Roman Law as a law ‘paradigm’, as a general category to which referred in the comparative study of any other juridical experience among all the other law systems and therefore also beyond the ambitious prospect of the relationship between Roman and Common Law.

Lectures in Washington went on non-stop in the following academic year 1937-1938. The institution of the CUA was by that time known all over the world, the echo of the depth and of the liveliness of its 24 dense meetings, the modernity of the methodology adopted by the speakers, the deep programmatic effect on the law in force made sure that people talk admired about the Seminar and its impulse to the study of Roman Law in America[45] everywhere[46]. But from some of Riccobono’s passages seemed to emerge a certain hidden reserve about the scientific orthodoxy of Roman-Law-studies of the Seminar though the scholar did not feel the effects at all and he stirred a sleeping academic circle inclined to such criticisms defying it with the authoritativeness of his words: ‘alcuno’ he wrote in the Bullettino ‘forse potrebbe desiderare una maggiore attività nella analisi dei testi di legge, specie rispetto alle fonti romane… questa esigenza tuttavia io non la ritengo imprescindibile’ and he noticed as regards the diffusion of Roman Law that ‘quando si voglia promuoverne lo studio, ed eccitare la curiosità e l’interesse degli studiosi, quel che occorre è, in primo luogo, dimostrare l’utilità immediata, anzi la necessità imprescindibile di una preparazione sintetica per la intelligenza del diritto vigente’. ‘Di analisi minuta, di critica dei testi se n’è fatta molto in Europa negli ultimi 50 anni. Direi troppo’[47]. These were always Riccobono’s words and he spoke with insuspected liveliness.

Therefore the line of the Seminar appeared still more clearly: according to the intention of the magister ad vitam it needed to come back to dogmatics, to synthesis against a trend towards the erudite fragmentation of problems to accomplish an indispensable historical commitment which lay above all on Roman Law scholars: ‘se il mondo è oggi chiamato a rivedere e ricostruire i suoi istituti, in tutti i rami del diritto, pubblico e privato e dell’economia, la necessità di abili costruttori è evidente’[48]. So I cannot but refrain to run through again the chronicles of 1937-38 and I must refer back to the account of the lectures of the third year of activities of the Seminar , magister A. Arthur Schiller, in the forty-fifth volume of Bullettino which Riccobono himself wrote in the first person and therefore I just list them: A. Arthur Schiller,De consuetudine in iure romano; Clement Basnagel, De aequitate in iure romano; Roscoe I. C. Dorsey, The Roman Concept of Res, Francis de Zulueta, P. Ryl. III, 474, fr. B. recto=L. 1.1 Dig. 12, I De rebus creditis; J. B. Thayer, Report de culpa lata et diligentia in iure romano; Ernest Levy, Statute and Judge in Roman Criminal Law; Charles Sumner Lobingier, The Natural History of the Artificial Person; Judge Blume, The Code of Justinian and its Value.

However taking a stock of the activities of the Seminar for the following academic year 1938-1939 it was Riccobono himself, conscious of the gravity of the moment, to stress the value of the initiatives of the American institution which housed 11 important lectures ‘mentre il volto del mondo è duro e arcigno’[49]. Magister Roscoe J. C. Dorsey, Hans Julius Wolff, at that time in his 36, Professor at the University of Panama[50] inaugurated the work of the Seminar discussing the theme The lex Cornelia de captivis and the Roman Law of successions. Franciszek Bossowski instead would deal with a particular topic: Roman law and Hebrew private law, which was read by Brendan F. Brown, the scriba of the sitting of 26th January 1939, while Roman private law in Russia would be the following topic on which Vladimir Gsovsky would be called to speak in a sitting which opened with a commemoration of Paul Collinet, who had just died. The heterogeneous topics of the Seminar in 1938-1939 did not escape more traditionally connoted treatments, such as James B. Thayer’s lecture on The Position of Corporations in Roman Private Law, which, starting from a recent work by Duff on people in Roman Law[51], faced the problem of the legal capacity of corporations under different aspects. In the same meeting they discussed a short study by F. Bossowski on In iure cessio. On 25th April 1939 Lobingier would treat the topic The Trial Authority in Roman Administrative Procedure in which he afforded some trial themes that to tell the truth were kept in the shade since then in the work of the Seminar, particularly intent to examine themes of substantive law, more easily comparable with institutes and rules of the law in force.

The report of three of these lectures performed in a single meeting on 11th May 1939 :  Jolowicz’s  I precedenti nel diritto greco e romano, de Sloovere’s La dottrina dei precedenti nel diritto anglo-americano and Evan’s  Consuetudine e precedenti negli scrittori letterari, is developed by Riccobono himself, who took part in the discussion with the scholars visiting the Seminar perhaps for the first time in such articulate terms from the pages of the Bullettino and took personally position on the question[52].

The work of the Seminar for the academic year 1938-39 ended with Dean Wigmore’s lecture on Reminiscence of Fifty Years of Legal Teaching.

 

3.     In the years to come the activities went on and the reports were edited until 1955/56[53] on ‘Seminar’, a yearly special issue of ‘The Jurist’, a publication of the School of Canon Law of the Catholic University of America, while in the Bullettino dell’Istituto di Diritto Romano, from 1940, as a consequence of the war[54], there was no more a detailed report of the Seminar activities, except Riccobono’s  hint to his lecture performed on 16th May 1940[55] - it would have been the last time that the Magister ad vitam directly took part in the work of the Institute – during the work of the Seminar on Compenso per spese fatte da possessori su cose altrui[56], in which he made some comparisons among Roman system,  modern codifications and Anglo-American law. Therefore still in the academic year 1939-1940 and until the first half of the 50’s the Institute in Washington carried out its activities which are edited in a short regular survey for each of the thirteen volumes of Seminar, which at the time of its first publication, in 1943, was practically the only journal in the States mainly devoted to Roman Law and to the law of ancient times. But in this magazine the chronicle of the Seminar proceedings was mostly reduced to a list of lectures and to some information on the Magistri and on the Concilium for the current academic year; only few lectures were edited in detail.

In a certain way Riccobono followed the activities from Italy. In the autumn of 1944 he sent a letter[57] to Ernst Levy, magister in that academic year as a reply to the reassuring news of Levy himself on the vitality of the American Institute. Riccobono observed that the postwar reconstruction should be prepared also by a renewed historical-juridical conscience which provided valid means to support the new international order. For this purpose it was useful the flexible functionality of Roman Law instruments, the same functionality which allowed to that legal system to come out unharmed of similarly dramatic historical crises[58]. Riccobono’s long letter to Levy was lively, rich in scientific proposals and in it he hypothesized the possibility of beginning again the publication on the Bullettino at least of the main lectures of the Seminar[59]. With a renewed enthusiasm the Magister looked on a survey of interdisciplinary relations which seemed to be stopped, putting the renewed study of Roman Law in the United States in a at last pacified context of international policy and his words were trusting to the future: ‘in this new community of nations living together in peace’ he observes ‘new needs will arise in the organisation of social and international relationships, and hence new institutions, structures and legal forms, which will have to be worked out with enlightened wisdom. In this constructive labor, the Roman sources can be used as the most precious heritage of legal experience and technique’[60].

But from then on the life of the Seminar did not seem to interact with his founder, though the academic society of CUA appeared always affectionately linked to its Magister ad vitam, like in the Latin message for Riccobono’s ninety, sent to him on 29th January 1954, two days before his birthday[61]. So for many years and until its close, Seminar edited essays of high scientific value and often problematically linked to the original aims of the Institute, in their considering the common law as a system able to be permeated by Roman Law reflections. Very important scholars, often refugees in the United States for political or racial reasons, followed one another on the pages of the US magazine, often animating the debates[62] of the Riccobono Seminar[63], such as for example Buckland, Rabel, Levy, Kuttner, Berger, Schulz, Schiller, Wolff, Prinsheim, Coing, Finley, Jolowicz, to mention only the most authoritative.

With the edition of its thirteenth number Seminar interrupted its publication and a concise announcement[64] gave the reasons of it. When they  were starting the supplement of The Jurist, in 1943, in the middle of the war, in the States there were neither other magazines which housed studies of history of law nor the situation made possible the publication in European journals and all this curiously, just in a moment in which in the States they were starting again with those studies due also ‘to the presence of many distinguished refugee scholars―Hitler’s backhanded gift to American education’[65]. The changed situation, the renewed opportunities for the American Roman Law scholars did not make necessary the edition of the annual issue any more, they said. From then on the traces of the work of the Riccobono Seminar fatally dissolved as well[66].

Moreover it was already a long time, in concomitance with the last edition of the chronicles on the Bullettino, that the international importance of the Institute seemed to be destined to a reduction, while the war, nearly in its full development, widened the distances between Italy and the States beyond the Ocean limits and interrupted abruptly a scientific flow of scholars and ideas between the old and the new continent: there were all the assumptions why the Seminar diminished its activity[67] which until that time had constantly drawn vital nourishment from the comparison with the European scholars, a comparison now objectively difficult.

Of the Seminar experiences we had only the accurate chronacles on the yellowed pages of the Bullettino and of the Seminar, from which the passionate debates, the discussions and the enthusiasms of a happy time emerged, a period in which men of great intelligence, overcoming sterile partialities, had understood that the vitality of Roman Law was indissolubly linked to the vitality of Law itself, of every law, which from that experience could draw huge incentives to improve itself, to adhere more and more to the needs of that civil and advanced society which was emerging with great effort from one of its darkest nightmares. To our sensibility of jurists and historians the task to contribute, as we can, so that the danger of those nightmares to emerge again can be definitively avoided.


 


* I am thankful to Michael Hoeflich, who invited me  to contribute to the first issue of his Roman Legal Tradition. I hope this initiative may help the dialogue among European and American jurists, as a premise to a comparison among legal systems, whose differences can be thought about and maybe also composed sharing one’s own reflections on the juridical experience in Rome. I have already debated with Thomas McGinn and Roger Bagnall about some of these problems and I am grateful to them for this exchange of ideas just in a moment in which dramatic events have shaken, though not demolished, our obstinate trust in the strength of the law. Thanks are due to Michael Peachin for his advices, accurate and effective as usual.

[1] Constitution of the Riccobono Seminar of Roman Law in America, in BIDR. 43 (1935) 325 ff. The text of the Constitution is anastatically reported in the appendix. Thanks are due to Professor Mario Talamanca, the Review Editor, for his authorization to the  publication. 

[2] He was born on 31st January 1864 in S. Giuseppe Jato, Province Palermo.

[3] baviera, Salvatore Riccobono e l’opera sua, in Studi in onore di Salvatore Riccobono 1 (Palermo 1936) CIII ff.

[4] Vinogradoff and de Zulueta invited Riccobono there to hold a lecture about Formulae ficticiae. A normal means of creating new law on 24th June 1924. It was then published in RDH. 9 (1929) estr.

[5] University of Pennsylvania Law Review 74.1 (1925) 1 ff.

[6] See the reason, due to Pietro Bonfante, with which in 1932 Riccobono was admitted as a member of the Italian Royal Academy, in baviera, Salvatore Riccobono cit. XXV note 3.

[7] Outlines cit. 3.

[8] The importance of Greek Papirology in the study of Roman Law, in BIDR. 44 (1936-1937) 421 ff. In 1936 the scholar held other lectures at Harvard, at Yale and at the Columbia University of New York. The impressions and the critical valuations coming from this American experience appeared condensed three years later in Wenger’s essay about Römisches Recht in America, in Studi in onore di E. Besta I (Milano 1939) 151 ff.

[9] Il Diritto Romano negli Stati Uniti di America, in BIDR. 43 (1935) 314.

[10] Ibid. 317.

[11] It is not a case that one of the most committed members of the work group who gravitated around the Riccobono Seminar, Howard Milton Colvin carried out one of the most complete research on this aspect: Roman and Civil law elements in sources of the Law of the United States, in Studi in memoria di A. Albertoni III (Padova 1938) 113 ff. I am disappointed to note how the catalogue on line of the Law School of the Catholic University of America in Washington ignores this research by Colin who was a teacher in that university.

[12] Riccobono referred to Samuel Parsons Scott (1846-1929) and to his The Civil Law, including the Twelve tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitution of Leo (Cincinnati 1932). Scott’s work in 17 volumes – unfortunately criticizable from many sides – whose scarce diffusion Riccobono complained (Il Diritto Romano negli Stati Uniti cit. 318) seems nowadays easily consultable as it is in the catalogues of the libraries of the Law Schools of many American universities, such as Yale, Harvard, Vanderbilt, the University of Pennsylvania, Fordham, Boston, Brooklyn, Columbia and New York University. To Scott, scholar and translator also of medieval juridical sources (especially Spanish, History of Moorish Empire in Europe [Philadelphia-London 1904] and a translation and a comment of the Siete Partidas, an important codification of the Castilian King Alfonso X ‘El sabio’, a work strongly inspired by Justinian’s Law: Las Siete partidas [Chicago-New York 1931]) was due another translation interesting for the scholar of Roman Law: The Visigothic code. Forum juridicum (Boston 1910, repr. Littleton, Colo. 1982).

[13] Il Diritto Romano negli Stati Uniti cit. 324.

[14] Riccobono became ‘perpetual Secretary’ of the Roman Law Institute of La Sapienza University in Rome and he assumed the editorship of the Bullettino after Vittorio Scialoja’s death, occurred on 19th November 1933. On the complex vicissitudes of this prestigious review and on those of the Roman Institute, tightly linked with them, see the dense reconstruction of Mario Talamanca, Un secolo di ‘Bullettino’, in BIDR. 91 (1988) IX ff. and expecially LXXIX ff.

[15] See infra the reproduction of its Statute.

[16] Among those present Colvin, Dorsey, Lardone, Lobingier, McGuire, Roelker, Wheatley and Brown.

[17] BIDR. 43 (1935) 327 f.

[18] On this point Sherman, Roman law in the United States of America: the present revival of Roman Law study its effects of the American Common Law and on American law schools and legal education, in Atti del Congresso Internazionale di Diritto Romano. Bologna e Roma 1933, II (Pavia 1935) 321 ff. This meeting in Rome was considered by the Seminar in the session of 11th April 1935, in which Shaaf, Dean of the School of Canon Law of CUA related about its work to the members of the Institute; the draft of this session is kept in the Library of the University of Michigan Law School.

[19] See his Introduction to Roman Law (New York, published in several editions which I consulted from that of 1873 to the one of 1890 and therefore as I know, all posthumous as the author died in 1872).

[20] Sherman, Roman Law, cit. 327 ff. and Baldwin, Study of Roman Law in American Law Schools, in Am. Law School Review (1911) 28.

[21] Baldwin (1840-1927) would use his scientific and teaching experience also into his functions as Chief Justice and Governor of the State of Connecticut.

[22] The Yale Collection of Roman Law named after Wheeler (1832-1905), was set up also thanks to a testamentary legacy of his.

[23] Professor at Yale from 1905 to 1917.

[24] However here it is not inappropriate to consider some aspects of the penetration of Roman Law in England. This process developed in England from 1066 when in consequence of the Norman conquest, the new legal system is inserted into the Roman one, which was pre-existing since the 7th century AD, when England was converted to Christianity. The political unity imposed to that land (except Scotland, on whose independent legal reality see Watson,  The Rise of modern Scots Law, in La formazione storica del diritto moderno in Europa. Atti del terzo congresso internazionale della Società italiana di Storia del diritto [Firenze 1977] 1167 ff.) by William the Conqueror had therefore as a result the creation of a composite ‘common law’ which took the place of the old particular laws; on this point see Milsom, Historical Foundations of the Common Law (London 1969) passim and Kiralfy, Law and Right in English Legal History, in La formazione storica cit. 1069 ff. In this way a very particular system of consuetudinary evolution of law developed, not of popular matrix but of jurisdictional one. The judicial decisions which came from the work of the Inns of Court, the four organizations of the jurists of curia regis (that is: Inner Temple; Middle temple; Gray’s Inn and Lincoln’s Inn) determined the consolidation of an omogeneous jurisprudential system jealously linked to its own peculiarity, which was defended to the utmost against above all the Tudors’ and Stuarts’ attempts to insert tipically Roman rules. So the corporative homogeneity of English jurists had as a consequence that the Common Law was punctually enforced by the law-courts as the longa manus of curia regis ‘of Common Pleas’; this law was to be enforced to English subjects in victorious juxtaposition to the law-courts which tried to enforce the Roman Law. Mario Losano observed (I grandi sistemi giuridici [Torino 1978] with an ironical ‘nuance’ how paradoxically in these nationalistic Courts Latin was used and above all, in the trials, French. The English jurists of the 18th century found the justification of this fact in the circumstance that English would not be fit to express law technicalities, but on my modest opinion, the true reasons of such a singularity are to be found into jurists’ eterrnal inclination to make of their own language an obscure and inaccessible language, and therefore a useful support to maintain a corporative power guaranteed by a language apt to consolidate a juridical knowledge which had to remain an appanage only for few. To show how this inclination is ancient it is sufficient to see the attitude of the College of pontifices, the first jurists in Rome; in fact they made an oracular and oral juridical knowledge extremely formal: see Bretone, Storia del diritto romano (Bari 1987) 107 ff. and, recently, Randazzo, Leges mancipii, cit. expecially 135 ff.

After 1100 A.D. the country was totally ruled through the common law, except Scotland where the Roman Law continued to be enforced. However, the itinerant judges used a procedural model of Roman print in enforcing the common law. So, to give justice, they had to ask and obtain a written order by the King (writ) which enjoined to the defendant to appear before the Court. But such a writ had to correspond exactly to the pretension set up by the plaintiff, so ‘no writ no remedy’. With the Provisions of Oxford of 1258, Henry III blocked the types of writs and crystallized them (and an immediate idea would let think to what Hadrian made into codificating the praetorial edict). After a while, in 1285, Edward I opened again the possibility to provide new writs, though in a more limited sense, and with his decision, emblematically defined ‘in consimili casu  he opened the way to the common law, though he gave it a more well-balanced aspect and  ‘equitable’: Armanno, Formazione e cultura giuridica nella tradizione del common law  dall’aequitas all’equity, in Scritti in onore di Guido Capozzi [Milano 1982] 62 ff.) between conservation and evolution, made just in the logic of the jurisprudential precedent, with an ever-growing consideration for the contractual law and the extracontractual responsibility coming from a licit act (tort). The juridical configuration of this matter, for its conceptual complexity, could not but feel the effects of Roman tradition (above all for transactions and aquiliana responsibility), though it had necessarily to derive from a Writ of Trespass which, in spite of its dating back to a period when English law could not distinguish between civil and penal responsibility, represented ‘the fertile mother of actions’. In this context the system of the common law evolved in a perspective in which Roman law assumed a predominant importance for the practical necessity of compensating for the approximations of the old writs. But this importance had never been explicitly recognized and it had extremely been complicated by web of jurisprudential precedents.

[25] To completed system, as civil law ‘si intende la tradizione giuridica del continente europeo di derivazione romana, caratterizzata principalmente da una codificazione di carattere generale e da una particolare tecnica normativa ed interpretativa’: so De Franchis, Dizionario giuridico (1984) 23-24; the civil law is considered ‘the oldest, most widely distributed and most influential’: Merryman, The civil law tradition (Stanford 1985). The ‘common’ law is on the contrary ‘un termine praticamente intraducibile la cui accezione principale è, letteralmente, quella di legge comune a tutto il paese’: De Franchis, Dizionario, cit. 493. Apparently they are two incompatible systems, so that Anglo-Saxon jurists define the civil law system as ‘rigido, astratto, incapace di evolversi e basato su di una applicazione automatica delle norme giuridiche’: Armanno, Formanzione e cultura giuridica, cit. 31. But it is clear to the jurists of both systems that there is a progressive evolution of them. Actually the Anglo-American common law and the European law tend to be similar (but this approach had ancient roots: Stein, Continental Influences of English Legal Thought, 1600-1900, in La formazione storica cit. 1105 ff.): the common law is having an expansion of statutes and consolidations to the detriment of the pure ‘judge made law’, while jurisprudence is assuming a growing importance in many civil law countries: for example in those which have a Constitutional Court, constitutional law tends to become more and more a jurisprudential law stricto sensu. In the culture of civil law, law, expressed in abstract and general terms, must be able to provide for the most recurrent hypotheses, because the aim of law is to reach the certainty of the law.

The common law, on the contrary, had never received a systematical configuration as it developed examining case by case the analogies present in the controversies submitted to judges. Actually the judges of the common law thinking they could not formulate general principles precisely, ‘preferiscono appellarsi alla autorità degli esempi del passato piuttosto che impegnarsi in ragionamenti astratti’: Stein, I fondamenti del diritto europeo (Milano 1987) 114. This fact would explain why the jurists who operate in the common law systems, on the contrary of those of civil law, think their law is flexible and able to evolve rapidly. But this idea the Anglo-American jurists have about their law does not mean that in the tradition of the common law does not feel the exigency of a continuity of the law; the point is, however, that in Anglo-Saxon countries such an aim is accomplished with the doctrine of ‘stare decisis’, that is to attribute a binding strength to the precedent, which is a creation of jurisprudence and not certainly an expression of the legislator’s will. Moreover, when it operates in this way, it assumes a practical function of creation of the law, becoming itself a ‘legislator’ and with a strength and a cogency of the rule probably even greater of the legislator’s one stricto sensu, since judges create rules and enforce them to the considered case, seduta stante and without any intermediation. In conclusion, the certainty of the law in the common law is reached recognizing a binding force to judges’ decisions. But if on one side the accumulation of judgments during the years offered a variety of concrete and detailed precedents to refer to in the resolution of controversies, it is as much true that the case-law had reached so high a level of complexity to need a legislative intervention with the aim of systematizing organically jurisprudential rules. So also  the Anglo-Saxon countries need to a certain extent of resorting to ‘codes’, exactly like civil law countries feel the need of a major flexibility of the law to the changeable demands of reality. There is therefore a well definite evidence: the approach process between these two cultures is already taking place and it is faster than we can imagine.

[26] Radin, Roman Law in he United States, in Atti del Congresso internazionale cit. 346 ff.

[27] Sherman, Roman law, cit. 330.

[28] Ibid. 329.

[29] See Strong, An analysis of the reply of Mr. David Dudley Field to the Bar association of the City of New York (New York 1881).

[30] Assembly Bill N. 215.

[31] Field (1805-1894), a polyhedric jurist (author of essays from civil and penal law to the law of procedure, from the maritime law to the international one), was also the author of a Code of civil procedure accepted by the State of New York and of a project of a criminal Code.

[32] Defects of the proposed Civil Code for the State of New York. A critical examination of the proposed Chapter on ‘Servitudes’ (New York 1882). The polemic with the author of the project of the Code started from Field’s seven-point memoir on the opportunity of the acceptance of a Civil Code for the State of New York. Dwight’s reply followed it on the Evening Post of 22nd March 1882.

[33] See Bentham’s famous letters ‘to the Citizens of the several American United States’ and in particular that devoted to the Codification of the Common Law (repr. New York 1882) together with the Report with which the special Committee appointed to the codification of the Common Law of Massachusetts, indicated the practicability of the way towards a codification (ib. 24 ff.) which gave an order to the legal system still bound to the first settlers’ customs, as auspicable to the Governor of the Commonwealth of Massachusetts: see The Perpetual Laws of the Commonwealth of Massachusetts (Worcester 1788, repr. cur. Cushing, Wilmington 1981).

[34] The real punctum dolens of the systems of common law; see, for example, on the usefulness of the Roman concept of dominium, Radin, Roman Law in the United States, cit. 355.

[35] See Dorsey, The Roman and Common Law origins of certain anomalies now existing in those rules of law and principles of equity governing precedent and subsequent conditions contained in wills and testaments and imposed upon devises and besquets, in Atti del Congresso internazionale cit. 361 ff.

[36] BIDR. 43 cit. 333.

[37] His researches proved this; see in particular, The people’s law, or, Popular participation in law-making: from ancient folk-moot to modern referendum: a study in the evolution of democracy and direct legislation: With An Introduction By George Elliott Howard (New York 1909, repr. Holmes Beach, Fla. 2001); The Evolution Of The Roman Law: From Before The Twelve Tables To The Corpus Juris (Omaha 1923); The Beginning Of Law: A Summation Of Resuls In Legal Anthropology (Washington 1934).

[38] Lardone, Professor at the CUA in Washington, was certainly one of the activest and most enthusiastic members of the Seminar and one of Riccobono’s closest collaborators. He would offer an important contribution published in the Studies devoted to the Sicilian Professor: The imperial Constitutions in the Institutes of Gaius, in Studi in onore di S. Riccobono I cit. 653 ff.

[39] BIDR. 43 cit. 356.

[40] BIDR. 43 cit. 368.

[41] BIDR. 44 (1936-1937) 419 ff.

[42] Ibid. 450.

[43] de Sloovere taught at the New York University Law School; among his interests there were the discipline of torts and hermeneutics: see The functions of judge and jury in the interpretation of statutes (Cambridge Ma. 1933).

[44] Ibid. 463 ff.

[45] See Wenger, Römisches Recht in America, cit. passim.

[46] This was the enthusiastic comment of Riccobono himself in pages from which the satisfaction for the scientific vitality of the Seminar appeared: BIDR. 45 (1938) 335 ff.

[47] Ibid. 336 f.

[48] Ibid. 337.

[49] BIDR. 46 (1939) 328.

[50] Wolff, born in 1902, is an important name for Roman Law historiography. In 1932 Dr. Jur. at the University of Berlin, Professor of History of Law at the University of Freiburg in Germany, he is known in the States especially for his Roman law: an historical introduction (Norman 1951) and anyway he frequented the US academic circle as it is proved by the circumstance which he was accepted into the School of Historical Science of the Institute for Advanced Study at Princeton University.

[51] Duff, Personality in Roman Private Law (Cambridge 1938).

[52] Consuetudo, exemplum nelle fonti giuridiche romane, in BIDR. 46 (1939) 329 ff.

[53] Vincenzo Arangio-Ruiz (in Arangio-Ruiz – de Francisci, Salvatore Riccobono e il ‘Bullettino’, in BIDR. 42 [1959] VIII) would notice as the publications of Seminar ended just in coincidence with the death of magister ad vitam happened on 5th April 1958.

[54] Seminar 1 (1943) 2.

[55] There is a light contrast between this date, referred by Riccobono in BIDR. 47 (1940) 1 n. 1, and the one of 12th May, mentioned by the scholar himself in BIDR. 49-50 (1947) 1 ff.

[56] BIDR. 47 cit. 1 n. 1.

[57] A Message by Professor Salvatore Riccobono, in Seminar 3 (1945) 69 f. The letter, with the date of 30th October 1944, was  edited in Italian in BIDR. 49-50 (1947) 1 ff.

[58] Ibid. 70.

[59] A Message cit. 69.

[60] Ibid. 71.

[61] An Exchange of Messages on the occasion of the Birthday of Professor Salvatore Riccobono, February 5, 1954, in Seminar 12 (1954) 67.

[62] They were made involving by the scriba’s praxis to send in advance a detailed schedule of the following meeting to the members of the Institute. In it there were the name of the speaker, the themes and a short information about the problems dealt with in the lecture and in the following debate: a valuable paper attesting this praxis is conserved in the Library of the University of Michigan Law School. It is a convocation in Brendan F. Brown’s own hand, the scriba, for the meeting of 24th February 1943 at the Georgetown University Law School.

[63] The magazine can be consulted in the main libraries of US universities and in Italy in many libraries, among which I can indicate the Library of the Roman Law Institute of ‘La Sapienza’ University in Rome. The last issue (1955- 56, pp. 75 ff.) contains a useful index of the contents of the thirteen numbers of the magazine.

[64] Seminar 13 (1955-56) III.

[65] Ib. III.

[66] The Jurist itself would not publish the news of the Riccobono Seminar after the closing of the annual supplement any more. The last report concerning the Institute was in the fifteenth volume (1955) 124 and it referred to Edgar Bodenheimer’s lecture, who was the magister pro tempore, to whom Hessel E. Ynterna of the University of Michigan would succeed for the academic year 1955-56, and then for the following year, the last with which I am acquainted, Martin R. P. McGuire (CUA). Therefore the last news were those published in the thirteenth volume of the Seminar.

[67] Talamanca, Un secolo di ‘Bullettino’ cit. LXXXIII.

 

STATUTO

DEL RICCOBONO SEMINAR