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 5^th 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 11^th 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 18^th 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 22^nd 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 19^th 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 31^st 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 8^th 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 18^th 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 20^th 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 26^th 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 25^th 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 11^th 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 16^th 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 29^th 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.