School study as the drive for legal abstraction

Description

Scholars in recent times have characterised the classical period of Rabbinic and Roman law (approx. the first 250 years of the Common Era in both cultures) by a high level of conceptualisation and a low level of systematisation (Moscovitz 2002 and Watson 1995). It is only in the post-classical period that the undercurrent ambition of creating a fully coherent legal system comes to the surface and takes centre stage. In the 6th century CE, the Talmud Yerushalmi (ca. mid-6th century CE) and Justinian’s Institutes and Digest (533 CE) set out to collect and organise centuries of legal knowledge in a systematic framework, arguably as a reaction to the increasing specialisation and isolation of legal subsystems. The paper argues that the terminological awareness, conceptual sensitivity and systematic presentation of the Yerushalmi’s and Justinian’s legal enterprises were encouraged by the educational setting of 6th century CE Rabbinic and Roman law. It is proposed that the intensive study of texts in the Roman law schools of Beirut and Constantinople and the Rabbinic study houses of Palestine and Babylonia was the driving force behind the conceptual development. The paper reconstructs Justinian’s reformed legal curriculum according to his imperial pronouncements, and provides an overview of the indirect evidence for Rabbinic and Roman school study in post-classical times. By underlining the rhetorical and didactic goals of the elementary study of law, the paper suggests that the institutionalised study of law generated the need for an ideology of a coherent legal system which could be communicated effectively to the novice students. The suggested model could also account for some of the apparent inconsistencies which have perplexed scholars of Rabbinic and Roman law. If the Yerushalmi, the Institutes and the Digest are read as dynamic study materials and not simply as static binding law in which all elements (should) have the same force, then we can eliminate the inconsistency between passages which are directed at students at different levels of their study. According to the suggested dynamic scenario, students gradually immersed themselves in the study of specialised subsystems and acquired better understanding of the legal vocabulary and the particular legal institutions. By the end of their training, the initial ideology of a fully coherent legal system became almost irrelevant. Advanced students could realise that the ideology needed to be treated with a pinch of salt: it provided the didactic starting point for the novice and the idealised end-point for the master of law, but it should not hinder the increasingly specialised and internally coherent operation of the legal subsystems.

Period	10 Sept 2015
Event title	69e Session de Société Internationale Fernand Visscher pour l'Histoire des Droits de l'Antiquité: L’Enseignement du Droit Pendant L’Antiquité et L’Enseignement des Droits de L’Antiquité dans le Cursus Juridique Aujourd’hui
Event type	Conference
Location	Istanbul, TurkeyShow on map
Degree of Recognition	International