The Transformation of the Law of Nations and the Reinvention of the Novella: Legal History and Literary Innovation from Boccaccio’s Decameron to Goethe’s Unterhaltungen deutscher Ausgewanderten

Even prior to its publication in Friedrich Schiller’s literary journal Die Horen in 1795, Goethe’s novella cycle Unterhaltungen deutscher Ausgewanderten had already been assigned an eminent place in literary history: in a letter dated November 7, 1794, Schiller informed his friend Christian Körner that Goethe “ist jetzt beschäftigt, eine zusammenhängende Suite von Erzählungen im Geschmack des Decameron des Boccaz auszuarbeiten.”¹ Indeed, the structural borrowing from the Decameron is so undisguised in Unterhaltungen that it is undoubtedly meant to revive, under entirely new historical conditions, the genre of the novella as established by Boccaccio (1313–75). As evident as Goethe’s indebtedness to Boccaccio is, and as dutifully as informed readers of Unterhaltungen, from its first reviewers to recent scholars, note this indebtedness,² neither the structural continuity between the Decameron and Unterhaltungen nor the variations and innovations undertaken by the latter have been subjected to historical and theoretical scrutiny. As a consequence, both the historical conditions making Goethe’s reinvention of the novella possible and the functions performed by this reinvention remain in the dark.

This essay approaches Goethe’s reinvention of the novella from a legal historical perspective. The novella first came into being as a legal genre, referring to novellae leges or new laws that were issued by the Roman emperors of late Antiquity after previous imperial enactments or constitutiones had been compiled into the Codex Theodosianus (438 CE) and Codex Justinianus (534 CE).³ After the completion of his monumental codification project in 534, Emperor Justinian issued new legal rulings on individual cases that could be resolved neither by means of existing imperial enactments collected in the Codex nor by the jurists’ doctrines collected in the Digesta (533 CE). These new legal rulings, variously referred to as leges post codicem, novellae constitutiones, or novellae leges, were later collected under the title Novellae. Along with the Codex, Digesta, and Institutiones, the Novellae makes up the fourth part of the Corpus Juris Civilis. In later legal development, “novella” became a terminus technicus referring to a new law that amends an existing law with regard to individual issues. The invention of the novella as a literary genre in fourteenth-century Italy by Boccaccio—a jurist turned poet—took place at a specific juncture in the reception of Roman law when jurists, engaged in legal practice in a new social reality, tried to come up with innovative solutions to legal cases in accordance with the law of Justinian as well as various local statutes. In a bold challenge to jurists endeavoring to consolidate social order by means of juristic reasoning, Boccaccio sought to constitute social order anew by means of novelistic storytelling. The Decameron, a text written during the years following the great plague that decimated the city of Florence in 1348, shows how jus gentium or the law of all peoples, that is, the law informing social life in general, collapses under the great plague, and how in this general anomie a new social order can be imagined by the narration of extraordinary cases. The reinvention of the novella at the end of the eighteenth century by Goethe—a jurist turned poet as well—took place in the wake of the transformation of jus gentium, during the intervening centuries, from the law of all peoples within the paradigm of Roman jurisprudence into international law within the paradigm of natural jurisprudence. It responded to the crisis of international law by proposing the aesthetics of storytelling as a means of imagining world order.

From the Legal Novella to the Literary Novella: Justinian, the Reception of Roman Law, and Boccaccio

When Justinian ordered the compilation of all the enactments of Roman emperors as well as all the significant texts of Roman jurists, which eventually came into force under the titles of Codex and Digesta respectively, he meant to lay the legal foundation for his empire for all eternity. Yet at the same time he admitted that neither the enactments of emperors nor the...