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Chapter  Legal Ethics: A Medieval Ghost Story James A. Brundage Sir Paul Vinogradoff (–) nearly a century ago described the twelfth-century renewal of interest in Roman law as a ghost story on the grounds that it dealt with ‘‘a second life of Roman law after the demise of the body in which it first saw the light.’’1 Later scholars have questioned Vinogradoff’s metaphor. Did Roman law really disappear from the empire ’s former provinces once Germanic kings had replaced Roman governors in the West? Might one not more accurately speak instead of a lingering presence of Roman law, enfeebled perhaps, but still functioning among the ‘‘Roman’’ subjects of Visigothic, Frankish, Burgundian, and Lombard kings?2 Alan Watson and others are unconvinced by Vinogradoff ’s further assertion that ‘‘Within the whole range of history there is no more momentous and puzzling problem than that connected with the fate of Roman Law after the downfall of the Roman State.’’ After all, legal systems routinely borrow ideas and institutions from one another, and Watson finds it perfectly natural that medieval law teachers and lawyers appropriated Roman practices on such a vast scale that the medieval ius commune resembled a resurrection of late ancient Roman law.3 Here I examine one facet of these larger questions that seems particularly significant for the history of the legal profession. Since at least the second century of the common era, Roman lawyers had clearly constituted a profession.4 In the wake of the fifth-century barbarian migrations, however, professional lawyers disappeared from what had formerly been the Western Roman Empire. Roman law schools in the classical period trained jurists systematically .5 The public treasury still supported law professors at Rome around the middle of the fifth century. Evidence of formal legal training in the West fades away thereafter and vanished during the sixth century.6 From the early seventh until the late eleventh century, only some shreds of Roman legal  James A. Brundage learning occasionally surfaced in schools that primarily trained monks or clerics. Those schools valued legal texts for the study of rhetoric. Rigorous, systematic legal teaching for the practice of law seems to have vanished altogether for roughly half a millennium.7 ‘‘Law schools make tough law,’’ Frederick William Maitland (– ) observed.8 Without schools that taught the subject rigorously, the barbarian kingdoms could not produce lawyers with truly professional skills. This is not to say that clever and gifted legal advisers were unknown during the early Middle Ages, but rather that those men did not constitute a profession in any strict sense of the term. Renewed interest in Roman law reappeared toward the close of the eleventh century. The circumstances remain controversial. Some connection with the eleventh-century church reform movement seems certain, although scholars disagree about the form that connection took and about how critical it was.9 The reformers’ vigorous insistence on the church’s jurisdictional rights seems clearly responsible, however, for a startling rise in the number of disputes referred to bishops and popes for resolution. Church authorities accordingly sought to improve the efficiency and regularity of their judicial procedures to cope with the growing volume of judicial business.10 These developments in turn produced a demand for the services of skilled lawyers. It is no coincidence that around the beginning of the twelfth century a market for thorough and systematic training in Roman law, training that would prepare lawyers to practice effectively in the courts of popes, bishops, and archdeacons, began to reappear in the West and grew rapidly thereafter.11 By the mid-twelfth century we begin to see a completed textbook , the Decretum of Gratian, which presented students not only with a comprehensive collection of legal texts drawn from both ecclesiastical and Roman sources, but also with a method for resolving the inconsistencies and contradictions in those texts.12 This in essence was what Vinogradoff’s ghost story was about. The ghost story I want to tell concerns the resurrection of Roman ideas about legal ethics. Although Vinogradoff passed this over in silence, it was essential for the development of a medieval legal profession. By the third quarter of the twelfth century, men trained in Roman and canon law were numerous enough to form a visible occupational group in a handful of cities in northern Italy and southern France.13 As they grew increasingly prominent and prosperous, these lawyers also became concerned about their collective identity. Beginning around the s law [18.117.153.38...

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