Chapter LVIII: Introduction

There was a marked difference between the development of law and that of the other subjects so far treated by Isidore in the _Etymologies_. The latter were of Greek origin, and, with the exception of rhetoric, they appeared as strangers in the Roman environment and never formed an integral part of Roman culture. Instead, they suffered from continuous decay, and by the time of the disintegration of the Roman state they were reduced to such a condition that the “fall of Rome” meant nothing to them. On the other hand, law was an indigenous product of Roman society, upon which the Roman intellect had expended its greatest and most successful efforts, and although it inevitably shared in the general intellectual deterioration of the time, and showed a marked decline after the period of the great jurists, the beginning of its rapid decay is coincident in each section of western Europe with the close of Roman rule. Thus “the fall of Rome” played much the same part in the history of law as the transition from a Greek to a Roman environment had done for the bulk of the intellectual possession of the ancient civilization. After this event law was on terms of equality with the other branches of knowledge, and within two centuries, as judged by its presentation in the _Etymologies_, it was reduced to as low an estate as they.

Isidore’s _De Legibus_ is divided into two distinct parts. The first is of a general nature, and embraces such topics as law-givers, _jus civile_, _jus gentium_, _jus naturale_, why laws are made, and what character a law ought to have. The second part is more specific; it treats of legal instruments, the law of property, crimes, and punishments. The whole forms a scholastic conglomerate of elements derived from every stage in the development of Roman law and exhibits a point of view that is philological and Christian as much as legal.

Because of its importance in the history of law, this book of the _Etymologies_ has been subjected to more detailed study than any other, but in spite of this its sources have not been clearly determined. In addition to the Scriptures and Isidore’s authorities on word derivation, he is believed to have drawn on the _Breviarium Alaricianum_, the Theodosian code, the text-books of Gaius and Ulpian, and the _Sentences_ of Paulus. Although the Justinian code was issued a century before the compilation of the _Etymologies_, it seems improbable that Isidore made any use of it, or had even heard of it.[292]

[292] Considering the intellectual stagnation of the time, it
seems quite possible that the Justinian code was unheard of
wherever it was not actually the law of the land. Vinogradoff
gives the conclusion of modern scholarship as to this when he
says (_Roman Law in Medieval Europe_, London, 1909, p. 8): “The
_Corpus Juris_ of Justinian, which contains the main body of law
for later ages, including our own, was accepted and even known
only in the East and in those parts of Italy which had been
reconquered by Justinian’s generals. The rest of the western
provinces still clung to the tradition of the preceding period,
culminating in the official code of Theodosius II (A.D. 437).”
Compare also Conrat, _Die Epitome Exactis Regibus_, Introd.,
pp. 248–257; Flach, _Droit Romain au Moyen Age_ (Paris, 1890),
especially pp. 52–57. Conrat, in his _Geschichte der Quellen und
Literatur des Römischen Rechts in Früheren Mittelalter_, pp.
150–153, maintains, first, that there is no trace of evidence
elsewhere in Isidore’s works, of a knowledge of the existence of
the Justinian code; and, second, that the internal evidence in
the _De Legibus_ points to the use of other sources. See also
Ureña, _Historia Crítica de la Literatura Jurídica Española_
(Madrid, 1897), vol 1, p. 294.

The purpose of the _De Legibus_ was, no doubt, to serve as a text-book.[293] The amount of space given to it, which is about the average of that allotted to each of the liberal arts, and the fact that it treats of law in a general way, point to this conclusion. Its position in the _Etymologies_, following, with Medicine, immediately after the liberal arts, is also an indication of its educational character. The best proof of this, however, is found in the number of separate manuscripts in which the _De Legibus_ is reproduced in a catechetical form.[294] At least eight of these are in existence, and the earliest of them is attributed to the ninth century.

[293] The _De Legibus_ should not be regarded as a text-book for
a law school, but for the subject of law as forming a minor part
of the preparation of a priest. See Introd., p. 87, and Flach,
_op. cit._, the fourth section of which (pp. 104–128) deals with
the teaching of law from the sixth to the eleventh century.

[294] For an account of separate MSS. of Isidore’s _De Legibus_
(often containing also legal matter from bks. ii, ix and xviii),
see Joseph Tardif, _Un Abrégé Juridique des Etymologies d’Isidore
de Seville_ in _Mélanges Julien Havet_ (Paris, 1895).

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