week 2

MEDIEVAL PERIOD: BIRTH OF THE IUS COMMUNE AND THE ENGLISH

COMMON LAW (476 AD – 1500 AD)

Fall of Western Roman Empire (476)

- migration, invasion into the Empire, Barbarian period, Huns

- 568: Lombards conquered Italy (Germanic tribe)
- climate change
- growth of population
- financial, political problems – no control over the territory
-› Odoacer took the imperial signals from Romulus Augustulus
-

Germanic Kingdoms (476-768)

- on the territory of the former Empire

- Visigoths – Spain
- Franks: Gallia, France
- Vandals: Italian Peninsula
- N-Africa
- Visigoths: (S-France, Spain)
-› new code of law, King Alaric (died in 507) = Lex Romana Visigothorum
-› ex Roman law and its application, applied to the territory of the Empire
- Lex Visigothorum -› law of the tribes, mostly customary, governing different part of the
population = vulgar Roman law (e.g. Codex Theodosianus),
personal law
- Was not as developed as the Roman law
- ha római citizen -› Lex Visigothorum
- ha visigoth -› Lex Visigothorum
- personal law: származás alapján applicable valamilyen jog
- Italy: pragmatic sanctions (August 554), Vigilius (pope): Corpus Iuris Civilis in the West

Mixture of laws (hybridisation)

- result: great variety of legal sources

- (Vulgar) Roman law: partly codified by rulers like Alaric
- Germanic law (customs mostly): codified by rulers
- Canon law (Church gaining importance): - absence state machinery
- vacuum filled by Church
- Christianisation of Germanic tribes

Charlemange (c. 770-800-840)

- subjugation Germanic tribes in one Empire

- 768: King of the Franks
- 774: king of the Longobards // 800: crowned by Pope Leo III (Church above secular ruler)

his reign

o he aimed at: renovation imperii = recreation of Roman Empire in antiquity, but now in
Germanic territory
o Charlemange = defensor ecclesiae (defender of the Church for the benefit of himself, to
ensure his leadership)
o Imperium Romanum = Impreium Christianum
o in Roman Empire: emperor as law-maker, acting as legislator -› constitutions (can be
found in the Codex that is part of the Corpus Iuris Civilis)
o Charlemange: supra-regional legislation (Capitularies), often the name is known only,
because legislation published orally

*due to the integration the differentiation between vulgar and roman law became untenable

Origins of feudalism

- “new system of public law”

landholding, combined with the exercise of public power
- emperor = Feudal Lord (granting public authority)
Kings, Counts, Dukes = vassals (granting part of their land)
counts, etc. = subinfeudated vassals

Creation of Holy Roman Empire

- 843: Treaty of Verdun (Empire split in 3 parts)

- Charlemange = preparatory stage for the creation of Holy Roman Empire
- 870: Treaty of Meerssen (middle part divided between East and West, central part disappears, 2
sovereign territories)
- result: Holy Roman Empire (962-1806)
- election of King (Kurfürst, Prince-Elector)
- king crowned Emperor by Pope
- 962: Otto I, first Emperor
- became emperor in unusual way: Emperor started as a Holy Roman King, then elected by Kurfürst
(election princes, választófejedelmek), crowned by the Pope (originally in Rome / later on other
places)
- Pope crowned the 2secular ruler -› huge influence of the Church

Church and state

- 2 swords = distinguish Sacerdotium (ruling in spiritual matters) and Imperium (secular power of
the emperor)
- 494: argument based on letter by Pope Gelasius I to Emperor Anastasius (East)
- basis of the 2 swords theory: cf. Luke 22:38: “and they said, Lord, behold, here are two swords.
And he said unto them, it is enough.”
Renaissance of the 12th century

- investiture struggle (1075-1122) – right to appointing a bishop, emperor claimed that he has the
right to appoint bishops
- clergy was useful in governance, ~ well-educated
- legal arguments why he has (not) right to appoint
- earlier renaissance, change in economy, higher agricultural productivity -› growing population,
increase of trade, industry, growing cities, more complex society, new social groups
- Gregorian reforms
- E-Roman Empire, Bizantium: they didn’t recognize the bishop of Rome, but unorthodox
- Concordat of Worms (1122): bishop holds spiritual office and is feudal vassal of the emperor,
problem continuous
- transformation of the West (agriculture, economy, etc.)
- ‘rediscovery’ of the Digest (end of 11th cent.)- in Pisa
-› relevant in the power struggle between pope & emperor
- In the 8th and 9th century Corpus Iuris Civilis was irrelevant
- Abila invented a method yes or no method
- You have a statement in favour of something and then you have a contradiction then you explain it
away (exception)- new medieval law inspired by the Roman law
- There is no continuity (you have to look at other periods of law)

Medieval Corpus Iuris Civilis

- customary law of Europe didn’t reflect the increasing complexity of the society
- scholar body of law = ius commune: learned law of the Middle Ages
-› known to the whole Latin West
-› 2 pillars: Roman law & canon law
- body of rules that is enforced all over Europe
“common law of Europe”, ~ learned European jurists sharing the same legal toolbox -› based on
the Corpus Iuris
- North: strong Germanic customary law
Mediterranean: more complete reception of ius commune
other places: reception of ius commune limited to canon law
- Corpus Iuris was discovered in parts
- Littera Pisana = Littera Florentina
- Littera bononiensis = Vulgata (Bologna): parts of the Corpus Iuris put together
- Vulgar edition of the Corpus Iuris – used as starting point in legal education
- Medieval Corpus Iuris (Vulgata)
- Digest in three parts (Vetus, Infortiatum, Novum (latest discovered part)
- Codex: first 9 (of 12) books
- Volumen parvum = Institutes, Tres Libri, Authenticum, Libri feodorum
– all the part of the Corpus that didn’t find a place in the earlier volumes

Study of Corpus Iuris Civilis

Glossators
- W: revival of legal studies: birth of universities, higher interest in Roman cultures, antiquity
- lectures, disputations…
- Petrus Abelardus
Irnerius: teacher in Bologna
- first scholars of Roman law: glossators
- name: glossing texts (common practice), scholar
- glossa = writing comments in the margins of an authoritative texts, substantial explanation
- primary goal: constructing a legal text free of contradictions, explaining different legal sources
from different circumstances, time as a logical, coherent whole
- scholasticism: Petrus Abelardus
= scholastic method: sic et non: collecting arguments in favour/against proposition, at the end
come to a synthesis, giving explanation to the differences
- Glossa ordinaria = standard gloss afterwards, collecting all the handwritten, printed glossas of the
Corpus Iuris (1120-1240, Accursius)
-› glossators come to an end, because now there’s a standard gloss

Commentators

- Glossa ordinaria remained influential (important for the commentators as well, but they wanted to

discover other bodies of law, e.g. feudal law, commercial

law)
- attempts to codify customary law
- legal circles theory: local law, followed by the larger area, followed by ius commune
- new approach adopted to the increasing complexity
- Bartolus de Saxoferrato (1313-1357)
- new approach: explosing rationale behind law
- new areas of study: e.g. private int’l law
- doctrine of fundata intentio: theory advised the court to apply ius commune when it wasn’t clear
whether another body of law should be used
- jura novid curia: ‘the court knows the law’, applied to local law (law of the forum) & ius
commune
- commentators:
- discovering new legal areas that were not discovered by the Romans (such as PIL, which law is
applicable e.g. in marriage)
- reasons behind the provisions of the Corpus

Customary law

- dominated the early middle ages, legally binding

- when is sg customary law -› 2 requirements:
- Longa consuetudine: sg only becomes customary law is ppl have been observing a custom for a
long time
- Consensus utentium: legal reason to observe the custom, therefore, becomes enforceable,
consensus between ppl
- reflects social changes, legal customs become stable if the society is stable
- how to determine the content of customary law?
- Turbe
- putting customary law into writing
/ before: content of custom was based on memory -› oral tradition, therefore, misunderstandings
- ‘homologation’ of customary law: FR 1454, NL 1531

Medieval English law

- N-Europe: less willing to accept Roman law, but England was more willing
- 1066. Battle of Hastings (William, Duke of Normandy)
- centralisation
- Henry II – expanding the court to Royal Court
-› judges of the Royal Court developed a law that is applicable all around the country
- customary feudal law
- Royal Courts: - Common Law (Writs)
- equity
- Glanvill: first book of common law
Bracton: second book, 13th century, incorporation of Roman law
- common law courts: King’s Bench, Common Please, exchequer
// equity: headed by councillor: ad hoc decisions mostly, often inspired by ius commune

Medieval courts

- forum internum: person’s right to form, to hold and to change serious inner convictions and beliefs
forum externum: person’s right to manifest or outwardly display a religion or belief, either alone or as part of a
community
- right of citizens to review a decision,
uniformity of courts practice
- after Gregorian reform: church restructured in a hierarchical system
(pope himself the supreme judge)
- hierarchy of ecclesial courts:
- Rota Romana: pope’s court; supreme court both in civil & criminal cases
- archbishop’s court
- bishop’s court (officialalate)
- supreme secular courts:
- Parlement de Paris (14th century, highest court of FR, covered the territory of the whole territory of FR)
- Great Council of Malines (15th cent., NL, Belgium)
- Imperial Chamber Court (DE)
- Romano-canonical procedures
- courts applying ius commune all over Europe, help spreading in
 RECEPTION AND IUS COMMUNE

 Middle ages: 5-15th centuries

 Early Modern Period: 16-18th centuries (-› development of law, legal science, legal
practice)
 plurality of legal systems: legal systems existed next to each other
 plurality of jurisdictions: jurisdictions existed alongside each other

Plurality of legal systems

- Western Europe: normal for more than one legal system existed next to each other
1) indigenous customary law – origin: Germanic tribal law (4th-8th centuries)
2) canon law – from 4th century
3) Roman law – rediscovered in the 11th century
- Early Modern period: Roman law – studied by using new scholar methods
- customary legal systems: systemized & recorded in writing
–› taking from Roman law & canon law to fill the lacunae (“gap”)
- ius proprium = systemized & recorded customary law
–› first step to the introduction of national codifications

Plurality of jurisdictions

1) aldermens’ courts: - indigenous customary law

- specific courts in towns, rural areas
2) feudal courts: - to deal with feudal matters
- judges: taken from the local liege and his vassals
3) ecclesiastical courts: - canon law
- everyone was subject to these courts
4) fora: - new type of court from the 14th century
- preferred to apply the received Roman law
- often served as court of appeal
- contribution to the development of a ius proprium
European Legal History (text book)

paragraphs 116-122, 177-179, 214-243, 302-322 (for week 2)

The role of the church in the Frankish empire

116. The two swords

- alliance between the pope & the Frankish kings -› benefits for Rome, threatening the autonomy of
the church
- Frankish kings: engaged the clergy & ecclesiastical hierarchy in the administration
- clergy: monopolising schooling, writing & language: Latin
kings: attempting to control the clergy
- Carolingians: tithe, tax of 10% of all earnings payable to the church
- alliance between the Frankish kings & the pope: precarious balance of power
king: supporting the unification of church
danger of falling under the other’s supremacy
- Frankish kings: unable to lay any claim on the leadership of the church as a whole
- popes: tolerating the co-operation between Frankish kings & Frankish church
- theory of the ‘two swords’ = duality between king & pope
Pope Gelasius I: two dignities on Earth: papal and regal – two powers to be distinguished
- Investiture Controversy (from 1070)

117. Church and state under the Carolingians

- conquest of the larger part of the West by Charlemange: disrupted the balance of power
- pope: needed military help from Pippin the Short against his Lombard foes in Italy
- Carolingians: desired papal sanctioning for their usurpation of the Frankish crown
Carolingian kings: obtaining their power from God
kingship based on the Germanic tradition
- Charlemange, Louis the Pious -› new alliance between the Frankish kings & popes
Carolingians -› protectors of the church
- 800. coronation of Charlemange
- from Clovis (I. Klodvig frank király) anointed by clergymen
- clerical dimension to the kingship: legitimated the king’s interference with church and faith
- Frankish interpretation of kingship: king -› responsible for law and peace in society, ensuring that
the church & the goods of church were left untouched
- classical theocratic tendencies with the Jewish + early Christian tradition of separation of religion
& politics –› two powers held one another in balance
- the balance -› was broken to the benefit of the state
tension -› smouldered and continued to grow

Renovatio imperii, translatio imperii

118. Renovatio imperii

- Christmas Day 800, Charlemange’s coronation in Rome by Pope Leo III (759-816)
- Einhard (c. 770-840): Charlemange’s biographer
- Charlemange
-› wasn’t that he had become emperor, but that pope had invested him with this office
-› 813. Aachen: made Louis de Pious (his son) co-emperor
- Leo III & Charlemange: divergent views on Charlemange’s emperorship
- pope:
- renovatio imperii (= renewal of the empire), in the sense of imperium Romanum
- to make clear to the Eastern Roman emperor that there was once again an emperor in the West
- Charlemange: more effective protector against the inhabitants of the city of Rome & the Papal
State

119. Translatio imperii

- Charlemange:
- aspiring to the imperial dignity
- conqueror of the Saxons, Lombards -› ruling over various people
- his emperorship: confirmation of the fact that he was a king of many people
- renovatio imperii’s extension: recognising of his ‘universal authority’ over the Christian part of
the former Western Roman Empire
- 9th century: doctrine of translatio imperii (=transfer of empire)
- universal claims of the Romans were transferred to the Franks
Charlemange’s imperial coronation: symbolizing a genuine translatio imperii from one people to
another
- Aachen: centre of the West

120. The coronation of Charlemange and the Investiture Controversy

- Charlemange: imperial title –› instrument to enhance his authority over his vast, multi-ethnic
empire + sought to obtain greater control over his empire
- Carolingian Renaissance
- promoting, reforming, harmonising the education, monastic life, liturgy, church organisation
- Christian faith & Latin –› transcended the difference between the various people & tribes of the
“Latin West”
- Charlemange’s coronation -› working out disadvantageously for the pope from the 9 th century
under Louis the Pious: argument for limiting papal autonomy and strengthening imperial authority
over the church
- 1070-1250 Investiture Controversy
popes of the time: the coronation -› demonstrating spiritual power’s supremacy over secular
power; the pope appointed the emperor -› power to depose him
- Charlemange & his successors: emperorship had been directly conferred upon them by God – not
a papal decision; coronation -› symbolic implementation of the divine will
121. Territorial organisation

- Charlemange: emphasizing the personal, consensual, patriarchal elements of his kingship

- ordered all free men in his empire to take personal oath of fealty (fides) to him
- giving war booty & land to the most important warriors & local magnates
–› giving away royal lands & estates
–› transferring them under a feudal contract
- Frankish Empire: divided into several pagi (counties)
–› each headed by a count = a royal official
–› appointed / dismissed by the king
–› responsible within their particular county for the administration, dispensation of justice,
collection of taxes, military defence in the name and authority of the king
–› local nobles / large landowners / warriors
- Charlemange:
- sending the king’s envoys (missi domici) throughout the empire to assist & check up on the
counts
- travelling throughout his territories
- appointing his sons as viceroys of the different regna that constituted his empire
- effect: people’s personal loyalty of the secular and spiritual aristocracy towards their king

The feudal system

122. The emergence of the feudal contract

– Charlemange: general use of feudal contracts

– feudal system (8th century) ≠ seigniorial system (9th-10th centuries)

- both: roots in Germanic tradition
– feudal system:
- military and administrative significance
- Germanic tradition: an important man surrounded himself with numerous warriors who swore
him faithful service – in exchange for their military service –› the lord: promising protection &
upkeep
– commendatio: contract between the lord and his warriors – mutual rights & obligations
– feudal contract:
- emerged under the Carolingians
- by combining it with another contract known to the Franks: beneficium / precarium contract
- -› a real contract
- dated from the time of the invasions and the Merovingians
– tenure:
-› allodia / allodial lands -› title to the property be transferred to the magnate,
- but the usufruct reverted to the former owner
– free tenure: - tenure holder / tenant: remaining a free man
- transfer of the title was referred to as beneficium / precarium -› if ecclesiastical
tenure-givers
– not free tenure: - tenure holder / tenant: became a serf
- required to pay a tribute, to labour on the lord’s own lands + perform other
menial tasks for his lord
– feudal contract: combining commendatio & beneficium
- the lord: discharging his obligation to provide maintenance for his vassal, by giving him a
beneficium in loan
- the vassal retained the usufruct of the beneficium until his death

The Gregorian Reform and the Investiture Controversy

177. Cluny

– late 11th century: Gregorian Reform – preceded by a movement of monastic reform

– 10th century: efforts to reform monastic life
– dual purpose: 1) restoration of monastic disciplines
2) suppression of the influence of the local secular lords
– Cluny: huge influence; example for numerous religious foundations

178. The Gregorian Reform

– papacy: assuming the leading role in ecclesiastical reform & extending it to the whole clergy
– 3 objectives:
1) restoration of church discipline:
- non-observance of celibacy (Nicolaism)
- passing ecclesiastical benefices to the relatives of former prelates (nepotism)
- simony
2) emancipation of the church from secular control:
- papacy: demanding independence of the church from any form of secular control
3) establishment of papal authority
– Gregorian Reform –› put an end to the co-operation between the two heads of Christianity
– Latin West –› gradually becoming aware of its own identity
– idea of unity ‹– renovation of the Western Roman Empire & unity under the one Roman Catholic
Church
– head of the people: emperor – secular power; pope – spiritual power
– 1059. rejection of imperial involvement in the election of the pope –› pope: nominated by
ecclesiastical prelates = cardinals
– 1075. Dictatus papae – Pope Gregory VII:
- any form of secular interference with the church was rejected
- bishops & abbots: forbidden to accept the insignia of their ecclesiastical office from secular lords

179. The two swords

– attempt by Rome to counter secular interference with the church –› Investiture Controversy –›
major contribution to towards the development of an autonomous legal science
– Pope Gregory VII: referring to Pope Gelasius I’s text – two swords
Decretum Gratiani (c.1140): this doctrine’s establishment in canon law; most important collection
of canon law of the Middle Ages
– 11th-14th centuries: two traditions came into being:
1) tradition that defend the equality of and mutual autonomy of those powers
2) tradition that defend the primacy of the pope over the emperor (among canonist, theologians)
– the pope delegated secular power to the emperor; emperor = functionary/servant of the
church & pope
– Pope Innocent III: claiming the right to determine whether/not the German king was suitable to the
emperor’s office
-› basis for claims of papal supremacy over the secular rulers

214. The emergence of the university

– 12th century: university = school for higher education

criterion: at least one higher faculty – where artes liberales were taught
– 4 faculties: theology, Roman law / civil law, canon law, medicine
– oldest ones: Salerno (medicine), Bologna (law)
1120. cathedral school of Notre Dame, Paris
12th-13th centuries: all over Europe
– universitas: community of professors & students, who gave & receive instruction at the stadium
generale
teaching activities – took place at a schola
universities –› backbone of Western intellectual life
– model of Bologna: - “students’ universities” – governed & managed by the students
– model of Paris: - universities evolved out of existing cathedral schools
- founded by the prince / church
– 1219. doctorates could be awarded only by an archdeacon
– church: formal gripping over university education

215. Scholasticism and university education

– university curriculum: two stages: artes liberales ‹- trivium, quadrivium

– daily lectura + lectura extraordinarie
– professors: banning students from intervening during classes
– 2 new types of teaching:
- repetitio: a textual fragment would be analysed in depth by the professor
- quaestio disputata: students taking part in the discussion
– scholasticism: came into full flowering in the context of university education

The rediscovery of Roman law

216. The school of Pavia

– rediscovery of Digest -› important impetus for scholasticism

– growing complexity of society –› need for a sophisticated legal system (11 th century)
– southern Italy: Roman law was applied – form of vulgar Roman law
– 11th century: first law school in Pavia (capital of the regnum Italiae)
-› following the system of the Institutiones & the Code + accompanied by commentaries
later scholars: ius asinium = the law of asses
217. The rediscovery of the Digest and the School of Bologna

– 11th century: copy of the Justinian Digest was discovered

– 7th century: text of the Digest had largely been lost
– Digest -› found & copied into the Codex Secundus – many interpolations and errors
probably derived from Littera Pisana (a complete copy of the Digest, 6th century)
– Irnerius (c.1055-1130): lectured on the Digest & other parts of the Justinian collection at Bologna
(1100- )
Irnerius & others: drew up the standard edition of the Digest on the basis of Codex Secundus
– Littera Vulgata / Littera Boloniensis –› medieval version of Justinian collection:
- Code
- Authenticum = a medieval compilation from the Novellae
- Institutions (had never been lost)
– humanists: giving the name Corpus Iuris Civilis
– medieval corpus: divided into 5 parts
– during the lectura: the texts would be read out & furnished with commentaries
during quaestiones: legal questions were answered
– quattuor doctres (4 doctors): Bulgarus, Hugo, Jacobus, Martinus Gosia
-› consulted by Emperor Frederick Barbarossa
– civilians: autonomous class of jurists arose !
– * Justinian said that the Corpus Iuris Civilis was the only law

The glossators

218. Glosses

– glossators = earlier generations of civilians (until 1263)

– commentators = the ones after them (from 1263)
– implication to their times (they applied it to their times)
– glossators:
- generated in Bologna (with Irnerius)
- spread over Europe
- great contribution to the development of scholastic method
- primary aim: to disclose the Justinian text
– glossae (glosses):
- literary output of the glossators
- annotations written in the margin around the original text
- sometimes: brief comments inserted between the lines
- basic, literary clarification on points of vocabulary / syntax
- deeper into the material content of the law
- aim: explaining the text
discovering the ideal law hidden within the authoritative fount of legal wisdom
– challenge faced by the glossators:
- Roman law: not a systemized legal system, only remedies for specific cases
- no logical order
– glossators’ task: to mould the material into a coherent system
– glossators: no mere scholars – often providing opinion
‹–› no strong bond between jurisprudence and legal practice
– the glosser is mostly tied to the text and cannot rely on anything else

219. Azo and Accursius

– glossa redacta: glosses written down by the professor himself

glossa reportata: written down by students during lecturae
– number of important apparatuses – produced around 1200 by Azo (c.1150-c.1220/30)
– endpoint of glossing activities: - Glossa Ordinaria of Accursius (c.1185-1263)
– summae / summaries:
- of one/more titles/books from the Corpus
- more free approach by the author + greater freedom to order the material
- Summa codicis of Azo
– brocardia: brief catchphrases summarising a particular legal rule
paratitla: the titles that the glossators placed above the various parts of the Corpus

The commentators

220. Bartolus and Baldus

– commentators / post-glossators = civilians who came after Accursius

– Orleans, France: first law school, which introduced a new style
- Jacques de Révigny (d. 1296)
- Pierre de Belleperche (d. 1308)
– Cinus de Pistoia (1270-1336): the 1st commentator (introduced the ideas from Orleans in Bologna)
-› his pupil: Bartolus of Sassoferato (1314-57) – the greatest medieval jurist
– Baldus de Ubaldis (1327-1400): the 2nd most important commentator
– their commentaries (14th-16th cent.): huge authority among the commentators
–› communis opinio = generally accepted opinion

221. Commentaries

– single most important difference between glossators & commentators:

autonomy from their source (Justinian collection)
+ difference in length of the fragment under consideration
+ ––ll–– in the degree of interpretive freedom exercised by the author
– glossators: - explanation of a given word/phrase in the Corpus
- bound to the order of the glossed text
- limits his ‘comments’ to the issue at hand
- “What does the Corpus say?”
– commentators: - substantive analysis of a particular passage/part of it
- liberty to arrange his comments
- “What is the ideal law?”
– difference: evolved gradually
– both: scholastic approach

222. From text to content

– concern: - interpreting the Corpus

- understanding the law
– Glossa Ordinaria: - object of study + regarded as authoritative
- established link between Roman law & other legal systems
– canon law (Corpus iuris cononici) – 12th century: taught at university
‹–› not applied in courts
– sources from contemporary customary & statute law –› gradually subject to study
– commentators: focusing on content & application of Roman law in contemporary legal practice
– 14-15th centuries: great commentators
–› building up a new system of learned law out of Roman law

223. Commentaries, treatises, consilia

– commentaries of Bartolus & Baldus on the Digest –› high point of medieval legal scholarship
- views on all sorts of legal subjects (with/without Roman law)
– treatises:
- monographs dealing with a well-defined subject in systematic order selected by the author
- author: fitted these in where it seemed logical
- wide-ranging of topics
– consilia / advises:
- commentators answering legal question – arised in a particular case / political dispute
- detailed analyses of the legal issue in question

Classical canon law (1140-1378)

224. The growth of canon law and the Gregorian Reform

– development of canon law

– popes: 12th century – transforming the church into a papal monarchy with an effective central
administration -› canon law: essential role
– church: need for an own body of law – regulating the internal working of the church
– growth of canon law –› boosted by the individualisation of religious faith
– Gregorian Reform: shifting emphasis from collective salvation to the salvation of each individual
soul (Last Judgment)
– canon law:
(- criminal law, concerning sacraments (e.g. marriage))
- translating this new concern into a system of sanctions & punishments
- ecclesiastical courts
– period of classical canon law (high point): period between the Gregorian Reform & the Great
Schism
225. Applicable law

– canon law -› applied in the ecclesiastical courts

– retione personae: the church has jurisdiction in respect of certain categories of litigants exclusive
rights to judge clergy
– privilegum fori: the clergy enjoying immunity from secular courts
laity: could also appeal to ecclesiastical courts in all sorts of cases
– ratione materiae: claims of the church
– church: guaranteed compliance with treaties between princes – confirmed under oath
– pope, church, canon law -› predominant role in the law of nations

226. Gratian

– growth of canon law ‹- work of popes

– decretal = papal statute (1159-1241. 2000 db keletkezett)
– canon law:
- no autonomous textual tradition
-› now created through authoritative compilations of canonical text
(compilations: still containing all sorts of theological / Roman law texts)
– Concordia discordantium canonum / Decreta Gratiani:
= canonical collection, authoritative text of canon law
-› scholastic method applied to the compilation
-› material: ordered by subject
-› introducing a hierarchy of sources & using scholastic dialectics –› sought to arrive at
unequivocal answers to the issues raised
-› teaching purposes
-› introducing Roman jurisprudence elements into such law
– 1148. Paucapalea – first to add glosses to the work
– decretists = ecclesiastical glossators - studying the Decretum Gratiani

227. Corpus iuris canonici

– Decretum Gratiani ≠ the endpoint in classical canon law’s development

- private initiative
- lacking official legal authority
– popes & concils: producing a mass of new laws –› official collections
– Peñaforte (Catalan monk): Liber Extra = Liber decretalium Extra decretum vagantium
-› 1234. published by Pope Gregory IX (5 volumes)
– all canonical texts that had come into being after the Decretum & hadn’t been included in it –› lost
their force
– 1314. Constitutiones Clementinae
1325. Extravagantes of John XXII
–› all these texts & supplements & corrections
–› 1582. Corpus iuris canonici = code of canon law
– decretal collections & authoritative texts -› object of academic study at university
– decretalists = canonical “commentators”, who studied the new collections
– 14th century: crisis of papacy -› end to the golden age of canon law
– 5 parts: 1582. Corpus Iuris Canonici: - Decretum Gratiani 1140
- Liber Extra 1234
- Liber Sextus 1298
- Clementinae 1314
- Extravagantes 1325

The ius commune

228. Interaction between Roman and canon law

– ius commune: learned law of the Middle Ages

-› known to the whole Latin West
-› 2 pillars: Roman law & canon law
– before Gregorian reform: the church applied Roman law in all sorts of areas
ecclesiastical judiciary: concepts & rules of Roman law were spread to all corners of the Latin
West
– commentators & decretialists:
- using each other’s sources & writings in their study of Roman law & canon law
- striving to find an unambiguous, authoritative answer to each and every legal problem
- articulating a mass of legal rules
– Baldus: major contribution to bringing the 2 legal systems together
– confronting Roman law with canon law: recognising the limitations of the formalistic & often
overly technical Roman law

229. Principles of tort and contract law

– Roman law: no general principle on tort, only provisions for well-defined particular injuries
– 13th century: Thomas Aquinas: restoration needed to consist of an equivalent compensation
17th century: Hugo Grotius: modern principle of liability
– consensualism in contract law:
- consensualism = any agreement, whatever its substance / the way it came about, is binding &
enforceable
– Roman law: - extensive but ultimately limitative list of contracts
- pacta nuda: formless contracts
- bona fides
– Gratian: number of relevant biblical & theological texts found their way into classical canon law
– breach of contract –› become punishable
– pacta sunt servanda: ‘agreements are binding’ (principle of ecclesiastical law)
– Baldus: it’s enough for a contract to have a causa to be enforceable

The medieval doctrine of natural law

230. Divine, natural and human law

– Iranaeus, Origin (c. 2nd century): natural law = God’s will
God: created nature –› laying down certain rules & laws = natural law
– 13th century: revaluation of nature in late scholasticism –› more autonomy to natural law from
divine law
relation between the two: point of scholarly contention (2 opposing opinions)
– Thomas Aquinas (13th century):
- rationality of creation
- natural law: may be discerned in two ways:
1) lex divina (divine law)
2) lex naturalis (natural law)
- application of natural law: faithful application of his general epistemology
- secondary natural law: not immutable, but can adapt to the changing circumstances of time,
place; apply universally to all people from the ius gentium (law of
nations)
– great nominalist – Ockham (13-14th centuries):
- God’s free will -› will of God: lies at the basis of creation
- natural law: provides a poor frame of reference for understanding
- human beings: able to create law on the basis of their free will
aren’t subject to universal, immutable laws

Ius commune and ius proprium: reception and acculturation

231. The plurality of legal systems

– ius proprium: legal entities forming separate jurisdictions with their own courts & legal systems
-› combined with the principle of iudicium parium = legal discrimination between the different
classes
– studia generalia: court of the students & professors
– iuria propria: standing apart from the learned law
– law of the Middle Ages: consisting of largely unwritten, local customs
statute law: often scarce
– customary law: gradually developing through the interpretations by the courts into a more
sophisticated system of case law
– Roman law: not applicable in Western Latin courts
– Roman law & canon law: embodying the ideal of what law could, should be
– learned law: studied to enhance & disseminate understanding of that ideal law

232. Reception and acculturation

– 12th century onwards: improvement of ius proprium through the influence of ius commune
-› 2 ways for this
– reception of learned law:
- adoption of particular concepts & rules of material law into the ius proprium
– acculturation of the ius proprium:
- formal adaption of it to the ‘culture’ & forms the learned law
– dual process of reception & acculturation
– canon law: traditionally been under the influence of Roman law
– ecclesiastical courts -› application of canon law:
certain Roman law elements penetrated into ecclesiastical courts (12-13 th centuries)
– Romano-canonical procedure:
= new procedures at the ecclesiastical courts that were clearly inspired by Roman law
– per inquisitionem:
- canonical penal procedure
- inquisitorial procedure
- made by the court itself
- court: active role in tabling evidence
- Inquisition -› ordered investigate itself
– litigants: appealing to the higher authority against the judgement (of the lower court)
– process of ‘Romanisation’
vulgarised variant of Roman law
– Corpus iuris civilis –› accepted as binding law / legislation
–› regarded as supplementary law
(–› hence: Roman law to be applied)
– Roman law –› considered to be ratio scripta (reason put into writing)

233. Aspects of acculturation

– acculturation of ius propium: major examples:

– written word coming to have a greater role in judicial procedure:
- Romano-canonical procedures: adopted first in the central courts
– shift from the accusatory to the inquisitorial procedure in criminal cases:
- criminal cases: private law –› public law
- result: recording of customary & case law (court’s judgement)
– rules –› classified by subject
– recording of customary law: - undertaken by the order of authorities
- systematic recording & keeping of legal rulings by the court itself
– recording of ius proprium –› precondition to its academic study
– logical ordering of the material -› inspired by the learned law
– classification & concepts drawn from Roman law - also used
– rationalisation of the evidentiary law
– until the 12th cent.: widespread use of ordeals – i.e. legal duel
(1215. Fourth Council of Laterans: banning it)
– plea of guilty: regarded as full evidence

234. Unification

– German emperors: mobilising Roman law in their struggle against the pope
– Justinian law: sound base for a doctrine legitimating & strengthening the power of the sovereign
Roman law: useful instrument to enhance the political & legal unity of the realm
– unification of the law: importance for political unity & administrative efficiency
– French kings: resisted Roman law – until the 13th century
Legislation in the Late Middle Ages

235. Royal charters

– main source of law –› customary law: interpreted & developed by the courts
– statute law: only a marginal role in the creation of new law
– royal legislation: restoration of central authority
– statutes/’charters’:
- aimed at a particular jurisdiction, a certain territory / class within it
- confirmed / described in detail the rights & obligations of the ruler & his subject in respect of
administration, justice, taxation, property
- could be a real statute in the sense of unilateral decisions by the legislator
– certain customs – regarded as unjust –› abolished

236. Peace of the land

– peace of the land/the realm / public peaces: common form of legislation

–› royal statutes confirming the rights / immunities of the entire realm / of a particular territory /
class
–› prince: upholding these with his bannum
–› aim: putting an end to the endemic violence in society
– placing limits on such powers, substituting royal jurisdiction
– stipulating the taking of an oath on the peace – people subjecting themselves to the royal peace
– peace & justice -› bound together
– all sorts of offence: came under the prohibitions in the royal peaces
certain offences: regarded as infringements against the peace and the prosecuted as such
– legislation: used to change the law & introduce new law
– various emperors/kings: attempting to make a more comprehensive “code of law”
– from the 10th cent.: bishops & pope: Truces of Peace of God

The administration of justice during the Late Middle Ages

237. Plurality of jurisdictions

– fragmentation of political authority ––› fragmentation of the administration of justice

– no separation of powers
– collapse of royal authority: reducing role of the royal court (curia)
-› princes/counts: losing control over the country courts
– arising numerous other courts: - feudal & seignorial courts
- town benches
- ecclesiastical courts
- courts of trades
- courts of guilds (céhek)
- courts of universities
– king’s jurisdiction: increased in competition with that of these local, regional courts
– rulers: able to acquire exclusive legal powers for certain matters
238. Royal jurisdictions

– rulers: sought to restore their supervision over the courts throughout the land
– castellans & bailiffs:
- appointed to the courts in the bailliages
- commanding the court of aldermen to pronounce the judgement
- responsible for its enforcement
- exercising control over the court
- able to act ‹- if denial of justice / false judgement
- reporting to the prince
– princes (Late Middle Ages): - sought to extend their own jurisdiction
+ making their supervisory powers over the local & regional courts
– procedure – the court of minor legal jurisdiction would seek advice on the law from a higher court:
other form of control & basis of higher appeal
– extending princes’ jurisdiction in first instance:
- royal peaces
- specifying a number of individuals and rights that they were taking under their protection
(- claiming jurisdiction in all disputes involving their personal domain / over certain offences)

239. Royal courts

– prince exercising his jurisdiction – with the help of his curia

– expansion of jurisdiction & complexity of cases -› necessitating a certain specialisation
– secular princes: delegating their judicial powers to specific members of the curia
-› mainly civilians / canonists
– later: this courts: split off altogether from the royal curia -› autonomous, permanent institutions in
their own right

The birth of the common law in England

240. Common law and the learned law

– learned law -› far smaller influence on the development of English law

– explanation: by the time the reception of the ius commune into secular law
– England: already had its national law
– common law: already too far developed to admit external influence (same extent) as on the
continent

241. Writs

– 1066. William the Conqueror – Norman conquest || Anglo-Saxon England: tradition of centralised,
royal government
– central gov. -› more leeway with regard to local power elites
– ordinary administration of justice:
- dispensed by gatherings of free men at the level of shires & hundreds
-› administrated by the earl
-› assisted by shireman / hundredman
-› royal officials: appointed to exercise control over the shires/hundreds
– seigniorial courts: local lords exercising their personal jurisdiction over their dependants
– at national level –› royal Witan - travelling around the country with the king
– Witan -› replaced by curia regis (royal court) – after William the C. feudalised land ownership:
highest court) – criminal & civil cases
– seigniorial courts: became more important, fitting in the feudal system
– foundations of the later common law: laid during the reign of King Henry II Plantagenet
(12th cent.) – Assizes of Clarendon (1166)
– members of curia regis: also be commissioned to hear legal cases
– General Eyre (13th century):
- fixed system
- disputes concerning royal properties
- complaints against royal officials
- hearing ordinary civil cases
- assigning general powers to the itinerant royal judges
– royal administration of justice: 2 typical features
– assizes -› jury-based system:
- lawsuits: presided over by the justices of assize
- verdict: given by jurors (12)
– system of writs:
= written documents promulgated by the royal chancellor under the Great Seal of the King
-› royal commands directed to the king’s officials
- aim: to protect a right / to put an end to a wrong
- legal actions on the basis of which the justices on eyre could handle a particular case on behalf of
the king
- became standardized
– common law (13th cent.):
- body of writs, royal commands / prohibitions imposed by the courts in certain cases to enforce a
right
- primarily a set of actions applied to a growing number of cases

242. Royal courts

– 13th cent.: various royal courts split off from the curia regis
– King’s Bench: - travelled around the country with the king
- jurisdiction over wrings, where the king might have an interest
– Common Bench / Court of Common Pleas: - permanently based in Westminster
- claims between individuals
– Court of Exchequer: - dealing with cases touching the royal revenue
– system of itinerant judges: remaining in force
– proceedings: instituted by means of a writ
royal judges: would be delegated to preside over the proceedings
– 3 royal courts: - seat in Westminster
- interpretation of the law & the precedents
- responsible for the development of common law
– members of curia regis -› learned commentaries (13th cent.)
– William Blackstone (18th century) – commentaries
– England – 14th century: own, national law

Auctoritas

243. Auctoritas

– 11th century: rediscovery of Roman law -› beginnings of the continental legal tradition
European jurisprudence: closely bound up with scholasticism
– classical jurisprudence: ars
- pragmatic, concerned with law
- legal study –› technical mastery of the law
- aim: to apply the existing law effectively
– Medieval jurisprudence: scientia
- idealistic, not predominantly directed at legal practice
- object: to discover & understand the law; ideal law sought in authoritative sources
- purely scholastic approach
– Late Middle Ages: intellectual preconditions were in place for turning law into a systematic field
of scholarship
– systematization process: not completed until 18-19th centuries
– interaction between jurisprudence & legal practice
– ultimate purpose of reception & acculturation: to improve the existing municipal law
– remaining wide gap between ius commune & ius proprium

Humanist jurisprudence

302. Littera Pisana

– Lorenzo Valla: criticizing glossators & commentators (of Roman law)

-› bad Latin
-› total lack of style
-› anti-historical
– Valla’s attack: taken further by humanists
– Politianus (1454-94):
- Justinian text used by the commentators differed greatly from the original
- better text: Littera Pisana – manuscript F (Politianus: that’s the original copy of the Digest)
– 1533. Torelli & Agustion: printed edition of the Digest

303. Bourges and the mos gallicus

– Valla & Politianus: outlining the contours for a programme of humanist jurisprudence
– 15th cent.: humanist school -› didn’t displace the commentators
– 1464. University of Bourges:
- humanist jurists establishing themselves in some French law schools
- centre of humanist jurisprudence
– (1529. Italian Alciatus – introducing humanism there)
– mos gallicus (the French style) = humanist legal scholarship
– mos italicus (the Italian style) = commentators
– canon law: - remaining scholastic tradition
- national variants of canonical jurisprudence arose

304. Corpus Iuris Civilis

– early humanists:
-› aim: - restoring the authentic Justinian text canon
- correct historical interpretation of Roman law
- historico-philological programme
- Politianus (1st humanist jurist)
– Cuiacius: text criticism: determining what was the original text – necessary to look at the actual
meaning of the laws
– medieval jurists: incorporating new words & lines to give credence to a particular legal / political
proposition
medieval laws / treaties (e.g. Libri feudorum) –› omitted from the new editions
– adding Greek texts to the Novellae
– Viglius Aytta: Paraphrases of Theophilius (Greek version of Justinian’s Instiutes)
– -› eliminating the glosses & commentaries from the texts
-› philological & historical interpretation of the Justinian collection
(German Zasius, Italian Alciatus, French Budaeus)
– 1583. Denis Godefroi: entire Justinian codification in a humanist edition
-› title: Corpus Iuris Civilis

305. A legal history of the Romans

– fundamental aim of the humanists: –› correct, historical interpretation of Roman law

(need for understanding its social context)
– ‹–› Bartolists: understanding Roman law in the way that served their own needs
– Budaeus: Annatationes -› catalogue of substantively incorrect interpretations made by the
Bartolists
– 1515. Aymar du Rivail (French scholar): publishing a work on archaic Roman law & Law of the
XII Tables

The influence of humanism on the further development of jurisprudence

306. Humanism and Bartolism

– pure humanistic jurisprudence: too limited in nature to encompass the entire field of legal
scholarship
– Bartolism: remaining dominant in most law schools (16th century)
– humanists accusing the Bartolists of applying Roman law to practice to the extent that they took
liberties with the correct historical interpretation of Roman law
– humanist legal scholars: concerning the needs of education & practice
– interaction between humanism & Bartolism:
-› Bartolism felling under the influence of humanism
-› result: new type of legal scholarship
– -› moderate humanist jurisprudence
– referring to Bartolism with a smaller humanistic influence: usus modernus pandectarum

307. Moderate humanism

– Leuven Law School

– often drawing from the works of medieval glossators, commentators (e.g.Petrus Gudelinus, Diodorus, Tuldenus)
– no authority to Glossa Ordinaria / opinio communis
– treating the writings of Accursius, Bartolus, Baldus as another historical interpretation of Roman
law
– moderate humanism -› via media

308. Humanist jurisprudence and legal practice

(humanism’s general impact on the development of jurisprudence)

– medieval jurists: absolute authority to the Justinian text & canonical sources
– ideal law –› scholastic jurists: confine themselves to the study of the auctoritates of the law
humanists: Roman law sources –› evidence of the best legal system had ever existed
– Roman law:
- bound to circumstances of the time, place –› can’t be simply applied to current questions
- most important source of information
- can’t be adopted literally
-› deliberate adaption
– result: reversals of the relation between Roman jurisprudence & legal practice

309. Expansion of the text canon

– relativisation of Roman law –› scholarly interest in other legal systems

– humanists: continuing to draw on the works of medieval jurists (e.g. Bartolus)
accomplishment of these writers: not rejected
h.: improving upon their works by making use of them
– Roman law & canon law: remaining dominant ‹-› losing their monopoly over truth

310. Ius proprium

– humanism: providing a stimulus for the academic study of the ius proprium – customary law
– customary law: started to be studied in the sense that it was ordered, analysed, commented

311. The ‘nationalisation’ of law

– academic study of current law –› gradual ‘nationalisation’ of law

– humanist jurisprudence: Roman law -› to be studied & interpreted in various ways in different
countries of Europe
– several countries: attempting towards forging a system of national law
– jurists: begin constructing a system of national law in their writings
– Protestant humanists: limiting the use of Roman law as far as possible
(e.g. French jurists: Hotman; 1538. Molinaeus: commentaries on the customary law of Paris)
– gaps in the law: filled by seeking inspiration in the various systems of customary law in the
country
– (1607. Loysel: Institutes Coutumiéres – customary law in France)

312. The system of the Institutes

– humanist jurists: providing the impetus for a more systematic study of Roman law
– relativisation of Roman law:
humanist jurists - able to dispense with the classification of the law that had traditionally been
used by the commentators
– study of private law:
- adopting the system of the Institutes
-› division into persons, property, actions – basis for the later classical threefold division:
-› persons, property, obligations
– Donellus: distinction between substantive subjective rights & procedural rights
-› classifying obligations (3rd part of material civil law)
- Commentaria iuris civilis -› substantive law & procedural law

313. History as an instrument of intellectual emancipation

– humanism –› result: increase of intellectual freedom

– ancient sources: lost their claims to absolute authority & validity
– Roman law: aim of studying it: its emulatio (egy adott működési környezetet más körülmények között utánzó technológia)
– need for a criterion to determine when Roman law should be adopted / when not
–› criterion: reason

314. Usus modernus pandectaru (late 16th century)

– another school of thought - concerned a continuation of Bartolism

– law courts: increasingly adopting the Romano-canonical procedure
– if customary law didn’t offer for a definitive answer –› judges would have turn to Roman law
– difficult to demonstrate the existence of a customary legal rule
Roman law: generally applied
– form of neo-Bartolism – Roman law was studies with a view to its application to current issues
– use of the improved understanding of Roman law (effect of humanism)
– selecting fragments & rules from the Justinian texts -› tore out of context, interpreting freely
– gradual rapprochement between mos gallicus & mos italicus
– adopting the relativisation of auctoritas

Grotius and Roman-Dutch law

315. The Dutch Elegant School

– development of jurisprudence: Republic of the United Provinces – 17th century

– Hugo Grotius (humanist, 1583-1645) !
– Low Countries – Leuven Law School
– 1575. Leyden Law School – influence of humanism
– Dutch Elegant School: wasn’t confined to Leyden – supporters at other universities
– example of moderate legal humanism

316. Grotius and Roman-Dutch law

– Hugo Grotius:
- literary humanism; humanist writer
- doctor utriusque iuris – Law School at Orleans
- lifelong imprisonment (but escaping in a bookcase)
- spending most of his life in Paris
– during the imprisonment:
- writing an important treatise on the low land of Holland (published: 1631)
- law of the province of Holland in a systematic way (threefold classification of Donellus)
- closely based on that of Roman jurisprudence
- ‹-› applying it to the ius proprium of Holland !
– Arnold Vinnius (professor at Leyden)
- mixing local customs, Roman law, natural law
– ––› new form of learned law = Roman-Dutch Law (1652)
–› consisting of: Dutch customary law supplemented by & systematised along the lines of
Roman law
th
– 17-18 centuries: Roman-Duch law: the model for other provinces
– applied in practice

Legislation and judiciary

317. The slow process of harmonisation and unification

– attempting to centralise government:

–› rulers: strove at the harmonisation / unification of the law within their territories
– plurality of jurisdictions ‹- class system, territorial fragmentation
– appellate jurisdiction -› more important courts could exert their influence over the development of
the law in smaller jurisdictions
– academic study of ius proprium: restricted to the laws of the more important courts & jurisdictions

318. Royal legislation

– codification & homologation of customary law:

various courts should record their customary law & submit it to the central government for
approval & confirmation
– royal councillors: making changes & improvements + more unity among different legal systems
– FR: 1454. Charles VII – requiring the recording customary law
NL: 1531. Charles V – same for NL
– increasing their control over canon law
15th century: claiming right of placet = a canon rule would only come into force in the prince’s
territories after he had approved it
– Romano-canonical procedure: introduced / its elements were adopted

319. The central courts

– aim: - increase of royal jurisdiction

- more efficient organisation of the central courts
– Roman law: important element in the process of unification & centralisation
– central courts: increased their influence, control over other courts
– universal extension of the system of higher appeal
– result: often conflicts of jurisdiction between local & other courts
– Catholic ecclesiastical court: jealously guarded their jurisdiction
– Romano-canonical procedure: marking the beginning of a more general process of reception
– academic study of customary law: accelerating the amalgamation of that law with techniques,
concepts, precepts derived from Roman law & jurisprudence
– academic study of the ius proprium: reception of Roman law with fresh stimulus
– great central courts: staffed by a caste of professional jurists
– central courts: greater independence from the prince

Common law and equity

320. Common law and equity

– 12th century: system of royal courts with jurisdiction all over realm – emerge of common law
– 14-17th centuries: establishing new, central law courts
– rigid & limited system of writs –› common law: in many cases unable to offer a just solution
– equity: basis of (the king’s minister’s) conscience & sense of justice/fairness
– 16-17th cent.: equity evolving into a fixed legal system of legal rules existing outside common law
– dual law system – shortcomings of common law were put right by the other system
– 1615. in case of conflict: equity prevails
– 1875. the two have been applied jointly throughout the judicial system

321. The role of Roman law

– learned law: little headway in the common law courts

– declining significance of the ecclesiastical judiciary (Henry VIII banning the universities from teaching canon law)
– Roman law -› influencing equity

Emulatio

322. Emulatio

– history of the relationship between humanism & law

– pure human jurisprudence:
- faithful application of the principles of the studia humanitatis to Roman law’s text canon
- Lorenzo Valla
- fundamentally different attitude towards Roman law & the Justinian collection from that held by
the scholastic jurists
– moderate humanist jurisprudence:
- going beyond the historical-philological discourse
- Justinian law -› losing its absolute authority
- imitation & emulation of Roman law -› intellectual freedom to creep into legal thinking
- modern jurists: recognising that their treatment of Roman law was a free-ranging one