Medieval and Modern Legal History

2 Middle Ages

Lumsa 2012/13

Paolo Alvazzi del Frate

Justinian and the Corpus Juris Civilis

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Roman Law

• Justinian promulgated the Corpus Iuris Civilis between 529 and 534 A.D.

• It was composed of:

The Digest (Digesta – Pandectae)

The Code (Codex)

The Institutes (Institutiones)

The Novels (Novellae Constitutiones) were added later, after 556

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The Digest

• The Digest (Digesta – Pandectae) was composed of 50 books containing a collection of juristic writings (most of them of the 2nd & 3rd century)

• The doctrine of legal scholars was considered one of the sources of law (particularly after Theodosius II’s Law of Citations in 426)

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The Code

• The Code (Codex) in 12 books

• Containing the Roman Emperor’s constitutiones (enactments of the Emperor having force of law) from the time of Emperor Hadrian (2nd century)

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The Institutes

• The Institutes (Institutiones) in 4 books

• A text for students, based on the Institutiones of Gaius

• The text was divided in 3 parts:

Of Persons (Personae)

Of Things (Res)

Of Legal Actions (Actiones)

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The Novels

• The Novels (Novellae Constitutiones) were added later, after 556

• New imperial enactments

• They were never officially compiled and remained private compilations

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Early Middle Ages

• The Germanic (Barbarian) kingdoms were created in Western Europe

• Systems based on the merging of Roman and Germanic sources of law:

Written Roman law

Germanic customary law

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The Imperial Coronation of Charlemagne by Pope Leo III - 800 a.d.

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Holy Roman Empire

• Foundation of the Holy Roman Empire in the 9th century by Charlemagne

• It was the symbol of the deep link between the Emperor and the Pope

• The legal sources were

the roman law (lex mundana)

the canon law (lex spiritualis)

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Personal law system

• That system was in force during the Early Middle Ages

• Every person had the right to be judged under his natio law (natio Romana, natio Gothica, natio Longobarda, natio Franca, etc.)

• So several legal systems were in force at the same time in the same territory

• Phenomenon of the professio juris by which the parties could stipulate the agreement choosing the law that will govern it (e.g. roman or barbarian)

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Feudalism

• From the 8th century the feudal system developed in all Europe

• Absolutely new system with no precedents in Roman or Germanic law based only on customary law

• Feudalism must be considered as a millenary institution (its end was about 19th century)

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Auxilium & Consilium

• The Fief was a Land granted by the Lord to a vassal • Formal and symbolic ceremony called commendation

ceremony based on homage and fealty • The vassal promises to fight for the Lord • Auxilium was the obligation for the vassal to aid and

defend the lord (e.g. with a military service) • Consilium was the obligation to attend the lord court

and the lord council

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Feudal ceremony

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The feudal ceremony

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Medieval City States

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Medieval city states

• The phenomenon of medieval city states (medieval communes) from 11th century, particularly in Italy and southern France

• The communes (communia) were based on:

Freedom (particularly from the feudal authorities and feudal duties)

Equality (for all the citizens)

Political and legal organization

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Statuta as legal sources

• The towns enacted several statutes (in latin: Statuta) that were written legal sources based on the peculiar customs of the town

• So the Statuta were compilations of local customs

• They were usually composed by rules about the political and judicial power in the town

• They often contained some criminal rules

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The Medieval corporations (Medieval guidls)

• The Medieval Guilds were professional associations. The members were artisans exercising the same profession (e.g. carpenters, shoemakers, masons, chemists etc.)

• They had their statutes and privileges. They had the right to discuss and to defend their general interest

• Artisans of the same corporation usually resided in the same quarter of the town

• The corporations exercised judicial powers on their members

• The statutes of the Medieval Guilds had the force of law

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Factions

• The towns were governed by some “factions” (Consorterie) composed of the most important and rich families

• The political struggle was hard et sometimes violent

• We can remind the Guelphs and Ghibellines, factions supporting the Pope and the Holy Roman Emperor

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Courts and procedures

• The jurisdiction in Early Middle Ages was based on a primitive and irrational system. It was a private justice aiming only to the social peace

• Ordeal (judicium Dei) was the usual procedure (trial by ordeal)

• It was a practice by which the accused was subjected to a hard test (water, fire, cross etc.) or a combat (duel)

• The procedure was based on the premise that God would help the innocent by performing a “kind of miracle”

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The fire ordeal

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The fire ordeal

• This test required that the accused walk over red-hot plowshares or holding a red-hot iron. Innocence was established by a complete lack of injury or

• the wound was bandaged and reexamined 3 days later: if God had intervened to heal it the accused was innocent / if the wound was merely festering the suspect would be exiled or executed.

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The water ordeal

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Feud (faida)

• Feud (or blood feud) “faida” was a private vengeance, that was the right for an injured person to provoke the same damages

• It was a primitive form of compensation involving the families

• It was possible to avoid blood feud paying a price, called weregild

• This payment was called in Latin compensatio

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From the ordeal system to the roman-canonical procedure

• The trial by ordeal was forbidden in 1215 by Pope Innocent III at the Fourth Lateran Council

• The irrational ordeal system was abolished from the 13th century and progressively replaced by rational means of proof, based on critical and rational examination

• The new system is defined as the roman-canonical procedure with a new and fundamental role of the judge

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