medieval law Flashcards
leges barbarorum
= a collection of legal codes that were created by various Germanic tribes in the early medieval period, often written down in the 5th to 9th centuries, which reflected the customs, norms, and legal practices of the Germanic peoples and were influenced by both Roman law and local traditions.
examples of leges barbarorum
- Edictum Theodorici (459)
- Lex Alamannorum (725)
- Lex Baiuvariorum (740)
- Lex Saxonum
Lex Romana Visigothorum (506)
Roman law enacted by a Germanic king, which was a separate law for the Romance population, but was later replaced to effect to the whole population, creating unity. It remained the basis of Spanish law, and important in South France until the reception of learned law.
iura particularia
It refers to local or regional laws and customs that applied specifically to certain territories, communities, or groups, distinct from broader universal legal systems like Roman or canon law.
characteristics of law in the early middle ages
- functionality (underlying economic purpose > legal constructs) and object-centred approach
- it is not comprehensive or free from contradictions
- customary law: no conscious legislation or scholarly approach, manifests through continuous practice
- absence of written sources → oral tradition: formalism and numerus clausus of contracts, limited conclusions about substance and nature, subject to constant change, no unifying central authority, fragmented
municipal law families
The eastern settler towns took the system of its “mother town” and obtained legal advice from its court.
Lübeck → North-Germany (Hamburg), Baltics (Tallinn)
Magdeburg → Poland (Cracow), Ukraine
Vienna → Krems, Klostenburg, Wiener Neustadt, but no superior court!
sachsenspiegel (1225)
A comprehensive record of German customary law, dealing with both criminal and civil matters, recorded by Eike von Repgow from Quedlinburg.
It was divided into two main parts: one covering land law and feudal relations, and the other dealing with penal law and the rights of individuals.
Corpus Iuris Civilis
= comprehensive collection of Roman legal works commissioned by Emperor Justinian I between 529-534 AD.
- Institutes – A legal textbook designed for students, outlining fundamental principles of Roman law.
- Digest (Pandects) – A compilation of legal opinions and writings from classical Roman jurists (1st–3rd century AD).
- Codex – A collection of imperial constitutions, compiling and organizing past Roman laws.
- Novels - consists of imperial laws issued after 534 AD but is not strictly part of the Corpus Juris Civilis.
law in the roman times
→ statutory law existed, but was mainly jurisprudential and case-law based
→ from 2 century: jurists are increasingly important
→ role of jurists: consilia or responsa: opinions in civil proceedings, both for parties and praetor
→ from 1st century two schools: sabinians and proculians
→ from 3rd century: many simplifications → vulgar law, and imperial decrees increasingly important (eg. Codex Theodosianus 438)
later evolution of byzantine and greek law
→ statutes of justinian: novellae added to cic after his death
→ Basilika (Imperial Law) in 907 and supplemented with scholarly glosses and commentaries
→ Hexabiblos (Six Books) in 1345: abridged version, remained in force during Turkish rule and was basis of private law until greek civil code in 1946
canonistics
= study of church law, indepentent of of theology
→ shaped also private law (eg. marriage law), criminal and procedural law
→ diverse sources: bible, decisions of councils and synods, papal decisions
→ scholasticism
scolasticism
= medieval intellectual movement that sought to reconcile faith with reason and used logic and philosophy to explain and systematise theological concepts. This included detailed debates, often based on the works of ancient philosophers like Aristotle. Key figure was Thomas Aquinas.
Decretum Gratiani
= a foundational text of canon law compiled by the monk Gratian in the 12th century. It is a collection of church laws and legal opinions, intended to organise and systematise the complex body of canon law, and was used as a primary reference in medieval church courts.
It was eventually incorporated into the Corpus Juris Canonici, the official collection of canonical law used by the Catholic Church.
Codex Florentinus
= contains a version of the Digest, it was discovered in Amalfi in 1135.
reasons for revival of roman law
-
politische Romidee ‘political supramcy of Rome’ = the Roman Empire has never fallen, the Holy Roman Empire is it’s continuation.
In Roman Law, emperor held highest position: Frederik Barbarossa wanted to strengthen his: not only highest judicial, but also legislative power → issued Habita (granting autonomy to Bologna law school) - kulturelle Romidee ‘cultural supremacy of Rome’ = origins of european civilisation
- granted universality that fit to medieval thinking: canon law was also universal → ius commune being universal law of emperor instead of pope?
Irenius
= the founder of the Bologna Law School (1088) and is considered one of the first to systematically study and teach Roman law after its decline in Western Europe.
legistics
= the study of secular law, focusing on the revival Roman instead of customary law.
The Vulgate text of the Digest
= the Latin manuscript version of the Digests that was used in medieval legal studies
Littera Bononiensis
= a specific tradition or textual version of the Roman law texts and encompasses a more systematic approach which involved glosses, commentaries, and interpretations of the text.
Tres Libri
= the books 10-11-12 of Codex which almost exclusively public law and thus was no interest to medieval scholars
most important glossators
— Bulgarus: clinged to simple grammatical meaning: what Justinianus and compliers have meant
— Martinus: interpreted extensively exceptional cases, adopting them as the principal rule
→ rigor iuris < aequitas (equity) = being consistent
→ many times violated the original meaning of the text
— Azo → Summa Codicis authoritative until end of middle ages
— Accursius: first to finish complete commentary on CIC
→ Standard/Ordinary Gloss
→ replaced all previous literature, jurists relied on it exclusively
glosses
= explanatory notes or annotations between the lines or in the margin of the text. One manuscript could contain several layers, written by various people over time.
They contained references to other texts (’allegations’), which either supported the text (similia) or stated the opposite (contraria). They could be anonymous or signed by the initial of the jurist.
summae
= discussed entire part of Corpus Iuris Civilis, describing and summarising content title by title. Composed for Codex and Institutiones, but not other parts. It had internal coherence and logical structure, unlike the summae of the canonists.
distinctiones
= further elaborations and sub-categories of summae, sometimes used to harmonise contradictory texts
characteristics of the works of glossators
→ interpreting in a way that it is more socially acceptable and better adapted to existing standards, so that it could serve as additional source
→ systematisation to make it easier to handle
→ sometimes disregarding grammatical or historical meaning
commentators
post-glossators = legal works is reflected in commentaries and longer treatises (tractates) and legal opinions (consilia)
→ practical applicability → incorporated other legal sources such as feudal law, contemporary case law, canon law and indigenous customary law
→ started looking for underlying general principles
→ first step to conflict of law rules: if several statues relevant to case, the one with the closest connection should be applied
Bartolus de Saxoferrato
most influential Italian commentator lived in the 14th century, his commentaries dominated legal scholarship, the ‘Bartolistic method’ is the leading one.
Weistümer
= legal documents containing statements by knowledgeable persons about applicable customary law
→ recorded in 12-15th centuries
→ great importance for lex familiae but in other circles as well
→ ascertain contested customary law in binding manner, but later used to change law → came close to legislation
→ attempt to unify in manors under same lord: Weistum families
feudal pyramid (Heerschildordnung)
= a hierarchical system in which land and power were granted through vassalage and beneficium (fiefs), involving mutual obligations such as the vassal’s oath of fealty to provide advice (consilium) and military aid (auxilium) in exchange for land.
It evolved into hereditary enfeoffment, often involving ecclesiastical rather than secular lords, and led to the feudalization of the state, where political offices were also granted as fiefs, with rights like iura regalia (sovereign rights) enabling the ruler to levy taxes and control resources.
relationship of the Church and the Emperor
→ secular rule was legitimised by church (sacral kingship: germanic roman and biblical roots)
→ Cluniac Reform: opposed church involvement in secular affairs, rejected investiture by kings
→ 1075: Dictatus Papae (Gregory VII): Investiture Contorversy, Road to Canossa
→ Concordat of Worms
→ two swords doctrine vs subordinating two swords doctrine
→ 13th century: Boniface VIII claimed supremacy
feudalism
= a combination of legal, economic, military, cultural, and political customs that flourished in medieval Europe from the 9th to 15th centuries. It was a way of structuring society around relationships derived from the holding of land in exchange for service or labour.
manorialism
= was the method of land ownership. Its defining features included a manor house in which the lord of the manor lived and administered a rural estate, and a population of labourers or serfs who worked the surrounding land to support themselves and the lord. These labourers fulfilled their obligations with labour time or in-kind produce at first, and later by cash payment as commercial activity increased. Manorialism was part of the feudal system.
renovatio imperii
= idea of reviving the Roman Empire under the Holy Roman Empire. The term is linked to Charlemagne, who was crowned Emperor of the Romans in 800 AD by Pope Leo III.
