Faculty of Law, University of Auckland, Auckland, New Zealand
7.1 The Historical Background
With the collapse of the Roman Empire in the West, Europe moved slowly but surely into an era that is generally known as the Middle Ages. This period of transition featured a disintegration of the civilisation and forms of social and cultural life that had been characteristic of the Greco-Roman world. The urban life that had been the ideal of the Greeks and introduced by the Romans throughout the Mediterranean basin declined. Many towns disappeared as new forms of habitation were constructed around fortified manors and small village communities. Although some great urban centres in Italy and Gaul continued to exhibit signs of commercial activity, trade and industry decayed and economic life reverted to an agricultural and pastoral type geared to maintaining local self-sufficiency. As all centralised authority dissolved, political conditions shifted towards the decentralised localism associated with the feudal system and the economically self-sufficient manor became the principal economic and administrative unit. Moreover, general culture in the West declined sharply and illiteracy became widespread. These events derived from the confusion caused by the Germanic invasions and the decay of the cities that had existed for centuries as centres for learning and the propagation of ideas. Nevertheless, vestiges of the classical civilisation remained alive throughout this period and gradually their fusion with the crude culture of the Germanic peoples and the learning of Christianity produced a new cultural synthesis.
By the end of the sixth century, the great Germanic migrations into Western Europe had ceased. Of all the Germanic kingdoms established in the lands of the former Roman Empire, only the Frankish was destined to endure as most of the others disappeared after a brief existence. The first great Frankish dynasty was the Merovingians established by Clovis (481–511). Under the reign of Clovis, the Merovingian rule was transformed from the leadership of a loosely organized tribe to a strong kingship extending over the whole of Gaul. After Clovis’ death, this development of the Frankish kingdom was hindered by the political division of the land and the disunity of his successors who continuously intrigued and fought against each other for power. Under these circumstances, the royal authority weakened and the kings increasingly relied upon an independent group of nobles for sustenance, advice and support in war that was rewarded with grants of land, offices and privileges. Despite the feebleness of Clovis’ successors, the Frankish kingdom with support from the Catholic Church not only survived as a single realm but also expanded its territory. The most powerful noble in the court was an official designated maior domus, or mayor of the palace. From the middle of the seventh century, the gradual decline of royal authority meant the mayors of the palace in the respective courts became the real rulers of the kingdom. In 681, Pippin II of Heristal elevated his position as mayor of the palace of Austrasia (one of the three provinces into which the Frankish domain had been divided) by assuming the mayoralty of the united Frankish kingdom. After Pippin’s death, his illegitimate son Charles Martel (714–741) succeeded him in the office of mayor of the palace. Martel gained control of the realm and became the founder of a new line of rulers known as the Carolingians (he did not adopt the royal title himself). Charles’ grip on power was secured further after the Battle of Poitiers (732), where he defeated the Arabs who had already besieged Spain, and thus he stemmed their further advance into Western Europe. His son Pippin the Short, who became mayor of the palace after his father’s death, deposed the Merovingian for whom he ruled and garnered Church support to reign as the king of the Franks in 751. Church support was requisite to legitimise his role, so Pippin enticed this aid by offering the Pope his protection against the Lombards who threatened Rome. He also ceded to the Pope the Exarchate of Ravenna (in Northern Italy) that he had acquired by conquest from the Lombards after the latter had expelled the last remnants of the Byzantine garrisons. By the time of his death in 768, the borders of the Frankish kingdom had been extended into the Lowlands, Lombardy and the Pyrenees.
The greatest monarch in the Carolingian line was Pippin’s son Charles, known to history as Charlemagne (768–814), who became sole ruler of the Franks on the death of his brother Carloman in 771. After a long series of wars, Charlemagne extinguished the Lombard kingdom in Northern Italy and assumed its rulership (774). He quelled the Saxons and thereby added a large tract of territory in Germany to the Frankish realm, strengthened his suzerainty over Bavaria and the area that later became Austria, and repulsed the Arabs beyond the Pyrenees to gain control of Barcelona. Like his predecessors, he followed a policy of close cooperation with the Church. He confirmed the grant of territory in Italy that had been previously presented to the Pope by his father and made it part of his policy to spread the Christian faith in the newly conquered lands. The partnership between the Carolingians and the Papacy culminated in Charlemagne’s coronation by Pope Leo III as Emperor in Rome on 25 December 800. In internal affairs, Charlemagne exerted great efforts to promote centralised rule. He exercised general supervision over the Church using the Church organization as a vehicle for extending his authority, held the nobles in check (although he often sought their advice in matters of state policy), and ensured closer supervision of the administration by appointing counts and margraves to govern the various parts of his realm. Moreover, he ordered a record of the unwritten laws of the various tribes and the authoritative editing of earlier codes such as the Salic Code of the Franks. Although the legal traditions of each locality were fully respected, Charlemagne engaged his position as head of the empire to issue edicts (capitularies) that were applicable to all his subjects. These statutes were not merely statements of popular customs promulgated by a ruling chief; they were the decrees of a sovereign ruler whose will was the source of law, according to the well-known doctrine of Roman law. Charlemagne’s reign also witnessed a revival of learning, and inspired artistic and literary activity. In monasteries and palace schools, the classical texts were once again studied, theological problems pondered, books collected and ancient manuscripts copied. In contrast with these achievements, little progress occurred in the economic sphere as the feudal and manorializing tendencies of the landlord class increasingly escaped from the control of the central government.
The establishment of a Western Empire by Charlemagne was one of the most important events in the rise of a new society in Western Europe. Just as the reign of Justinian had precipitated the emergence of Byzantine civilisation, the achievements of Charlemagne helped to mould the civilisation of Western Europe that began to form in his time. In the years following Charlemagne’s death, the unity of the Frankish Empire shattered and political authority everywhere tended to disintegrate. During the ninth and tenth centuries, new invaders—Norse Vikings, Saracens, Magyars and Slavs—threatened Europe from all sides. Charlemagne’s successors, weakened by perpetual dynastic struggles, were unable to thwart the advance of these invaders. In the wake of the devastation caused by war and plundering, economic conditions worsened, living standards remained at a low level and learning was stifled. The permanent threat of invasion and the inability of the kings to protect and assert their authority over the local communities of their realms strengthened the centrifugal tendencies in the West. This entailed the proliferation of feudalism with its politically divisive and economically retarding influences.
The feudal system had its roots in later Roman times, but some of its defining characteristics were derived from Germanic traditions. Of particular importance was the custom of Germanic kings and nobles to grant privileges, land or office to persons close to them who were then obligated to serve loyally in the government and in time of war. A hierarchical system gradually emerged: at the top position resided the king and below him, as vassals and subvassals, were the nobles (dukes, counts, barons and knights) while the base consisted of the peasants who provided a livelihood for all by tilling the land. Each vassal had full control over his own territory in return for definite and well-recognized obligations of a personal and military character due to his overlord. This arrangement accorded the vassal his requisite protection, while it provided his overlord with the power and prestige he desired. As medieval kings were not powerful enough to assert their authority over the local communities of their realms, feudal lords acquired a considerable degree of independence. Thus, the fiefs were regarded in economic and political terms as nearly autonomous units. Decentralisation was supreme and remained so until feudalism yielded to the rising tide of nationalism and royal power.
The weakness of central authority enhanced the power of the Church, which adapted itself to the feudal system by accumulating vast landholdings and by extending its influence through its own vassals and serfs. As Church officials became feudal lords themselves, the division of power between Church and state (the former was supposedly supreme in matters of faith and morals, the latter in temporal affairs) became difficult to maintain in practice. Thus, the foundations were laid for the contest between secular and ecclesiastical authorities that transpired during the later Middle Ages.
In the eleventh century, Europe entered a period of political, economic and cultural transformation. The decentralising tendencies that engendered political fragmentation and the expansion of feudalism gradually receded, as political authority grew progressively stronger with the rise of powerful new monarchies. The Holy Roman Empire of the German Nation that was established in the middle of the tenth century by Otto the Great (936–973) asserted its authority throughout the domains of the Carolingian Empire (with the exception of France) and expanded its territories to the East. The kingdom of France consolidated itself under a new line of rulers initiated by Hugh Capet (987–996). Well-organized Norman kingdoms were formed in Southern Italy and in England. In Spain, Arab power declined and Christian rule had extended beyond the centre of the Iberian peninsula by the close of the eleventh century. At the same time, the government of the Church was centralised at Rome and had acquired strength from a series of reforms initiated by Pope Gregory VII (1073–1085) that enabled it to enter into a contest for supremacy with the Empire itself. Improved political conditions and the gradual return of order facilitated economic growth and created a more favourable environment for the development of medieval thought and culture.
One of the most important developments that stimulated the economic and cultural revival of the eleventh and twelfth centuries was the rise of towns and the emergence of a new urban civilisation. Potent factors in urban growth were the rapid expansion of trade and the increase in popularity of fairs, i.e. organized occasions for commercial exchange. During the crusades, the Mediterranean had been reopened as a major West European trading route and new trading possibilities were recognized and exploited. The first to profit from these trade events were the Italian coastal cities (such as Venice, Genoa and Pisa) that gained in strength, independence and prosperity. The increasing number, size and power of commercial cities naturally cultivated the urban middle class and the expansion of its political influence. This new urban class was a powerful force that generated new currents in medieval Europe, as opposed to the inertia of the old agrarian feudal order. The latter was characterised by localism, uniformity and repetition that rendered it inherently stagnant and custom-bound. In contrast, the urban movement was based on diversity and novelty accompanied by a dynamic and more tolerant outlook on life. This promoted the introduction of novel social, economic, political and legal elements into medieval life and stimulated cultural endeavours. As the townspeople struggled for greater economic and political freedom, they redirected the political evolution of Europe and accelerated the decline of feudalism.
The new upward trend of culture manifested itself in a significant increase in literary and artistic output and educational activity, and a revival of classical studies. Alongside the traditional forms of education centred around monasteries and churches, secular education emerged as a vital force in the intellectual development of the European society. Unlike the ecclesiastical schools where teaching concentrated mainly on dialectics and theology, secular schools also focused on practical subjects such as medicine and law. In connection with the study of law, one of the most significant cultural developments occurred: the establishment of the first medieval universities. The organization and administration of the medieval universities varied considerably, but a common element existed as they were structured like guilds under a corporate form of control. In the early medieval schools, such as the famous law school of Bologna, teachers and mature students organized themselves into closely-knit communities to facilitate their pursuit of scholarly interests without any outside interference. From the thirteenth century onwards, an increasing number of universities were established throughout Europe and more than seventy were in existence at the close of the Middle Ages.
The eleventh and twelfth centuries are marked also by the long struggle for supremacy between the Empire and the Papacy. This struggle became known as the ‘investiture contest’ as it revolved around the right of secular authorities to participate in the choice of bishops and other churchmen and to invest them not only with their secular but also their spiritual authority. Pope Gregory VII (1073–1085) rejected the concept of the Papacy as a bishopric of the emperor, demanding supreme authority in all Church affairs and asserting the supremacy of the Church over the state. Drawing upon the writings of early Church fathers, such as St Augustine, he contended that a ruler (whether a king or an emperor) was subject to the universal power of the Church and could only hold office as long as he performed his duties in accordance with Christian principles. The supporters of monarchical authority countered with the theory of the divine right of kings, arguing that while a king should rule justly and for the benefit of his subjects he was answerable to God alone and not to priests for any failures. Gregory’s theories and policies led to conflict with Emperor Henry IV (1056–1106) and war between the papal and the imperial parties raged sporadically throughout Europe until 1122. In that year, a compromise was reached by means of a Concordat signed in the German city of Worms. The Concordat of Worms stipulated that the emperor should abandon the right of investing his bishops with the symbols of their spiritual authority. It recognized the Church as a separate, autonomous body vested with jurisdiction over a defined constituency and governed by a distinct body of law, the canon law. At the same time, non-ecclesiastical political entities and secular legal orders were recognized. The Concordat of Worms was a compromise that reflected a gain for the Papacy. Only when the monarchs had acquired sufficient power during the late medieval period could they effectively challenge the supremacy of the Church.
The period between the thirteenth and the fifteenth centuries witnessed the gradual transition of European civilisation from medievalism to the modern age. The most important factors in the institutional background of the decline of the medieval order was the emergence of strong nationalistic monarchies, the growth of towns and the urban middle class, and the decline of the Roman Catholic Church. After the death of Emperor Frederick II (1250), the medieval concept of emperorship was undermined. Germany transformed into a collection of essentially independent principalities, duchies and bishoprics. A power that could ultimately unify the German states only emerged after the rise of Prussia in the seventeenth century. In France, feudal institutions were gradually abandoned and the country moved towards a centralised state under the authority of the king. During the reigns of Louis IX (1226–1270) and his grandson Philip IV the Fair (1285–1314), the power of the feudal lords was curbed, the administration was centralised and the jurisdiction of the king’s courts extended over the entire country. Philip became the first European monarch who could defy the Roman Catholic Church, and his victory over Pope Boniface VIII (1294–1303) meant that the Papacy could never again safely contest the power of the French monarchy. In England, as in France, centralised political authority grew stronger. After the decline of the German imperial influence in Italy, city-states such as Venice, Genoa, Florence and Milan cultivated independence and established themselves as leading financial, commercial and cultural centres. Finally, the closing phase of the Middle Ages featured a sharp decline in the power of the Papacy that had raised its pretensions to the highest level under Pope Innocent III (1198–1216). This derived from the triumph of nationalism and nationalistic political theory over medieval theocratic unity. The end of the fifteenth century exhibited disintegration in the institutional basis of medievalism: the dominant agricultural economy, feudal politics and a universal and omnipotent Church. With the emergence of the Renaissance, the dawn of the modern age was imminent.
The sixteenth century is commonly described as the period of the Renaissance and the Reformation. This period features the revival of the spirit of classical antiquity in the spheres of literature and art, as well as a challenge to existing authority and entrenched tradition. The Middle Ages were over. Gone too was the internationalism that for centuries had been the foundation of political philosophy and ecclesiastical practice. By the close of this period the Holy Roman Empire was an empty shell. The rulers of the territorial states that now existed in the Continent scarcely admitted even a titular allegiance to the emperor. Similarly, the Papacy no longer received the obedience of Western Christendom. Its dominance was called into question by the new churches established in the lands where the teachings of Luther held sway. A new political theory emerged from the ruins of imperial and Church internationalism. In the eyes of Renaissance thinkers, such as Machiavelli and Bodin, the state was not directly concerned with the promotion of religion or morality, but demanded for itself the obedience and loyalty of its subjects. One of the most important developments of this period was that the world burst its bounds. Columbus reached America in 1492, and Vasco de Gama discovered the sea route round the Cape to the Indies in 1497. These discoveries, together with the fall of Constantinople to the Ottoman Turks in 1453, meant that the Mediterranean was no longer the principal trade route for all Western Europe. As the economic supremacy of the Italian maritime city-states declined, Spain, Portugal, England and Holland, which had been remote from the main flow of commerce, now were in a position to become powerful commercial nations.
In many matters, the seventeenth century saw the continuation of the trends that emerged in the sixteenth: nation states were consolidating their frontiers and establishing their spheres of influence; within states, political power was mainly in the hands of monarchs, who claimed absolute authority over their subjects; religion remained a source of conflict both within and between states; and journeys of exploration continued side by side with the colonization of newly discovered lands. Furthermore, although agriculture continued to dominate economic life, commerce was expanding and industrial production was becoming increasingly significant. On a political level, this century saw the decline of Spain, which yielded to France the position of the most powerful state in Europe, and the rise of the Netherlands into a major commercial and military power. In Germany the century was one of calamity originating in religious conflict: the attempt by Protestant nobles in Bohemia to place a Protestant on the throne triggered the Thirty Years War (1618–1648), which laid the country in ruins. The Treaty of Westphalia (1648), which ended the conflict, accelerated the decline of the Holy Roman Empire as a political organization, although the Empire lingered on as a Hapsburg title until the beginning on the nineteenth century. With the rise of the concept of the nation state, the focus of scholarly and intellectual inquiry shifted from theology to political philosophy. The demand of the age was clear: give us real knowledge of the human condition and of the nature of the relationship between the state and the individual, so that we can create a device to secure social order. Now that the medieval order, centered around the Church and the feudal system of social relationships, has collapsed what form of government could secure order? What mechanism of social control could be devised and on what basis? What is the just foundation of political obedience? Whence comes the authority of the law? These questions no longer admitted of the ready answers that could be given when all princes were assumed to derive their powers from the emperor, who was recognized as the supreme earthly authority in matters temporal. New circumstances now gave rise to new theories, and of those theories important political events were to be born in the period that followed.
The eighteenth century was the period in which the ancient European structures of authority and legitimacy were irreparably fractured. This century saw the American Revolution and the loss of Britain’s North American colonies; the French Revolution and the commencement of the Napoleonic wars; and the beginnings of the Industrial Revolution. The century also saw the culmination of the intellectual movement that prepared the ground for revolution, known as the ‘Enlightenment’. The Enlightenment brought with it a new sense of optimism, as opposed to medieval pessimism, and a new understanding of human nature based on the notions of rationality and freedom. With the rise of the modern concept of the nation state, intellectual inquiry focused on the nature of the relationship between the citizen and the state, and the question of what rights an individual had, or should have, against the state, especially against a state that acted tyrannically towards its citizens. Two major sets of ideas furnished the intellectual foundations of this period of social and political change: social contract theories and utilitarianism. The essence of the social contract theories is the idea that legitimate government is the result of the voluntary agreement among free and rational individuals. An important point about the social contract theories is that they express the idea that the state rests for its legitimacy upon the consent of its subjects. Laws can legitimately be used to ensure compliance if they have been properly approved by citizens who are party to the social contract. Utilitarianism is primarily a normative, ethical theory that lays down an objective standard for the evaluation and guidance of human conduct. That standard is derived from the assumption that the overriding aim of morality and justice is the maximization of human welfare or happiness. In the field of law, the spirit of the Enlightenment is reflected in the movement towards legal reform, a movement that had its roots in the seventeenth century rationalist natural law thinking. The advocates of reform were convinced that legislation provided an instrument that could be used to remedy social problems, and thus to maximize general happiness according to a rational scheme. This belief that laws and institutions could be reformed to accord with the dictates of reason swept through Europe and led to the codifications of the late eighteenth and nineteenth centuries.
7.2 Roman Law the Early Middle Ages
After the collapse of the Roman Empire in the West, the once universal system of Roman law was replaced by what may be described as a plurality of legal systems. The Germanic tribes that settled in Italy and the former western provinces lived according to their own laws and customs, whilst the Roman part of the population and the clergy were still governed by Roman law. This in effect signified a return to the principle of personality of the laws that prevailed in early antiquity (before the third century ad). Accordingly, the law applicable to a person was not determined by the territory in which he lived but by the national group to which he belonged. This arrangement was necessitated by the fact that in the regions under Germanic rule the vast majority of the population remained Roman and the law of the conquerors was too rudimentary to replace the more refined Roman system. The Germanic kings (except those of the Vandals) compounded the situation as they were in reality independent but considered themselves governing under the authority of the Eastern Roman emperors. In this way, a fiction of legal unity between East and West was maintained and Roman law was regarded as perpetual, although, the effective control exercised by the Eastern emperors became evermore shadowy over time. However, the general deterioration of the Roman culture in the West and the confusion ensuing from the application of the principle of personality rendered the administration of Roman law a task beyond the powers of the courts and lawyers of this period. In response to this problem, some Germanic kings ordered the compilation of codes containing the personal Roman law that governed many of their subjects and a written form of the laws that regulated the Germanic part of the population. As previously noted, in the Visigothic kingdom of Gaul, the law that applied to the Romans was elaborated in the Lex Romana Visigothorum issued by King Alaric II in 506—hence, this work is also known as the Breviary of Alaric (Breviarium Alarici). Other important compilations of this period were the Edictum Theoderici, enacted by the King of the Visigoths Theodoric II in the second half of the fifth century that applied to both Romans and Visigoths; and the Lex Romana Burgundionum, composed during the reign of King Gundobad of the Burgundians and promulgated by his son Sigismund in 517 for use by the Roman inhabitants of his kingdom.
After the conquest of Italy by the forces of the Byzantium, Justinian’s legislation was introduced in that country by a special enactment (sanctio pragmatica pro petitione Vigilii) issued by Justinian at the request of Pope Vigilius on 14 August 554.1 However, shortly after Justinian’s death the Lombards invaded Italy and occupied most of the peninsula. Byzantine rule remained over Rome, the area around Ravenna, the southern part of Italy and Sicily. In the territories under their control, the Lombards adopted the custom of reducing their own customs to law and permitting their Roman subjects to live according to their own system. The majority of the Romans were governed by the Roman law of Justinian, whilst a smaller part of the Roman population followed pre-Justinianic (Theodosian) Roman law. The prevalent view among modern scholars is that the only materials of Justinian’s legislation that gained practical significance were the Code, the Institutes and the Novels of the Epitome Iuliani.2 The Digest appears to have played no part as a source of law and remained virtually unknown for many centuries.3 In the areas under Byzantine control, the Roman law of Justinian continued to apply until the middle of the eleventh century when the last of the Byzantine possessions in Southern Italy were lost to the Normans.4 These areas were also introduced to the Ecloga Legum of the Isaurians, and the Prochiron and the Eisagoge of the Macedonian emperors. These furnished the basis for a number of compilations that appeared in Italy during this period, such as the Prochiron Legum (also known as Prochiron Calabriae) composed in Southern Italy around the end of the tenth century.5 However, it is uncertain whether the Basilica was ever used as a source of law in Italy.
As in Italy, Roman law was preserved in Gaul and Spain in a vulgarised form through the application of the principle of personality and the medium of the Church whose law was imbued with the principles and detailed rules of Roman law. During the Middle Ages, the ecclesiastical courts had rights of jurisdiction over matrimonial cases, matters of succession to personal property and certain aspects of the criminal law. These courts consistently upheld the authority of the Justinianic legislation in cases that fell within their sphere of competence. Moreover, Roman law exercised an influence directly or through canon law on the various codes of Germanic law that appeared in the West during the early Middle Ages but this influence varied greatly between regions and stages of time. The most important Germanic codes embrace the Codex Euricinianus, enacted about 480 by Euric the Visigothic king and drafted with the help of Roman jurists; the Salic Code (Pactus legis Salicae or Lex Salica) of the Franks, composed in the early sixth century; the Lex Ribuaria, promulgated in the late sixth century for the Franks of the lower and middle Rhine region; and the Lex Burgundionum, issued in the early sixth century for the inhabitants of the Burgundian kingdom. Of the above codes, the Visigothic and Burgundian Codes reflect a stronger Roman influence than the Salic and Ripuarian Codes. Other law codes that exhibited a Roman influence include the Lombard Edict (643), the Alammanic Code (c. 720), the Bavarian Code (c. 750), the Frisian Code (c. 750) and the Saxon Code (c. 800).
Over time, the fusion of the Roman and Germanic elements of the population progressed and prompted a dissolution of the division of people according to their national origin. The system of personality of the laws was gradually superseded by the conception of law as entwined with a certain territory or locality. As a result, Roman law as a distinct system of law applicable within a certain section of the population fell into abeyance in most parts of Western Europe. A considerable degree of integration of the Roman and Germanic elements first occurred in the Visigothic territory in Spain. In this region, the Lex Romana Visigothorum of Alaric ceased to possess any force and a new code was introduced in 654 under King Recceswinth: the Lex Visigothorum (also known as Forum Iudicum or Liber Iudiciorum: Book of Judicial Actions). This code applied to all the inhabitants of the Visigothic kingdom.6 In the course of the ninth century, the shift from the principle of personality to that of territoriality was further precipitated by the development of the feudal system. As noted before, the predominant feature of feudalism was an estate or territory dominated by a great lord (duke, count, baron or marquis) who was often the vassal of an emperor or king. Since the domain of a great lord constituted a quasi-independent unit in economic and political terms, the area that was controlled by a particular lord was decisive as to the form of law that should prevail. However, the intermixture of races meant that the laws recognized in a territorial unit could no longer be those of a particular race. Instead, all persons living within a given territory were governed by a common body of customary norms that varied in regions and periods. In this way, the diversity of laws no longer persisted as an intermixture of personal laws but as a variety of local customs. In all the territories, however, the customary law that applied was a combination of elements of Roman law and Germanic customary law.
By the end of the tenth century, vulgarised versions of Roman law were so intermingled with Germanic customary law that historians tend to describe the laws of this period as either ‘Romanised customary laws’ or as ‘Germanised Roman laws’. Moreover, Roman law exercised a strong influence on the legislation (capitularies) of the Frankish emperors, as well as on the development of the law of the Roman Catholic Church. Thus, Roman law throughout Western Europe sustained its existence and served both as a strand of continuity and as a latent universalising factor. Yet, in comparison with classical Roman law the overall picture of early medieval law is one of progressive deterioration. The study of law, as part of a rudimentary education controlled largely by the clergy, was based simply on abstracts and ill-arranged extracts from older works. As the surviving literature from this period exhibits, legal thinking was characterised by a complete lack of originality.
7.3 The Revival of Roman Law
From the eleventh century, the improved political and economic conditions created a more favourable environment for cultural development in medieval Europe. At the same time, a renewed interest in law was prompted by the growth of trade, commerce and industry, and the increasing secularism and worldliness of urban business life.
The legal revival began in Northern Italy. Among the earliest centres of legal learning was the law school of Pavia established in the ninth or early tenth century. Roman law and the customary and feudal law of the Lombard kingdom were taught and developed at this school. As the capital of the Italian Kingdom and the seat of a supreme court with a corps of judges and lawyers, Pavia was the centre of vigorous legal activity. Although legal growth was fostered largely by practical needs, it encouraged the systematic study and interpretation of legal sources and improved standards of legal culture. Indeed, studies were not based solely on practical interests, but were carried out according to the processes of formal logic that were then being developed by the first scholastics. The study of Lombard law was based primarily upon the Liber Papiensis, a work composed in the early years of the eleventh century.7 Other important works of the same period were the Lombarda or Lex Langobarda and the Expositio ad Librum Papiensem, an extensive collection of legal commentaries that embodied materials drawn from both Lombard and Roman sources.8 The chief source for the study of Roman law was the Lex Romana Visigothorum.
By the end of the eleventh century the antiqui, the jurists dedicated to the study of ancient Germanic sources, had been superseded by the moderni, who were interested primarily in the synthesis of Roman law and Lombard customary law. While the antiqui regarded Roman law as a system subordinate and supplementary to Lombard law, the moderni sought to rely on Roman law as a basis for the improvement and development of native law. But the Lombard capital of Pavia was not the only Italian city where law was studied and legal works were produced. At Ravenna, the former centre of the Byzantine Exarchate in Italy, there existed in the eleventh century a school of law where Justinian’s texts were known and studied. Moreover, Southern Italy remained for a considerable period of time under Byzantine rule and thus Roman legal learning was preserved in this area through the influence of the Byzantine law. After the Norman conquest of Southern Italy in the late eleventh century, Byzantine Roman law continued to apply in that region under the principle of territoriality of the law.
Towards the end of the eleventh century, Roman law studies experienced a remarkable resurgence. It is difficult to assign a single reason for this development, although some writers place central importance on the discovery of a manuscript in Pisa during the late eleventh century. The material contained the full text of Justinian’s Digest that had remained largely unknown throughout the early Middle Ages (when the Florentines captured Pisa in 1406 the manuscript was transferred to Florence and hence it is designated Littera Florentina or Codex Florentinus). A second manuscript seems to have been unearthed around the same time but has since been lost. This is referred to as Codex Secundus and is believed to have furnished the basis for the copies of the Digest produced at Bologna. The rediscovery of the Digest occurred at a time when there was a great need for a legal system that could meet the requirements of the rapidly changing social and commercial life. The Roman law of Justinian had essential attributes that offered hope for a unified law that could in time replace the multitude of local customs: it possessed an authority as a legacy of the ancient imperium Romanum and existed in a book form written in Latin, the lingua franca of Western Europe. As compared with the prevailing customary law, the works of Justinian comprised a developed and highly sophisticated legal system whose rational character and conceptually powerful structure made it adaptable to almost any situation or problem irrespective of time or place.
The revival of interest in Roman law had been also fostered by the conflict between the Empire and the Papacy, which was from the outset a conflict of political theories for which the rival parties sought justification and support in the precepts of the law. Roman law attracted the attention of secular scholars seeking intellectual grounds for refuting the papal doctrine of the final supremacy of the Church in temporal affairs. At the same time, the emperors were receptive to this law because its doctrine of a universal law (founded on a grand imperial despotism) provided the best ideological means to support the theory that the emperor, as heir of the Roman emperors, stood at the pinnacle of the feudal system.9 The supporters of the Papacy argued that as spiritual power was superior to secular power, the Pope was supreme ruler of all Christendom and temporal affairs were subject to the final control of the Church. Scholars supporting the papal party were encouraged to search the ancient texts for legal authority that could support this claim and to develop a science of law on this basis. Opponents of the papal views adopted the same rigorous exploration for supporting materials. Relying upon the despotic principle of Roman law, they argued that the power of the state was absolute and could override the opposition of any group within the state. Roman law was thus construed to uphold secular absolutism—a view utterly at variance with the papal claims to primacy. Through the interpretation of Roman political and legal principles, a new political theory was developed in the course of time that hinged upon the idea of a secular and independent sovereignty founded on law.
7.3.1 The Glossators
The principal centre of Roman law studies in Italy was the newly founded (c. 1084) University of Bologna, the first modern European university where law was a major subject.10 By the close of the thirteenth century, a number of similar schools had been established at Mantua, Piacenza, Modena, Parma and other cities of Northern and Central Italy, as well as in Southern France. The law school of Bologna owed its fame to the grammarian Irnerius (c. 1055–1130), who around 1088 began lecturing on the Digest and other parts of Justinian’s codification. This jurist came to be regarded as the founder of the school, although he does not appear to have been the first teacher at this institution (the first public course of law at Bologna was delivered in 1075 by the Pavian jurist Pepo (Joseph), who was probably a teacher of Irnerius). Irnerius’s fame attracted students from all parts of Europe to study at the Bologna school that had around 10,000 students by the middle of the twelfth century.11 The jurists of Bologna set themselves the task of presenting a clear and complete statement of Roman law through a painstaking study of Justinian’s texts (instead of the vulgarised versions of Roman law contained in the various Germanic compilations usually relied upon in the past). Their object was to re-establish Roman law as a science—a systematic body of principles and not simply a tool for practitioners. However, the ancient texts were unwieldy as they contained an immense body of often ill-arranged materials and dealt with a multitude of institutions and problems that were no longer known. Therefore, the first task to accomplish was the accurate reconstruction and explanation of the texts.12
The work of interpretation was closely connected with the Bolognese jurists’ methods of teaching and performed by means of short notes (glossae) explaining difficult terms or phrases in a text and providing the necessary cross-references and reconciliations without which the text would be unusable. These notes were written either in the space between the lines of the original text (glossae interlineares), or in the margin of the text (glossae marginales). The extended glosses of a single jurist formed a connected commentary on a particular legal topic and this continuous glossing of the texts entailed the emergence of entire collections or apparatuses of glosses that addressed individual parts or the whole of Justinian’s codification. By employing the general pattern of scholastic reasoning, the Bolognese jurists (designated Glossators, Glossatores) sought to expose the conceptual and logical background of the various passages under consideration and to ascertain the consistency and validity of the principles underlying the legal material upon which they commented. They initiated the process by comparing different passages from various parts of Justinian’s work dealing with the same or similar issues, explaining away the inconsistencies and harmonizing any apparent contradictory statements (this method was by no means new as it had been engaged by earlier medieval scholars and resembled the approach used by the jurists of the Constantinople and Beirut law schools during the later imperial era). These successive processes corresponded to the medieval progression in the curriculum of the trivium from grammar and rhetoric to logic or dialectic—the content of Justinian’s works first had to be understood, and so explanatory notes were used; then the consistency of the texts had to be established through the application of the dialectical method. Logic was the most important element of medieval education. Based on works such as Aristotle’s Organon, it became the dominant technique of medieval scholasticism.13
Apart from the glosses, several other types of juristic literature were developed, partly from the teaching of the Corpus Iuris Civilis at the law schools. Some deal with the issues in the order in which they are found in Justinian’s legislation (ordo legum), such as the commenta or lecturae, reports written down by assistants or experienced students and sometimes revised by the teacher himself.14 Another form of literature is the written record of a quaestio disputata, an exercise in which a teacher posed a question, either a theoretical one or one derived from legal practice, and his students offered opposing views. This was meant to teach students to analyse a legal problem and to argue their case in a logical and structured way. A further type of commentary, which did not originate in the classroom, was the summa. The summae are synopses or summaries of contents of particular parts or the whole of Justinian’s work.15 Unlike the above-mentioned commenta or lecturae, these are systematic works that do not follow the order of the issues in the original texts but establish their own order with respect to the fragments within the title they treat. Other forms of juristic literature included: works clarifying conceptual distinctions arising from the texts (distinctiones)—these comprised a series of divisions of a general concept into subcategories that were carefully defined and explained until all the implications of the concept were elucidated; collections of conflicting juristic interpretations (dissensiones dominorum—the term domini referred to medieval jurists); anthologies of opinions on various legal questions connected with actual cases (consilia); cases constructed to exemplify or illustrate difficult points of law (casus); collections of noteworthy points (notabilia) and statements of broad legal principles drawn from the texts (brocarda or aphorismata); and short monographs or treatises (summulae or tractatus) on specific legal topics, such as the law of actions and legal procedure.16
The interpretation and analysis of Justinian’s legislative works was the exclusive preoccupation of the Bolognese jurists until the late thirteenth century. Among the successors of Irnerius, the most notable were Bulgarus,17 Martinus Gosia,18 Jacobus and Ugo (renowned as the ‘four doctors of Bologna’), Azo, Rogerius, Placentinus, Vacarius, John Bassianus, Odofredus and Accursius. Azo became famous for his influential work on Justinian’s Code, known as Summa Codicis or Summa Aurea.19 In the late twelfth century, Rogerius founded a law school at Montpellier in France (probably together with Placentinus) and this institution became an important centre of legal learning. Vacarius, a Lombard, travelled to England around the middle of the twelfth century and commenced teaching civil law at Oxford. In c. 1149 he composed his famous Liber pauperum that comprised a collection of texts from the Code and the Digest of Justinian accompanied by explanatory notes. The aim of this work was to introduce the Roman law of Justinian to the poorer students in England.
The greatest of the late Glossators was the Florentine Franciscus Accursius, a pupil of Azo’s, who dominated the law school of Bologna during the first half of the thirteenth century. Accursius produced the famous Glossa Ordinaria or Magna Glossa, an extensive collection or apparatus of glosses from earlier jurists covering the entire Justinianic codification and supplemented by his own annotations.20 The Glossa Ordinaria both summarised and made obsolete the whole mass of glossatorial writings from the preceding generations of jurists. It represented the culmination of the Glossators’ work and gained rapid acceptance in Italy and other parts of Europe as the standard commentary on Justinian’s texts, providing guidance for those engaged in the teaching and practice of law.21 The Glossa Ordinaria was regularly published with editions of the Corpus Iuris Civilis, so that they were received together throughout the Continent. With the publication of Accursius’s Great Gloss, the contribution of the School of the Glossators to the revival of Roman law ceased but their methods were still applied in the teaching of law at Bologna and elsewhere for a long time.
The Glossators’ approach to Roman law is characterised by its lack of historical perspective. Neither the fact that Justinian’s codification had been compiled more than 500 years before their own time, nor the fact that it comprised extracts of an even earlier date meant much to them. Instead, they perceived the Corpus Iuris Civilis as one body of authoritative texts and paid little attention to the fact that the law actually in force was very different from the system contained in Justinian’s texts. This attitude was reinforced by the theory that the Holy Roman Empire was a successor to the ancient Roman Empire—a theory that the Glossators tended to support.22 It was also associated with the fact that the Glossators’ interest in law was chiefly academic and their learning was quite remote from practical affairs.23 Being true medieval men, the Glossators regarded Justinian’s texts in much the same way as theologians regarded the Bible or contemporary scholars viewed the works of Aristotle. Just as Aristotle was treated as infallible and his statements as applicable to all circumstances, the texts of Justinian were regarded by the Glossators as sacred and as the repository of all wisdom. The Glossators have been subjected to the criticism that they neglected both the developing canon law and the statutory law enacted by local political bodies, especially in the Italian city-states. They were entirely preoccupied with the study of Roman law, which for them represented a system of legislation more fully developed than either the nascent canon law or the contemporary statutory law. Nevertheless, the Glossators did succeed in resurrecting genuine familiarity with the whole of Justinian’s codification and their work prepared the ground for the practical application of the legal doctrines it contained. Their new insight into the workings of Roman law led to the development of a true science of law that had a lasting influence on the legal thinking of succeeding centuries.24
7.3.2 The Commentators
By the close of the thirteenth century, the attention of the jurists had shifted from the purely dialectical analysis of Justinian’s texts to problems arising from the application of the customary and statute law and the conflicts of law that emerged in the course of inter-city commerce. The enthusiasm for the study of the ancient texts that had enticed many students and scholars to Bologna in the twelfth century now waned, and the place of the Glossators was assumed by a new kind of jurists known as Post-glossators (post-glossatores) or Commentators (commentatores). The new school with chief centres at the universities of Pavia, Perugia, Padua and Pisa, reached its peak in the fourteenth century and remained influential until the sixteenth century.
The rise of the Commentators’ school was not unrelated to the new cultural and political conditions that emerged in the later part of the thirteenth century. Of particular importance was the gradual erosion of the traditional dualism of a universal Church and a universal Empire as a result of the crises affecting both institutions25; and the growing strength of nation and city-states in Europe, which were able to develop their political structures with little interference from higher universal entities. During the same period, scholastic philosophy reached its pinnacle with the work of the catholic theologian Thomas Aquinas (1225–1274), who synthesized Aristotelian philosophy and Christian theology into a grand philosophical and theological system. The new dialectic that this philosophy forged was not restricted to theological-metaphysical speculation but permeated the study of both public and private law.
Unlike the Glossators, the Commentators were not concerned with the literal reading and exegesis of Justinian’s texts in isolation but with constructing a complete legal system by adapting the Roman law of Justinian to contemporary needs and conditions. The positive law that applied in Italy at that time was a mixture of Roman law, Germanic customary law, canon law, and the statute law of the empire and the various self-governing Italian cities. The Commentators endeavoured to integrate these bodies of law into a coherent and unitary system. In executing this task, they abandoned the excessive literalism of the early Glossators and sought to illuminate the general principles of law by applying the methods of rational inquiry and speculative dialectics—thereby building an analytic framework or ‘dogmatic construction’ of law. Furthermore, in their roles as legal consultants and administrators, they contributed significantly to the development of case law, which also provided a fertile ground for the progressive refinement and testing of their concepts and analytical tools. Indeed, many of their theoretical propositions and dogmatic constructions evolved out of the pressures of actual cases. On the other hand, since the Commentators were mainly concerned with the development of contemporary law, they tended to pay scant attention to the primary sources of Roman law. Thus, the synthesis that occurred was between the non-Roman elements and the Roman law of Justinian as expounded by the Glossators. Systematic treatises and commentaries were written based on this body of law, especially in areas of the law where there was a need for the development of new principles for legal practice.26
Among the earliest Commentators was Cino of Pistoia (1270–1336), a student of the French masters Jacques de Revigny and Pierre de Belleperche. Cino began his teaching career at Siena, having been for about 10 years active in practice, and moved to Perugia in 1326. There he composed his great commentary, the Lectura super Codice, which continued to be read and cited for more than a century.27 At Perugia Cino was the master of Bartolus of Saxoferrato, the most influential of the Commentators and one of the great jurists of all time.
Bartolus (1314–1357) obtained his doctorate at Bologna and lectured at Perugia and Pisa, where he also served as judge. He produced a monumental commentary on the entire Corpus Iuris Civilis, which, like Accursius’s Great Gloss, was acknowledged as a work of authority and extensively used by legal practitioners and jurists throughout Western Europe. Bartolus also dictated legal opinions and composed a large number of monographs on diverse subjects. His reputation among his contemporaries was unsurpassed and his writings came to dominate the universities and the courts for centuries. In Italy, where the doctrine of communis opinio doctorum operated (whereby the solution supported by most juristic authorities should be upheld by the courts), the opinions of Bartolus were regarded to possess the same weight as the Law of Citations had accorded to the works of Papinian.28
Another influential jurist of this period was Baldus de Ubaldis (c. 1327–1400), a pupil of Bartolus. Baldus taught at Bologna, Perugia and Pavia and was also much involved in public life. Unlike Bartolus, he was a canonist and a feudalist as well as a civilian.29 He was best known for his opinions (consilia) that proposed solutions for problems arising from actual cases, especially cases involving a conflict between Roman law and local laws and customs.30
The Commentators were remarkably flexible in their interpretation and application of the Roman texts regardless of the original context. They did not hesitate to apply a text to address a current issue, no matter how obsolete they might know its real meaning to be, if its use could be fruitful. However, when they derived arguments from materials that had little or no relation to current affairs, they were not recklessly distorting Roman law to fit their own needs but were consciously adopting its principles to develop new ideas. Their use of the Roman texts was partly due to a feeling that it was important to support a conclusion by reference to some authority, no matter how reasonable in itself the conclusion might have been.
The reconciliation of the scholarly Roman law and local law that was achieved though the Commentators’ work produced what is referred to as ‘statute theory’, the notion that in the fields of legal practice local statutes were the primary source, while Roman and canon law were supplementary. However, in spite of the priority bestowed on statutory law, the Roman law-based civil law could prevail in various ways. First, a statute might expressly embody elements of Roman law, and to that extent Roman law shared in the statute’s primary authority. Second, a statute might contain technical terms or concepts, which would in almost all cases be construed in the civilian sense, especially since it was accepted that statutory enactments had to be interpreted in such a way as to involve the least possible departure from the civil law. Even when a statute required strict interpretation of its text, it could often be argued that it required declaratory interpretation in light of other available legal sources.
The Commentators succeeded both in adapting Roman law to the needs of their own time and in imbuing contemporary law with a scientific basis through the theoretical elaboration of Roman legal concepts and principles.31 Of particular importance was their contribution to the development of criminal law, commercial law, the rules of legal procedure and the theory of conflict of laws. It was the Commentators who constructed on the basis of the Roman texts on criminal law a legal science and who created a general theory of criminal responsibility. It was they who developed commercial law in such areas as negotiable instruments or partnership; who articulated the concept and principles of international private law; who devised the detailed rules of romano-canonical procedure on the basis of the Roman cognitio procedure; who formulated doctrines of legal personality for entities other than human beings; and who gave substance to the notion of the rights of a third party to a transaction and to the law of agency. The work of the Commentators played a major part in the creation of the ius commune and enabled the reception of Roman law throughout Western Europe in the fifteenth and sixteenth centuries.32
7.4 The Development of Canon Law
During the fifth century, the weakness of imperial authority in the West led to the strengthening of the Church and its acquisition of greater political power. As the Roman system of administration disintegrated everywhere, the Church assumed many of the functions of the civil government. Since there was nobody left in Rome who could wield greater power, the bishop of Rome rose to a position of supreme authority. In the course of time, the Roman Catholic Church evolved into a grand international organization that was united, disciplined and thoroughly centralised, with an elaborate administrative structure and a comprehensive system of law courts and officials. In its early formative period, the institutionalised Church borrowed freely from the structure, general concepts and detailed rules of Roman law. It endeavoured to formulate laws to regulate its constitution and to govern the conduct of its members as precisely and as carefully as did the Roman emperors. Therefore, the Church functioned as a means for preserving and disseminating much of the Roman legal system. The growth of the Church and the sustained use of Roman law were interconnected: the Church organization was shaped by Roman law whilst the development of Roman law in the West was affected by the medium (the Church) through which it was transmitted. Out of the interaction between Roman law and Christian ideas, there emerged the law of the Church or canon law. Until the revival of Roman law in the eleventh and twelfth centuries, the Church law was the most important universalising factor in Western Europe. Elements of Church law were incorporated into the various legal codes promulgated by Germanic kings in the West and into the legislation of the Carolingian and Holy Roman Empires. Moreover, during the early Middle Ages the Church claimed and acquired jurisdiction for its own courts (either exclusive or concurrent with that of secular authorities) over certain categories of persons and areas of the law.33 Throughout the Middle Ages the limits of the jurisdiction granted to the Church tribunals was a matter of constant dispute between Church and secular authorities. Eventually, the ecclesiastical courts were deprived of their civil jurisdiction but meanwhile many of the rules and procedures they had applied were adopted by the secular civil courts.
The chief sources of Church law were the decretals of the Popes (the acts through which the Popes, as heads of the Church, exercised their legislative, administrative and judicial powers), the canons of the Church councils, and various patristic writings concerned with matters of administrative policy and Church doctrine.34 From the fourth century, several compilations of Church law appeared in the West and the most important were the Collectio Dionysiana (composed in Rome by the monk Dionysius Exiguus on the basis of Apostolic and conciliar canons) and the Hispana that were compiled in the early sixth and early seventh centuries respectively. Early in the ninth century an extended version of the Collectio Dionysiana, known as Dionysio-Hadriana (attributed to Pope Hadrian I), was declared by Charlemagne as the chief code of Church law that applied throughout his empire. In the ninth century, there also appeared a collection of both fictitious and genuine canons that became known as the False Decretals (this included the so-called ‘Donation of Constantine’, a forged document that alleged Emperor Constantine had transferred considerable secular power to the Pope). The aim of this work was apparently to strengthen the claim of Papacy and Church authorities to temporal power. Its legal importance lies in the fact that both the spurious and the genuine materials it contained were utilized by later canonists in their development of the canon law system. Another important collection of the same period was the Lex Romana canonice compta, which embodied the rules of Roman law adapted and applicable to the ecclesiastical legal system.35 Reference should also be made to the Collectio Anselmo dedicata (c. 882), the first compilation to contain the canonical and Roman texts of Justinian’s age arranged in a systematic form. The last two works testify to the process of mingling, interaction and mutual influence of Roman and canon law. This interrelationship may be described as a true reception, through which Roman law norms came to be part of the legal system of the Church.
As noted, the eleventh and twelfth centuries witnessed the revival of legal studies in Western Europe. During the same period, canon law also became the object of systematic study. The task of the canonists was to amalgamate and harmonize the mass of canons contained in earlier canonical collections, and this involved eliminating contradictions and updating matters as necessary. Their ultimate aim was to develop, expand and systematise canon law as an independent body of law and not merely as a set of rules for ecclesiastics. The work that succeeded in transforming canon law into a complete system was the Decretum or Concordia discordantium canonum, composed by Gratian (a monk at the monastery of Santi Felice e Naborre in Bologna) around the middle of the twelfth century. The Decterum Gratiani, as this work became known, was both a code of and a treatise on canon law. It presented in a systematic way and without inconsistencies and contradictions the rules governing priesthood, ecclesiastical jurisdiction, Church property, marriage and the sacraments and services of the Church.36 Gratian’s method of arranging the materials was similar to that followed by the drafters of Justinian’s Institutes.37 Although it was published as an unofficial private work, Gratian’s Decretum was soon recognized as an authoritative statement of the canon law as it stood in his era. Like the codification of Justinian, it became the object of systematic study in the universities.38 Students could obtain their degree either in civil law or in canon law, or they could qualify as bachelors of both civil and canon law.
The canon lawyers initially welcomed the revival of the study of civil law, since canon law, it seemed, could learn much from the civil law. In time, however, the two systems became rivals. Civilian and canonist jurists were ranged on opposite sides in the great struggle for supremacy between the empire and the Papacy, which in one form or another lasted throughout the greater part of the Middle Ages. Just like the supporters of the empire endeavoured to buttress the doctrine of the supremacy of the state over the Church by utilizing principles derived from Justinian’s texts, the supporters of the Papacy relied on the Decretum and earlier patristic writings to defend the hegemony of the Church and to justify the papal claims to temporal power.39
In the period following the publication of the Decretum, a number of compilations supplementary to Gratian’s work were issued by the Popes. These embraced the Liber Extra, also known as Liber Extravagantium, of Gregory IX, published in 123440; the Liber Sextus Decretalium, published by Boniface VIII in 129841; and the Constitutiones Clementinae of 1317.42 In 1501, a private collection of decretals that were not included in earlier compilations was published under the title Extravagantes. All the above works were republished in 1580 by Pope Gregory XIII as parts of an official collection comprising the entire body of canon law (Corpus Iuris Canonici), which became the ecclesiastical equivalent of Justinian’s Corpus Iuris Civilis.43 Like Roman law, canon law played an important part in the development of law in Europe. Its influence is particularly noticeable in the areas of the law of marriage, the law of succession and the law of obligations. Moreover, canon law has had a considerable influence in the fields of criminal law and the law of procedure.44
7.5 The Growth of Commercial Law
As observed earlier, from the twelfth century onwards there occurred a large-scale expansion of economic activity. The development of towns into major commercial and industrial centres, first in Italy and later in other parts of Europe, stimulated maritime and overland trade, and engendered the introduction of new forms of business enterprise.45 Since the existing systems of law were no longer adequate to meet the needs of commercial life, informal tribunals were established in many cities by guilds46 and merchants’ associations. These tribunals heard cases by summary process and in accordance with rules that were practical, fair and based upon the usages actually observed by businessmen in their dealings with one another. These rules were recognized and applied by secular and ecclesiastical authorities as customary law, and they evolved into a body of internationally recognized law, known as the Law Merchant, which succeeded in penetrating areas where even Roman law met with resistance.47 This common commercial law, like Roman law and canon law, formed another vital strand in the law of Western Europe, not excluding in this case the law of England.48
7.6 Feudal Law
Feudal law comprised the body of rules governing the relationship between a feudal lord and his vassal and the tenure by which the vassal held the land he received from the lord. The system originated in Germanic customary law and was developed in France during the Carolingian era. The three greatest monarchs of the late twelfth and early thirteenth centuries—Henry II of England and Normandy (1154–1189), Philip Augustus of France (1180–1223) and Frederick Barbarossa of Germany (1152–1190)—all promulgated important laws dealing with diverse feudal matters. In the thirteenth and fourteenth centuries, treatises on feudal law were composed by Romanist jurists and several works appeared that recorded local customs in various parts of Europe. It is important to note here that in France and England feudal law was woven into the whole legal fabric, whilst in Germany it was treated as a distinct system whose rules were applicable only to certain estates or individuals and were administered by special courts. However, in all three countries feudal law did not operate independently of other bodies of law: all secular systems (feudal, mercantile, urban and royal) influenced and overlapped one another.
One of the most distinctive features of feudal law was its combination of political and economic rights: the right of government, the right of jurisdiction and the right to use and dispose of land.49 The point of departure was the legal situation that arose when a person, the vassal, received a piece of land from the lord as a beneficium and, in return, undertook to provide personal service, usually of a military character. The personal bond that was created entailed duties as well as rights for both sides: the vassal owed the lord whatever good faith required, usually aid and counsel (auxilium and consilium), and the lord in his turn undertook the duty to protect and maintain the vassal. The term tenure is used to describe the grounds of a continuous possession of land, or of anything that could be equated with land.50