Laws, Lawyers and Texts: Studies in Medieval Legal History in Honour of Paul Brand by Susanne Jenks, Jonathon Rose, and Christopher Whittick (review)

This article traces the history of medieval canon (and Roman) law on 'hermaphrodites' as a third sex, bodily different from both men and women. Contrary to what has been claimed, there is no evidence for hermaphrodites being persecuted in the Middle Ages, and the learned laws did certainly not provide any basis for such persecution. The legal status of hermaphrodites was discussed regularly, and canon lawyers were clearly aware of contemporary theology and natural philosophy. In the sixteenth century, while legal dogma remained essentially unchanged, court records show a marked change in legal practice compared to the later Middle Ages. Perhaps due to developments in contemporary medicine, hermaphrodite anatomy, gender change and sexual deviance were increasingly conflated. A more gender-symmetrical definition of crimes against nature seems to have led to (female) hermaphrodites and tribades being confused in this time. This also shows the complex relations between different pre-modern discourses on hermaphrodites which cannot made fit any linear narrative

During the Middle Ages, law loomed large in efforts to manage life situations, beginning with the adaptation of late imperial law to the successor or barbarian kingdoms of the West. Alongside local law and custom, the learned law was increasingly used to answer questions and settle disputes about family issues such as marriages and dowry, property and inheritance, contracts, and crime. Study of the law, not only as taught at the universities but as used to advise judges who lacked formal training, illuminates the status of women and children under patriarchy. Although Roman law was geared more to private than public law, political issues were addressed. Moreover, Romanistic procedure had a wide influence across Europe. Even where Roman law was not received, it had its influence via canon law and specialized courts. This is evident in England, where the common law governed real property, but canon law introduced the possibility of testamentary disposition of certain possessions. Similarly, the admiralty courts dealt with issues such as navigation and salvage on the basis of civil law. Roman law began in the Republic, beginning with the Twelve Tables of the Law (450 bce), resulting from struggles between patricians and plebeians. Under the Republic certain men knew the laws; but there were no legal careers. The most important judicial document was the praetor’s edict about procedure, the foundation of later jurisprudence. Both the popular assemblies and the Senate legislated for both the private and the public spheres, and the jurisconsults of the imperial period commented on their enactments. The Roman Empire produced jurisconsults able to give authoritative advice, and some wrote on the laws. Emperors legislated, and collections of their laws were compiled. The most important, the Theodosian Code (438–439 ce), influenced the Latin churches and the codes of the Western barbarian kingdoms. In the East, the study of law continued. Eventually Justinian I ordered systematization of centuries of jurisprudence. The Institutes served as a textbook. The works of the jurisconsults were divided topically in the Digest (Pandects). Imperial decrees were collected in Justinian’s Code with supplements in the Novellae. This Corpus iuris civilis (529–534 ce) was diffused throughout Justinian’s empire but had little influence in the West for centuries. The largest part of Justinian’s corpus is concerned with private, rather than public, law. Later jurists retained that focus in most of their writings. Revived study of Roman law in the West is tied traditionally to recovery of the Digest (c. 1070 ce). The teaching of law took root at the University of Bologna. The Glossators expounded texts and annotated (glossed) them. The Bolognese curriculum divided the Digest into Old Digest, Infortiatum, and New Digest. The first nine books of the Code were treated together, while the Institutes, last three books of the Code and Authenticum, a version of the Novellae, with two books on feudal law, made up the Volume. The direction of study changed in the 14th century. The Commentators (Post-Glossators) created detailed expositions of the entire corpus. The Commentators predominated even after humanists criticized their Latin and their interpretative methods. Works on procedure or specific topics, records of disputations, and opinions (consilia) on cases were written. All of these genres originated in the manuscript milieu, but many texts were printed beginning in the 15th century. Lawyers trained at the universities taught, provided advice, served as judges, and worked as bureaucrats. In much of Italy, the learned law was fused with elements of feudal law in the ius commune (common law). Most consilia engaged both the common law and the ius proprium of localities to be relevant in specific contexts. The Roman law was received through much of Europe in the late medieval and Early Modern periods, but its influence in England was mostly indirect.

English common law practitioners and judges borrowed much of the conceptual structure for their body of legal knowledge from the legal culture of continental Europe over the centuries. Their surviving writings show a marked increase in the use of Roman legal classifications in the century before 1600: public and private, criminal and civil, real and personal, property and possession, contract and delict, among other examples.1 Those who perpetuated the learning of the English royal courts in the sixteenth century had begun fitting it into a framework borrowed from the two great bodies of 'learned law' taught in the universities of Europe: civil (Roman) law and canon law. Common lawyers expressed the need for an 'institutes' of English law, a written introductory work that would survey the whole of the common law in its main classifications, comparable to Justinian's Institutes of Roman law (533 AD) and Giovanni Paolo Lancelotti's Institutes of canon law (1563). In the decades after 1600, such institutes of common law began to appear.2 This paper investigates the common lawyers' attitudes towards canon law and civil law' in the period from 1300 to 1600. How much canon law and civil law did

Roman law, Islamic law and Common law are bodies of laws that were fundamentally formed and developed through the casuistic method. Over time, the casuistic rulings within these laws were classified and consolidated, evolving into higher norms applicable to a plurality of cases. Proceeding from these norms, comprehensive principles—termed the general principles of law—have emerged. Due to its historical precedence, this process commenced earlier in Roman Law. From the Classical period onward, significant efforts were devoted to the classification, consolidation, and systematization of legal rules. Unfolding within its own trajectory, this evolution culminated in the section titled General Principles of Ancient Law, appended to the final part of the Digesta within Justinian's Corpus Iuris Civilis. Beginning in the 12th century, Roman Law experienced a revival in Europe. Through commentaries on the Corpus Iuris Civilis—by the Glossators and subsequently the Post-Glossators—Roman Law began to disseminate throughout the continent and, to a limited extent, into England. Simultaneously, from the 11th century onward, the compilation of legal rules commenced in England. Out of the diffuse and complex structure of Common Law, general principles of law gradually emerged, often expressed in Latin as a reflection of the Roman tradition. While some of these principles parallel Roman Law, a significant number diverge structurally. These principles, termed maxims in Common Law, acquired prominence and a systematic character through the works of Sir Francis Bacon. Similarly, Islamic Law shares the casuistic nature of Roman Law and Common Law. Over time, the methodology of Islamic Law (Usul al-Fiqh) was established upon the foundation of substantive legal provisions (Furu al-Fiqh). Rules developing within this methodological framework were synthesized with methodological norms, fostering the formation of general principles. Treatises were authored to compile and expound upon principles applicable both to specific branches and to the legal corpus as a whole; this process ultimately led to the derivation of general principles designated as universal legal maxims (al-Qawa'id al-Kulliyyah). The formation and development of general principles exhibit striking parallelism across these three legal traditions. Given these structural similarities, the commonalities found within such diverse legal orders may be regarded as principles of universal law. Within the scope of this study, similar principles between Roman law and Islamic law were first identified based on the final title of the Digesta, then explained and subjected to comparative analysis. Subsequently, the 25 maxims compiled by Francis Bacon were compared with their counterparts in Roman and Islamic law and examined through illustrative examples.

A central question in the early history of the common law is how much influence Roman and canon law exerted over the common law in its first century. The debates over Roman- and canon-law influence have largely stalled, however. This chapter introduces a new way forward in those debates. Most scholars who have looked for Roman- and canon-law influence on the common law have looked for similarities in particular rules and have argued that common lawyers adopted those rules from Roman or canon law. Priests of the Law argues that we are more likely to find borrowings in the context of more fundamental questions. The early thirteenth century was a time before the common law was the common law. There was debate over its nature and who should control it. In their attempts to answer these questions, the authors of Bracton turned to Roman and canon law.

Roman Law Sources and Canonical Collections in the Early Middle Ages Antonia Fiori Canonical 'preservation' of Roman Law It is well known that, being a part of the Roman Empire, the Church lived under Roman law from its earliest organization, and that canon law was one of the most important means for the preservation of Roman law in the early medieval period. But 'preservation' can be understood in two different ways: first, as a preservation of the spirit and the rules of Roman law through canon law; secondly, as a preservation of the original texts themselves. The first is a general problem of legal culture, the second a specific philological matter. But these different points of view are not completely independent of one other, but rather two faces of the same process. In this paper, I shall attempt to analyze the Italian canon law collections up to the year 900 together with some almost contemporary ecclesiastical quotations of Roman law. Yet we must remember the caveat that what happened in the ninth and tenth centuries is only a stage, and not the final one, in the process just mentioned, which would be completed with the Gregorian Reform. At that time almost every part of Justinian's compilation, including some which have since disappeared, were rediscovered by canon lawyers (the only exception being the Tres Libri). The philological passion of the Gregorian supporters—even if not technically well-founded—was an important instrument that helped and sustained the formation of a legal order of the Church in the age of the so-called 'Papal Revolution'.1 In fact, canon law was not an organized body of laws in the early Middle Ages, and it is also hard to see it as the unified legal [End Page 1] order of the Church. There were several canonical traditions greatly influenced by local customs and often strongly devoted to them. Up to the Gregorian Reform these local or 'national' churches, with their canonical councils and canonical customs, were in a dialectical relationship with the Roman Church, which entailed a wide autonomy.2 It was the Roman Church, representing the 'Römische Zentrum', which tried to maintain the spirit of Roman law in this period, and sometimes imposed it on the 'Kirchliche Peripherie' (to use the terminology of a relatively recent congress held at the Deutsches Historisches Institut in Rom).3 In most of Europe during the early Middle Ages Roman law was still represented by the Theodosian tradition, mainly known through the Breviarium Alaricianum, but not so in Italy, where—leaving aside the difficult matter of surviving elements of Theodosian law4—Justinian's compilation was promulgated in 554 after the Gothic Wars. Thus the Pragmatica sanctio introduced the Corpus iuris civilis into Italy less than 15 years before the arrival of the Lombards (568). As he had died three years before, Justinian did not see how vain had been his great effort to reconquer Italy. His Corpus did not have enough time to become known and studied. Along with Radding and Ciaralli, we can say that 'the Justinianic codification simply fell from sight and from use, in Italy and everywhere else, between the end of the sixth century and the end of the eighth'.5 The Church saved the spirit of Roman law, even influencing through it some developments in Lombard law. But there is no [End Page 2] evidence at all of a textual knowledge in ecclesiastical contexts until the Carolingian period, when many Roman law fragments reappeared in a few canonical collections. Two questions are open. First, why did they reappear in the Carolingian period and not before? Secondly, what kind of knowledge did these canon lawyers have or, better, which kinds of texts did they know? The cultural Renaissance which occurred with the birth of the Carolingian empire is obviously one good answer to the first question. But even more significant was the papal idea, or papal hope, that the Western Empire, reborn under Charles the Great, should in its second life still be Roman and, furthermore, holy. While general attention was fixed on Charles and his Frankish kingdom, and Frankish customs were obviously ready to break out into the...

England's common law is stereotypically insular and immune to influence from the learned laws. However, manuscript discoveries reveal that in the late thirteenth and early fourteenth centuries some common lawyers turned to the canon law to illustrate and ornament their own kinship system. Canon law kinship treatises, aimed at beginners, occur in some common law manuscripts, as do arbores consanguinitatis (trees that illustrate the structures of the canon law kinship system). Some were adapted by common lawyers and the influence of this material was to extend even into common law courts.

In the Medieval period, Roman law and canon law formed ius commune or the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law. Canonists were the first who carried out research on the distinctions between various legal sources and systematized them according to a hierarchical order. The Medieval civilists sought solutions in canon law for a large number of problems that Justinian’s Codification did not hinge on or did it only superficially. Solutions offered by canon law were accepted not only in the civil law of Continental Europe, but also in the English law.

The civil law tradition is the oldest and most prevalent legal tradition in the world today, embracing the legal systems of Continental Europe, Latin America and those of many African and Asian countries. Despite the considerable differences in the substantive laws of civil law countries, a fundamental unity exists between them. The most obvious element of unity is the fact that the civil law systems are all derived from the same sources and their legal institutions are classified in accordance with a commonly accepted scheme existing prior to their own development, which they adopted and adapted at some stage in their history. The civil law tradition was the product of the interaction among three principal forces: Roman law, as transmitted through the sixth century codification of Emperor Justinian; Germanic customary law; and the canon law of the Church, which in many respects derived from Roman law, but nevertheless constituted a distinct system. Particularly important in this process was the work of the medieval jurists who systematically studied, interpreted and adapted Roman law to the conditions and needs of their own era. From the fifteenth century onwards, the relationship between the received Roman law, Germanic customary law and canon law was affected in varying degrees by the rise of the nation-state and the increasing consolidation of centralized political administrations. The present chapter traces the common history of European civil law from its beginning in the High Middle Ages to the emergence of national codifications in the eighteenth and nineteenth centuries. A significant part of the work is devoted to the discussion of the historical factors that facilitated the preservation, resurgence and subsequent reception of Roman law as the basis of the ‘common law’ (ius commune) of Continental Europe.

The legal underpinnings of the Western church experienced a major transformation during the twelfth and thirteenth centuries. This was a period in which papal legislation found its stride, in the form of conciliar decrees and papal decisions. Canon law collections provide a window into the rediscovery of Justinian's compilations, because they incorporated snippets of Roman law as it became available. Later papal legislation appears in other similar collections, including the Liber sextus of Pope Boniface VIII. Law professors at Bologna and elsewhere lectured on the collections of decretals, producing commentaries and summas. Medieval legal procedure relied heavily on both Roman and canon law. With respect to the laws of the church, the move towards complexity was also a product of the encounter with Justinian's Roman law. The thematic scope of canon law was in the main laid down with the Gratian's Decretum, which took its cue from the wide range of matters that French bishop Ivo treated in the Panormia.

The amalgam of Roman and canon law now generally known as the ius commune, sometimes also referred to as the utrumqueius, has undoubtedly played a role in the history of England and in the development of Anglo-American law.2 In fact, it has played several different roles. Before the time of William Blackstone (d. 1780), it was the Roman law rather than the common law that was taught in the English universities. It had a long innings; only in the twenty-first century does the teaching of the civil law stand in some danger of being lost. Moreover, its influence was not simply academic. It was the ius commune that long governed practice in the courts of the church, the Admiralty, the universities, and (to some extent) the courts of equity. Chancery procedure, for example, drew heavily upon it. On that account, it was an important source of English legal practice in its own right. These The medieval law of sanctuary permitted any person who had committed a serious crime to take refuge in a church, churchyard, or other designated place of asylum. It was a valuable privilege. In theory, and normally in practice as well, anyone who reached a place of asylum escaped vengeance at the hands of his enemies and punishment at the hands of his rulers. Sanctuary meant everything the term implied—a refuge where a person in real danger would be safe from harm.

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language. This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

The amalgam of Roman and canon law now generally known as the ius commune, sometimes also referred to as the utrumque ius, has undoubtedly played a role in the history of England and in the development of Anglo-American law. In fact, it has played several different roles. Before the time of William Blackstone (d. 1780), it was the Roman law rather than the common law that was taught in the English universities. It had a long innings; only in the twenty-first century does the teaching of the civil law stand in some danger of being lost. Moreover, its influence was not simply academic. It was the ius commune that long governed practice in the courts of the church, the Admiralty, the universities, and (to some extent) the courts of equity. Chancery procedure, for example, drew heavily upon it. On that account, it was an important source of English legal practice in its own right.

In Maitland's words, “Of all the centuries the twelfth was the most legal.” It was a time of growth for the great legal systems in the West: English common law, revived Roman law, and canon law. Students of medieval England have rarely concerned themselves with the question of the connection between these legal systems. For six centuries, from Bracton until the rise of modern legal history with Maitland, the study of English law was insular, ignoring the continental legal systems. When a seventeenth-century civilian wrote that “our common law, as we call it, is nothing else than a mixture of the Roman and the feudal,” he aroused the anger of Coke and the common lawyers. Recently scholars have taken such a view more seriously, and a number of studies have sought Roman or canonistic influences on English law. It might be useful, then, to reconsider the matter of the impact of Rome on English law in the light of recent scholarship, asking three questions: To what extent was Roman law known and studied in England before the time of Bracton? What influences, if any, do scholars find that it had on the legal innovations of Henry II and his sons? Why did the English fail to ‘receive’ Roman law in the way that countries on the Continent did?Any influence of Roman law in England during the centuries after the withdrawal of Roman legions and before the Norman Conquest can be dismissed quickly. Once Christianity was re-introduced to the island, the revival of Roman Law, or at least of some notion of Roman legal concepts, was possible.

The aim of the article is to analyse whether villain under the English common law was legally the same category as slave under the Roman law. Perhaps at fi rst sight a remarkable notion, such conclusion could be theoretically justifi ed by the evident reception of Roman law in a major medieval book of authority De Legibus et Consuetudinibus Angliae by Bracton. With regard to the personal status Bracton uses terms found in the Roman law codifi cation of Justinian. To examine the question, the article from the methodological perspective compares the terminology, modes of acquiring and loosing the servile status and the legal capacity of slaves and villains. In its second part the article examines the judicial proceedings subject matter of which is the determination of disputed status libertatis. Since both the Roman and the common law system are systems built on remedies rather than substantive rights, principally the Roman controversia de libertate and the English writ de native habendo as the respective forms of action are examined.