Roman Law and Legislation in the Middle Ages

Abstract

THE source of political authority has long been a focus of scholars in mediaeval political theory.' The approach to the problem has generally followed the interpretation that until about 1260 mediaeval political thought consisted of a combination of ideas derived from Christianity, Stoicism, and Augustinianism, all of which ideologies held that the state was a necessary evil brought about by man's depravity, that the higher law was a gift of God, and that human law was by the sovereign of the community. According to this interpretation, the customary practices of a people embodied the law of God, so that the ruler had only to consult the oldest or greatest men of the community, discover what ancient practices were followed in a variety of situations, and apply them to the case at hand. There is in this interpretation no significant development of the idea that the sovereign gave the law; his function was to discover specific rules of law that had always been contained in the general natural law that had come from God and was embodied in the customs of diverse peoples. The law-giver, therefore, was an especially strong and astute revealer of Truth rather than an effective law-maker. Although Roman law was considered an important factor in the Middle Ages in this interpretation, it was only as a specific type of customary law that had been superimposed upon an older set of customs. The Burgundians and Visigoths, for example, adopted the Roman law as a type of custom that embodied criminal and procedural law. In addition, the Roman law signified the transition from the primitive to the modern, for it gave an impetus to the development of written law in the early Germanic kingdoms. Although the king was to find the pre-existent law, he was not to apply it without the consent of the community. This again was supposedly a Germanic concept that originated in primitive societies and provided the basis for the mediaeval idea of consent. True, when representative estates developed in the later Middle Ages, the practice of consent became more regularized and efficient, but such technical innovations as were reflected therein took place within the framework of the old idea of law as something to be found rather than to be made. In short, mediaeval law was not the result of a positive action on the part of the organs of the state but existed prior to those organs. This interpretation holds that only in the modern state does positive law reign supreme, and this is a situation neces-