Roman Law and the Western Tradition

Abstract

Abstract Having sketched the shape of the hospital in Carolingian Francia and Lombardy, the investigation now moves earlier, to uncover the legal foundations of welfare, as fostered under Roman law. This chapter redefines the tradition for welfare facilities in Roman law and identifies a distinctive Western legal model. It reappraises two extracts from Julian’s Epitome in the Collectio capitularium of Ansegis of Saint-Wandrille, the only evidence for Justinianic law in the West regarding hospitals. These are found not to relate to Carolingian welfare and new light is shed both on the palace’s use of these Roman law extracts and on the possible character of Ansegis’s book 2, on Louis the Pious’s ecclesiastical laws. The chapter then uses Justinian’s collections of law to explore the long development of welfare foundations in Roman law, finding them first accommodated under testamentary law. It argues that this basic testamentary model was moulded in the East, via the ‘pious promise’, into an institution under divine or public law. In the West, however, the early testamentary form was developed via the documentary practices that characterized Roman law in the West, c.400–800. These practices reveal a distinctive Western approach, which enshrined not the institution but the right to institute; that is, the right of the testator to prescribe and fix acts of human charity. A final section offers a new account of the development of welfare institutions in early Christianity, as East and West diverged and the West developed a vernacular Christian practice, one that was not owned by the church but enacted and developed by testators.