Module 3 - Medieval State & Ius Commune in Western Europe PDF

KNOWLEDGE CLIPS KC 1 Sources of law in post-Roman Europe ​ Canon Law(s) → pope, church assemblies, falsifications ​ Roman Law → royal officials and notaries in the Frankish Empire, Visigothic Spain, or Byzantine Italy ​ Germanic Law → oral, assemblies of elders, but: kings = Lex Sa...

KNOWLEDGE CLIPS KC 1 Sources of law in post-Roman Europe ​ Canon Law(s) → pope, church assemblies, falsifications ​ Roman Law → royal officials and notaries in the Frankish Empire, Visigothic Spain, or Byzantine Italy ​ Germanic Law → oral, assemblies of elders, but: kings = Lex Salica (6th century) ​ However: in practice, local ‘customs’ varied greatly and usually formed a mix KC 2 ‘Governing’ Post-Roman Europe ​ Western Europe had been depopulated by plague in the 6th century AD and recurring attacks from e.g. Magyars (steppe peoples) and Vikings (from Scandinavia) ​ until 1000: slow recovery ​ land was abundant, people scarce: aristocracy relies on estates worked by serfs ​ role of freemen in the army and legal juries eroded → Carolingian ‘state’ ○​ counts, dukes, missi dominici ​ Feudalism: clear separation between vassals (vassi regis / dominici) and fiefs (feuda / beneficia) → revival of commerce, cities were build up, there was more production ⇒ source of tax / income (for whoever controlled them) → allowed local lords to establish themselves as holders of sovereign power The Crisis of the Twelfth Century  ​ royal bannus or sovereign power delegated to counts → local vicarius, iudex, castellani ​ from tenth century: massive growth of castles and ‘lords’: banal revolution ​ Malae consuetudines: ‘bad habits’, violence through use of force, made possible by knights and castles ​ no ‘feudal anarchy’; feudal ties were used to re-establish central control → princes try to monopolize both violence and legal power!​ ⇒ Governmental power in France and Holy Roman Empire is mediatised ○​ ruler as suzerain rather than sovereign → appointment of bailiffs, legal officers with territorially defined legal power The Crisis of the Twelfth Century ​ The Chronicle of Jocelin of Brakelond: portrayal of Abbot Samson of Bury St Edmunds (1182–1211): '[...] he had not received anything in writing from his predecessors concerning the administration of the Abbey, save for one small sheet (sedulam parvam) containing the names of the knights of St. Edmund, the names of the manors and the rent due from each tenancy.’ ​ Rising inflation creates trouble, as the monks complain: ‘The revenues and expenditure of all good towns and boroughs in England were growing and increasing to the profit of their possessors, save only in this town, which pays us forty pounds and never more.’ ​ Bisson: old prescriptive accountability does not suffice anymore ○​ Occasional, informal audits of stewards or bailiffs ○​ Based upon oral testimony or at most static surveys: ‘What do (should) I have?’ Probatory Accountability of Office ​ According to Bisson, the twelfth century saw the rise of a new accounting technique as a solution to these problems: a record devised to prove rather than prescribe ​ Keeping records of income and expenses → accountability rather than fidelity ​ English Exchequer and pipe rolls: annual judicial audit of local sheriffs from at least 1129-30 ​ French Chambre des Comptes in Paris arises in the course of the 13th century → later spreads to territories of the Dukes of Burgundy ​ Financial tension: in times of need, offices were pledged (‘privatized’) for several years... The Burgundian Chambres des Comptes ​ they established a clear system of control ​ Treasurer of Brabant, Jan van Grimbergen, 1415: ‘Without applying the strict method and practice that were common in our Audit Office to date, where use was made of documentary evidence and the legal force of letters, he has to demonstrate how matters had gone on the basis of good people and with full trust’. ​ Accounts recorded the balance of finances between a prince and his officers ​ Legal significance → tool for correction Rekenkamer of The Hague ​ 1496: plan to merge all Audit Chambers of the Burgundian Low Countries ​ States of Holland (representatives cities) sent two procurators to protest: ​ ‘[This is] against earlier charters and promises made by our merciful lord’ → bottom-up demand for accountability of governmental officials as foundation of good governance READINGS Tamar Herzog, A Short History of European Law: the Last Two and a Half Millennia Chapter 4 - Lords, Emperors, and Popes around the Year 1000 ​ beginning in the sixth century, the inhabitants of Europe experienced processes of conversion and Romanization ​ experiencing constant migratory waves that led to settlement, conquests, and reconquests by various Germanic, Slavic, and Viking groups, instability from within was accompanied by invasions from outside by Muslims approaching from the southern Mediterranean and Magyar tribes arriving from Asia ​ the precarious situation that resulted led to important economic changes ○​ mostly the decline of commerce and the move to a subsistence economy ​ ninth-tenth century: a series of social, economic, and political institutions traditionally identified as “feudal.” The Conventional Portrait of Feudalism ​ most historians concur that in the ninth, tenth, and eleventh centuries many parts of Europe shared several fundamental characteristics that were lacking in the earlier times ○​ relations of personal dependency between powerful individuals (lords) and subject populations (vassals) ​ feudalism: appeared as a deeply ritualized affair with feudal relations being established in an elaborate ceremony identified in the literature as “homage.” ○​ feudal relations: initially mostly covered mutual protection, which was understood as military defense ​ powerful lords appeared →they allowed vassals to have usufruct or tenure rights over the land in exchange for some sort of compensation ⇒ economic concern → lords began ensuring that their vassals had the financial resources they deserved according to who they were ​ duties of lords: judicial protection → acted as judges; applied what was said to be customary law of the land ○​ they collected taxes and applied norms that governed the community A Feudal Society? ​ by the year 1000 most Europeans lived on rural estates where they were tied as vassals to a lord who exercised jurisdiction over them ​ lords accumulated legislative, executive and judicial powers ​ feudalism: imagined as a multilayered system in which (minor) lords could be vassals of (greater) lords ​ eleventh and twelfth centuries: they sought to diminish the power of their peers or control them by summoning them to the courts and converting them into their servants ​ kings: most efficient tactic they used to consolidate their powers was to institute themselves as supreme adjudicators​ ⇒ first succeeded in England → English common law​ Questioning Feudalism ​ “feudalism” as a theoretical abstraction that obscured rather than enhanced our understanding of the past ​ it is argued that not all contemporaries lived under a feudal regime ○​ some territories were more “feudalized” than others Lords, Emperors, and Church Authorities ​ the relations between these emperors and the Church would become extremely fraught ​ Roman traditions, which both secular rulers and the Church espoused, did not facilitate the distinction between a secular and a spiritual realm ​ late eleventh century: Pope Gregory VII (1073– 1085) began a wide-reaching reform with the aim of obtaining control over these coveted offices ○​ decree that listed twenty-seven important papal resolutions: ​ denied German emperors the right to nominate and depose bishops and invest them with their pastoral rod ​ the Church was founded by God; it was the only truly universal body ​ if emperors disobeyed papal orders, the pope could depose them and free their vassals of their oath of obedience ​ the Dictatus Papae also sought to secure the primacy of the pope within the Church ○​ he stated that the pope could be judged by no one and that his decisions could not be appealed The Investiture Conflict ​ 1076: Emperor Henry IV (1050–1106) ignored the papal nominee for the archdiocese of Milan (a rich feudal territory) and instead appointed one of his own men ​ 1122: the successors of Henry and Gregory (Emperor Henry V and Pope Calixtus II) reached a compromise formally resolving the Investiture Conflict ○​ (Concordat of Worms) they recognized the elections of bishops as a papal privilege but allowed the emperor to preside over them and intervene in cases of dispute ​ though an understanding was seemingly reached, both sides maintained their basic positions as to who they were and how they were to relate to one another ​ neither was the conflict within the Church completely resolved ​ subsequent popes continued to argue for a superior, perhaps absolute, power, and many bishops and theologians contested these claims An European Legal History ​ law in eighth - to eleventh-century Europe was still based on a combination of Roman, Germanic, canon, and local law ○​ it was also increasingly determined by locally powerful lords who controlled vassals ​ lords had acquired their powers because of some sort of covenant or exchange between them and their vassals was extremely important ​ the Investiture Conflict was also instrumental in propelling the next great mutation in European law: the rebirth of Roman law in Italian universities in the twelfth and thirteenth centuries Chapter 5 - The Birth of a European Ius Commune ​ “Renaissance”: a spectacular expansion in artistic, scientific, and intellectual production that also profoundly affected European law ​ the birth of a new constellation that was potentially common to all Romanized Christians and would thereafter be identified as their ius commune, literally, their common law The Study of Law in Europe ​ legal revolution: took place in Europe in the twelfth and thirteenth centuries - was shaped by three interlocking elements: ○​ the discovery and reconstitution of ancient Roman texts (mainly the Corpus Iuris Civilis) ○​ the adoption of a new method to analyze them (Scholasticism) ○​ the invention of a new environment in which to do so (learning centers, which grew into universities) Reconstructing Ancient Texts ​ end of the eleventh century, a copy of the Digest reached Bologna, in northern Italy ⇒ several individuals began reconstructing the legal compilations undertaken by Justinian ⇒ scholars trusted that for the first time in centuries they had access to a correct and full copy of the Justinian corpus, which they believed accurately represented Roman law The Method ​ Scholasticism: based on the assumption (taken as a certainty) that Roman texts were imbued with a hidden harmony ​ the aim was not to uncover the particular solutions Roman jurists adopted but instead to extract the rule (regula) that explained their consistency ​ twelfth to the sixteenth century: scholars (now identified as jurists) debated the principles, terminology, and structures of Roman law The Environment ​ by mid-fifteenth century, countries that had universities: Italy, France, Spain, Portugal, England, Scotland, the Czech Republic, Austria, Germany, Belgium, Croatia, Hungary, and Poland ○​ universities were greenhouses for the creation of a group of scholars who shared not only a way of life and a profession but also ideas and ways of thinking ○​ studying would also become a mechanism allowing the advancement of the middle classes How the New System Operated ​ combination of new sources, methodology, and environment created a novel system of law ​ it was meant to explain to law students that even if the goal of dispensing justice was not reached, the intention to do so was sufficient to qualify the action as just → Rogerius established the importance of “intent” in legal interactions ​ Rogerius observed that, according to the Institutes, justice contained: ○​ to live justly ○​ not to injure others ○​ to render to each his own ​ “Not to injure another” (the first of the two precepts) pointed to “commission” whereby to “render each one his due” (the second of the two precepts) pointed to “omission.” ​ twelfth century: some scholars began collecting legal questions and publishing them ​ apparatus: collections of glosses in large bodies (100,000 fragments) ​ jurist responses became an important source of law ○​ Bartolus of Saxoferrato (1313–1357)  ​ he concluded that rivers could add or remove land and that this had consequences for riverbank owners, whose property rights could be enlarged or diminished as a result ⇒ Bartolus not only invented a new rule (jurisdiction can change), he also created a new vision of what territorial jurisdiction was Canon Law ​ the compilation (Concordia Discordantium Canonum) was unofficial → yet it was considered so reliable that it ended up being followed as if it had been formally endorsed Feudal Law ​ “feudal law”: governed relations between lords and their vassals as well as between the various lords ○​ identified lords and their duties and defined how individuals became vassals and what they owed to their masters ○​ dealt with jurisdiction of lords over their vassals, feudal courts, and conflicting claims of various lords over the same individuals or lands ​ Romanization of feudal law: in practice, they merged ○​ several scholars appended parts of the Libri Feudorum to their copies of the Corpus Iuris Civilis and glossed them together ○​ in short, these scholars identified elements that could serve not only to explain the past but also to structure and control their own twelfth- and thirteenth-century societies Ius Commune ​ the study of Roman, canon, and feudal law in medieval study centers and universities by scholars who reconstructed texts and then applied the new Scholastic method to them revolutionized European normativity ​ ius commune—a law potentially common to all ⇒ following the guidance of ius commune became identified as rectum or directum → the right way of doing things Spreading Ius Commune ​ this process of dissemination was initially backed by secular rulers and municipal authorities who believed that the new science would solidify their powers and justify their growing demands for superiority ​ Castilian monarchs endeavored to limit the effects of ius commune ○​ they established a hierarchy of legal sources, according to which royal laws would be at the top, followed by customs, and only then by Siete Partidas The New Juridical Science and Preexisting Law ​ jurists argued that ius proprium gave concrete solutions to specific problems, but both the problems and the solutions should be analyzed, interpreted, and decided according to the methods developed by ius commune ○​ ius commune would supply terms, concepts, procedures, and techniques os analysis that jurists would employ whether they debated local, Germanic, canon, municipal, feudal or royal law ○​ ius proprium would be understood as the local expression of a ius commune, the particular, local, manifestation of an ultimate and shared technique ​ jurists not only offered advice and proposed legislation, they also compiled, collected, and arranged the existing law The Result ​ the conclusions of ius commune were indeed seen as so logical and reasonable and were so widely accepted that contemporaries assumed that they were common to all humanity, they were immutable, and they were true CLASS Law in Germanic post-Roman Europe ​ custom = oral, community decides what is law ​ Personality of Law ​ Visigothic Kingdom of Alaric II (r. 484-507 AD) ○​ Breviarium Alaricianum = Roman leges + jura ​ Gaius’ Institutes ​ (part) Codez Theodosianus ​ (part) Paulus’ Sententiae ○​ Lex Visigothorum = leges barbarorum for Germanic subjects Carolingian Empire ​ Charlemagne = Charles ‘the Great’ (r. 768-814 AD) ​ Carolingian ‘Renaissance’ ○​ Capitularies = royal legislation ○​ (church) schools ​ Government: ○​ regional dukes or counts, checked by missi dominici ○​ local ‘lordship’ = justice, tax; inheritable + transferable From Crisis to Centralization ​ Norman, Magyar, Muslim attacks: splintering governmental authority ​ Royal bannus was usurped, even at the local level: ○​ ‘banal revolution’ (10th c.) ○​ Malae consuetudines ○​ Castles ​ solution = feudalism ○​ vassals & fiefs ​ centralization of royal power in e.g. France = bailiffs ​ cities, urban characters & laws The Investiture Conflict ​ what was ‘investiture’? why did a conflict emerge about this topic? ​ Ottonian ‘imperial church system’ ○​ bishop appointed as feudal lord ○​ non-inheritable, cf. lay nobles ○​ need to control appointment bishops ​ Emperor: judge of his people, rules by holding court, empire = ‘military + spiritual authority’ rather than a territorial entity! ​ Pope: pontifex maximus after fall of Roman Empire in the West… Papal Revolution ​ Harold Berman: Papal Revolution (ca. 1075-1303) 1.​ claim to universal authority by the Church 2.​ political & legal independence clergy from worldly lords ​ Pope Gregory VII: Dictatus Papae (1075): 1.​ That the Roman pontiff alone can with right be called universal 2.​ That he alone can depose or reinstate bishops 3.​ That it may be permitted to him to depose emperors 4.​ That he himself may be judged by no one ​ struggle with Emperor Henry IV (r. 1050-1106) ​ Concordat of Worms (1122) Henry, king not through usurpation but through the holy ordination of God, to Hildebrand, at present not pope but false monk. […] You, therefore, damned by this curse and by the judgement of all our bishops and by our own, go down and relinquish the apostolic chair which you have usurped. Let another go up to the throne of St. Peter. I, Henry, king by the grace of God, do say unto you, together with all our bishops: Go down, go down [Descende, descende], to be damned throughout the ages. - Letter Emperor Henry IV in response to Dictatus Papae, 24 January 1076 Legal Revolution ​ ‘Renaissance of the 12th Century’ = intellectual, social, and political transformation ​ Emperor; Kings (France; England); Pope; urban communities: all want to legitimize and defend their extending powers ​ Commercial Revolution provides economic resources to support (legal) scholars ​ three interlocking elements: ○​ discovery and reconstitution Roman texts (Corpus Iuris Civilis) ○​ adoption new method to analyze them = Scholasticism ○​ invention of new environment in which to do so = university Revival of Roman Law ​ Monk Imerius studied and teaches Roman Law ​ 1082: Gregory VII institutes a school at Bologna ○​ Littera Bononiensis of the Digest reconstructed ○​ Contemporaneously Littera Florentina emerges from Byzantine sources ​ Rise of Universities: Bologna (1088), Oxford (1096), Paris (1150), Cambridge (1209), Salamanca (1218), Orleans (1230), Tilburg Scholastic Method ​ why did ‘textual reconstruction and exegesis support one another’? ​ Assumption: Roman texts contain a coherent message, have a ‘hidden harmony’… ​ scholars have to explain away ‘apparent’ contradictions in the text ​ jurists used dialectical exegesis to uncover the underlying rules, regula, that formed the basic essence of Roman law ​ first generation of scholars: glossators ○​ Glossa = marginal notes, clarifications ○​ study and decipher the Corpus Iuris Civilis ​ how did Rogerius derive new law from the old? Institutes: ‘justice’ = ‘the constant and perpetual desire to give to each man his due right’ ​ not requiring an actual implementation but just mentioning the desire must have been a purposeful choice! ​ even if the goal of dispensing justice is not reached, the intention to do so is sufficient to qualify an action as just = importance of ‘intent’ in legal interactions Institutes: 3 central mandates → to live justly, not to injure others, and to render each his own ​ crimes against oneself (sins) vs crimes against other people → commission + ommission = performing wrongful act vs failing to do the right this → close reading the Roman text, commenting on repetitions or choice of words, allowed Rogerius to come up with a new way to categorize legal phenomena ​ second generation of scholars: commentators ​ focus less on the text itself, but on the doctrine they sought to develop, basing analysis on glosses rather than original Roman texts ​ practical applicability of legal debates: ○​ Consilia ​ = the return of jurisprudence ​ scholars, such as Bartolus of Saxoferrato were highly authoritative, became a source of law​ Ius Commune, Ius Canonicum, Ius Proprium ​ canon law? ​ Decretum Gratiani + Liber Extra + Liber Sextus + Clementinae = Corpus Iuris Canonici ​ Romano-canonical court procedure ​ Ius Commune? ​ legal method resulting in law potentially common to all ​ not substantive law, but a way to organize, explain, and systematize the preexisting normative order!