The Reception of Roman Law & Ius Commune

Events

End of Western Roman Empire

476 AD

After the fall of the Western Empire the Germanic tribes: Vandals, Goths, Visigoths, Burgundians, Franks etc. started to move south/west towards where the Western Empire used to be.

The fall of the Western Empire also meant that the Eastern Emperor was in facto emperor of the West, but in practice he had no imperium there.

'Vulgar' Roman law was still applied by the Germanic tribes to Roman citizens: personal application. They choose 'vulgar' Roman law instead of the regular Roman law because it was less complicated. Also due to this complexity and difficulty of regular Roman law limited references to it were made. So, references were made to the 'vulgar' Roman law collections and not (only rarely) to the Justinian's Corpus.

Theory of the 2 Swords

494

In 494, the theory of the 2 swords originated. It was based on the letter of the Pope Gelasius I to Eastern Emperor Anastasius. In this letter Gelasius distinguishes Sacredotium (power that was reserved for the pope, who was appointed by God) & Imperium (state power of the King who was in certain occasions appointed by the pope > 800 AD).

Between the 11th and the 14th century a debate took place regarding the correct interpretation of the doctrine of the two swords. There were two different theories regarding this:
1. Tradition that defended the equality + mutual autonomy of the two powers >> Christ had bestowed the spiritual power on the pope and the secular power on the emperor (civil lawyers also argued that God had bestowed secular power on the people who had delegated it through lex regia on the emperor).
2. Tradition that defended the primacy of the pope over the emperor >>
This tradition found support in the Decretum Gratiani according to this tradition, Peter (the apostle + 1st pope) had received the swords of both spiritual and secular powers from Christ. The pope then delegated this secular powers to the emperor and other rulers.

Early Middle Ages

500 - 1000

See Early Middle Ages at the layer 'periods of time' for more info.

Reception of Roman law

533 - 1000

RECEPTION = the degree to which Roman law was adopted in the EU.

During this time there were no prominent jurists. This period is also called Reception of Roman 'vulgar' law. No major changes were made in the sense of legal development. The Germanic tribes and their indigenous customary law played an important role during this period.

Charlemagne becomes king of the Franks

768

In 768 Charlemagne becomes King of the Franks.

Charlemagne becomes king of the Langobards

774

In 774 Charlemagne became the king of the Langobards because he overthrew the kingdom of the Longobards (present-day Lombardy, in Northern Italy, with its capital in Pavia). His kingdom then comprised a large part of present-day France, The Netherlands, Belgium, and Germany as far as the Elbe, Switzerland, Austria and Northern Italy.

Frankish Holy Roman Empire of Charlemagne

800 - 814

See the powerpoint slide 9 of lecture #2 for a map of this empire.

Crowning of Charlemagne / Charles the Great

800

In the year 800, the pope crowned Charlemagne as the emperor in the West. This crowning was problematic because it showed that the church was above the emperor and that they thus had the power to appoint the emperor.

HOWEVER, the coronation also showed that Charlemagne had derived his power from God (through the pope) and therefore he was holy. God had ths=us gave him authority to invest bishops and abbeys > Investiture Struggle.

It also symbolised a genuine translation imperii from the Romans to the Frankish.

Crowning of Lious de Pious

813

In the year 813, Charlemagne himself crowned his son, Lious de Pious as the co-emperor of the Frankish Empire. The pope was invited to watch but not to crown.

Treaty of Verdun

843

in 843 The treaty of Verdun was signed/took place, which meant that the Western Empire would be split into three parts (because king Lious de Pious (son of Charlemagne) had 3 sons).

Treaty of Meerssen

870

When the Treaty of Meerssen was signed in 870, this meant that the central part of the the Empire of Lious de Pious would dissapeared.

Holy Roman Empire

870 - 1806

After the Treaty of Meerssen the Holy Roman Empire came into existence (Sacrum Romanum Imperium).

Carolingian Renaissance

900 - 1000

The Carolingian Renaissance took place in the 8th - 9th century.

Important features of this Renaissance:
1. Rome as caput mundi > capital of the world;
2. The Carolingian Empire was now Roman & Holy;
3. Gelasian Principle (this principle assumes the presence of 2 powers on earth the spiritual (sacredotium) & temporal (imperium) that must complement each other: Res Publica Christiana).

Late Middle Ages

1000 - 1453

See the Late Middle Ages on the layer 'periods of time' for more info.

Gregorian Reform

1049 - 1122

The Gregorian Reform had three purposes:
1. Restoration of church discipline;
2. Suppression of the influence of local secular lords / emancipation of the church from secular control;
3. Establishment of papal authority over the entire church.
It was specifically aimed at the clergy (= the body of people ordained or recognized by a religious community as ritual or spiritual leaders).

RESULTS: The Gregorian Reform eventually put an end between the co-operation between the pope and the emperor (the 2 heads of Christianity).

Rediscovery of the Digest

Approx. 1050

In the 11th century, a cultural revival (photo-Renaissance) expressed itself in several ways including a renewed interest in Roman law. The study of a rediscovered manuscript of the Digest was also part of this revival.

At around approximately 1050 AD, the Digest was -literally- rediscovered. The rediscovery of the text came largely via a 6th century manuscript (which was possibly a remnant of the promulgation of the Justinian codification in the exarch of Ravenna at the request of Pope Viligius) which was originally seized as war booty in 1406 and taken to Florence.

Great Schism

1054

The -Great- Schism, also called East–West Schism, is an event that precipitated the final separation between the Eastern Christian churches (led by the patriarch of Constantinople, Michael Cerularius) >Eastern Orthodoxy< and the Western Church (led by Pope Leo IX) >Western Roman Catholicism<.

Investiture Struggle

1075 - 1122

The Investiture Struggle took place between 1075 and 1122, it was about the appointment of bisshops. The King was of the opinion that he had the right to do this while the pope had the opinion that he had this right.

The Investiture Struggle triggered legal struggles and it eventually came to an end with the Concordat of Worms (1122), which distinguished:
1. Spiritual office of the bishop;
2. The position of the bishop as a feudal vassal of the Crown.

The Concordat provided a compromis between the King and the pope. From this moment on the power to appoint bishops lied solely with the Church. However, the King kept for himself the right to invest bishops with the temporalities of their sees “by scepter”.

The most important consequences of the Investiture Struggle (according to Lesaffer):
1.The Emperor could now hold double investiture, temporal (imperium) & spiritual (sacredotium);
2. The secular and ecclesiastical legal systems continued to develop in parallel;
3. Under the authority of Pope Gregory VII, Justinian law had to yield canon law.

Emperor Henry IV @ Canossa

1077

During the Investiture Struggle the pope decided to excommunicate Emporor Henry IV from the Christian Community (he thus got kicked out of the Christian community, which was very unfortunate for him since he had no friends to support him) After that in 1077, Emperor Henry IV visited the pope @ Canossa where he had to wait 3 days to be let into the 'castle', after that the pope decided to lift his excummunication.

Decretum Gratiani

Approx. 1140

The Decretum Gratiani is the most important collection of Canon law during the Middle Ages. During this time the Decretum was only a non-binding legal source that did not have to be followed by the courts. HOWEVER, when in 1582 it became part of the Corpus Iuris Canonci it retained the force of legal and became an official legal source of Canon law.

In 1245 Johannes Teutonicus made a Glossa Ordinaria of the Decretum Gratiani.

Decretals

1159 - 1241

Between 1159-1241 ± 2000 decretals were promulgated to create a textual tradition in canon law to fall back on. Decretals = papal statute law.

Medieval Corpus Iuris Civilis

Approx. 1200

The Medieval Corpus is also known as: Littera Vulgata or Littera Boloniensis.

The Medieval Corpus Iuris Civilis consisted of three main parts (5 parts in total > see Cali 2 notes):
1. Digest that was divided into 3 parts: Vetus, Infortiatum and Novum.;
2. The first 9 books of the Corpus;
3. Volumen parvum, ot consists of the: Institutes, tres libri, Authenticum and Libri feudorum (which is not related to Roman law).

Glossa Ordinaria

1220 - 1240

Accursius, decided to make a standard gloss, that comprises the most important glosses. He did this due to the fact that there were more and more glosses, that also contradicted each other. This standard gloss is called: Glossa ordinaria.

Accursiuas was the prime glossator of his time. And after he had made the glossa ordinaria there was no need to create new glosses anymore since it was all comprised in the glossa ordinaria. Therefore, lawyers started to write student handbooks (which were basically summa).

In the second half of the 13th century the Glossa Ordinaria surpassed the Digest as the principle source for the scientific source of Roman law.

Arise of the university

1300

At the beginning of the 12th century the university arose. A university is a community of professors and students in the framework of the terminology of the university (studium generale). To qualify as a university there had to be at least one faculty that was 'higher' (e.g. theology, Medicine, Roman law, Civil law, Canon law etc.) than the artes where the artes of liberales were taught.

First law school in Pavia

Approx. 1361

In the 11th century (University of Pavia that includes the department of law was however founded in 1361) the first law school in Pavia was founded. At this law school a collection of Lombary customary and statute laws (Lombard law = a collection of edicts for Lombard kings) was taught following the system of the Institutes and the Law of Codex.
The First glosses were used here AND they primarily studied the Liber Papiensus.

France is divided into two regions

Approx. 1400

Around the beginning of the 15th century France was divided into two legal systems/regions:
1. NORTH; les pays du droit coitumier > here mainly German customary law was used.
2. SOUTCH; les pays du droit 'ecrit > here mostly written law was used, and customary law was directly influenced by Roman law.

Later in the 15th century the French kings sought to have local customs se tout in writing, which required cooperation between royals, professional lawyers & local communities.
Local communities needed to approve the formulation of the local customs that were drafted by the professional jurists, in meetings of local assemblies chaired by royal commissioners (which were usually judges of the provincial courts, the so-called Parlements) > WHY? > customary law was not written down which caused evidentiary problems in legal proceedings.

LED TO:
The codification of customary law (almost completed in the first half of 16th century) + customary law became the subject of legal jurisprudence / academic study >> commentaries such as the commentary of Charles Dumoulin (Molinaeus, 1500-1566) to the Coutumes de Paris (1538). He argued for a coutume generale that would fill the gaps of different regional customs.

Early Modern Ages

1453 - 1648

See the Early Middle Ages at the layer 'periods of time' for more info.

Byzantium is defeated

1453

In 1453 Byzantium was defeated by the Turks. This meant that the Eastern Roman Empire had now also officially fallen. One of the effects was that manuscripts with texts from Antiquity were taken to Western Europe.

Printed edition of the Digest

1553

In 1553 a full and critical printed edition of the Digest was published by Lelio Torelli and Antonio Agustin.

Foundation of Leyden University

1575

Leyden University was a Protestant University established in the Low Countries.
CHARACTERISTICS:
-Run by professors instead of students;
-NO study of Canon law > bc Protestants;
-Emergence of the law of nations due to the humanist approach;
-Able to attract Protestant + legal humanist HUGO DONNELIS (after he fled from FA > religious freedom in NL after NL opstand). Who together with his sucessor (Everhard Bronckhorst) laid to foundations for the Dutch School / Dutch Elegant School.

Corpus Iuris Canonci

1582

In 1582 the Corpus Iuris Canonci was promulgated. This Corpus was created as a student textbook by Gratianus. It consisted of five parts:
1. Gratian's Decretum (1140);
2. Liber Extra (1234);
3. Liber Sextus (1298);
4. Clementinae (1317);
5. Extravagantes (1499).

It is a legal source for Canon law. From the moment it was promulgated the 5 seperate parts all had the binding force of law, unlike before.

De Iure Belli ac Pacis

1625

In this year the jurist and writer Hugo de Groot (Grotius) (1583-1645), published 'De iure belli ac pacis' (On the law of war and peace) in which he discusses what we nowadays refer to as public international law but also deals in depth with principles of private law. The 'De iure belli ac pacis' was however also a starting point for natural law, it gave 5 elements for ordering society on reasonable basis:
1. Respect for what belongs to another;
2.Return what one keeps for another;
3.And the profits made of these returns;
4. Liability for damages caused by one's mistakes;
5. Punishment for crimes.

The sources used for the 'De Iure Belli ac Paris' were Roman law, theology and philosophy. It formed the basis for the Secular law of nations.

Inleidinge tot de Hollandse Rechtsgeleerdheid / Introduction to the Jurisprudence of Holland

1631

Completed in 1621 and first published in 1631.

Modern Age

1648 - 1914

See the Modern Age on the layer 'periods of time' for more details.

Treaty of Westphalia

1648

The treaty of Westphalia ended most of the religious wars in continental EU. It marks the end of Early Modern Ages.

Post-Modern Age

1914 - 2004

The Post-Modern Age, also known as voluntas, lasted from ± 1914 until 2004.

Important persons

Charlemagne / Charles the Great

Approx. 742 - 814

Charlemagne saw himself as the defender of the church (ecclesiae) & he wanted to renovate the Roman Empire (renovatio imperii).

MAIN HISTORIC LEGACY OF CHARLEMAGNE = feudal contracts that were formed between him and his leading men.

Accursius

1182 - 1263

The death of the greatest glossator Accursius is seen as the end of the age of the glossators. See Glossa Ordinaria and Glossators for more details.

Edward I King of England

1239 - 1307

Edward I was incumbent from 1272-1307. He is known as the English Justinian because just like Justinian he took keen interest in legislation & played a very active role as legislator.

Andreas Alciatus

1492 - 1550

Andreas Alciatus was an important representative of humanism & the founder of the mos gallicus movement
MAIN WORK; Annotationes in Tres Libros Codicis (1513)
SUCCESSOR; Jacques Cujas (1520-1570)

MOS GALLICUS
AIM: use a more humanist method to clear out Justinian's Corpus.
-Aherents of the mos gallicus criticized the Bartolisitc method of mos italicus for a wrong interpretation of the original Corpus;
-Fa, universities;
-Alciatus

MOS ITALICUS
-Mainly used + originated in Italy;
-AIM: deal with Justinian's Corpus in a scholastic manner, thus: NO adjustments. They taught Justianian's law as it was @ University of Bologna.

Cuiacius

1522 - 1590

Cuiacius was the greatest humanist criticist that ever lived > hunt for interpolations started in 1583.

Hugo Donellus

1527 - 1591

Hugo Donellus was a French Protestant + legal humanist that fleed to NL.

Francious Duaren wanted to arrange to law in a rational order, this idea and several of his other ideas were worked out in practical detail by Francois Connan and Hugo Donellus.

Donellus made a distinction between substantive law + legal procedure (by identifying what the rational structure of Justinian's corpus was).

First, one must recognise the subjective rights extended to a legal subject can exert those rights by means of actions (legal claims > cali 1 notes). The Digest however, begins with a discussion of the actions and judgements, and only then sets out subjective rights. The institutes do this the other way around. Donellus therefore assumed that the Institutional system was the correct starting point for a systematic study of law, and he structured his 28-book commentary to the ius civile accordingly.

Donellus sought to purge Justinian's law of both its original defects of form and its medieval corruptions.

Hugo de Groot /Grotius

1583 - 1645

Humanist & naturalist that treated the law of Holland as a system of its own, breaking away from viewing it as an appendix to the civil law and instead as a amalgam of Germanic customary law, Roman law + princely legislation. He structured his work Introduction to the Jurisprudence of Holland (completed in 1621, promulgated in 1631: AFTER de iure belle ac pacis ) according to the triparte division of the Institutes and followed the model of Petrus Ramus (''Ramism'') in providinf his work with diagrammatic outlines. In his most famous work, De iure de belli aci pacis (1625), he lays the theoratical groundwork for modern international law, which he bases on a secular natural law. He deduced the prinicples of natural law by observing the rules of law that were, in practice, common to all civilised peoples. Grotius' treatise bristles with references to the Roman civil texts. He superimposes the principles he formulates in this manner from ius civile to ius gentium.

Humanist edition of the Corpus Iuris Civilis

1583

Publication of Justinian's Corpus in a humanist edition by Denis Godefroi, which was later replaced in the 19th century.

Kind of lawyers/ jurists

Glossators

1000 - Approx. 1263

The glossators were active from approximately 1050 until 1263. The death of Accursius in 1263 marked the end of the period of glossators. Glosses are remark about the main text (in the margin). Other literary output during this time were the summa (= summaries with a more free approach to the text. The most famous summa is the Summa codicis of Azo, that was a synthesis of the entire Roman law laid down in the order of the Codex).

LITERARY OUTPUT:
-Apparati;
-Summae;
-Glosses.

Commentators

1263 - 1400

The Commentators had a new approach: they wanted to exposes the rationale behind the law & ask questions:
'Why do we do that?', 'How would the Roman have thought about it?'

They also studied an area that had not been studied before, namely : Private International Law.

LITERARY OUTPUT:
-Tractatae;
-Ordines Iudicialis;
-Decisiones;
-Consilae;
-Commentaries
-traetises.

Bartolus of Sassoferrato

1313 - 1357

Bartolus and his sucessor Baldus de Ubaldis (1327-1400) can be considered as the greatest commentators of their time. Their opinions were laid down in the communis opinio (generally accepted opinion).

Bartolist jurisprudence

Natural lawyers

Approx. 1400 - Approx. Present

Humanists

Approx. 1400 - Approx. 1800

The Renaissance and the humanists renewed the interest in Classical Roman law (antiquity).

The humanists saw the law as a mathematical science. They studied customary law using the scholastic method (= the scholastic method is a method that presumes the absolute authority of a certain text, which is considered to be a general treatise about a certain doctrine. It is assumed that every lacuna and every from of intentional contradiction is only seeming and they can be solved by interpretation. This scholastic method was applied to the rediscovered Digest in the 11th century).

Humanists wanted to reconstruct the old text because the cleansed acces of Justinian law also gave them access to the works of the great Roman jurist of the 2nd & 3rd centuries that had been excerpted into the Digest by Tribonian and his ilk.

They realised that there was a direct relationship between law and society @ the various stages of Roman history.
They were aware of the temporal nature of Roman law ? they had to adbandon the idea of universal applicability of Roman law.

Plurality of legal systems (ius proprium)

Feudal law

Approx. 500 - Approx. 1500

Feudal law was about private individuals exercising imperium & the relationship between lord and vassal. It mixes private and public law.

When the Medieval Corpus was promulgated in 1200 the 'libri feudorum' was a part of 'Roman law'. It was one of the three parts of the so-called smaller part, the volumen parvum (institutes, tres libri, authenticum and libri feudorum).

The feudal period that was used during that time consisted of three layers:
1. Emperor > feudal lord;
2. King, counts & dukes > vassal / lord;
3. Counts, etc. > sub-vassals.

Canon law

Approx. 500 - Approx. 1500

From the 4th century onwards the law of the Church: Canon law was developed and used. Canon law was applied by ecclesiastical courts.

Canon law is largely comprised of Roman law, it interlinks very closely.

Why is Canon law important?
It has expended the jurisdiction of spiritual courts (officialates): criminal law, family law, private law (contract law > breaking a promise is a sin) etc. Besides this, the Romano-canonical procedure was applied/developed in ecclesiastical courts. This was due to the fact hat eventually no-one wanted to use to old, expensive and strict secular courts anymore > Romano-Canonical-procedure became the everyday-procedure.

Romano-canonical procedure:
As said before on of the reasons that the Romano-Canonical procedure gained popularity was because it was less strict and cheaper. HOWEVER, it also provided new methods to prove your case e.g. medieval oath-helpers (that unlike witnesses, only made a statement about the credibility of the party taking the principle oath) & it was WRITTEN, inquisitorial (instead of acquisitorial). Last but not least, it helped the reception of substantive Roman law.

(Indigneous) customary law

Approx. 500 - Approx. 1500

Indigenous customary law:
During the Middle Ages, the indigenous customary law was used. This indigenous customary law originated from Germanic tribal laws of the 4th - 8th centuries. Indigenous customary law was applied by specific courts in towns and rural areas.

'Regular' customary law:
The regular Roman customary law that was used during the Middle Ages had two requirements:
1. Longa consuetudine;
2. Consensus utentium.

-The content of this customary law can be determined by putting it into writing or look at case law.
-Customary law was not taught @ universities.
-Canon law contributed to customary law in the sense that bad customs may and can be set aside (ratio).
-Vulgar Roman law eventually became customary law.
-Roman law continued to exist through customary law that was used in Italy.

Roman law

Approx. 500 - Approx. 1500

Roman law was rediscovered officially in the 11th century. Besides this it was studied by the Glossators between the 11th and 13th centuries AND Commentators between the 14th and 15th century. During the Middle Ages Roman law became a subsidiary body of law for several legal systems, e.g. Canon law: Roman-Canonical procedure.

Why was the Roman-Canonical procedure favoured?
Things had to be put into writing > EVIDENCE.

Why was Roman law so popular?
1. It provided arguments for the Investiture Struggle (1075-1122);
2. It was a law for the Holy Roman Empire;
3. It was full of wisdom, ratio > it's so much more than customary law;
4. It contains something nice for everyone e.g. The Digest contains a passage that states that the Emperor is free from the law, which is obviously an advantage for the Emperor. (HOWEVER passages in the Codex contradict this).

NEVERTHELESS, Roman law was not popular in France.
1219: Teaching Roman law was forbidden in Paris.
1217: Lawyers may not cite Roman law @ Parlement de Paris.

Classical Canon Law

Approx. 1049 - Approx. 1054

The period between the Gregorian Reform (1049-1122) and the Great Schism (1054) is the high point of canon law: classical canon law.

Study of Roman law forbidden in Paris

1219

In 1219 the study of Roman law at he University of Paris was forbidden at the request of Philip II Augustus.

Natural law

Approx. 1450 - Approx. 1550

Natural law, also known as ius naturale are the legal principles that everyone should accept no matter what time etc. Ius naturale is binding to everyone, even SLAVES (in contrary to ius gentium).

Periods of Time

Early Middle Ages

Approx. 500 - 1000

The Early Middle Ages lasted from ± 500 until 1000. It's also known under the name of correctio.

Late Middle Ages

1000 - 1453

The Early Middle Ages lasted from ± 1000 until 1453, when the entire Roman Empire fell. It is also known as auctoritas.

Early Modern Age

1453 - 1648

The Early Modern Ages lasted from ± 1453 until 1648. It's also known under the name of emulatio.

Modern Age

1648 - 1914

The Modern Age, which is also known as ratio, lasted from ± 1648 until 1914.

Post-Modern Age

1914 - 2004

See the Post-Modern Age at the layer 'periods of time' for more details.