Wednesday, November 23, 2011

Medieval Law and the Romans

Medieval Law and the Romans
http://www.medievalarchives.com/2011/11/22/medieval-law-and-the-romans

   Posted by: Archivist   in Law

Today we have a guest post by Jonathan Arnold on Medieval Law. Jonathan is a practicing attorney in California. He teaches law and is a legal historian. I would like to thank Jonathan for his contribution.

Enjoy the article…

~The Archivist

Medieval Law Office

Some More Medieval Law

BY
Jonathan Arnold, Esq.

The very term Medieval connotes a time frame from the fall of the Roman Empire to the beginnings of the Renaissance, a time supposedly dark due to a lack of the rule of law and an era bereft of effective authority. The reality is more nuanced – in both the philosophic and jurisprudential spheres. Still evolving from history, religion and the first stirrings of new royal power, Medieval Law set the stage for such subsequent keystone developments like Magna Carta.

We begin with the old but famous saying that, "Rome dead was more powerful than Rome alive…." And nowhere was this more true than in the actual – and conceptual – legacy Rome left. Take a look at the words of the great Roman jurist Gaius, who begins his Institutes with this admonition:

"Every people that is governed by statutes and customs applies partly its own peculiar law and partly law which is common to all mankind. For the law which each people establishes for itself is peculiar to it and is called ius civile as being special law of that state; but the law which natural reason establishes among all mankind is observed equally by every people and is called ius gentium as being the law applied by all nations. And so Roman people applies partly its own particular law and partly that which is common to all mankind."

Thus, one of the legacies of Rome was the development of the law: specifically, the impact of the Roman Law on European continental law; and, generally, the idea – so attractive to the new rulers of the West – of a system of organization upon which royal power could be based. The revival of Roman Law, both in form and substance supported this and actually made the Medieval ages less lawless than is commonly assumed.

Sometime towards the tail end of the 11th Century, Justinian's Digest was rediscovered and relearned. The process began at Bologna, which had as its greatest teacher Irnerius. Importantly, Bologna also began a tradition of the great universities of Europe as the breeding ground for the revival of law. And this idea of a workable – and unified – system of national law followed the growth and development of these schools. Bologna begat the University of Paris and scholars from there later came to England and settled down and founded Oxford. Soon, scholars from Oxford decamped to Cambridge. This pattern proceeded throughout the rest of Europe. All the while and although the study of law was academic, subsequent scholars sought to develop what they were learning into practical applications for the Medieval age.

During this same time, the Norman Conquest occurred, which seems like it would have provided a bridgehead by which this revival of Roman Law should have come directly to England. However, partly because England had been only a peripheral province of the Roman Empire and also partly due to the fact that William the Conqueror and his heirs sought to quickly and practicably systematize the Common Law already resident in the British Isles rather than supplant it, the development of law in England took a different tack than the development of the law throughout the rest of Europe.

However, if there was a grand unifying theory, it is that as European kingdoms expanded the laws needed to properly run them likewise developed. Royal power, whether resident on the continent or in England, was necessarily concerned with two areas – the proper allocation of resources and the pacific settlement of disputes (e.g., "Keeping the King's Peace") – both of which made for efficient administration and, of course, taxation, which, in turn, strengthened the practical power of the European monarchs. It was truly an age of professors and lawyers, kings and theologians.

Jonathan Arnold, Esq. is a practicing attorney in California who also teaches and is a legal historian.