The modernity of medieval law

2000 ◽  
Vol 8 (1) ◽  
pp. 37-53
Author(s):  
Raoul van Caenegem
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
Power Sharing ◽  
Customary Law ◽  
Roman Law ◽  
Ordinary People ◽  
English Court ◽  
Political Idea ◽  
Parlement Of Paris ◽  
The University

Medieval lawsuits from the highest courts of England and France show the concern of authorities for even minor issues involving ordinary people – a democratic and modern trait. In comparing the English Court of Common Pleas to the Parlement of Paris, it can be seen that classical Roman law made a great impact on France, while the English Court ignored Roman law and applied English customary law and acts of Parliament. The Parlement of Paris also had to apply local customs, but its judges had all studied Roman and no customary law at the university; however, for political reasons they were not allowed to refer openly to the Roman law in which they had been educated. The jury was a major medieval contribution to modern democratic thinking, as was the political idea that matters concerning the whole community ought to be decided by all its members. The American power-sharing system, between President and Congress, continues the late medieval balance between King and Parliament. English common law was one of the great creations of the Middle Ages and the only system of comparable importance is continental civil law (with Germanic and Roman roots). This paper considers the chances of the elaboration in the 21st century of a common European law combining elements from both traditions.

Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions

2000 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
WDH Sellar
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
General Meeting ◽  
Roman Law ◽  
Mixed System ◽  
Annual General Meeting ◽  
Ius Commune ◽  
Profound Influence ◽  
Anglo Norman ◽  
Considerable Period

This article is the revised text of the lecture delivered to the Stair Society at its Annual General Meeting in November 1997. It defends the proposition that Scots law, from the time of its emergence in the Middle Ages, has been a “mixed” system, open to the influence of both the English Common Law and the Civilian tradition. It also compares and contrasts the Reception of the Anglo-Norman law with that of Roman law. The former was quite specific as regards both time and substantive legal content. The Reception of Roman law, on the other hand, took place over a considerable period of time, and its effects were complex and diffuse. Above all, the Civilian tradition and the wider ius commune provided an intellectual framework against which to measure Scots law. Both Receptions exercised a profound influence on the continuing development of Scots law.

African Conference on Local Courts and Customary Law

1963 ◽  
Vol 1 (4) ◽  
pp. 537-539 ◽  
Author(s):  
Jacob O. Ibik
Keyword(s):  
Sierra Leone ◽  
Islamic Law ◽  
Common Law ◽  
Dar Es Salaam ◽  
Secretary General ◽  
Customary Law ◽  
African Countries ◽  
Local Courts ◽  
The Government ◽  
The University

This conference was sponsored jointly by the Government of Tanganyika and the University College, Dar es Salaam, and was financed by the Ford Foundation. It was attended by delegates from African countries, some of whose legal systems have been influenced by common law, some by European civil law or Islamic law. Official representatives came from Ethiopia, Ghana, the Ivory, Coast, Nigeria, Northern Rhodesia, Nyasaland, Sierra Leone, the Sudan, Uganda, Kenya, Tanganyika, and Zanzibar. Some celebrated authorities on Islamic law and African customary law attended as observers, and contributed a great deal to the discussions. The chairman of the conference was the Tanganyikan Minister of Justice, Sheik Amri Abedi, and the secretary general was Mr P. J. Nkambo Mugerwa of the local Faculty of Law.

Law

2013 ◽  
Author(s):  
Thomas Kuehn
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
Roman Law ◽  
European Continent ◽  
14Th Century ◽  
Charles I ◽  
Legal Traditions ◽  
The Common ◽  
Local Courts ◽  
Medieval Universities

The period between the mid-14th and the mid-17th centuries saw the consolidation of both major European legal traditions. One was based on Roman and canon law and held sway as a common law (ius commune) on much of the European Continent. The other was rooted in royal writs and judgments that constituted the “common law” of England. The Romano-canonical law was based on venerable texts, chiefly those of the Corpus iuris civilis, compiled at the behest of the Emperor Justinian in the early 6th century, and the Corpus iuris canonici, assembled in the course of the Middle Ages by legal teachers and popes, with the process of assembly ending in the early 14th century. These texts served as the basis for a highly sophisticated and technical education in law in the medieval universities of Italy and southern France, whose graduates spread throughout Europe. The establishment of new universities from the 14th century—in Italy but also spreading to Germany, Spain, and elsewhere—only served to foster the geographical reach of the Romano-canonical law. This was also the point at which the teaching methods in the universities changed from the logical elaboration of authoritative texts (the so-called school of the glossators) in the direction of contemporary issues and practices (the era of the post-glossators and commentators). The greatest exponent of this trend was Bartolus of Sassoferrato (b. 1313–d. 1357), whose influence was such that it was said that to be a jurist was to be a “bartolist” (nemo iurista nisi bartolista) (see Jurisprudence and Legal Methodologies). The English law consisted of royal writs, Parliamentary statutes, customs, and precedents set in courts. These became in some regards increasingly rigid by the 14th and 15th centuries, but flexibility was introduced by means of the Royal Court of Chancery, which drew to some degree on Roman law notions. This was the so-called law of equity. The influence of royal courts and their remedies led to the waning of manorial and other local courts. The trend toward legal centralization in England was further fueled by the Crown’s break with Catholicism. By the 17th century the common law tradition, including much of the intervening developments in equity, served as the bastion of those who would resist the pretensions of the Stuart monarchs, especially Charles I (b. 1600–d. 1649). Developments in the commercial economy of Europe, intellectual and cultural trends, and religious turmoil would all pose problems in areas such as property law, contracts, marital relations and family prerogatives, and judicial procedures, and would call forth adjustments to resolve them.

The Canonists and the Mediaeval State

1953 ◽  
Vol 15 (3) ◽  
pp. 378-388 ◽  
Author(s):  
Brian Tierney
Keyword(s):  
Political Theory ◽  
Middle Ages ◽  
Common Law ◽  
Real Life ◽  
Practical Experience ◽  
Raw Material ◽  
Roman Law ◽  
Essential Ingredient ◽  
Legal Studies ◽  
The Middle Ages

Maitland once observed that, in the Middle Ages, “Law was the point where life and logic met.” This aphorism of the master must serve as my apology for including in one essay two topics so diverse, according to some opinions, as abstract political theory and concrete constitutional problems. It may be that the mediaeval jurists can provide a link between the two spheres, for their reflections on mediaeval government were not mere philosophical abstractions. They were rooted in real life. An essential ingredient of the jurists' raw material was a practical experience of the workings of mediaeval society. It is not surprising, therefore, that eminent historians on both sides of the Atlantic have called attention to the need for legal studies as a basis for further advance in mediaeval constitutional research, and that, in recent years, we have heard a great deal about the importance of feudal law and folk law, of Roman law and English common law in the formation of mediaeval ideas and institutions. My task will be to state briefly the case for the canonists.

scholarly journals Requirements for an Arbitrator: A Comparative Historical Approach

Lex Russica ◽  
2021 ◽  
pp. 101-111
Author(s):  
D. A. Kalinina
Keyword(s):  
Middle Ages ◽  
Life Experience ◽  
Freedom Of Expression ◽  
Customary Law ◽  
Roman Law ◽  
General Idea ◽  
Significant Feature ◽  
Modern Times ◽  
Historical Comparison ◽  
The Middle Ages

The paper presents a comparative legal and comparative historical analysis of one of the aspects of the institution of the arbitration, namely, the election of an arbitrator. The contractual, non-state nature of arbitration leaves the disputing parties with a wide freedom of expression, including in determining the personality of a mediator or intermediaries in resolving a dispute. The paper focuses on identifying the key features that the disputing parties should pay attention to when choosing an arbitrator (judges). The Roman jurists established comprehensive and justified set of personality traits that an arbitrator should possess in order to maintain the general idea of the conclusiveness of judicial decisions. According to the norms of Roman law, an arbitrator must be a free person, physically healthy, with a developed intellect, with life experience, not tainted by immoral acts, not involved in illegal activities, not interested in a certain outcome of the case. In the Middle Ages, the system of mandatory requirements for a mediator in a dispute was reduced due to the simplification of public relations regulated by customary law, which was reflected in legislative documents. Priority was given to the high social stratum, ethnic and religious conformity of the judge to the disputing persons. In modern times, the freedom of litigants to choose arbitrators is almost absolute, taking into account the tendency to individualize the interests of the parties to the conflict and the inability to take into account all the particular circumstances of various disputes that could affect the choice of an arbitrator. Only when resolving economic disputes, the parties were guided by the judge’s special knowledge, which makes it possible to understand the essence of the property dispute and make a fair decision. The analysis made it possible to identify the continuity of the provisions of Roman law and the requirements imposed on the arbitration intermediary in the Middle Ages and Modern times. Historical comparison revealed a tendency to reduce the number of mandatory features of the candidate for arbitration, which determined the growing importance of the freedom of the disputing parties as the most significant feature of the arbitration court.

Medical management of urolithiasis in the Middle Ages: Thesaurus Pauperum of Pope John XXI

2019 ◽  
Vol 87 (2) ◽  
pp. 75-79
Author(s):  
Daniele Castellani ◽  
Michele Pucci ◽  
Cristian Cicconetti ◽  
Maria Pia Pavia ◽  
Marco Dellabella
Keyword(s):  
Middle Ages ◽  
Medical Management ◽  
Comprehensive Analysis ◽  
Evidence Based ◽  
Ordinary People ◽  
Review Of The Literature ◽  
Medical Book ◽  
The University ◽  
Based Medicine ◽  
The Middle Ages

Background/Objective: This paper will present a brief description of medicine in the Middle Ages, and more comprehensive analysis of the medical management of urolithiasis in Thesaurus Pauperum, the main text of Pedro Hispano. Method: An in-depth reading of the Italian translation of Thesaurus Pauperum, and a review of the literature of the life of Pedro Rebuli Guiliani, known as Pedro Hispano, was performed. Result: Pedro Hispano was born in Portugal around 1205. He studied philosophy, theology and medicine in Paris. He was named professor of medicine at the University of Siena in 1247 and was elected Pope, as John XXI, in 1276. His primary medical book was Thesaurus Pauperum (‘Treasure of the Poor’), a prescription handbook for common diseases, directed not only to physicians but also to ordinary people. We focused on the description of medical management of urolithiasis in Thesaurus Pauperum. Conclusion: This text is interesting not so much on account of the pharmacopoeia used, but instead, because it is, probably, one of the first medical text reporting therapeutics close to the modern evidence-based medicine.

The Emergence of Professional Law in the Long Twelfth Century

2003 ◽  
Vol 21 (2) ◽  
pp. 347-366 ◽  
Author(s):  
Susan Reynolds
Keyword(s):  
Middle Ages ◽  
Twelfth Century ◽  
Legal History ◽  
Western Europe ◽  
Customary Law ◽  
Roman Law ◽  
Early Medieval ◽  
American Tradition ◽  
Professional Law ◽  
Anglo American

The object of this article is to draw attention to an area of European legal history that I think deserves more investigation. It is the change in legal practice caused by the transition from the diffused, undifferentiated, customary law of the earlier middle ages to the various forms of expert, esoteric, professional law that dominated the higher courts of the later middle ages. The suggestion that this has not been much studied may seem odd but, though much has been written on the new study of Roman law, those who work on it have tended to concentrate on the intellectual achievements of the glossators and post-glossators, rather than on practice. Practice in canon law has received more attention, notably from legal historians trained in the Anglo-American tradition, but this has not focused closely on twelfth-century origins. The beginnings of English common law have also been much studied and, since it started off as largely a matter of procedures, that has indeed meant looking at practice. The traditional teleology of legal history has, however, prevented much cross-fertilization with the history of other legal systems. One example of the consequent detachment of English legal history is the assumption of some English legal historians that Roman law procedures were followed in what they often characterize simply as “the Continent” more generally and earlier than seems to have been the case in most areas north of the Alps. Both in England and elsewhere many legal historians concentrate on the period from the thirteenth century on, when sources become more plentiful. Meanwhile, social historians of early medieval western Europe, including England, have argued—to my mind successfully, though I am hardly unprejudiced—that early medieval law was not just a weak, ritualized, and irrational response to feuds and violence, but their investigations tend to stop before the professionals took over. The result is that, apart from recent pioneering work on twelfth-century Tuscany by Chris Wickham, the transition in court practice outside England has been neglected.

The Middle Ages Through Modern Eyes. A Historical Problem The Prothero Lecture

1999 ◽  
Vol 9 ◽  
pp. 121-142
Author(s):  
Otto Gerhard Oexle
Keyword(s):  
Middle Ages ◽  
Roman Law ◽  
Medieval Philosophy ◽  
Courtly Culture ◽  
Institutional Structures ◽  
Byzantine Church ◽  
City State ◽  
The University ◽  
The City ◽  
The Middle Ages

The title of this essay can be interpreted in two ways. One possibility might be to show how our times in their thinking, patterns of behaviour, and institutional structures still continue to be shaped by that distant era of the Middle Ages. In other words, one could show the lingering impact of the Middle Ages until the present day. This sort of approach brings many things to mind: the division of Europe into East and West, through the Roman and the Byzantine church; medieval philosophy and the influential reception of Roman law and its effects which can still be discerned today; knighthood and courtly culture; the development of the ‘modern’ state; the continuing influence of social groups and their systems of values and institutions such as vassalage, the university, and the city state; and last but not least, the division into competing states and nations that is so distinctive for Europe.

scholarly journals Beirut law school and its place for continued Roman law traditions in late Antiquity and the Middle ages

2021 ◽  
Vol 16 (2) ◽  
pp. 111-119
Author(s):  
Malina Novkiriska-Stoyanova
Keyword(s):  
Middle Ages ◽  
Late Antiquity ◽  
Law School ◽  
Roman Law ◽  
Historical Study ◽  
Law Schools ◽  
The University ◽  
The Middle Ages

The review is dedicated to a new and analytical legal and historical study of Dr. Piotr Sadowski, professor of Roman law at the University of Opole, Poland for the Beirut Law School, its teachers, students and its significant place as one of the three imperial law schools (along with Rome and Constantinople), approved by the Emperor Justinian, as well as its place for the continuation of Roman tradition in late Antiquity and the Middle Ages.

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