scholarly journals Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

2021 ◽  
Vol 47 (4) ◽  
pp. 157-187
Author(s):  
Tomasz Giaro
Keyword(s):  
Roman Empire ◽  
Middle Ages ◽  
Canon Law ◽  
Structural Features ◽  
Public Institution ◽  
Roman Law ◽  
Spiritual Power ◽  
Legal Tradition ◽  
Marriage And Family ◽  
Medieval Universities

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.

Early “Italian” Scholars of Ius Gentium

2020 ◽  
pp. 19-47
Author(s):  
Claudia Storti
Keyword(s):  
Roman Empire ◽  
Middle Ages ◽  
Legal Order ◽  
Roman Law ◽  
Legal Tradition ◽  
Shared Set ◽  
Law Of Nations ◽  
International Legal Order ◽  
The Law ◽  
Ius Gentium

Between the twelfth and fifteenth centuries several issues led jurists to rethink the international legal order established in the Roman Empire and the Early Middle Ages. The first was the need to update the list of the law of nations legitimate subjects after the birth of the commune that had not been accounted for in Roman-law sources. The second was to recreate a superior and universally shared set of ‘public’ law rules for international relations to counteract the tendency of communal and monarchical governments to consider the law inter gentes as a form of internal law. In order to address this issue Bartolus of Sassoferrato adapted the Roman category of ius gentium to the features of the medieval geopolitical context. Other topics focused on defining the enemy, freedom of peoples, and treaties among unequal subjects, while the theory of ius gentium of Alberico Gentili was fully rooted in the medieval and early modern legal tradition.

Alma Mater Studiorum. O genezie i początkach uniwersytetów

2017 ◽  
Vol 15 (2) ◽  
pp. 9-22
Author(s):  
Marek Maciejewski
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
18Th Century ◽  
Ancient Greece ◽  
Roman Law ◽  
Institutions Of Higher Education ◽  
13Th Century ◽  
New Era ◽  
Conducting Research ◽  
The 19Th Century

The origin of universities reaches the period of Ancient Greece when philosophy (sophists, Socrates, Plato, Aristotle, stoics and others) – the “Queen of sciences”, and the first institutions of higher education (among others, Plato’s Academy, Cassiodorus’ Vivarium, gymnasia) came into existence. Even before the new era, schools having the nature of universities existed also beyond European borders, including those in China and India. In the early Middle Ages, those types of schools functioned in Northern Africa and in the Near East (Baghdad, Cairo, Constantinople, cities of Southern Spain). The first university in the full meaning of the word was founded at the end of the 11th century in Bologna. It was based on a two-tiered education cycle. Following its creation, soon new universities – at first – in Italy, then (in the 12th and 13th century) in other European cities – were established. The author of the article describes their modes of operation, the methods of conducting research and organizing students’ education, the existing student traditions and customs. From the very beginning of the universities’ existence the study of law was part of their curricula, based primarily on the teaching of Roman law and – with time – the canon law. The rise of universities can be dated from the end of the Middle Ages and the beginning of modernity. In the 17th and 18th century they underwent a crisis which was successfully overcome at the end of the 19th century and throughout the following one.

11. Roman Law and the European Ius Commune

2020 ◽  
pp. 359-394
Author(s):  
Paul J. du Plessis
Keyword(s):  
Roman Empire ◽  
Western Europe ◽  
Roman Law ◽  
Modern World ◽  
Conceptual Basis ◽  
Legal Tradition ◽  
Ius Commune ◽  
The World ◽  
Common Framework ◽  
Formed Part

The term European ius commune (in its historical sense) signifies that, from the fourteenth to the start of the sixteenth centuries, most of Europe shared a common legal tradition. Many local and regional variations on the law existed, but the terminology, concepts, and structure provided by elements of Roman law provided a common framework. This chapter traces how Justinian’s codification came to influence the modern world. The influence of Roman law in the modern world is immense: it constitutes the historical and conceptual basis of many legal systems throughout the world. Its impact has not been confined to those countries in Western Europe that historically formed part of the Roman Empire. Wherever Europeans went, they normally took their law (usually based to some extent on the principles of Roman law) with them.

scholarly journals Recepcija rimskog prava na glagoljici

2020 ◽  
Vol 41 (2) ◽  
pp. 469-482
Author(s):  
Ivan Milotić
Keyword(s):  
Dispute Resolution ◽  
Canon Law ◽  
The Other ◽  
Roman Law ◽  
Legal Tradition ◽  
Legal Principles ◽  
Ius Commune ◽  
Roman Model ◽  
Substantive Law ◽  
Made In

The protocol of Petar Lazarić, who was simultaneously a domestic priest, prebendary and a notary of Mošćenice, dates back to 1621. It originated in Mošćenice and records in glagolithic script a resolution of a private dispute concerning the property division which was achieved in arbitration. Although the wording of the documents reveals the glagolithic script and is fully made in the Croatian language, if we go beyond that and explore the origins of the essential terms and expressions, we may reach a conclusion that the document substantially records Latin (or Italian) legal technical language which was slightly Croatised in the process of its adoption into the legal system of the commune of Mošćenice. Moreover, the content of the document puts forth legal principles, concepts and institutes of the extrajudicial dispute resolution which were consistently applied in Mošćenice following the model of arbitration in Roman law. All the essentials of the document at hand reflect the strong influences of the Roman legal tradition and the ius commune. The author provides an analysis in this paper which addresses all the relevant institutes that were applied in the arbitration dispute at hand referring to the procedural and substantive law at the same time. The author searches for the Roman model of these institutes, evaluates them from perspective of Roman and canon law of the Middle and New Ages and, finally, he brings this particular legal source in relation to the other two which originated in Mošćenice in the first half of the 17th century that both record significant influences of the Roman legal tradition of the time: The Statute of Mošćenice of 1637 and the boundary dispute between Lovran and Mošćenice of 1646.

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.

scholarly journals The 110th birth anniversary of Professor Leszek Winowski (1910–1979), expert in Canon Law, historian of state and law

2020 ◽  
Vol 18 (2) ◽  
pp. 119-133
Author(s):  
Włodzimierz Kaczorowski
Keyword(s):  
Middle Ages ◽  
Canon Law ◽  
Scientific Work ◽  
Roman Law ◽  
Full Professor ◽  
Ecclesiastical Law ◽  
Catholic University ◽  
History Of ◽  
Church Law ◽  
The Baltic

Prof. Leszek Józef Egidiusz Winowski was born on 23 January 1910 in Skałat, Tarnopol Voivodeship, in the Eastern Lands of the Second Polish Republic. He studied in the Faculty of Law of Jan Kazimierz University in Lvov, where he earned the Master’s degree (1932), Doctor’s degree (1935), and in 1936 began his scientific work in the Chair of Church Law; from 1942 he was working in conspiracy in Lvov and cooperated with theBaltic Institute in Sopot; in Olsztyn he organized a branch of the Baltic Institute, which was operating in the Masurian District. In 1945, Leszek Winowski was employed in the Department of Law and Administration of Wrocław University and in 1974 he was granted the title of Full Professor. At the same time he worked in the Catholic University of Lublin, where he held the post of Dean of the Faculty of Law and Social Sciences in the years 1945-1946 and – following its liquidation – he worked in the Faculty of the Canon Law where he lectured in Roman law and ecclesiastical law. In 1957, L. Winowski resigned from his work in the Catholic University of Lublin. Between 1957 and 1968, he was employed in the Teacher’s Training College in Opole, still working for Wrocław University. As regards the fields of scientific studies developed by Prof. Leszek Winowski, one candistinguish three main directions dealing with the legal situation of dissenters from the earliest Middle Ages, the state and law of Islam, and lastly – history of the Church in Silesia. Prof. Leszek Winowski was awarded the Knight’s Cross of the Order of Polonia Restituta. He was a member of many scientific societies. He died in Wrocław on 16 November 1979.

Roman Law

2014 ◽  
Author(s):  
Thomas Izbicki
Keyword(s):  
Roman Empire ◽  
Canon Law ◽  
Common Law ◽  
Public Law ◽  
Roman Law ◽  
Real Property ◽  
The West ◽  
The Common ◽  
The Law ◽  
The Republic

During the Middle Ages, law loomed large in efforts to manage life situations, beginning with the adaptation of late imperial law to the successor or barbarian kingdoms of the West. Alongside local law and custom, the learned law was increasingly used to answer questions and settle disputes about family issues such as marriages and dowry, property and inheritance, contracts, and crime. Study of the law, not only as taught at the universities but as used to advise judges who lacked formal training, illuminates the status of women and children under patriarchy. Although Roman law was geared more to private than public law, political issues were addressed. Moreover, Romanistic procedure had a wide influence across Europe. Even where Roman law was not received, it had its influence via canon law and specialized courts. This is evident in England, where the common law governed real property, but canon law introduced the possibility of testamentary disposition of certain possessions. Similarly, the admiralty courts dealt with issues such as navigation and salvage on the basis of civil law. Roman law began in the Republic, beginning with the Twelve Tables of the Law (450 bce), resulting from struggles between patricians and plebeians. Under the Republic certain men knew the laws; but there were no legal careers. The most important judicial document was the praetor’s edict about procedure, the foundation of later jurisprudence. Both the popular assemblies and the Senate legislated for both the private and the public spheres, and the jurisconsults of the imperial period commented on their enactments. The Roman Empire produced jurisconsults able to give authoritative advice, and some wrote on the laws. Emperors legislated, and collections of their laws were compiled. The most important, the Theodosian Code (438–439 ce), influenced the Latin churches and the codes of the Western barbarian kingdoms. In the East, the study of law continued. Eventually Justinian I ordered systematization of centuries of jurisprudence. The Institutes served as a textbook. The works of the jurisconsults were divided topically in the Digest (Pandects). Imperial decrees were collected in Justinian’s Code with supplements in the Novellae. This Corpus iuris civilis (529–534 ce) was diffused throughout Justinian’s empire but had little influence in the West for centuries. The largest part of Justinian’s corpus is concerned with private, rather than public, law. Later jurists retained that focus in most of their writings. Revived study of Roman law in the West is tied traditionally to recovery of the Digest (c. 1070 ce). The teaching of law took root at the University of Bologna. The Glossators expounded texts and annotated (glossed) them. The Bolognese curriculum divided the Digest into Old Digest, Infortiatum, and New Digest. The first nine books of the Code were treated together, while the Institutes, last three books of the Code and Authenticum, a version of the Novellae, with two books on feudal law, made up the Volume. The direction of study changed in the 14th century. The Commentators (Post-Glossators) created detailed expositions of the entire corpus. The Commentators predominated even after humanists criticized their Latin and their interpretative methods. Works on procedure or specific topics, records of disputations, and opinions (consilia) on cases were written. All of these genres originated in the manuscript milieu, but many texts were printed beginning in the 15th century. Lawyers trained at the universities taught, provided advice, served as judges, and worked as bureaucrats. In much of Italy, the learned law was fused with elements of feudal law in the ius commune (common law). Most consilia engaged both the common law and the ius proprium of localities to be relevant in specific contexts. The Roman law was received through much of Europe in the late medieval and Early Modern periods, but its influence in England was mostly indirect.

The Legal Context of the Findings of Limyra

2014 ◽  
Vol 5 (2) ◽  
pp. 245-258
Author(s):  
Eva M. Synek
Keyword(s):  
Roman Empire ◽  
Canon Law ◽  
Roman Law ◽  
Legal Context

This article surveys both canon and imperial law for legislation regarding Jews and Judaism until the 8th cent. C. E. Judaism was recognized by Roman law as a religio licita and Jewish rights were thus protected. But with the rise of Christianity to the official religion of the Roman empire imperial legislation disadvantaged Jews increasingly. Nevertheless Judaism remained a religio licita and different from pagans or heretics, Jews retained certain rights and a limited protection of the Roman state. The legislative situation in Roman imperial law reflects Christian canon law.

scholarly journals Comments on the Influence of Canon Law on the Common Law Legal Tradition

2019 ◽  
Vol 20 (1) ◽  
pp. 5-30
Author(s):  
Javier Martínez-Torrón ◽  
Lorraine Hernández
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Roman Law ◽  
Considerable Influence ◽  
Legal Tradition ◽  
Evolutionary Path ◽  
Conventional View ◽  
The Common

In this paper, the author questions the conventional view that the civil law and common law traditions are radically different in their reception of Roman Law. He argues that Roman Law concepts, mediated by canon law, exerted a considerable influence over the common law. He identifies a number of channels through which this influence has shaped common law concepts. Thus, canonical equitas probably served as a model for the equitable rules bases on good faith. Although common law evolved in a distinctive way, because of procedural considerations, its evolutionary path had already been followed by that of canon law.

scholarly journals Bona fides (poštenje posjeda) kod zastare (praescriptio acquisitiva) i dosjelosti (usucapio) – prilog raspravi o suodnosu kanonskog i hrvatskog prava

2021 ◽  
Vol 70 (6) ◽  
pp. 755-781
Author(s):  
Henrik-Riko Held ◽  
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Good Faith ◽  
Roman Law ◽  
Legal Tradition ◽  
Holy See ◽  
Reasonable Possibility ◽  
Adverse Possession ◽  
The Republic ◽  
The Right

The author analyses bona fides, or possession in good faith, as a prerequisite of the canonical praescriptio acquisitiva and the adverse possession as set forth in contemporary Croatian law in their interrelationship. The problem stems from the fact that the Treaty between the Holy See and the Republic of Croatia on legal matters, being an international treaty and thus having precedence over Croatian laws according to the Croatian constitution, in certain circumstances allows for a direct application of canon law within the Croatian legal system. The aim of this paper is to analyse whether this also applies to bona fides in adverse possession, and if so, in which way exactly. The canonical praescriptio in the context of the Roman legal tradition is analysed first in order to clarify certain terminological and conceptual discrepancies between canon law and Croatian law in this field. Bona fides regarding usucapio and praescriptio of Roman law and the Roman legal tradition is then particularly addressed. The central part of the paper deals with canonical bona fides, where it is specifically noted that it is a stricter standard in comparison to good faith as found in Croatian law. Canon law requires positive good faith throughout the whole required prescription period, meaning knowledge or a reasonable possibility of knowledge of having a right to possess, not infringing the right of another thereby. On the other hand, Croatian law requires knowledge or possibility of knowledge at the outset, while later on only acquired knowledge will render possession illicit. In addition, the Croatian standard of good faith is conceived more simply in comparison to the twofold canonical standard, i.e. only as the absence of knowledge or possibility of knowledge of not having a right to possess. Although both systems presume good faith, those differences may prove crucial if an interested party (owner of property being prescribed) offers evidence to the contrary. Finally, our analysis of the Treaty between the Holy See and the Republic of Croatia on legal matters revealed that the canonical standard of bona fides should be applied whenever a juridical person of the Catholic Church in Croatia acquires property by means of adverse possession, but by all accounts also when any other person acquires Church property in the same way.

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