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The Evolution of Legal Systems
from Antiquity to the Early
Modern Period
Medieval and Modern Legal History
History
Antiquity : Until 476 (fall of the Roman Empire)
Middle Ages : 476-1453 (fall of the Eastern Roman Empire) or 1492 (discovery of the USA)
Divided into early, high, and late Middle Ages
In Italy, the watershed between the high and late Middle Ages is set at the Peace of Constance (1183)
Early Modern Period : 1492-1789 (end of the Ancient Regime)
Contemporary Period : 1789 (beginning of the French Revolution)-1914 (World War I) or 1939 (World War II)
Legal History
Late Antiquity : 284 (Diocletian)-565 (Justinian)
Middle Ages : 589 (Lombard invasion of Italy)-16th century (rise of the modern dynastic territorial state)
Divided into High Middle Ages (Roman law disappears) and Late Middle Ages (renaissance of Roman law and rise of ius commune)
Early Modern Period : 16th century-1804 (Napoleon's Code, crisis of ius commune)
Late Modern Period : 1804-1917 (codification of canon law)
After 1917: Contemporary History
Crisis of the Roman Empire
The crisis of the Roman Empire started in the 3rd century and ended with the collapse of the Roman Empire. The following elements contributed to this crisis:
1. Instability due to succession and fear of the emperor
himself
At the beginning of the Empire, emperors acted like magistrates of the Empire, pretending to hold offices of the Republic. With Diocletian, the DOMINATE began, where the ministers are the servants of the rulers. There was a new idea of emperors as domini (masters), but their position was not protected or legitimized by a constitution. This led to instability, as there were no clear rules defining the figure of the emperor, and all the domini died due to assassination or deposition.
2. Defending the borders
The Empire was quite large, and enemies were pushing to enter the borders. The necessity of constant vigilance on the borders meant that emperors could no longer stay peacefully in Italy but had to move and defend the borders of the Empire. This had effects on the emperor and the military element.
3. The vastness of the Empire
It was difficult to govern such a vast territory with only one emperor and a centralized administration. The territory of the Empire was so vast that it was virtually impossible to control it from Rome or from where the emperor was staying at the moment. The DOMINATE brought the idea of a central ruler, but how could he control such a vast territory without an efficient network of officers?
Christianity and the Roman Empire
The Conflict between Christianity and Paganism
Christianity posed a significant challenge for the Roman Empire. The official religion of the empire was paganism, which was polytheistic, while Christianity was a monotheistic religion. The only other monotheistic exception at the time was Judaism, which was tolerated, but it was different from Christianity because the Jewish communities were primarily confined to Palestine, whereas Christianity had a much wider spread throughout the empire. Additionally, while Jews did not actively seek to convert others to their religion, Christians were very successful in their efforts to proselytize and expand their faith.
The Roman Emperors sought to strengthen their image and authority on both a factual and ideological level. They presented themselves as dominant and god-like figures, with the titles "Dominus" (Lord) and "Deus" (God). Emperors began wearing robes adorned with precious stones, and people were required to bow before them and consider them as divine beings. This
Theodosius and the Establishment of Christianity as the
Official Religion
Under Theodosius, Christianity was established as the official religion of the Roman Empire, replacing the previous coexistence of paganism and Christianity. Theodosius had a notable encounter with Saint Ambrose, the Bishop of Milan, who asserted the authority of the Church over the Emperor, even as a sinner. This marked a significant shift in the relationship between the Church and the Empire.
Invasions, Migrations, and the Transformation of the
Western Roman Empire
The Roman Empire faced waves of ethnic migrations and invasions, which posed significant challenges to its borders and authority. The Roman strategy shifted towards making these groups allies, known as "milites foederati," through treaties that granted them land and military roles in exchange for their loyalty and defense of the empire's borders.
This process led to the gradual transformation of the Western Roman Empire, as the Germanic tribes and their kings became increasingly integrated into the Roman system. The title of "Patrician," originally used to indicate the ancient Roman nobility, was granted to these Germanic leaders, creating a fictitious link to the Roman past.
The Western Roman Empire eventually collapsed, with the last emperor, Romulus Augustulus, being deposed by the Germanic king Odoacer in 476 CE. However, the Eastern Roman Empire, centered in Constantinople, continued to exist for several more centuries.
The collapse of the Western Empire did not lead to a complete break with the Roman past. The new Germanic kingdoms that emerged in the West incorporated many aspects of Roman culture, law, and administrative structures, leading to a gradual transformation of the Western world.
The Traditional Source of Law for Germanic
Peoples
Customary Law vs. Statutory Law
The traditional source of law for Germanic peoples was customary law, which is flexible and comes from the repetition of behaviors by members of society over time. This is coherent with the ascending theory of power, where laws come from the members of society who do something and believe in something. In contrast, statutory law is coherent with the descending idea of power, where laws come from the authority and can be easily changed. Germanic people used exclusively customary laws, as they had an oral culture, while statutory law is a written culture.
The Meeting with the Romans
The meeting with the Romans brought the necessity of written laws in order to create an empire, such as laws for the army, criminal laws, and administrative laws. Roman laws started to be used in the everyday life, not just in the army. The kings of Germanic kingdoms started preparing collections of Roman laws, mixing and adapting them to their customary laws. These collections were a selection of the most important provisions of Roman laws, written in a simplified version to be understood by the Germanic people.
The Theodoric Edict
Historians have doubted the origins of the Theodoric Edict, as it was not mentioned by Theodoric's successors, but it deals with provisions related to the Italian territory. The Edict was a collection of 154 rules and regulations, which were not new laws but brief restatements in simple language of existing Roman laws. The Edict was a handbook issued for the convenience of judges, covering the cases that were likely to come most frequently before the courts. The rules of the Edict applied to Goths as well as to Romans, and no provision was made for the recognition of their own national customs and usages.
Roman Law and Common Law
Roman law is more similar to today's common law than our model of civil law, as the original idea of law is not so far from the idea of common law created case by case. In common law, the cases taken into account are cases where there is a court passing judgments that become laws, while in Roman law, the king or the opinion of jurists create the law. Another possible misunderstanding is the meaning of "code" and "codification," which are common words in legal history. The idea of codification (born in the 18th century) is the idea of creating a new law that enables a society with a legal system to avoid misunderstanding and uncertainty.
The Sources of Roman Law
The two main sources of Roman law were: Imperial Legislation: Constitutions (laws issued by emperors) Work of Jurisprudence: Interpretation of laws by jurists, whose opinions were influential and used outside the specific case.
2. Digesta (530-533)
This was a collection of the best fragments of Roman jurisprudence, including the works of the most authoritative Roman jurists. The Digesta was given the same authority as imperial constitutions, and Tribonian and his team had the power to modify the texts (interpolation) and eliminate what they deemed unnecessary, resulting in the loss of many fragments of jurists' works.
3. Institutiones (533)
This contained the Institutiones by Gaius, a text on Roman law that was used in schools.
These efforts by Justinian and his team changed the dimension and authority of the included legal texts, effectively centralizing and systematizing Roman law.
The Birth of European Culture
New Civilization and New Culture
The new civilization and culture that formed in Europe was influenced by the Greeks, Romans, Christians, Jews, and Germanic and Celtic cultures. The idea of the state that remained in the early Middle Ages was the idea of the state developed by the Romans and the idea of the Roman Empire. The Byzantine Empire inherited the Roman idea of administration and law, as well as the Greek idea of kingship.
Christianity had a difficult relationship with the Jews, its roots. The Germanic/Celtic cultures were the result of the mingling of the original Celtic cultures before the arrival of the Germanic tribes and the Germanic culture. These tribes settled in the imperial territory and took the place of the imperial authority because some of those Germanic/Celtic kingdoms had been living before the Romanization (part of Spain, France, Britain), the Romans had conquered those territories inhabited by Celtics.
Disintegration of the Roman World
The barbarian kingdoms: one coming from Roman roots and the other from Germanic invasions. The end/collapse of the Mediterranean world, the center of power shifted to a European dimension, increased with the rise of Islam. New kingdoms were born after the crisis of the West. The idea of sovereignty and kingship is a weaker idea when compared to the idea of kingship and sovereignty typical of the Roman Empire and the Byzantine Empire.
The King and the Idea of Sovereignty
The king was a military leader. The original title was that of DUKE and not of king. The title of duke highlights the idea of someone that has to lead you. The Romans started to call those military leaders "kings" and the leadership had the function to bring people in war. This means that they are not going to play a role when they are at peace, they are leaders in time of war and especially while they are migrating. Once they have settled in the territory the idea of sovereignty had a sort of instability and descending idea. He was selected or elected from the most important warriors of the tribe. Usually those Germanic people fought in clans. Different tribes linked in people. The most important person in the tribe was the king but was dependent of the approval of different groups.
The "king" is a title which those Germanic tribes adopted after the Romans started to identify their military leaders of all people with "kings" and the "duke" was a title for the military leader of the tribe. Sometimes the military leader of all people had the title duke and then changed it in king because the use of the word Romans had. Based on the personality of the king and the time period, some of them were strong king and others, such as Theodoric, had a weaker role. We can't longer count on a central government that was so much weaker. There was still the idea that there should be a central government.
The Manorial System
The upper class of the time, so Roman nobles' descendants left Italy and built villas in the countryside that could have been defended very well, they lived there with servants and slaves. This person became a sort of local political authority and often the Germanic settlers didn't interfere with this situation that was created in Italy. What we see is again a breach of the idea of distinction between private and public law: you are going to be the ruler of the territory so it is not a matter of private law but also public. The dependence of the population of a certain territory from the most important landowners of that territory is no longer simply the dependence on an economic level but is transformed in a political and public level, so these people are subjects rather than simply clients of that landowner. The territory changed into dominos/manors.
The Origins and Evolution of Manorialism
Manorialism originated in the Roman villa system of the Late Roman Empire and was widely practiced in medieval western and parts of central Europe. It was an essential element of feudal society and was slowly replaced by the advent of a money-based market economy and new forms of agrarian contract.
The Monastic Cloister and Manorialism
In examining the origins of the monastic cloister, Walter Horn found that 'as a manorial entity the Carolingian monastery ... differed little from the fabric
toward his people legitimized the king's command. Assemblies lost power under the selection of the new king, but their judicial role remained important, as they were called upon to determine the customary law in disputed cases.
Salic Law
The Salic law, a customary law of the Salian Franks that was later written down, is one of the first contributions to Germanic law in this Romanic- German culture. It provided written codification of both civil and criminal law, and its principle of exclusion of women from inheritance of thrones, fiefs, and other property had a formative influence on the tradition of statute law in Western and Central Europe.
The Transformation of Criminal Law
In the Germanic idea of criminal law, crime was generally seen as an offense against the victim rather than against society. However, the king had to bring peace where it had been broken, as the usual reaction of revenge could be destructive for society. The king acted as an intermediary between the offender and the victim, and criminal justice became a way for the king to grant peace to his people, transforming criminal law from a private to a more public issue.
The Relationship between the Pope and the
Emperor
Pope Gelasius, in the late 5th century, tried to redefine the role of the Pope as a civil servant under the Western Emperor. This led to a struggle to define the respective authorities of the Pope and the Emperor, with the Pope ultimately asserting the superiority of the spiritual dignity over the temporal dignity of the Emperor.
The Lombard Edict of Rothari
The Lombard Edict of Rothari
The Edictum Rotharis, or Edict of Rothari, was the first written compilation of Lombard law, codified and promulgated on 22 November 643 by King Rothari. According to the 8th century Lombard historian Paul the Deacon, the customary law of the Lombards (Lombardic: cawarfidae) had been held in memory before this.
The Edict, recorded in Vulgar Latin, comprised primarily the Germanic custom law of the Lombards, with some modifications to limit the power of feudal rulers and strengthen the authority of the king. The Edict, divided into 388 chapters, was primitive in comparison to other Germanic legislation of the time, and was also comparatively late, as the Franks, Visigoths, and Anglo-Saxons had all compiled codices of law long before.
Unlike the 6th century Breviarium Alaricianum of Visigoth king Alaric II, the Edict was mostly Germanic tribal law dealing with weregilds, inheritance, and duels, not a code of Roman law. In spite of its Latin language, it was not a Roman product, and unlike the near-contemporary Forum Iudicum of the Visigoths, it was not influenced by Canon law. Its only dealings with ecclesial matters was a prohibition on violence in churches.
The Content and Structure of the Edict
The Edict gives military authority to the dukes and civil authority to a schulthais (or reeve) in the countryside and a castaldus (or gastald) in cities. It was written down by one Ansoald, a scribe of Lombard origin, and was affirmed by a gairethinx convened by Rothari in 643. The gairethinx was a gathering of the army that passed the law by clashing their spears on their shields in old Germanic fashion, a fitting passing for a Latin code that was so Germanic.
The Edict makes no references to public life, the governance of trade or the duties of a citizen; instead, it is minutely concerned with compensations for wrongs, a feature familiar from the weregild system of Anglo-Saxons and the defence of property rights. Lombard women were afforded notable respect, with severe penalties for those who would 'place themselves in the way' of a free woman or girl. Property was a major concern, with many laws dealing specifically with injuries to an aldius (semi-free man) or to a household slave.
In the laws pertaining to inheritance, illegitimate offspring had rights as well as legitimate ones, and no father could disinherit his son except for certain grievous crimes. Donations of property were made in the presence of an assembly called the thinc, which gave rise to the barbarous Latin verb thingare, to grant or donate before witnesses.
Judicial Procedures and Application of the Law
In judicial procedure, a system of compurgation prevailed, as well as the wager of battle. The general assembly of free men continued to add ritual solemnity to important acts such as the enactment of new laws or the selection of a king. Lombard law applied to Lombards solely, while the Roman population ruled by Lombard aristocracy expected to live under long- codified Roman law.
The Edict stipulated that foreigners who came to settle in Lombard territories were expected to live according to the laws of the Lombards unless they obtained from the king the right to live according to some other law.
Additionally, the edict outlines different levels of freedom for slaves who were being freed. The first level allowed the slave to be free but still under the jurisdiction of the dominus (ALDO), a form of "half slavery." The second level granted the slave more freedom, but with certain duties to the master. The third level, known as "gairethinx," completely freed the slave from any obligations to the master.
This suggests a nuanced understanding of the concept of freedom and the gradual process of manumission within the Lombard legal system.
Conclusion
The Edict of Rothari is a complex and multifaceted legal document that provides valuable insights into the legal and social structures of the Lombard kingdom. Its remarkable features, such as the codification of customary laws, the involvement of the army in its approval, and the treatment of donation and levels of freedom, demonstrate the sophistication and evolution of Lombard legal thought.
Il Gairethinx e il Thinx nel Diritto Longobardo
Il Gairethinx
Il gairethinx (dal germanico "gaire" o "gêre", lancia, e "thinx", assemblea) era il corrispondente del conventus popolare romano. Le fonti lo utilizzano come sinonimo di "thinx" per indicare una forma di cessione di beni a titolo gratuito. Tuttavia, non si trattava di una donazione in senso tecnico, bensì di un atto formale volto a realizzare un tipo di successione volontaria (mortis causa).
Lo scopo pratico del gairethinx era analogo a quello conseguito dai Romani col testamentum, ma se ne discostava in diversi aspetti: - Era un atto formale concretantesi in un rito tipico - Aveva efficacia solo in assenza di figli legittimi, divenendo nullo qualora ne sopravvenissero - Non poteva essere sostituito da una successiva disposizione a favore di altri soggetti
Il beneficiario acquisiva i beni in possesso del disponente (thingans) solo alla morte di quest'ultimo. Il thingans aveva l'obbligo di non disperdere in vita il proprio patrimonio, salvo circostanze eccezionali dettate dalla necessità di provvedere alla propria sussistenza.
Il rito del gairethinx era pubblico e si svolgeva probabilmente dinanzi all'assemblea degli uomini liberi. L'Editto di Rotari vietava espressamente che la successione mortis causa si realizzasse oralmente o mediante atto privato del notaio. All'atto solenne partecipava un garante (gisel) che, in quanto uomo libero, si poneva come intermediario tra il thingans e il beneficiario.
Il Thinx
Il thinx era un atto mortis causa, con cui si disponeva del patrimonio a favore di estranei, ricalcando le forme del testamentum per aes et libram romano. Entrambi i casi confermano che il thinx altro non è che la germanizzazione della mancipatio.
Il Launegild
I popoli germanici, inclusi i Longobardi, non concepivano la concessione a titolo gratuito di beni o diritti, né la donazione sic et simpliciter, in quanto atti dispositivi che "diminuivano il patrimonio".
Il launegild (o launechild) era un istituto di diritto consuetudinario che ristabiliva una certa bilateralità nello spostamento di ricchezze, conferendovi anche una certa stabilità. Consisteva nella dazione di un oggetto come controprestazione, anche simbolica, di una donazione.
Originariamente, il launegild era commisurato all'entità della donazione, ma ben presto divenne meramente simbolico. Il suo effetto era quello di confermare la volontà del donante, evitando ripensamenti e doppie donazioni.
L'istituto rimase in vigore per tutto il Medioevo e venne ampiamente adottato anche da soggetti di nazionalità romana, a riprova delle contaminazioni e delle compenetrazioni tra l'elemento germanico e quello romano.
Il Mundio
Il mundio era uno degli istituti più noti del diritto civile longobardo. Il supremo mundialdo era il re; il figlio maschio, raggiunta l'età per portare armi, poteva uscire dalla tutela paterna e costituire un'altra famiglia. La donna, invece, rimaneva soggetta al mundio per tutta la vita.
Nonostante la donna fosse soggetta al mundio, poteva ereditare l'impero, poiché il diritto longobardo non riconosceva la legge salica. Tuttavia, la donna non poteva alienare o donare alcun bene senza l'autorizzazione del mundio.
Il mundio conteneva aspetti potestativi, protettivi e patrimoniali.
La Wadia
La wadia (dal latino "guadium") era una garanzia consistente nel dare in pegno i propri beni. Poteva essere: - Prestata dal debitore a garanzia della sua presenza nel placito (in giudizio) - Per assicurare l'esecuzione di atti processuali - Data come garanzia di un negozio reale, a mo' di cauzione per evitare future controversie, o come garanzia nel caso di differimento del
La pena di morte era applicata solo per ipotesi criminose ritenute di estrema gravità, come i regicidi, chi congiurava contro il sovrano, per sedizione e altri delitti contro la sicurezza del popolo, per tradimento e diserzione in battaglia, e per uxoricidio (uccisione della moglie da parte del marito). Pene severe erano previste anche per chi catturava e uccideva una donna, accusandola di stregoneria: oltre al guidrigildo, era comminata la confisca dei beni del reo.
Liutprand: Lombard Ruler and Reforms
Liutprand's Reign and Relationship with the Papacy
Liutprand was a strong ruler who managed to extend the Lombard reign. He threatened Ravenna and the Pope in Rome, causing them to shrink under the pressure of the Lombards. However, Liutprand later stopped pressuring the Pope and gave him back territories. This was because Liutprand realized it was better for him to convert the Lombards to Catholicism, as they were previously Arian Christians. Having the Catholic Church as an ally was important, rather than an enemy.
In some parts of Italy, the Pope was the main authority, leading to the creation of the Papal States. Liutprand's reign marked a shift, as the Pope was no longer seen as the connection to the Byzantine Empire.
Liutprand's Reforms
Liutprand introduced several reforms during his reign:
He gave more freedom for people to get married and give free consent. He broke the Roman tradition of testaments, allowing Lombards to decide to give their goods to the Church instead of their heirs. The Church that received the money had to pray for the soul of the deceased, so their soul could go to heaven. Liutprand attempted to reform the Lombard legal system, which aimed to bring peace rather than discover the truth. The system included trial by battle and trial by oath, where the winner was determined not by evidence, but by the community's trust in the parties.
Liutprand recognized that trial by battle was a flawed system, but he was unable to change it due to its deep roots in Lombard customary law.
Roman Law and the Lombard Legal System
The Legacy of Roman Law
Despite the Lombard invasions, the Italian territory managed to keep the legacy of the Corpus Iuris Civilis, the legal compilation of Justinian. However, the compilation was not kept as a complete text during the Middle Ages, a period lacking in legal experts and proper legal education.
The Institutes of Justinian were more useful and easier for people to understand, becoming the basis for legal teaching. Other parts of the Justinian compilation, such as the Novels and the Authenticum, had varying degrees of success and survival.
The Importance of Written Law in the Lombard System
The Lombard legal system placed a greater emphasis on written law over oral tradition, in contrast to other Germanic legal systems.
Women and Legal Literacy in the Lombard
Kingdom
Women in the Lombard kingdom participated in the literary culture and were involved in the execution of governmental directives, the management of royal estates, and written communication within the administration.
Law and Ethical Background
The law-making process in the Lombard kingdom was influenced not only by the emperor but also by the Church. In the Ostrogothic kingdom of Italy, the Senate in Rome was also involved in the law-making process.
Barbarian Laws
Barbarian laws, such as the Lombard Edict of Rothari, were legal documents that addressed various aspects of society, including crime and the use of violence. The Edict of Rothari introduced the concept of wergild, a system of monetary compensation for crimes.
The Lombard laws also included the concept of mundium, which placed women under the legal guardianship of their patriarch.
The Salic Law, which was mostly written in Latin, reflected the Lombards' military society more than other Germanic laws.
The principle of personal application of law, where different legal systems coexisted in the same territory, was a characteristic of the early Middle Ages.
The Carolingian Dynasty and the Papacy
The Carolingian kings, such as Pepin and Charlemagne, sought to enforce their kingship and used Roman laws to do so. The exclusion of daughters from succession to the throne became a characteristic of French kingship, influenced by the Salic Law.
The relationship between the Papacy and the Byzantine Empire deteriorated due to the issue of iconoclasm, leading the Papacy to seek an alliance with
The Carolingian Administrative Structure
The Carolingian Empire was divided into counties, with the marches playing a strategic role. The nobles in charge of the marches were hierarchically more important than the counts in charge of the counties. There were also dukes in charge of specific ethnic groups. This hierarchical division survived the breakup of the Carolingian Empire, leading to the beginning of a nobility class.
The Carolingian Legal System
Customary law played a vital role in the Carolingian Empire, with different customary laws existing in different parts of the empire. There were also some laws common to the entire empire, known as "CAPITULARIA," which were a semi-official collection of statutes issued by the Carolingian monarchs. These capitularia were divided into different types based on their relationship with customary laws.
The Carolingian Envoys
The Carolingian Emperors employed envoys known as "MISSI DOMINICI" who traveled through the territory of the empire, acting with loyalty to their monarch. These envoys, often drawn from the clergy, were more educated and had a stronger legal mentality than the counts, who were primarily military men. The missi dominici could oversee the judges and change the decisions of the courts.
The Capitularia and the Carolingian Legal
System
Capitularia Legibus Addenda
The Capitularia Legibus Addenda were additions made to the existing customary laws. They changed the content of the existing customary law, altering the traditional popular system of law. Some form of popular approval was needed, as they were changing the customary law.
Capitularia Per Se Scribenda
The Capitularia Per Se Scribenda had greater autonomy in relation to the law. They had little to do with the pre-existing customary law or completely changed the customary law in that area, introducing new norms. The Carolingian emperors took on the role of the Byzantine emperors in organizing the church and writing norms that the church had to follow. The church accepted the new norms of the Capitularia, to the extent that by the end of the 9th and 10th centuries, the church could no longer issue its own norms independently.
The Church and Canon Law
The church wanted to increase its own canon law, which are specific norms created by the church for the church (in the 11th and 12th centuries). The church created "force statutes," which were new norms presented as having been issued by the very first popes (a mythical dimension). The content and not the form was considered important - if a norm was good, it could not be false.
The Role of the Tithe
The tithe was a form of taxation imposed on the population for the church's needs, which still survives today. The church also had an important role in the administration of the empire, so the tithe was a way of paying someone with public duties.
The Feudal System
The Carolingians laid the foundations for the feudal system, even if it was not a fully developed feudal system at the time. The feudal system became of greatest importance in the 10th century and remained a central element in Europe until the French Revolution in 1789. The feudal system had roots in Germanic law, Roman law, and the church. The Germanic element was the most evident, as the entire system was primarily ruled by customary law, with only exceptional statutory law on feudalism.
The Elements of the Feudal System
Vassalage
Vassalage was based on the concept of fidelitas (fidelity), often involving a ceremony called the commendatio, where the vassal took an oath of loyalty to the lord. The vassal had to provide the lord with auxilium (military assistance) and consilium (counsel in administration). The vassal-lord relationship became hereditary over time.
Beneficium
The beneficium was a piece of land (or sometimes rights or privileges) granted by the lord to the vassal. The size of the beneficium was often proportional to the vassal's rank, with higher-ranking vassals receiving larger grants. The beneficium enabled the vassal to maintain a contingent of soldiers to fulfill his military obligations to the lord.
