Medieval Roman law
Encyclopedia
Medieval Roman law is the continuation and development of ancient Roman law
that developed in the European Late Middle Ages
. Based on the ancient text of Roman law, the Corpus iuris civilis, it added many new concepts, and formed the basis of the later civil law systems
that prevail in most countries today outside the common law
countries of the English-speaking world.
, such as the Visigothic Code
retained some features of ancient Roman law, the main texts of Roman law were little known until the rediscovery of the Digest in Italy in the late 11th century – see Corpus Juris Civilis: Recovery in the West. It was soon apparent that it was a massive intellectual achievement that it would take much time and study to assimilate. The first European university, the University of Bologna
, was set up in large part with the aim of studying it.
in the law of evidence.
Initially the rediscovered Roman law was not the law of any particular country or institution, but as lawyers trained in the concepts of Roman law came to dominate the legal profession, Roman law came to have an immense effect on law as actually practiced. For example, torture
was reintroduced into Europe as a means of acquiring evidence, usually when there was half-proof or more against a defendant but not yet sufficient proof for conviction.
English law
incorporated a substantial amount of Roman concepts through the works of Glanvill and Bracton
. But it adopted the non-Roman jury
system as the main form of evidence evaluation, thus remaining less influenced by Roman law than continental systems. However, some English courts, such as the Court of Admiralty
, operated on Roman law principles.
Canon law
, the law of the Roman Catholic Church
which governed such matters as marriage, developed in parallel with medieval Roman law and incorporated many of its concepts.
s of the 14th century, such as Bartolus de Saxoferato and Baldus de Ubaldis
, developed a more mature and deeper legal theory, less closely tied to the ancient texts. That gave the law sufficient flexibility to incorporate new concepts. For example, the first printed book on insurance
was the Roman Law treatise On Insurance and Merchants' Bets by Pedro de Santarém (Santerna), written in 1488 and published in 1552.
was heavily influenced by Roman law from the 15th century.
Roman law was in part incorporated in later codifications of continental law such as the Napoleonic Code
and hence formed a core of their successors, the civil law
systems of modern European and other countries.
Roman law also had wide influence on Western political theory
. Questions such as the scope and limits of government and the permissibility of tyrannicide
were seen in legal terms and discussed by writers whose primary training was in law. These ideas formed the basic of modern constitutionalism
, the idea that government should be bound by fixed legal norms.
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
that developed in the European Late Middle Ages
Late Middle Ages
The Late Middle Ages was the period of European history generally comprising the 14th to the 16th century . The Late Middle Ages followed the High Middle Ages and preceded the onset of the early modern era ....
. Based on the ancient text of Roman law, the Corpus iuris civilis, it added many new concepts, and formed the basis of the later civil law systems
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
that prevail in most countries today outside the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries of the English-speaking world.
Rediscovery of ancient Roman law
Although some legal systems in southern Europe in the Early Middle AgesEarly Middle Ages
The Early Middle Ages was the period of European history lasting from the 5th century to approximately 1000. The Early Middle Ages followed the decline of the Western Roman Empire and preceded the High Middle Ages...
, such as the Visigothic Code
Visigothic Code
The Visigothic Code comprises a set of laws promulgated by the Visigothic king of Hispania, Chindasuinth in his second year...
retained some features of ancient Roman law, the main texts of Roman law were little known until the rediscovery of the Digest in Italy in the late 11th century – see Corpus Juris Civilis: Recovery in the West. It was soon apparent that it was a massive intellectual achievement that it would take much time and study to assimilate. The first European university, the University of Bologna
University of Bologna
The Alma Mater Studiorum - University of Bologna is the oldest continually operating university in the world, the word 'universitas' being first used by this institution at its foundation. The true date of its founding is uncertain, but believed by most accounts to have been 1088...
, was set up in large part with the aim of studying it.
The era of the glossators
The ancient Roman law texts were not very explicit about matters of principle, and the commentators found it necessary to develop the scholastic method of comparing potentially conflicting texts and inferring principles that would explain the apparent contradictions. The commentators of the 12th and early 13th centuries, called glossators,such as Azo of Bologna and Accursius, produced a large scale harmonization and commentary on the texts. They developed new concepts by reflecting on different related texts, such as the concept of half-proofHalf-proof
Half-proof , was a concept of medieval Roman law, describing a level of evidence between mere suspicion and the full proof needed to convict someone of a crime...
in the law of evidence.
Initially the rediscovered Roman law was not the law of any particular country or institution, but as lawyers trained in the concepts of Roman law came to dominate the legal profession, Roman law came to have an immense effect on law as actually practiced. For example, torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
was reintroduced into Europe as a means of acquiring evidence, usually when there was half-proof or more against a defendant but not yet sufficient proof for conviction.
English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
incorporated a substantial amount of Roman concepts through the works of Glanvill and Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
. But it adopted the non-Roman jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
system as the main form of evidence evaluation, thus remaining less influenced by Roman law than continental systems. However, some English courts, such as the Court of Admiralty
Admiralty court
Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all maritime contracts, torts, injuries and offences.- Admiralty Courts in England and Wales :...
, operated on Roman law principles.
Canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
, the law of the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
which governed such matters as marriage, developed in parallel with medieval Roman law and incorporated many of its concepts.
The era of the postglossators
The postglossatorPostglossator
The postglossators or commentators formed a European legal school which arose in France in the fourteenth century. They form the highest point of development of medieval Roman law....
s of the 14th century, such as Bartolus de Saxoferato and Baldus de Ubaldis
Baldus de Ubaldis
Baldus de Ubaldis was an Italian jurist, a leading figure in Medieval Roman Law.-Life:A member of the noble family of the Ubaldi , Baldus was born at Perugia in 1327, and studied civil law there under Bartolus de Saxoferrato, being admitted to the degree of doctor of civil law at the early age of...
, developed a more mature and deeper legal theory, less closely tied to the ancient texts. That gave the law sufficient flexibility to incorporate new concepts. For example, the first printed book on insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
was the Roman Law treatise On Insurance and Merchants' Bets by Pedro de Santarém (Santerna), written in 1488 and published in 1552.
Later influence
Roman law often acted (except in England) as a "common law" (ius commune) that filled the gap where local laws were silent, as well as supplying principles of interpretation for those laws in doubtful cases. In this way, Scots lawScots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
was heavily influenced by Roman law from the 15th century.
Roman law was in part incorporated in later codifications of continental law such as the Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
and hence formed a core of their successors, the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems of modern European and other countries.
Roman law also had wide influence on Western political theory
Political philosophy
Political philosophy is the study of such topics as liberty, justice, property, rights, law, and the enforcement of a legal code by authority: what they are, why they are needed, what, if anything, makes a government legitimate, what rights and freedoms it should protect and why, what form it...
. Questions such as the scope and limits of government and the permissibility of tyrannicide
Tyrannicide
Tyrannicide literally means the killing of a tyrant, or one who has committed the act. Typically, the term is taken to mean the killing or assassination of tyrants for the common good. The term "tyrannicide" does not apply to tyrants killed in battle or killed by an enemy in an armed conflict...
were seen in legal terms and discussed by writers whose primary training was in law. These ideas formed the basic of modern constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
, the idea that government should be bound by fixed legal norms.