Tag Archives: Ius commune

A fusion of medieval legal systems at St. Andrews

Startscreen CLICME

Some months ago I came across the website of a rather intriguing project which aims at studying not just one medieval legal system, but three. Though the full project title is rather long, Civil Law, Common Law, Customary Law | Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries, the web address contains a playful variant of the term “Click me”, and of course I could not resist the temptation to visit the project website. In this post I want to look at this project at the University of St. Andrews and comment on some of its features. In particular the legal “encyclopedia” and the section with text editions can be most useful. Comparative legal history was the very theme of the 24th British Legal History Conference held in St. Andrews from July 10 to 13, 2019.

A tour of a threefold project

Logo CL project

The aim of this project is to study three legal systems together in their European setting during the Middle Ages, the common law, the European ius commune and customary law . One of the motivations for this choice is the wish to avoid a picture of common law against European law. Nor doe the team want to celebrate the uniqueness of the common law and its development over the centuries or to propagate a new European ius commune. Similarities, changes, continuities and differences are to receive equal attention.

The leader of the CL project is John Hudson, and the senior researcher of this project is Emanuel Conte (Università Roma Tre/EHESS). The four post-doctoral researchers are Andrew Cecchinato, Will Eves, Attilio Stella and Sarah White, and there are three graduate students working on a PhD thesis, Dan Armstrong, David de Concilio and Kim Thao Le. Andrew Cecchinato will focus on the relevance of the European legal heritage for the formation of William Blackstone’s concept of English law. Will Eves will look at the history of concepts for “ownership” in the common law and the influences on it of the concept proprietas in the European ius commune. Attilio Stella is studying the relations between the learned law and judicial and social practice by looking at archival and court evidence from a number of towns in northern Italy. Sarah White is working with twelfth and thirteenth-century treatises on legal procedure, in particular ordines iudiciarii from England, and also on ecclesiastical and Roman legal procedure in general.

The PhD thesis of Dan Armstrong will deal with politics, law and visions of the church in the relations between England and the papacy from around 1066 to around 1154. David de Concilio’s theme is the use of dialectic in legal texts of the late twelfth century, in particular in the brocarda; he plans an edition of a brocarda collection in canon law. Kim Thao Le has started to research the origin and progress of the English jury in the twelfth and thirteenth centuries and the notion of reputation. She will look for possible interaction between the common law and canon law. The website of the CL project has a section for research updates of individual researchers.

Research, online editions and more

Under the heading Research issues the first issue poses a trenchant question about proprietary law. Who did first coin the phrase “bundle of rights”? John Hudson found the phrase in works from 1886 and 1873. A quick first search for an earlier occurrence led me to Henry Maine who in his Ancient Law: its connection with the early history of society, and its relation to modern ideas (London 1861, online, Hathi Trust Digital Library) writes in chapter 6 (ed. 1861, p. 178): “The first question leads to the universitas juris; that is, a university (or bundle) of rights and duties”.

However interesting it can be to look here more closely at the individual projects, the presence in itself of a section with online editions of medieval legal texts deserves attention, too. Currently six texts are available online. The first text is a mnemonic poem for remembering the causae and quaestiones of the Decretum Gratiani, edited by Attilio Stella. The next item is a transcription of a mid-thirteenth century procedural treatise, ‘Iudicium est actus trium personarum’. Sarah White explains three different treatises exist with the same incipit. The third page presents a digitized version of the edition by Karl Lehmann, Das langobardische Lehnrecht (Göttingen 1896) of the Vulgata version of the Libri Feudorum, a treatise on feudal law that became a part of the Corpus Iuris Civilis. The team of the CL project promises us an English translation of this text, following perhaps the lead of Jop Spruit and Jeroen Chorus who published in 2016 a Dutch translation of the Libri Feudorum as an addendum to the translation of the Corpus Iuris Civilis, discussed here earlier in a post on translations of medieval legal texts.

With the fourth item customary law comes into view. It brings a transcription of the first part of the text known as the Très ancien coutumier de Normandie or Statuta et consuetudines Normanniae transcribed from the manuscript Città del Vaticano, Biblioteca Apostolica Vaticana, ms. Ottobon. 2964In my 2011 post ‘Centuries of law in Normandy’ I devoted some space to this coutumier. The fifth text is a transcription of the Summa feudorum ascribed to Johannes de Revigny, a lawyer from Orleans. The introduction discuss the scholarship since the fifties on the identification of the author. Using the term “Pseudo-Revigny” is a most convenient suggestion of the CL team for the author of this text which survives only in the manuscript Parma, Biblioteca Palatina, ms. Parm. 1227. The sixth text presented here is a Summula de presumptionibus’, transcribed from the manuscript BAV, Pal. lat. 653. This text represents the brocarda genre, and it is safe to assume David de Concilio provided its transcription and a useful introduction.

Another and much promising part of the CL project is a legal encyclopaedia. There will be three levels within this project. Level 1, already available, offers a dictionary with concise definition of legal terms in common law and both Roman and canon law in their medieval stage. This dictionary is most welcome, and in particular helpful for scholars who want support on unfamiliar grounds. On level 2 a number of terms will be discussed more thoroughly. On the third level conversations will be published around a limited number of terms which seem the most rewarding in discussing aspects of medieval law. Any suggestions, corrections and additions can be sent to the CL team by mail, clclcl@st-andrews.ac.uk.

Startscreen ILCR for Canterbury Court Records

It is only natural to find on the project website an overview of recent publications concerning the research done for the CL project. The Institute of Legal and Constitutional Research (ILCR) at the University of St. Andrews provides the framework and foundation for the CL project. I could not help looking at particular at the project for Canterbury Court Records. Sarah White has developed a databases with images from the thirteenth-century records held at the Canterbury Cathedral Archives. The direct link to the database leads you to a special St. Andrews login page for which the CL team can help you to register. I found some solace in the image collections of Canterbury Cathedral with a great selection of archival records and manuscripts. One would dearly like to look at these court records, because after all the CL project wets your appetite to search yourself for possible interactions between the common law, customary law and medieval canon law. Having online access to court records at Canterbury will cast a wider net for comparison with court records from the diocese of Ely and the archdiocese York. This comment should not stop you from visiting the website of the ILCR with its interesting projects, including a number of videos.

The team of the CL project has started working on a number of coherent themes that perhaps too often are seen in isolation. The results can be become a mirror in which the interplay between seemingly different legal systems and the ways medieval lawyers worked can be become much clearer. Some rhetoric about the uniqueness English law and the unity of European law will probably not been blown away by it, but for those wanting to look beyond the surface some promising vistas will become visible.

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Introducing legal history

Where to start when you want to know more about legal history? Is it the wisest thing to start with ancient law, or to go directly to Roman law? Should you start with looking at one aspect of a period in legal history or a legal system during a particular period, or is it better to cast your nets wider? After you have formed your own answers to these and similar questions another kind of question follows immediately: where to find introductions? On my old web pages and on www.rechtshistorie.nl I try to present introductions to some legal systems and to some periods. Of course more can be said and is present at other websites, and in learned books and articles.

When I decided to make my web pages on legal history I aimed in particular to present medieval canon law. The two books I want to mention in this post both deal with medieval canon law. In the first book, a volume of essays, The Creation of the Ius Commune. From Casus tu Regula, edited by John W. Cairns and Paul J. du Plessis (Edinburgh 2010) medieval canon law gets special attention in the first article. When Cairns and Du Plessis announced the book on the Edinburgh Legal History Blog in July 2010 they modestly only indicated the article’s title and authors, ‘The Sources of Medieval Learned Law’, by Harry Dondorp and Eltjo Schrage (pp. 7-56). What Dondorp and Schrage actually offer here is a condensed and updated version of their book Utrumque ius. Eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts (Berlin 1992) of which the first version was published in Dutch in 1987. At last you can read in English this introduction to medieval learned law, to both medieval Roman law and medieval canon law. Dondorp and Schrage focus on legal doctrine, but they do treat also medieval procedure and feudal law. One of its prominent features is the sketch of a research strategy. This is a clear and succinct guide, and you would have to search very hard to find a comparable guide on this scale and of this quality. Their contribution to the Edinburgh volume is reinforced by essays among others on the methods of the medieval civilians (James Gordley), medieval marriage law (Laurent Waelkens), feudal law (Magnus Ryan) and medieval procedure (Richard Helmholz). Articles by Kees Bezemer and Jan Hallebeek show here to a large extent the results of applying the research strategy advocated by Dondorp and Schrage.

Legal doctrine is at the heart of the Edinburgh volume. A rather different approach is offered in the volume Christianity and Law. An Introduction, John Witte, Jr. and Frank S. Alexander (eds.) (Cambridge, etc., 2008). Richard Helmholz contributed also to this volume for which he wrote a chapter on Western canon law. Mathias Schmoeckel tackles here procedure, proof and evidence. Medieval canon law is shown here in its context. Jewish religious law and early Christian law are treated to put canon law into perspective. The wide impact of canon law is for example shown in chapters on natural law and natural rights (Brian Tierney), the Christian sources of general contract law (Harold Berman), family law (Don Browning), Christianity and human rights (Michael Perry), Christian love and criminal punishment (Jeffrie Murphy), poverty, charity and social welfare (Brian Pullan), and property and Christian theology (Frank Alexander). Modern church law is the subject of Norman Doe’s contribution. The sixteen essays in this volume certainly offer an introduction to several aspects of law in the history of Christianity, but some contributions are simply too short. They give you a taste of things to explore, and not a plunge into detailed discussions of large or small questions. The great merit of Witte and Alexander is showing this variety of aspects involved in the study of law and its relations to Christian society.

This brief comparison of two volumes nicely shows that doing legal history is in fact researching legal histories in plural. You cannot safely neglect legal doctrine, and you have to face great perils when you leave out institutional history and the history of society at large. It is also true you ask for too much when you want an introductory volume to include all these things. Let’s hope both volumes briefly introduced here will guide and encourage people to set their own steps on the vast and sometimes very different territories of legal history.