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Regular version of the site
Master 2018/2019

Medieval Law: Theories and Practices

Type: Compulsory course (Medieval Studies)
Area of studies: History
Delivered by: Department of Theory of Law and Comparative Law
When: 1 year, 3, 4 module
Mode of studies: distance learning
Instructors: Dmitry Poldnikov
Master’s programme: Медиевистика
Language: English
ECTS credits: 3

Course Syllabus

Abstract

Law can surely be regarded as one of the staples of Medieval Civilisation in Europe. It permeated through virtually all aspects of social life in the Middle Ages – from one's relationships with the local lord or his sovereign (the king or the emperor) to one's personal transactions at a marketplace or relations with one's wife and children. Law regulated all that in various ways and through numerous sources, like local and general customs, enactments of the sovereigns, learned common law, court practice. In contrast to modern industrial societies, feudal Europe lacked nation-states and hierarchical legal orders. Medieval social world looked rather chaotic and linked via a plethora of acts, transactions, agreements, and conventions. Such medieval realities explain the twofold aim of this course, namely, to enrich the vision of the master students of the legal dimension of Latin (Western) Europe and its various sources of law, and to familiarise them with particularities of medieval legal practice. This aim is to be attained through several specific goals. Firstly, to introduce the main sources of medieval law to the master students (starting with the collections of secular laws and church canons in the Corpus Iuris Civilis and Corpus Iuris Canonici). Secondly, to present major legal doctrines (the learned law) developed by the leading medieval jurists (glossators, commentators, canonists, humanists, late scholastics) from the 12th through the 16th centuries (including the basic concepts, principles, rules, and institutions of legal theory). Thirdly, to look into the influence of the (academic) learned law upon the positive law and its implementation by the secular and clerical courts of various medieval and early modern sovereign entities (the Empire, the Church, kingdoms, city-states). These goals are to be achieved by lecturing. During seminar classes the master students will be taught to read and understand various fragments of the medieval sources of law and legal practice. They will be instructed as to how to read carefully, analyse, and translate medieval legal texts. A combination of the sources of the learned and positive law is suppose to familiarise the master students with the 'law in books' and 'law in action' and to enable them to perceive this law as the true foundation of the Western European Civilisation.
Learning Objectives

Learning Objectives

  • The knowledge and skills to be acquired by the students of this course should facilitate their mastery of the following subjects during their further education in accordance with the master programme.
Expected Learning Outcomes

Expected Learning Outcomes

  • define basic concepts of medieval learned law and its theories;
  • explain how various approaches to legal history can be used to understand theories of medieval law and its legacy for later periods;
  • distinguish and identify key features and institutes of medieval law;
  • review and summarize recommended academic papers;
  • coherently state and reason one's own theses in English regarding the issues of the course.
Course Contents

Course Contents

  • Medieval legal studies and European legal culture.
    Preliminary remarks. The vitality of law, its theories, and practices in European history ('Western legal tradition'). The profile of this course: - the purpose to introduce the content medieval legal theories, their origins, methods, approaches to study, and legacy; - sources and materials: Corpus Iuris Civilis and Corpus Iuris Canonici with the relevant doctrinal literature (glosses, treaties, commentaries); - approaches to understand: dogmatical, cultural, sociological studies. - topics: jurisprudence of the middle ages and early modern period and its legacy. Legal theory in legal history as an academic discipline. Relation of law and legal studies to logic, sociology, political theory, general history. 'Legal theories (doctrines)' as distinguished from case law and legal philosophy. 'Legal theories' referring to a) legal rules and dogmas, b) legal values, ideas, and methods. Variety of approaches ('pure' normative, cultural, and socio-legal studies). Development of medieval legal studies since the 19th century. Three waves of actualization of Roman-canonical law in Europe: in the 19th century (Savigny's 'scientific' legal history), after the World War II (revival of the common legal past in the West), after the Cold War (the common legal past of Europe as a building block of its common future). Comparative legal history today and its search for common roots of the European legal culture. The current framework of medieval legal studies. European legal culture and Western legal tradition: - major legal areas in Europe: Western (civil law and common law), Nordic, Eastern; - expansion of Western legal tradition in Europe; - key features of this culture: personalism, legalism, and intellectualism; - the jurisprudential character of law on the continent (civil law); - correlation between jurisprudence and legal practices. Schematic analysis of European jurisprudence: 1) historical context; 2) formal sources of law (binding texts); 3) the goals of interpretation; 4) the methods of their interpretation and application; 5) the results of such an interpretation (legal theories). Major jurisprudential schools in medieval Europe: glossators, canonists, commentators (Bartolists), humanists, late scholastics. Their approaches to study and to teach law (from the 14th through the 16th century): mos italicus, mos gallicus, mos hispanicus. The specificity of medieval legal theories: the learned law based on the scholastic interpretation of authoritative and unchanging Roman laws and Church canons (ius utrumque) and intended to be the model for the whole Christendom (ius commune). The prominence of the dogmatics of private law over legal procedure and public law.
  • Beginnings of medieval legal theories
    Transition from the dark ages to the high middle ages. The 'renaissance' of the 12th century in the Southern Western Europe: changes in economy (revival of trade and cities), politics (rivalry between the Empire and the Papacy), intellectual life (scholasticism). Survival of the premedieval legacy: Roman law, Roman Catholic Christianity, Greek philosophy. Alternatives to Bologna's studium in Lombardy, Dauphiné (Petri exceptiones legum romanorum), Saxony (Sachsenspiegel), England (common law under and after Henry II). The rise of special law schools (studium generale) in Bologna and other cities. The dualism of secular and sacred, hence, the rise of two legal schools – the glossators and the decretists. Contribution of the most notable scholars.
  • Legal theories of the mature Roman-canon ius commune.
    1) The context. Growing demand for law amidst diversity of late medieval Western Europe. Major changes in economy (expansion of trade and urbanization), politics (growing number of competing principalities and communes), intellectual life (late scholasticism and expansion of universities). Spread of law faculties within medieval universities. The corporate model of a late medieval university and its impact on the teaching of law. The leading role of the North Italian legal scholarship (mos italicus) in the creation and spread of ius commune. The schools of commentators of Roman laws in Corpus Juris and papal decretal letters (decretalists). The consolidation of secular and religious legal doctrines into 'both laws' (ius utrumque). Contribution of the most notable scholars.
  • Influence of Roman-canon ius commune on late medieval positive law.
    Political struggle and a better governance: competition and cooperation between the Empire and the Papacy, legal reorganization of the Roman Catholic Church; emergence of the self-governing cities; the rise of the monarchs and local princes. Economic revival of the inter-regional trade. The so-called reception of Roman (and canon?) law in France, Spain, Southern Germany. Establishing law faculties and 'scientification' of local laws. Some examples from Southern France (Lo Codi), Northern France (Coutumes de Beauvaisis), Spain (Siete Partidas) and Germany (Constitutio Criminalis Carolina). Transformation or suppression of customary law, with the exception of England, Switzerland, Scandinavia, Eastern Europe. The state of legal practice before ius commune. A patchwork of competing jurisdictions (royal, seigneurial, municipal, ecclesiastical) and legal sources (multiple customs, imperial and royal decrees, case law of the courts). The beginnings of the rationalization of administration and justice. Channels of ius commune influence via imitation of the Church administration, recruitment of university graduates, editing of customary and municipal laws, and royal statutes. Efficiency of the institutes and procedures of the learned law, yet various degree of influence (highest to lowest): Justice within the Church state: - judges and confessors; - ecclesiastical and secular judges; - ecclesiastical jurisdiction ratione personae and ratione materiae; - the hierarchy of the ecclesiastical courts (the Pope, his Consistory and delegated judges; Rota Romana, episcopal courts, courts of archdeacons); - the positive law on the basis of ius commune (family, inheritance and wills, possession instead of ownership, promises and contracts, delictual liability) - law of inquisitorial procedure.
  • Legal theories of the early modern period
    1) The context. The challenges of the 16th century to the medieval ius commune (colonial expansion, the Renaissance, the Reformation and the Counter-Reformation, the rise of nation-state, decline of the ecclesiastical jurisdiction). The co-existing and competing approaches to study law: mos italicus, mos gallicus, mos hispanicus. The late medieval Italian jurisprudence (mos italicus): going beyond the limits of the textual interpretation of Corpus Juris for the sake of legal practice. (Menochio, Commentary on Presumptions, Conjectures, Signs and Indications; Favre, Codex Fabrianus). The French humanist jurisprudence (mos gallicus): bitter critique of mos italicus for its scholastic limitations, obscure doctrines and corruption of the learned lawyers, and a new approach of philological and historical studies of Roman law. Discovery of different epochs of Roman history and admiration for the heritage of the classical lawyers. The Spanish late scholastic jurisprudence (mos hispanicus): an attempt to synthesize mos italicus and mos gallicus in order to transform legal theory. Expansion of legal studies beyond Roman laws and Church canons. National law (ius patriae), commercial law, international law.
  • Influence of the learned law on early modern positive law.
    Major trends of the continental legal culture in the 16th century: - the rise of national (territorial) law (ius patriae) in the centralized monarchies of France and Spain and practical adaptation of ius commune to local needs; gradual penetration of ius commune into laws of Germany; - preserving conceptual foundations of ius commune and Bartolist jurisprudence in legal practice despite new political, economic, and intellectual background; - universities preserved monopoly on the legal education in continental Europe; - fostering absolutism via interpretation of Roman law and diminishing of ecclesiastical jurisdiction; - changing balance of the sources of national positive law with the nominal superiority of the statutes of the sovereigns and the case law (usus fori) of the appellate courts; Competing jurisdictions in early modern Europe: - maintaining diversity of courts with the nominal dominance of sovereign courts; - courts wielding judicial, administrative, and legislative powers with wide discretion and secrecy; - establishing a hierarchy of royal courts with the appellate courts on top; - shrinking jurisdictions of ecclesiastical, feudal, and seigneurial courts; - growing professionalization of court proceedings. Feudal law: as vassals were loosing its military and political power, feudal law became reduced to the law of real estates guaranteed by the sovereign. Private law: - sources: written and edited customs with judicial and doctrinal interpretations; - family law: ecclesiastical legacy and church jurisdiction persisted; patriarchal family as nature commands it; mandatory registration of marriage with the church; no divorce but separation in some cases (art. 120 of 'Carolina'); - property law: spread of ius commune institutions of possessio and dominium to replace customary ones; stronger protection of proprietors' interests by the public authorities; - law of successions: reception of testaments from ius commune with some limitations of disposal over decedent's estate; - contract law: expansion of freedom of contract and their binding effect (pacta sunt servanda); elimination of redundant formalities; - law of delicts: generalizing lex Aquilia to repair most kinds of unlawful (private or public) damages.
Assessment Elements

Assessment Elements

  • non-blocking Quiz
    Oral questioning on the topics of the course during each seminar.
  • non-blocking Examination
    Written reply to questions related to the course during one hour.
Interim Assessment

Interim Assessment

  • Interim assessment (4 module)
    0.5 * Examination + 0.5 * Quiz
Bibliography

Bibliography

Recommended Core Bibliography

  • Gordley, J. (2013). The Jurists : A Critical History (Vol. First edition). Oxford: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=678325

Recommended Additional Bibliography

  • Wallinga, T. (2012). THE CREATION OF THE IUS COMMUNE. FROM CASUS TO REGULA. Ed by John W Cairns and Paul J du Plessis Edinburgh: Edinburgh University Press (), Edinburgh Studies in Law vol 7, 2010. xiv ++ 304 pp. ISBN 9780748638970. £60. Edinburgh Law Review, 16(1), 117–119. https://doi.org/10.3366/elr.2012.0085