Legal History from a European Perspective episodes:

• January 17, 2021LH0450: Church, Empire, and Ius Commune

  The crisis of the two universal institutions: the Church and the Empire.

  The Papacy agains the Emperors during the 12th and the 13th centuries.

  With the crisis of the Empire Roman Law looses its connection with its corresponding institution. It becomes ratio scripta.

  Innocent III, Gregory IX, Innocent III and Boniface VIII: The claim of the popes for the superiority of the spiritual power.

  The contrast with France and the decline of the centrality of the Roman papacy.

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• January 17, 2021LH0440: The late Middle Ages: Institutions and Legal Culture

  Two different historiographical traditions:

  - Common Law: a history of public institutions introducing new procedures;

  - Continental law: a history of scholars, writings and doctrines.

  Glossators and commentators.

  Institutions introducing new procedures in the Continent.

  England was not exceptional.

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• January 17, 2021LH0430: Common law and civil law: how exceptional is the English system?

  Is the common law system peculiar and special from the 12th century onwards?

  Similarities: Writs and Roman actiones, reintepreted by EUropean jurists since the 12th century

  The history of the origins of the common law as a peculiar English system was written in the 18th century, when the United Kingdom developed a truly peculiar national system

  The peculiarities of the modern era have been presented as medieval. But in the Middle Ages England is not more peculiar than other countries

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• January 17, 2021LH0420: Common Law, Royal Legislation, Parliaments

  The Common Law is described as not depending from the legislative power.

  The current narrative: Judges in England, Jurists in continental Europe.

  12th-14th cnetury: the English kings enactd a lot of legislative acts.

  About ownership, about procedure, about taxation. And criminal law.

  King and Parliament. Also a European model.

  Cortes, assise, parliaments, assemblies, senates, and so on.

  In Norman Southern Italy, in Spain, in the Italian free cities.

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• January 17, 2021LH0410: From the case of Becket to Magna Carta

  Henry II (1154-1189): centralising jurisdiction.

  1164, Constitutions of Clarendon: criminal justice must be given only by the king, also against clerics.

  Thomas Becket, archbishop of Canterbury against the king. Murdered in 1170.

  1215: Magna Carta, a privilege for the lords.

  It granted protection against unjust imprisonment, limitation of taxes, and access to swift justice. Being originally a political agreement between the king and the aristocracy only, it gradually became a statement of limitation of the royal power in front of every Englishman.

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• January 17, 2021LH0400: Procedure and Rights at Common Law

  “It is impossible to imagine a right without a remedy”.

  Every step of the pleading had to conform to a well ordered process.

  Judiciary abstraction: the rights of the subjects had to be claimed only in the foreseen forms.

  Herzog 104: was continental Europe really different?

  Criticism to Herzog: no, procedure was a central issue everywhere in the late Middle Ages.

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• January 17, 2021LH0390: Judiciary Abstractions: the Writs

  The King must guarantee peace in the Reign.

  The Norman kings moved from protecting dates to protecting territories, focussing on the means of communication.

  The writ is an instrument to achieve uniformity in Royal interventions.

  A “revolutionary” change: the accused is allow to present his version of the facts.

  As for dialectical scholasticism, the truth can be approached by opposing different statements.

  Standardisation of cases: the truth is assumed in a judicial abstraction.

  Henry Sumner Maine: “So great is the ascendancy of the law of actions in the infancy of Courts of Justice, that substantive law has at fist the look of being gradually secreted in the interstices of procedure”.

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• January 17, 2021LH0380: The Birth of the English Common Law

  The Birth of the Common Law is depicted as a very peculiar happening by AngloAerican legal historiography.

  A very national glory: watch 3 minutes of the BBC series The Last Kingdom.

  Hastings 1066: a turning point in English history.

  Let us insert this in the Eurpean framework:

  - The Empire;

  - The free cities within the Empire;

  - The kingdom of France;

  - The new kingdoms: Castilla, Aragon, Sicily (Norman as England).

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• January 17, 2021LH0370: The ius commune and the pluralism of legal orders

  The ius commune sought to replace existing legal orders?

  Calasso and the idea of ius commune as a comprehensive system.

  The Roman law in the view of the the Germanists of the 19th century.

  The corporations as autonomous human gatherings issuing their own legal norms.

  Medieval Pluralism in the view of Calasso.

  The jurists at work: using arguments of ius commune to fill the gaps of local laws.

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• January 17, 2021LH0360: The Creativity of the Ius Commune

  Herzog: the example of the meaning of “Justice”: it is a tension of the ruler towards an aim, a purpose.

  The example of Bartolus (1313-1357): on territory and jurisdiction.

  One more example: the legal personality. How can a non-human entity be a subject at law? How can it produce a will for agreements, and a feeling for possession?

  The persona ficta: use of the Roman idea of fictions.

  Procedure: Romano-canonical.

  Possession: not only material things, but also obligatory rights.

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