Legal History from a European Perspective episodes:

• January 17, 2021LH0160: Divine intervention

  For European societies of the Early Middle Ages God is always present among men.

  This idea will change in the 11th Century, with the Gregorian Reformation. This change will lead to the introduction of rational procedures.

  The « magical » presence of God can explain why the judge asked to God himself if the defendant was guilty or not.

  This was made though ordeals: kind of games to display the favor or the disfavor of God for the accused.

  Also the oath taken by a number of persons had an ordalic character.

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• January 17, 2021LH0150: What Do the Laws of the New Kingdoms Actually Say?

  What is a « law » for the early medieval kingdoms?

  It displays the « word of the King »: the King guarantees for the observations of some rules while he will give judgement.

  But the King is more similar to a biblical judge than to the Roman Emperor.

  As in the Bible, what matters is more the intrinsic justice of the text than the formal enactment by the legislator: this is why we do not have official « codifications » in Europe any more.

  This made possible also forgeries: if an official law lacks, one can write it because its content is equitable, and put it under the name of a legislator (typically a pope).

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• January 17, 2021LH0140: New Kingdoms and New Lawbooks

  The new kingdoms led by barbarian kings were all established by former allied of the Roman Empire. They issued lawbooks that merged some customs of the roman-barbaric soldiers, norms of vulgar Roman law, and principles of the Christian systems of justice.

  Those lawbooks were issued in the 6th and 7th centuries, but they were copied mostly during the Carolingian age (750-850 d.C.). They reflect legal principles used in Europe until the year 1000 and beyond.

  Some of these principles - merged with canon law rules - continued to be used by the Church, or have been resurrected by the historical school to justify legal innovations that diverged from Roman law.

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• January 17, 2021LH0130: What is a King?

  The traditional narrative: the « barbarian peoples » enter the Empire led by their Kings (that implies that they conceived themselves as peoples and recognaized a king before entering the Empire).

  Recent researches (ethnogenesis) prove that this is wrong. Roman armies formed by barbarians of different origins settled inside the Western Empire led by their military leaders.

  When the barbarian leader convert to Christianity, he becomes a king, and his army becomes his people.

  The model of the early medieval kingdom is biblical: it is David’s and Solomon’s Israel of the Bible.

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• January 17, 2021LH0120: What Christianity Changed Forever

  Forms of social life: Marriage as a sacrament It marks a personal status and binds the spouses for life.

  Various forms of monasticism. Monastic rules (not legal: based on the charismatic power of the abbot).

  Churches, monasteries, and other « holy houses » as landowners who lease land.

  Personal rights and powers are concessions granted by hierarchical power: vestiturae. Property, public offices, rights over peasants, etc. form a « clothing » granted by the authority.

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• January 17, 2021LH0110: Roman and Christian

  Two theories: 1) The Church was very romanized, so Constantine’s conversion did not change very much; 2) The introduction of christian principles subverted for ever the key concepts of the classical Roman law.

  It is true that the primitive Church took shape in the framework of the Roman mentality. It merged the original principles of Hebrew monotheism with Roman imperial centralization.

  Monotheism tempered by the Trinity and the many saints.

  As for the Empire, the autonomy of the local communities had to respect the hierarchical superiority of the central see.

  The Church of Rome issued mandatory decrees (judgements) and statutes (canones).

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• January 17, 2021LH0100: Constantine the Great, 312 CE

  Diocletian and Galerius performed the last and most severe persecution of Christians in the Roman Empire (303 to 311).

  Confiscation of churches and their estates.

  28 october 312: the battle of Ponte Milvio: Constantine let his army fight under the sign of Christ.

  February 313, Milan: Restitution of churches and their estates.

  Imperial constitutions of 318 and 333: a jurisdictional privilege for the christians.

  325: first council of Nicaea.

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• January 17, 2021LH0090: Christianity and the Roman Legal System

  The Gregorianus and the Ermogenianus were private compilations. The first Emperor who imposed his codification to the Empire (i.e. the world) was the christian Theodose II.

  God as a lawmaker (Herzog 35). The Emperor empowered by God.

  God rules the world through a book. The Emperor does the same.

  And the Church?

  Nicaea 325: one faith for the Empire.

  The divine nature of Christ: the Church and the Empire share the government of the bodies and the souls.

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• January 17, 2021LH0080: Codifications

  The Theodosian code is not only «more famous»: it is the first codification composed upon an imperial order and officially promulgated.

  Like the great compilation of Justinian, also the lawbooks of the barbaric kingdoms wanted to preserve something of the Roman legal system, adapting it to the new situation. This remains a characteristical feature of the medieval legal compilations.

  Herzog refers the traditional interpretation, based on the persistance of «Germanic legal traditions» in the early medieval lawbooks. But it is difficult to say what exactly was German law.

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• January 17, 2021LH0070: Some Points to be Stressed: Compilations and contradictions

  The sources of the Roman law are almost all lost. All we know of the imperial statutes and of the writings of the Roman jurists is preserved only through the codification of Theodose II (439) and the compilation of Justinian (529-534).

  The codification of Theodose has been largely used in the West until the 11th Century. After 1100, however, the compilation of Justinian (Code, Digest, Institutions and Novellae) has been the most important witness of the Roman law system. And it still is.

  The compilation of Justinian presents a system filled with contradictions. - Ius civile vs. Ius honorarium / Ius civile vs. ius gentium / Classic Roman Law vs. Vulgar Law / Secular legal principles vs. rules influenced by Christianity.

  These oppositions have been very fruitful for the development of the law during the Middle ages and the Modern era.

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