In This Article Roman Law

  • Introduction
  • Reference Works
  • Guides to Manuscripts
  • Guides to Editions
  • Major Legal Collections
  • Laws of the “Barbarian” Kingdoms in the West
  • Medieval Legal Writers
  • Universities and Teaching

Medieval Studies Roman Law
by
Thomas Izbicki
  • LAST MODIFIED: 30 January 2014
  • DOI: 10.1093/obo/9780195396584-0127

Introduction

During the Middle Ages, law loomed large in efforts to manage life situations, beginning with the adaptation of late imperial law to the successor or barbarian kingdoms of the West. Alongside local law and custom, the learned law was increasingly used to answer questions and settle disputes about family issues such as marriages and dowry, property and inheritance, contracts, and crime. Study of the law, not only as taught at the universities but as used to advise judges who lacked formal training, illuminates the status of women and children under patriarchy. Although Roman law was geared more to private than public law, political issues were addressed. Moreover, Romanistic procedure had a wide influence across Europe. Even where Roman law was not received, it had its influence via canon law and specialized courts. This is evident in England, where the common law governed real property, but canon law introduced the possibility of testamentary disposition of certain possessions. Similarly the admiralty courts dealt with issues such as navigation and salvage on the basis of civil law. Roman law began in the Republic, beginning with the Twelve Tables of the Law (450 BCE), resulting from struggles between patricians and plebians. Under the Republic certain men knew the laws; but there were no legal careers. The most important judicial document was the praetor’s edict about procedure, the foundation of later jurisprudence. Both the popular assemblies and the Senate legislated for both the private and the public spheres, and the jurisconsults of the imperial period commented on their enactments. The Roman Empire produced jurisconsults able to give authoritative advice, and some wrote on the laws. Emperors legislated, and collections of their laws were compiled. The most important, the Theodosian Code (438–439 CE), influenced the Latin churches and the codes of the Western barbarian kingdoms. In the East, the study of law continued. Eventually Justinian I ordered systematization of centuries of jurisprudence. The Institutes served as a textbook. The works of the jurisconsults were divided topically in the Digest (Pandects). Imperial decrees were collected in Justinian’s Code with supplements in the Novellae. This Corpus iuris civilis (529–534 CE) was diffused throughout Justinian’s empire but had little influence in the West for centuries. The largest part of Justinian’s corpus is concerned with private, rather than public, law. Later jurists retained that focus in most of their writings. Revived study of Roman law in the West is tied traditionally to recovery of the Digest (c. 1070 CE). The teaching of law took root at the University of Bologna. The Glossators expounded texts and annotated (glossed) them. The Bolognese curriculum divided the Digest into Old Digest, Infortiatum and New Digest. The first nine books of the Code were treated together, while the Institutes, last three books of the Code and Authenticum, a version of the Novellae, with two books on feudal law, made up the Volume. The direction of study changed in the 14th century. The Commentators (Post-Glossators) created detailed expositions of the entire corpus. The Commentators predominated even after humanists criticized their Latin and their interpretative methods. Works on procedure or specific topics, records of disputations and opinions (consilia) on cases were written. All of these genres originated in the manuscript milieu, but many texts were printed beginning in the 15th century. Lawyers trained at the universities taught, provided advice, served as judges, and worked as bureaucrats. In much of Italy, the learned law was fused with elements of feudal law in the ius commune (common law). Most consilia engaged both the common law and the ius proprium of localities to be relevant in specific contexts. The Roman law was received through much of Europe in the late medieval and early modern periods, but its influence in England was mostly indirect.

Reference Works

Many reference works in English for Roman law focus on the ancient law, especially the Justinian corpus. These are useful, nonetheless, for understanding the texts medieval jurists studied. Moreover, there are tools for the study of medieval jurisprudence. These tools include some that have been digitized, and others are being created for the Internet environment. Coing 1973 provides an overview of the subject, while Pennington 1996 does the same thing in brief. Berger 1953 and Balon 1972 compiled legal dictionaries, explaining terms. (The latter is incomplete.) Ochoa Sanz and Diez 1965 and Sinatti d’Amico and Nicolini 1964 have compiled detailed indexes to the Corpus Iuris Civilis. Ascheri and Brizio 1985 and Fowler-Magerl 1984 provide detailed guidance to existing legal texts, expositions of individual laws and procedural works respectively.

  • Ascheri, Mario, and Elena Brizio, ed. Index repetitionum iuris canonici et civilis. Siena, Italy: Università degli studi di Siena, Facoltà di lettere e filosofia regione toscana, giunta regionale, 1985.

    E-mail Citation »

    A detailed guide to two major collections of repetitiones, detailed public treatments of individual laws or canons, that were common in the teaching of legal doctrine in the late medieval universities. Arranged by author and extensively indexed by text treated and the incipit of individual text.

  • Balon, Joseph, ed. Grand dictionnaire de droit du moyen âge. 9 fasc. Namur, Belgium: Les Anciens Ets Godenne, 1972–.

    E-mail Citation »

    This dictionary of medieval law is a major undertaking, but only nine fascicles, A-Chario, have appeared.

  • Berger, Adolf. Encyclopedic Dictionary of Roman Law. Transactions of the American Philosophical Society 43.2. Philadelphia: American Philosophical Society, 1953.

    E-mail Citation »

    Focuses most intensively on classical Roman law, but both the dictionary and its bibliography give attention to medieval and modern contributions to “the Romanistic literature.”

  • Coing, Helmut, ed. Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte. 3 vols. Munich: Beck, 1973–.

    E-mail Citation »

    Published by the Max-Plank-Institut für Europäische Rechtsgeschichte, Volume 1, Mittelalter (1100–1500), includes articles on the role of the universities, the Glossators and the Commentators or Post-Glossators.

  • Fowler-Magerl, Linda. Ordo iudiciorum vel ordo iudiciarius. Repertorien zur Frühzeit der gelehrten Rechte. Frankfurt: Vittorio Klostermann, 1984.

    E-mail Citation »

    A guide to medieval works of medieval legal procedure through the early 14th century, including lists of editions, studies, and surviving manuscripts.

  • Ochoa Sanz, Javier, and Luis Diez. Indices titulorum et legum Corporis iuris civilis. Rome: Commentarium pro Religiosis, 1965.

    E-mail Citation »

    Ochoa provides brief indexing entries for the titles and laws of the Corpus iuris civilis.

  • Pennington, Kenneth. “Roman and Secular Law.” In Medieval Latin: An Introduction and Bibliographical Guide. Edited by F. A. C. Mantello and A. G. Rigg, 254–266. Washington, DC: Catholic University of America Press, 1996.

    E-mail Citation »

    A brief introduction to the intricacies of medieval legal Latin with explanations of forms of citation used by the jurists when referencing authoritative texts. Includes a brief but useful bibliography.

  • Sinatti d’Amico, Franca, and Ugo Nicolini. Indices Corporis Iuris Civilis iuxta vetustiores editiones cum criticis collates. 3 vols. Milan: Giuffrè, 1964–1970.

    E-mail Citation »

    Sinatti d’Amico also indexes the titles, laws, and paragraphs within the laws that were subdivided. The indexes include cross-references between words of the same text to allow easier identification of those that were badly or incompletely cited.

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