In This Article Expand or collapse the "in this article" section Law

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  • Collections of Papers
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Renaissance and Reformation Law
by
Thomas Kuehn
  • LAST REVIEWED: 31 May 2019
  • LAST MODIFIED: 26 February 2020
  • DOI: 10.1093/obo/9780195399301-0215

Introduction

The period between the mid-14th and the mid-17th centuries saw the consolidation of both major European legal traditions. One was based on Roman and canon law and held sway as a common law (ius commune) on much of the European Continent. The other was rooted in royal writs and judgments that constituted the “common law” of England. The Romano-canonical law was based on venerable texts, chiefly those of the Corpus iuris civilis, compiled at the behest of the Emperor Justinian in the early 6th century, and the Corpus iuris canonici, assembled in the course of the Middle Ages by legal teachers and popes, with the process of assembly ending in the early 14th century. These texts served as the basis for a highly sophisticated and technical education in law in the medieval universities of Italy and southern France, whose graduates spread throughout Europe. The establishment of new universities from the 14th century—in Italy but also spreading to Germany, Spain, and elsewhere—only served to foster the geographical reach of the Romano-canonical law. This was also the point at which the teaching methods in the universities changed from the logical elaboration of authoritative texts (the so-called school of the glossators) in the direction of contemporary issues and practices (the era of the post-glossators and commentators). The greatest exponent of this trend was Bartolus of Sassoferrato (b. 1313–d. 1357), whose influence was such that it was said that to be a jurist was to be a “bartolist” (nemo iurista nisi bartolista) (see Jurisprudence and Legal Methodologies). The English law consisted of royal writs, Parliamentary statutes, customs, and precedents set in courts. These became in some regards increasingly rigid by the 14th and 15th centuries, but flexibility was introduced by means of the Royal Court of Chancery, which drew to some degree on Roman law notions. This was the so-called law of equity. The influence of royal courts and their remedies led to the waning of manorial and other local courts. The trend toward legal centralization in England was further fueled by the Crown’s break with Catholicism. By the 17th century the common law tradition, including much of the intervening developments in equity, served as the bastion of those who would resist the pretensions of the Stuart monarchs, especially Charles I (b. 1600–d. 1649). Developments in the commercial economy of Europe, intellectual and cultural trends, and religious turmoil would all pose problems in areas such as property law, contracts, marital relations and family prerogatives, and judicial procedures, and would call forth adjustments to resolve them.

General Overviews

Legal history as a whole took a turn to the specialized and even arcane when the reigning paradigm of historical studies was that of the so-called Annales school, which pursued large-scale statistical studies within geographical and historical parameters. However, social historical studies and renewed interest in texts drove new and exciting types of inquiry from the 1980s onward. More recently, the emergence of the European Union and the Euro zone has sparked increasing interest in the legal past of Europe, including the degree to which the English common law is distinct or not based on that of the Continent.

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