Medieval law
Medieval law was the law in force in Europe from the final phases of Roman law, coinciding with the disintegration of the Western Roman Empire in the 5th century, until the beginning of the early modern period, around the 15th-16th century, a period that traditional historiography identifies as the Middle Ages. Legal historians have emphasized how this legal experience was distinguished by certain peculiar features, to the point that it has been defined as "a new legal mentality embodied in a harmonious complex of behaviors, rules, and reflections, with its own distinctly characteristic profile".
With the consolidation of the barbarian kingdoms, an order characterized by the personality of law emerged: the subjected Latin populations were allowed to retain the ancient Roman law, while relations within the community of the ruling barbarians were regulated by their own law. Although Germanic law was largely customary in nature and transmitted orally, some rulers nevertheless sought to record the legal tradition of their people in writing; however, such compilations neither had nor sought to have a universal character, dealing mainly with criminal and family law, and leaving ample room for ancient customs in matters not addressed. The absence of a central power intent on holding a monopoly over legal production was one of the aspects that most strongly influenced the entire history of medieval law. Among the most important compilations of law of the Early Middle Ages are the Lex Burgundionum, commissioned by Gundobad at the beginning of the 6th century, the Edictum of the king of the Goths Theodoric the Great, the Edict of Rothari promulgated by the Lombard king Rothari in 643, and the various capitularies issued by the Frankish rulers. Separate mention should be made of the monastic rules, one of the most characteristic forms of early medieval legal production.
After the year 1000, Europe experienced a period of cultural and economic revival. In order to respond to the new needs of an increasingly complex society, there was a rediscovery of Roman law, ancient yet technically sophisticated. The texts collected in the Corpus iuris civilis of Justinian were reconstructed and studied by the school of the glossators, initiated by Irnerius in Bologna around the beginning of the 12th century. From this point onward, a class of learned jurists trained in law schools increasingly came to prominence; these would give rise to the medieval universities and to the elaboration of a new legal system, common law, destined to spread throughout Europe. Among the most significant figures of the new system was the notary, from whose activities important legal institutions emerged, sometimes drawn from Roman law but at other times the result of autonomous elaborations, intended to regulate the many aspects of practical life: commerce, navigation, the organization of the free communes, and so forth. Particularly notable was the development of canon law, achieved through the compilation of sources and the production of glosses, including the famous Decretum Gratiani of the mid-12th century. The system of "common law", in Latin ius commune, came to coexist, and at times to clash, with the law produced by authorities, the ius proprium; however, it did so "leaving to the jurist the task of elaborating an underlying framework capable of giving unitary coherence to such multiplicity". Only with the early modern period and the affirmation of the nation-states would central authority acquire full control over the production and administration of law, bringing the experience of medieval law to an end and ushering in the modern one.
Introduction: Periodization and Characteristics
The beginning of medieval law can be identified with the progressive decline, which began toward the end of the 4th century, of the Western Roman Empire and its refined and complex legal institutions, culminating, according to traditional historiography, with the deposition of the last Western emperor Romulus Augustulus by the barbarian Odoacer in 476. The subsequent roughly years, commonly referred to as the Middle Ages, saw in Europe the succession of various forms of government, from the Roman–barbarian kingdoms to the Carolingian Empire, to feudalism, to medieval communes, to principalities and lordships, without forgetting the complex constitution of the Holy Roman Empire; all these systems, however, shared a lack of sovereignty, typical of the previous Roman experience and of later modern states, which was reflected in a relative disinterest in the production of law. It was thus that different legal systems gradually emerged, initially the result of customary consolidations and later through the work of learned jurists.Traditionally, the Middle Ages are divided into the Early Middle Ages and the Late Middle Ages, whose temporal boundaries are not unambiguously defined: for Italy, the 11th century is usually assumed as the dividing line, while for regions of Northern Europe this period shifts forward by a couple of centuries. Despite these uncertainties, this article follows the Italian historiographical tradition while keeping in mind that it is primarily a "convenient" division and does not correspond to a substantial change in the medieval legal experience, which, according to many historians, such as Paolo Grossi, remains consistent in its most peculiar characteristics until the end of the Middle Ages. However, Grossi himself speaks of an «officina della prassi» regarding the early-medieval period, in relation to the frequent recourse to custom by the jurists of the time, and a «laboratorio sapienziale» for the late-medieval period, characterized by cities and trade, where a new class of jurists developed new solutions based on existing material.
Depending on the author, the Middle Ages end around the transition between the late 15th and the early 16th century: this period can also be associated with the decline of medieval law, stifled by the rise of the nation-states, increasingly inclined to assume responsibility for legal production, and by a religious reform that definitively changed Europe following profound anthropological reflection developed over more than two centuries within the Western Christian society of the time.
Christian Roman Law between the 4th and 5th centuries: the first codifications
From the mid-3rd century, the Roman Empire was in a deteriorating political and economic situation due to a succession of civil wars and the continuous invasions of neighboring peoples. In this scenario, the traditional institutions of the republican constitution were definitively abandoned by the absolute monarchy of the Dominate. At the same time, the ancient system of Roman law also went into crisis, with the gradual abandonment of the multiple legislative sources that characterized it, as Gaius had listed in his Institutes, and the disappearance of the class of jurists who considered law as a science, in favor of a single predominant source consisting of decisions of central authority in the form of edicts and rescripts.Soon, the multitude of such edicts and the vastness and complexity reached by the empire had created various problems of legislative uncertainty within it, and therefore among the jurists of the time, the need arose to have a single rational collection of laws. This led to the compilation of "codes", which, however, should not be compared to the Enlightenment codification born in the 18th century, since they were not laws newly written into a single normative text, but rather collections of ancient laws, adapted with interpolations, harmonizations, and the addition of few novelties.
File:Theodosius ii.jpg|thumb|upright|Marble head from the 5th century representing the Eastern Roman Emperor Theodosius II. He promulgated the Theodosian Code, the first official collection of imperial laws.
An early example in this regard was the Gregorian Code, a collection of imperial constitutions compiled by private individuals around 292–293, which included all rescripts issued from the reign of Hadrian to about the middle of Diocletian’s reign. This was followed a few years later by the Hermogenian Code, composed mainly of rescripts organized according to the rubrics of the Gregorian. Over a century later, in 438, Emperor Theodosius II promulgated, after nearly a decade of work, the Theodosian Code, the first official collection of laws of the Empire. In this monumental work, composed of 16 books, were also included the tracts of jurists from the classical period and the responsa prudentium. Initially, it was intended to include also laws no longer in force for didactic purposes, but this was not implemented. The Theodosian Code was a landmark event, as it was the first code enacted by an emperor and made legally binding through a novella. Its influence was such that it shaped Western law well beyond the year 1000. However, despite being at the time the main sources for knowledge of Roman law, the three aforementioned codifications «with their narrow purposes and their elementary and roughly imperfect structures were the faithful mirror of a decaying world».
Parallel to the codification of Roman law, a systematic collection of rules concerning the Christian Church also began, leading to the formation of the canon law system. Already in 313, Emperors Constantine I and Licinius had signed a treaty recognizing freedom of worship within the Empire and restoring to Christians the places, goods, and possessions previously acquired, requisitioned, or taken during the long period of persecutions. These provisions are considered the starting point from which the inalienability of ecclesiastical property would develop, which in the following centuries would make church possessions "untouchable." When Constantine I became sole emperor in 324, he further impressed his pro-Christian orientation on law: for example, manumissions of slaves were facilitated, limits were imposed on divorce, and male and female children were equated regarding inheritance mortis causa.
In 380, thanks to the Edict of Thessalonica, Christianity became the sole mandatory religion of the State, leading to significant legal consequences. By the 5th century, a debate had begun over who, between the pope and the emperor, held supreme authority over the Christian population, with Pope Gelasius I theorizing in a letter to Emperor Anastasius I Dicorus that the world was governed by two supreme authorities, without claiming papal superiority over political power—a development that would occur only during the 11th century. Driven by these debates, Gelasius’s pontificate was marked by a prolific production of canon law compilations, such as the Collectio Quesnelliana and the Collectio Dionysiana compiled by the monk Dionysius. In the latter, which would be used for centuries, were included both the canons promulgated by various councils and the decretals issued by the popes. Despite these codification efforts, the Christian Church appeared far from unified, and autonomous codes had emerged in various regions. The most important of these was undoubtedly the Collectio Hispana, which drew from the Dionysiana and included additional local conciliar decisions.