History of Law: Medieval Era

Figure 1.--Perhaps the most vivid medieval example of trial by ordeal is this pannel by Dirk Bouts depicting the 'Justice of Emperor Otto III'. The left pannel shows the 'Beheading of the Innocent Count'. This right pannel shows his wife's 'Ordeal by Fire'. The panels were painted about 1460. Dieric Bouts was an early Dutch painter.

With the fall of Rome in the West, many new threads appear in Europeam law. Because of the Churchg, Roman law was not lost, but secular law, such as it was was dominated by many different trends and inflkuences and different systems developed within what was once the Roman Empire. Becase of the importance of the Church, Roman law would eventully reassert itself. The medieval era is more known for lawlessness than law, but much of our modern legal systems developed out of medieval legal traditions. An exceotion was Soviet Law which was essentially state lawlessness and a factor in the demise of theoviet Union. The long arc of legal development began with Magna Carta during the medievl era was restraints on arbitrary government and the development of legal protections for the individual. Soviet Law esentially returned to the centuries old legal system of arbitary law by rulers, but with the terifying power of the modern state.

Byzantine Law

Byzantine Law was basically a continuation of Roman Law with added Christian influence. Thgere were two different spheres, Ecclesiastical Law and Secular Law. The Code of Justinian was especially important.

Cannon Law

One often ignored legal development is the importance of the Catholic Curch in conveying Rome's greatest legacy--the rule of law. With the fall of Rome, the invaluable tradition of law could have been lost and it almost was. The illiterate barbarian chiefs who destroyed the Empire had no tradition of codified law and little interest in establishing one. Law in the new kingdoms the Germanic chiefs founded were essentially what the chiefs decided on at the spur of thge moment with some general guidance of the Salic tradition. Rome's legacy was, however, not lost. It was adopted by the Church and became the basis for canon law. This is the body of laws and regulations adopted by Christian ecclesiastical authority to govern a Christian organization or church body and its congregates. This includes the Catholic Church (both Latin Church and Eastern Catholic Churches), the Eastern and Oriental Orthodox churches, and the Anglican Communion of churches. A canon was initially a rule adopted by a church council. These canons were the foundation of the developing body of canon law. Canon Law began to develop in the final years of the Roman Empire and continued through the medieval era to govern the Church. Cannon law was the vessel through which Rome's precicious legal heritage was conveyed to medieval Europe. At a time when Europe was a cauldron of waring Barbarian nobles, mostly illiterate, the Church developed cannon law which was the template for legal systems that slowly developed in Western Europe. Here the cannon law of greast importance was that of the Church. This was because the canon law of Roman Catholic Church was the foundation of the secular in the develoing western kindoms which became the great powers of Europe. The only exception was Russia. Here the basis was Orthodox canon law, but the legal tradition in the East never developed the strength of that in the West because the Orthodox Church was subservient to the state.

Trial by Ordeal

With the disappearnce of Roman law, more primitive juridical practives appeared. Trial by ordeal was an ancient judicial practice which became adopted throughout meduevalEurope. The guilt or innocence of an accused individual was determined by hos or her ability to withstand an ordeal. Thgese ordeals were noy only common unpleasant, butoften life thretening challenges, incluing fire and water. The tests were basically life or death. The proof of innocence was the individual's survival. There were variations. In some instrances, the accused was considered innocent if they escaped injury or since that wa unlikelt, if their injuries healed. In medieval Europe, there was also the related by combat.

Salic Law

The Germanic pepple to the east of the Rhine were divided into many warring tribes, but there were many cultural similarities. One of them was a general belief that the law came from the people. This was a major diffrence from from Rome which after Augustus came to believe that law came from the emperor. A leader thus after the fall of the Roman Empire, whether he be king or dux, would not be able to change a law by royal edict without the approval of his people, meaning the great nobels or barons. Germanic peoples did not write down or codify aws. I instead before the fall of Rome before the development of a wtitten language or in the early medieval era, they memorized them. Laws were thus passed down through the generations by oral tradotion. Many Germanic laws were made to restrict blood feuds. Reckless fighting within a village often caused such feuds, which could on for years and take many lives. The Germans set up courts to prevent settle disputes and prevent these disruptive blood feuds. In a Germanic tribal court, a judge would listen to both sides of the story and tried to find a settlement that would bring peace. Actually a kind of arbitration commonly used before small claims courts. In criminal mattrs, guilt or innocence could be decided in various ways. One ws oath-taking. A witness might swear that a certain person was innocent to a crime. If there were no witnesses, the accused would commonlu be forced to endure an ordeal. If someone was determoined to be guilty by the ordeal, a fine, called wergeld, would be imposed. The fine would not go to the government, but to the family of the victim or wronged person. This system was not always fair, but commonly prevented estructive blood feuds which helpe maintained the peace. One of the most important cultural legacies of the Franks is the Salic law (Lex Salica). It is the first body of traditional Germanic law to be codified. It was codified for use in governing the Salian Franks by King Clovis I during the early Medevil period (about 510). Although codified at that time, it is a body of traditional German law that dates back to ancient times. The single best known tenant is the exclusion of females from the inheriting a throne or fief--agnatic succession. (salic Law is sometimes used as a synonym for agnatic succession. Salic law is, however, much more imprtant. Salic Law along with Roman Law (passed through canon or ecleasiastical law) is the foundation aling with the Naploeonic Code are the foundation for the modern legal system in much of modern Europe.

English Common Law

The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Modern England is an amalgum of many different peoples and Englisg common law shows an imprint of many of these peole. The exception was the Celts and Romans. The Romans supressed Celtic culture and the Anglo-Saxon s supressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe. Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD). King Alfred the Great (849-99 AD) reportedly translated thelimited legal texts of the day into English. To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, William the Conqueror's victory at Hastings (1066) ended Anglo-SAxon rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman law. William had ulterior motives. If he had completely supressed Anglo-Saxon institutions, his rule would have been dependent on the Norman barons. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. The coimbination of Anglo-Saxn and Norman law eerged as English commn law. It developed as custom and precedent rather than by written code. This cimmon law came to be a real force (14th century). Courts and lawyers began to defer to recedents in legal decisions and commentaries. Another strain of English law is the law of equity (chancery). These were law issued by the monrchy to order or prohibit specific acts. The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).


A major development in the hostory of law is the appearance of parliament. Whike the English parliament would becone known as the mother of all parliaments, parliament was not an exclusively English, but a pan-European, medieval institution. Parliaments would eventually become a law making body, but this was not a first its purpose. There were early medieval precurosors to European parliaments. The most often sited is the Anglo-Saxon Witenagemot, which in Old English word meant 'meeting of wise men'. This was an assemblage or council of nobles and clergymen that existed in the Anglo-Saxon kingdoms as they evolved under pressure from the Vikings into England (7th-11th centuries). The members were known as witans. The role of the Witenagemot was not to make law, but to advise the king upon his request. The Witenagemot was also required to oversee the sucession and validate the new monarch. Occasionally it function as a court of law to decide major legal issues. With the Battle of Hastings and William's rapid conquest of Saxon England (1066), the Witenagemot and other Saxon institutions were overthrown by the conquering Normans. There was thus no historical continuity between the Anglo-Saxon Witenagemot and the English/British Parliament. The Witenagemot was, however, important because it revealed a natural development in medieval Europe for a king to create an institution to assist in governamce. And there were similar institutions developing on the Continent. And at about the time that Duke William conquered England, European monarchies were beginning to coallese and establishing national states. Parliament might appear to be a British institution because of the importance of the English Paliament, but the English Parliament was not the only medieval parliament or even the first. Parliaments appeared throughout medieval Europe (12-13th centuries). An important historical question is why the English parliament developed in a democratic direction to become so important while other parliaments in the Contiment largely failed. Thie first institutionnwhich might be called a parliaments appeared not in England, but of of all places Poland. The idea of the wiec which apparentky chose the first Polish king, led the Polish parliament--the Sejm (1182). And then parliaments began appearing in the Iberian Peninsula. There were historically documented councils (873, 1020, 1050 and 1063), but commoners did not participate. What what might more accurately be called parliaments appeared: Léon (1188), Catalonia (1217), and Castille (early-13th century). The Spanish parliaments became know as the Cortes. This development in Spain was no accident. Spain was in the middle of the Reconquista and the monarchs of the Christian kingdoms needed support of their feudal lords, who were no loath to make alliances with Muslims, to pursue military campaigns. The Scottish Parliament was first reffered to as a colloqium (1235). The first English parliament was called (1265). The first French parliamebt was Parliament of Paris (1307) which developed from the the Curia Regis. The functions and structure of these parliments varied from country to country, but often addressed taxation. In recognition of the developing European economies, included representatives from the growing cities: good men of the cities (spain), the commons (England), and the le tiers état (France). While monarchs called parrliaments to gain support for policies such as higher taxes, at the same time a major struggle for power was often played out between the great feudal lords (the barons) and the monarchy attemptung to centraliae power. Caught in the middle were the growing medieval cities who often use the struggle to obtain royal charters guaranteeing rights abd freeing them from feudal obligations.


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Created: 8:12 PM 11/5/2011
Last updated: 8:13 PM 11/5/2011