Comparative Law Notes 7
LAW 6250
Professor Pedro A. Malavet
The Other Root: The Canon Law, pp. 360-384
Background and Review: Transition between Roman and Customary Law
Map from Hyperhistory
Map from Hyperhistory
As you see in the maps above, the Western Empire is displaced by the Germanic Tribes invading from the North, finding a Western empire that could not stop them.
I am not a big fan of the term "barbarian" or of the designation of this period as the "dark ages." However, Roman Law survives during this period because the idea of State Positivism, i.e., that the sovereign state has the authority to impose law within its territory, accompanied by the power to actually impose it on people, which was arguably present at the height of the Western Roman Empire, will not really widely return to Western Europe until the birth of the Nation States of the late Eighteenth and early Nineteenth centuries. What we have is the co-existence of laws and even legal systems based on important factors that I divided into:
1) The Personality Principle: the law to be applied to a person is that of his "race", therefore, Romans had Roman Law applied to them, and Visigoths had their own law applied to them, with the Goths having a decided advantage in conflicts between the classes. The invading tribes bring with them a system of customary law, which was decidedly local.
2) Roman Law was not "barbaric." I use this phrase in a very particular context. Compared to trial by combat or by ordeal, Roman procedure looks positively enlightened and ultramodern.
3) Political Factors: the fight between the Secular rulers and the Catholic Church for political power was based on the common ground of Roman Law.
4) Practical Factors: Roman law was written and generally available. Administratively, it was a good system that many rulers adopted, even if they could not enforce it beyond their castle walls.
Background: Roman Law Makes A Comeback,
Keep in mind that most study of Roman law today is based on Justinian's Corpus Juris Civilis, produced in the Eastern Roman Empire, i.e., the Byzantine empire --a Roman empire that no longer included Rome, which had fallen when Romulus Augustulus was Western Emperor in 476 a.d.
Corpus Juris Civilis:
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) Codex: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) Digest: mostly opinions of jurists that had been issued as responsa;
Corpus Juris Civilis:
3) Institutes: a basic lawbook intended for educational purposes, succinct statement of the new law;
4) Novellae: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.
I emphasized in this area the legal development of the study of law. First, the amazing story of the small city-state of Bologna attracting so many students, given (or perhaps because of) its location between the big-boys of Northern Italy, Genoa and Florence in the West and Venice to the East. The evolution of the studies is important. Glossators, give way to the Post-Glossators, also known as commentators, who then give way to the Humanists. Glossators represent a literal look at the old Roman texts with marginal notes for explanation and cross-reference. The Commentators try to make law more practical and relevant to their times, by reorganizing it and incorporating some customary rules, within the Roman structure. The Humanists finally bring a critical philosophical view to the law.
Canon Law, pp. 360-384
Canon Law, the law of the Roman Catholic Church, has had a profound influence on the Western legal tradition. It's basic principles are reflected in much European and American Family Law in particular. But it is certainly not limited to that. The substantive areas of law discussed in the initial readings are very important. Trace them as the origin or at least as a refinement of an older rule that is still around. Canonical Procedure has had a profound influence on the Civil and Criminal procedure of the Civil Law Tradition, as we will see later. Cross-reference this material carefully.
Canon Law:
The law of the Roman Catholic Church (the Orthodox Church had already split from Rome in the 11th century)
Profound influence on the Western legal tradition, European and American Family Law in particular
Origin or at least as a refinement of an older rule that is still around
Canonical Procedure has had strongly influenced the Civil and Criminal procedure of the Civil Law Tradition
Three Periods Of Canon Law: p. 361, parr. 5.1.1
1) Gratian’s Decretum (1139-1150)
2) The Council of Trent (1545-63)
Counter-reformation,
acceptance of the reality of Protestantism (p. )
3) The First Vatican Council (1869-70) (Code of 1917)
-- [Note that the new Code of Canon Law was promulgated by Constitution issued by Pope John Paul II on January 25, 1983. Started by Vatican II in 1962]
Why is Canon Law Universal? (at least in Europe), p. 361, parr. 5.1.2
The church itself is international
The controversy between the Holy Roman Emperor and the Papacy
A functioning legal system “from the twelfth to the sixteenth century there was throughout western Europe a relatively uniform structure of ecclesiastical courts, administering a fairly regular system, and staffed by men who had undertaken a reasonably common education in canon, and frequently in civil, law.” p. 362.
Pope Alexander III (referred to in parr. 5.2.1-5.2.2)
Born Orlando Bandinelli to a prominent Sienese family, c. 1105
Pope 1159-81
Traditionally described as Professor of both laws at Bologna and probably the author of one of the principal commentaries on Gratian’s decretum (influenced by Abelard) (but this is controversial, since some recent work suggests that he only studied there, p. 367)
Faced antipopes, war, and political conflict with several rulers, including Henry II of England over the Beckett matter, and with Emperor Frederick Barbarossa, over the investiture controversy, until the peace of Venice in 1177.
Universality, 5.1.2 & 3, p. 362
Canon law was a working legal system, backed up by a politically and economically, and of course, religiously influential church.
Both substance and procedure
Procedural system is based on Roman later empire cognitio
But it was the canonists and the church that introduced it as a functioning legal system
Church Councils
“Councils are legally convened assemblies of ecclesiastical dignitaries and theological experts for the purpose of discussing and regulating matters of church doctrine and discipline. The terms council and synod are synonymous … .”
Usually, only bishops get to vote
Catholic Encyclopaedia
http://www.newadvent.org/cathen/04423f.shtml
Lawyers at work (parr. 5.2.3)
Development and economic growth generated a demand for predictable and rational laws and legal processes
Both the Holy Roman Emperors (and other rulers) on the one hand, and the Popes on the other, used law and lawyers to justify their claims to power
Think of this as the 11th century “full employment for lawyers” act
Donation of Constantine, p. 364
A forgery, probably produced in the 8th century (c. 750 a.d.) to assist Pope Stephen II
Purported to be a grant from the emperor to the Church of substantial lands in Italy and
the power to invest kings with legitimate claim to divine ascendancy
Hierarchy Of Canon Law:
1) Divine Law, the will of God, reflected in the Bible’s revelation. Superior.
2) Natural Law, also God’s will, but discerned from human reason, conscience and revelation. Superior to human law.
3) Human Law.
Law and the Prince
Old Rule: Roman and German. A good emperor should observe his own laws as a moral imperative, but was not obliged to do so.
New Rule: Princes are bound by their laws. They can, as lawmakers, change them, but not disregard them.
Three Periods Of Canon Law
1) Gratian’s Decretum (1139-1150) (sec. 5.3)
2) The Council of Trent (1545-63) Counter-reformation, and acceptance of the reality of Protestantism
3) The First Vatican Council (1869-70) (Code of 1917)
Gratian’s Decretum (parr 5.3.4)
Gratian was a Benedictine monk who compiled and organized existing laws
Interpreted initially by the Decretists
Three parts:
the nature and sources of law, and ecclesiastical offices and conduct
clerical behaviour, procedure and penal law, church property, with religious orders, with marriage and, in a semi-independent treatise, with penance.
the sacraments and with doctrine
Gratian’s Decretum (scroll down to see a graphic)
Manuscript of Gratian's Decretum. Written in the thirteenth century at Bologna and commented (glossed) by various jurists.
Cesena, Biblioteca Malatestiana, Pluteo II sin. cod. 1, fol. 2r
http://classes.maxwell.syr.edu/his311/Lecture%20Three/manuscript_of_gratian.shtml
The Scholars of Roman & Canon Law
Glossator-Decretist Literal, Duplication, Annotation, Cross-referencing (parr. 5.3) NOT the decretals of 5.4 (those are issued by Popes)
Post-Glossator-Decretalist Since they commented on Papal Decretals (5.4), these were practical, relevant, still Roman in form, though not in content or ideology (parr. 5.5)
Humanist-Natural Law Philosopher Critical view of the Law
The Doctors of Both Laws
Many canonists, having made their mark in academic law, went on to administrative careers in Church or state. 5.5.5
The Canonists and the Just War (parr. 5.6.1, pp. 372-373)
The twelfth-century canonists stressed the necessity of a superior jurisdiction [that of the Prince] to give legitimate authority for the prosecution of a war.
Exception: right of passage could be fought over, especially as to cities (like, say Jerusalem). Crusades.
The Church stressed the notion legal authority and of the extraordinary nature of war as a way to resolve disputes
Theory of Just War, 373, 5.6.1
the one who proclaimed the war should have due authority — that is, be a prince, not a mere lord;
the adversary must be guilty of something which deserved measures of force;
the actual fighters must be suitable and inspired by worthy motives.
Canon Law in Action (parr. 5.7.1, p. 375)
It was most felt at the local administrative level
All Christendom was divided into dioceses, and the bishop of each diocese was the judge ordinary, the man with universal jurisdiction in that diocese, except where there was specific reservation to some other court. The bishop was the proper judge in both civil and criminal cases falling to the courts spiritual (5.7.2, 376).
Judicial role could be delegated to other officials including non-clerics
Ecclesiastical Jurisdiction Based on a Person’s status or identity
Ratione Personarum, 5.7.4
1) Clergy and members of their household, benefices, that is, tenure of parishes, canonries, bishoprics, etc
2) Students
3) Crusaders
4) Wretched persons, poor people, widows and orphans
5) Jews, in cases against Christians
6) Travelers, including merchants and sailors, when necessary for their safety.
Ecclesiastical Jurisdiction Based on the Subject Matter, 5.7.4
Ratione Materiae,
1) Administration of The Sacraments
2) Testaments
3) Benefices, Administration and Patronage of Church Office, Tithe (Limosna)
4) Oaths, Including Pledges of Faith (e.g., 5.7.5)
5) Sins Meriting Ecclesiastical Censure
Substantive Law in the Canon Law: Area and its Source of Authority
Family Law jurisdiction over the sacrament of marriage
Inheritance Law juridiction over testaments
Property Law jurisdiction over benefices
Contract Law Pledges of Faith
Criminal and Tort Law (5.7.6) Jurisdiction over Sins (note penalties parr. 5.7.7 & 8)
Canonical Procedure (parr. 5.8)
“Canon law built on the cognitio procedure of Roman law, a rational system taking account of documentary evidence and witnesses' relation of events within their knowledge; this at a time when the feudal courts preferred trial by battle or by ordeal. In the ecclesiastical courts auditors were appointed to act as examining magistrates, and all the proceedings were recorded in writing (Extra 2.19.11), usually by qualified notaries.”
Features of Canonical Procedure
(1) Written
(2) Testimony received under oath
(3) Counsel allowed
(4) Dual: Formal and Equitable systems
(5) In criminal proceedings: judge-led interrogation to get to the facts.
Judicial investigation accompanied by evidentiary rules.
Other aspects of Canonical Procedure,
Fourth Lateran Council of 1215 forbid priests from participating in ordeals.
Dual system with one judge collecting a written record and another deciding the case.
Confession of the parties was essential, and could be obtained by torture.
Roman Law & Procedure
Roman law and procedure could be used when not in conflict with canon law (supplementary) (5.8.5)
Substantive Law in the Canon Law: Area and its Source of Authority
Family Law jurisdiction over the sacrament of marriage
Inheritance Law juridiction over testaments
Property Law jurisdiction over benefices
Contract Law Pledges of Faith
Criminal and Tort Law Jurisdiction over Sins (note penalties parr. 5.7.8)
Canon Law and Women
canonical doctrine largely ignored the feudal distinction between moveable and immovable property; the canonist attitude was adopted from the law of Justinian's time and was partly in the interests of the claims of women, who enjoyed inferior rights in feudal property. (5.9.1).
Better remedies were also generally available. 5.9.2-.3
Obligations
Not so much the “meeting of the minds”
Pacta sunt servanda (agreements are for keeping) was the canonist ruling, but performance could normally be required only if the first party had done or offered to do his part. 5.9.4
Canon Law of Contract, 5.9.4
Moral Obligations Matter
1. No requirement of form (I.e., oral contracts are OK)
2. Causa (consideration/object) has to viewed in the context of a moral obligation
3. “Fair Price”
4. Excess Profit/unconsciounability
Canon Law:
The law of the Roman Catholic Church (the Orthodox Church had already split from Rome in the 11th century)
Profound influence on the Western legal tradition, European and American Family Law in particular
Origin or at least as a refinement of an older rule that is still around
Canonical Procedure has had strongly influenced the Civil and Criminal procedure of the Civil Law Tradition
Three Periods Of Canon Law:
1) Gratian’s Decretum (1139-1150)
2) The Council of Trent (1545-63)
Counter-reformation,
acceptance of the reality of Protestantism (p. 114)
3) The First Vatican Council (1869-70) (Code of 1917)
Why is Canon Law Universal?(at least in Europe), p. 114
The church itself is international
The controversy between the Holy Roman Emperor and the Papacy
A functioning legal system
“from the twelfth to the sixteenth century there was throughout western Europe a relatively uniform structure of ecclesiastical courts, administering a fairly regular system, and staffed by men who had undertaken a reasonably common education in canon, and frequently in civil, law.” p. 114
Pope Alexander III
(referred to in parr. 5.2.1-5.2.2)
Born Orlando Bandinelli to a prominent Sienese family, c. 1105
Professor of both laws at Bologna and probably the author of one of the principal commentaries on Gratian’s decretum (influenced by Abelard)
Pope 1159-81
Faced antipopes, war, and political conflict with several rulers, including Henry II of England over the Beckett matter, and with Emperor Frederick Barbarossa, over the investiture controversy, until the peace of Venice in 1177.
Pope Alexander Pardons Fredric I (Barbarossa)
The Holy Roman Empire, circa 13th century.
Abelard & Heloise
Northern Italy in Late Middle Ages
Note the parallels between Decretists and Glossators, Decretalists and Post-Glossators and Catholic Natural Law Philosophers and the Legal Humanists.
| Roman Law Study | Canon Law Study | Function |
| Glossator | Decretist | Literal, Duplication, Annotation, cross-referencing |
| Post-Glossators or Commentators | Decretalists | Practical, Relevant, Still Roman in form, if not completely in content |
| Humanists | Natural Law Philosophers | Critical View of the Law |
