JURISPRUDENCE

17 During the first centuries of the Middle Ages legislation had only a secondary importance. Jurisprudence as such did not exist: there is no trace of legal treatises or professional legal teaching.

The collections of capitularies, which are sometimes found in the same manuscripts as the texts of national laws, were written for the use of practitioners and were not subject to doctrinal exposition in comВmentaries or manuals. Some rudiments of Roman thought were known through such texts as the lex Romana Visigothorum" or the Etymologiae of Isidore of Seville, a small encylopaedia which distilled the knowledge of Antiquity. But these isolated traces of ancient legal culture were not studied or analysed. In any case the law schools and lawyers who would have been capable of such work had disapВpeared. The sources of the period reveal ignorance of Roman law, and sometimes of the law of the capitularies, even among those whose professional activities in principle required them to be acquainted with them. Thus it is, not surprisingly, extremely rare to find a qualified and independent author expressing any critical opinion; but precisely this should be the role of any jurisprudence. An exceptional figure of this kind was Agobard of Lyon (d. ad 840) who dared to attack the ordeals and the personality principle of the application of law. Even canon law, which enjoyed considerable prestige,¹² inspired no study or theoretical commentary: the authors of collections contented themselves with bringing together the existing rules, and the promulgation of new rules by the pope or by the councils (especially the Frankish councils) was most infrequent.

The law therefore remained essentially an oral law, whose princiВpal source was custom. The law of the kingdom was not unified but varied from tribe to tribe (initially) and from region to region (in later centuries). Apart from the capitularies, the only supra-national law was the law of the Latin church, which was authoritative

" See above section 12, note I.

^,∙ Dionysius Exiguus in ad 489-501 compiled a collection which was recognized in the Frankish kingdom under Charlemagne. It was known as the Dionysio-Hadriana'. Hadrian I presented it in ad 772 to Charlemagne in Rome, and in ad 802 at Aix-Ia-Chapelle he proclaimed it the canonical and authoritative collection for the empire. throughout the West but important only in church affairs, largely of an administrative nature. None of these sources of law was the object of study or scholarly commentary.

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Source: Caenegem van R.C.. An historical introduction to private law. Cambridge University Press,1996. вЂ” 224 p.. 1996

JURISPRUDENCE

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