Royal Law and Canon Law
The systems of royal law that developed in the various kingdoms and principalities of Europe in the twelfth and thirteenth centuries had many common features. At the same time, they all bore a structural resemblance to the system of canon law that prevailed throughout Western Christendom.
In each kingdom or principality, royal law and canon law complemented each other in such a way that they may be said to have constituted integral parts of a single legal order.1. Both canon law and royal law exercised a limited competence and limited jurisdiction. Canon law claimed competence to deal with criminal and civil causes arising out of sin and breach of faith; royal law claimed competence to deal with criminal and civil causes arising out of seisin of freehold land and breach of the king's peace. Canon law claimed jurisdiction over clerics and over church property as well as over laity charged with sin and breach of faith; royal law claimed jurisdiction over freeholders and felons as well as over matters directly pertaining to the crown and crown property. The competence and jurisdiction of the two types of legal system overlapped at certain points, and there were clashes between them. Yet for a long time they were able to coexist more or less peacefully.
2. Both canon law and royal law were grounded in the authority of external sources of law, to which they looked for objectivity and generality. Both found such sources in divine law and in natural law (reason and conscience). In addition, canon law looked to sacred texts, including the canons and decrees laid down by church councils, by popes, and by others in authority, whereas royal law looked generally to royal enactments (which, however, were on the whole much less elaborate than ecclesiastical legislation). Both systems also regarded custom as an important source of law, though royal law relied much more heavily on custom than did canon law.
In judicial procedure, canon law relied on testimony obtained by interrogation under oath, as did many of the systems of royal law. English royal law, however, relied on the sworn recognition of neighbors, except that English parliaments in the thirteenth century, sitting as courts, and the chancellor's court in the fourteenth and fifteenth centuries, adapted the canonical procedure to their own uses. Also German royal (or ducal) courts relied on sworn declarations of prevailing customs by law speakers (Schoffen).516-
3. Both canon law and royal law were systematized. However, canon law was more highly systematized. It was even more systematized than the revived Roman law___________________________________________________________ its "handmaiden," which
was not the positive law of any jurisdiction, though it was often called a "subsidiary law," and which, even where it was said to govern, was never the whole body of governing law.
Canon law (like Roman law) was a university discipline, a "science." Royal law was closer to customary law. Royal law was not so easily shaped into an intellectual structure. In England, where at first royal law developed primarily within the limits of the writ system, analogy played a major role in gradually expanding judicial remedies. By the same token, generalization and synthesis played a more limited role. Even in the fourteenth century, when the common law came to be studied and lectured on at the Inns of Court, heavy emphasis was placed on its technical aspects. To be sure, Glanvill wrote a fine book on English royal law in 1187, but it was basically a commentary on the writs, in the style of the canonists' monographs on canonical forms of complaint (libelli), and not a treatise (tractatus) or a summa. Bracton's great treatise in the next century was considerably more substantial and has been called a summa, but it fell into disuse after several generations and not much came along to supplement or replace it.
In Sicily, Normandy, France, the German duchies, and elsewhere, as in England, royal law (or ducal law) was much less highly systematized than canon law. There were a few treatises, such as that of Beaumanoir and the Sachsenspiegel, summarizing French and German "common law" respectively, but there was no university training in such subjects except as they might be touched on in courses in Roman law and in discussions of custom as a source of law. Royal law, like other forms of secular law, did not need to be portrayed in textbooks and taught in university courses in order to be accepted as an integrated, ongoing, autonomous body of law, whereas legal scholarship was indispensable to the creation of the modern system of canon law.Differences in the degree and character of the systematization of the two types of law are to be explained in part by differences in the conception of the spiritual and secular orders. The secular order was, by definition, more chaotic, more disorganized, more aimless than the spiritual (ecclesiastical) order. The secular order was more in need of reform and redemption. To be sure, secular law, in helping to fulfill that need, was subject to reason; it was intended to be scientific and systematic; it was to be tested by criteria of justice and truth. But it was closer to custom than canon law, and therefore closer to disorder and violence. At the same time it was more bound to formalities. For both reasons -- its customary character and its formal character -- it was more difficult to systematize.
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Yet if one compares royal law in the year 1200______ in Sicily, in England, in France, in the German
duchies, and elsewhere____ with royal law in the year 1000 in the same countries, one is struck by
the high degree of systematization that it had achieved, and by the extent to which it had been emancipated from custom and from formalism.
4. In addition to being governed by these three principles -- competence and limited jurisdiction, reliance upon external sources of authority, and conscious systematization -- both royal law and canon law were governed by the principle of conscious growth over generations.
Both were assumed not only to be systems but also to be ongoing systems. In canon law this quality of ongoingness was expressed in the conscious continuity of legislation issued by church councils and popes as well as of judicial decisions handed down by the papal and other ecclesiastical courts. It was also expressed in the conscious continuity of teaching and scholarship. In the various systems of royal law, the principle of conscious growth, or ongoingness, was similarly expressed in the continuity of royal legislation and adjudication, as well as in the continuity of teaching and scholarship.5. Finally, both royal law and canon law exemplified the belief that all law held within itself certain purposes, which were identified as justice; these built-in purposes were to guide the interpretation and application of legal rules and techniques. Thus neither royal law nor canon law was thought to be primarily a body of rules, although neither could function without rules, and in both it was accepted that the rules should form a body, in the sense of a coherent system. Each was regarded as primarily a process of making and interpreting and applying rules in such a way as to realize their built-in purposes of justice. Aristotle had defined equity as "the correction of the law where it is defective by reason of its universality." Equity is justice, he had said, but it is better than a certain kind of justice, namely, that kind "where it is necessary to speak universally, but impossible to do so correctly, [and] the law takes the most general case, though it is well aware of the incorrectness of it." In such instances "it is proper... to correct the defect, as the legislator would himself direct if he were then present, or as he would have legislated if he had been aware of the case." 67 This broad concept of equity was carried over into Stoic thought and into both Eastern and Western Christendom. It was manifested in the Roman law of Justinian through such equitable doctrines as those of good faith, unjust enrichment, and substantial justice.
However, in reviving Aristotelian philosophy and Roman law, the church in the late eleventh and early twelfth centuries gave new moral and cultural content to the concept of equity. In particular, both canon law and royal law added to the earlier, more general concept of equity various specific requirements of Christian conscience: the protection of the poor and helpless (including widows and orphans), the en--518
forcement of relations of trust and confidence (including gifts to be used for charitable purposes), and other requirements. In England, in the fourteenth and fifteenth centuries, when the two princip al royal courts limited their competence in such matters, the king's chancellor, who was then almost invariably a high official of the Church of Rome, began to exercise an exceptional jurisdiction "for the sake of conscience" and "for the sake of equity." In other European systems of royal law, however, and in England in the twelfth and thirteenth centuries, "equity" was not considered to be separate from "law" but, on the contrary, an integral part of it. As in canon law, the equity of the royal courts was that aspect of law which gave it its capacity to adapt old rules to new ("exceptional") circumstances, in order to do justice.
Similar comparisons could be made between royal law and the other types of secular legal systems -Âfeudal law, manorial law, urban law, and mercantile law. Royal law bore a relationship to those other secular legal systems analogous to the relationship that canon law bore to royal law: in comparison with them, royal law was more comprehensive, more sophisticated, more advanced, or at least would rapidly become so in the succeeding centuries. When the attack on the canon law of the church came in the sixteenth century, it was the law of kings and princes that played a leading role against it; manorial law had disappeared almost entirely, feudal law survived chiefly as a residue of the past, and urban and mercantile law had become increasingly subordinate to royal law.
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