11 CIVIL LAW AND LOCAL LAWS IN THE THIRTEENTH CENTURY

The thirteenth century saw attempts in several European countries to set down the local law in writing and in every case those responsible turned to the civil law to provide organising categories and organising princi­ples.

When kings wauled to legislate, they 1 ur'iicd l to civil Dwyers for help. Edward I, king of England from 1272 to 1307 (and lord of substantial parts of France), was very interested in problems of government and law and was responsible for several pieces of legislation that earned him the (exaggerated) title of ‘the English Justinian'. For this work he specially recruited Francis Accursius, son of the great glossator, and a well-known civil lawyer in his own right, into his service.

At the same time as Bracton was compiling his collection of English law, the Emperor Frederick II in I23I promulgated a collection of laws for his Sicilian kingdom, known as the Liber Augustalis or Constitutions of Melfi. In substantive content these laws are not obviously Roman, but Roman texts were used to justify the law-making power of the emperor and the procedure to be adopted in the royal courts.

The Constitutio puritatem laid down the duties of Frederick's judges in the face of a multiplicity of overlapping laws. In the first place they must apply royal legislation. If there is no relevant rule to be found there, local customs may be applied, so long as they are good customs; in the absence of a rule in legislation or approved customary law, the judges should turn to the ius commune, which is explained as Lombard law and Roman law. Lombard law was the only Germanic law to have been the subject of scholarly interpretation (at Pavia). Henceforth, however, no law was taught in law schools but civil and canon law. Even Frederick's royal con­stitutions had no place in the curriculum of the law school at Naples, which he founded.

In Spain the legal situation was much affected by the Moorish domi­nation. The Liber iudiciorum, a seventh-century collection, based on earlier collections of Visigothic and Roman laws, which had originally been applied to the Visigothic and subject populations but had become territorial, provided some basis for the regional customs. The Moorish occupation, beginning early in the eighth century, covered the whole peninsula, except for the far north and Catalonia, until the end of the tenth century. The Reconquista proceeded during the eleventh and twelfth centuries and by 1200 the northern two-thirds of the country had been freed from Moorish domination. It was, however, not united, since, as different parts were freed, they became independent kingdoms, each with its own set of customs, set out in a multitude of written ‘fueros'.

The leading kingdom was Castile and Leon. The earliest Spanish uni­versity was established in the first decade of the thirteenth century at Palencia and moved in 1239 to Salamanca, which became a centre for civil and canon law. In the middle of the thirteenth century, two remark­able kings, Ferdinand III and Alfonso X, were able to exploit the new learning in order to counter the diversity of laws in their dominions. In the style of Frederick II in Sicily, they sought to introduce a modern system that would act as a unifying force and bring Castile into the main­stream of European legal thought.

Ferdinand initiated an ambitious set of law books, culminating in the Sietepartidas, published by Alfonso, known as ‘the wise'. The division into seven parts glowed with religious significance and may have been mod­elled on the sevenfold division which Justinian imposed on the Digest for educational purposes (Constitutio Tanta, 1-8). Alfonso had been persuaded of the virtues of Roman law by his tutor, who had studied at Bologna, and personally led the team of compilers. The work they produced was a mixture of traditional customs of Castile and Leon, of civil and canon law and of rules derived from the Old and New Testaments and from patristic writers. Although by inclination favouring Roman law, Alfonso had to make it acceptable to his subjects.

The Siete partidas were written in the vernacular rather than in Latin, and were comprehensive in scope, covering general notions of law and custom, procedure, property, marriage and marital property, contracts, succession on death and criminal law. Roman and canon law influences are noticeable in all parts. Alfonso was not strong enough to impose this legislation throughout his kingdoms. The nobility, whose privileges he had attempted to curtail, and the municipalities initially found it too foreign. Gradually, however, its merits were recognised and the more professionally trained the judges became, the more they turned to the Siete partidas.

Whether the recording of local law was achieved through legislation or was left to private individuals, the use of the civil law was the same. A well-known example from France is the treatise, written about 1280, by Philippe de Beaumanoir, bailli or judge of the Count of Clermont's court in Beauvaisis, on the Custom of Beauvaisis. He wrote in French, not Latin, and remained faithful to the customary law actually applied in his court. Yet he was clearly well trained in the civil law and, like Bracton, he adapted Roman law to quite unroman institutions, to give them greater authority. Thus he cites the maxim ‘what pleases the prince has the force of law' to support the right of the king of France, when embarking on an expedition, to suspend the obligations of knights joining his army. One part deals with renunciations, clauses inserted into a charter in which a party renounced a possible appeal to some rule, usually by way of defence. Some of these, such as the complaint that the seller has received less than half the value of what he has sold (laetio enormis), are clearly of Roman origin and were probably copied from pleading formularies. The section on procedure shows the influence of the Romano-canonical works on procedure and the section on contracts, a subject that was not highly developed in local customs, drew consider­ably on Roman sources.

In the thirteenth century Roman civil law became, together with canon law and theology, part of a common Christian learned culture shared by those who occupied positions of authority, both lay and eccle­siastical. As such it was more readily exported east of the Rhineland into areas that were never part of the old Roman empire. For example, Anders Sunesen was a Dane of noble family who was sent to France, Italy and England to learn theology and law. On his return to Denmark he was made chancellor to the king, provost of Roskilde cathedral and

⁶7 from 1201 to 1224 Archbishop of Lund. He produced two works in Latin, designed to introduce the elements of the new learning to those of his fellow-countrymen who were literate.

Despite the de facto validity of local law, Roman civil law provided an accepted ‘mind-set', which formed the basis for political and legal thought throughout Europe. As part of the common culture of Christian Europe, it appeared quite naturally in great works of philoso­phy and literature. St Thomas Aquinas's Summa theologica and Dante's Divina commedia offer ready examples. For his philosophical principles, Aquinas draws on Aristotle, who for him is ‘the philosopher'. For his examples of particular kinds of human behaviour and for some definitions, he draws on Roman law, and particularly Ulpian, who is ‘the jurisconsult'. Aquinas's definition of justice as ‘the constant and perpet­ual will to attribute to each his due' is that of Ulpian (D.i.i.iopr.).

Dante gives Justinian a prominent place as a sacred figure both in his Paradiso, books 6 and 7, and in his political works, where he identifies the Corpus iuris with Reason itself. Many passages from Dante, as from Aquinas, show how phrases from the texts of the Corpus iuris had become part of general educated discourse, even among non­lawyers.

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