The Historical Background

With the collapse of the Roman Empire in the West, Europe moved slowly but surely into an era that is generally known as the Middle Ages. This period of transition featured a disintegration of the civilisation and forms of social and cultural life that had been characteristic of the Greco-Roman world.

By the end of the sixth century, the great Germanic migrations into Western Europe had ceased. Of all the Germanic kingdoms established in the lands of the former Roman Empire, only the Frankish was destined to endure as most of the others disappeared after a brief existence.

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G. Mousourakis, Roman Law and the Origins of the Civil Law Tradition,

DOI 10.1007/978-3-319-12268-7_7 this development of the Frankish kingdom was hindered by the political division of the land and the disunity of his successors who continuously intrigued and fought against each other for power. Under these circumstances, the royal authority weakened and the kings increasingly relied upon an independent group of nobles for sustenance, advice and support in war that was rewarded with grants of land, offices and privileges. Despite the feebleness of Clovis’ successors, the Frankish kingdom with support from the Catholic Church not only survived as a single realm but also expanded its territory. The most powerful noble in the court was an official designated maior domus, or mayor of the palace. From the middle of the seventh century, the gradual decline of royal authority meant the mayors of the palace in the respective courts became the real rulers of the kingdom. In 681, Pippin II of Heristal elevated his position as mayor of the palace of Austrasia (one of the three provinces into which the Frankish domain had been divided) by assuming the mayoralty of the united Frankish kingdom. After Pippin’s death, his illegitimate son Charles Martel (714-741) succeeded him in the office of mayor of the palace. Martel gained control of the realm and became the founder of a new line of rulers known as the Carolingians (he did not adopt the royal title himself). Charles’ grip on power was secured further after the Battle of Poitiers (732), where he defeated the Arabs who had already besieged Spain, and thus he stemmed their further advance into Western Europe.

The greatest monarch in the Carolingian line was Pippin’s son Charles, known to history as Charlemagne (768-814), who became sole ruler of the Franks on the death of his brother Carloman in 771. After a long series of wars, Charlemagne extinguished the Lombard kingdom in Northern Italy and assumed its rulership (774). He quelled the Saxons and thereby added a large tract of territory in Germany to the Frankish realm, strengthened his suzerainty over Bavaria and the area that later became Austria, and repulsed the Arabs beyond the Pyrenees to gain control of Barcelona. Like his predecessors, he followed a policy of close cooperation with the Church. He confirmed the grant of territory in Italy that had been previously presented to the Pope by his father and made it part of his policy to spread the Christian faith in the newly conquered lands. The partnership between the Caro­lingians and the Papacy culminated in Charlemagne’s coronation by Pope Leo III as Emperor in Rome on 25 December 800. In internal affairs, Charlemagne exerted great efforts to promote centralised rule. He exercised general supervision over the Church using the Church organization as a vehicle for extending his authority, held the nobles in check (although he often sought their advice in matters of state policy), and ensured closer supervision of the administration by appointing counts and margraves to govern the various parts of his realm.

The establishment of a Western Empire by Charlemagne was one of the most important events in the rise of a new society in Western Europe. Just as the reign of Justinian had precipitated the emergence of Byzantine civilisation, the achieve­ments of Charlemagne helped to mould the civilisation of Western Europe that began to form in his time. In the years following Charlemagne’s death, the unity of the Frankish Empire shattered and political authority everywhere tended to dis­integrate. During the ninth and tenth centuries, new invaders—Norse Vikings, Saracens, Magyars and Slavs—threatened Europe from all sides. Charlemagne’s successors, weakened by perpetual dynastic struggles, were unable to thwart the advance of these invaders. In the wake of the devastation caused by war and plundering, economic conditions worsened, living standards remained at a low level and learning was stifled. The permanent threat of invasion and the inability of the kings to protect and assert their authority over the local communities of their realms strengthened the centrifugal tendencies in the West.

The feudal system had its roots in later Roman times, but some of its defining characteristics were derived from Germanic traditions. Of particular importance was the custom of Germanic kings and nobles to grant privileges, land or office to persons close to them who were then obligated to serve loyally in the government and in time of war. A hierarchical system gradually emerged: at the top position resided the king and below him, as vassals and subvassals, were the nobles (dukes, counts, barons and knights) while the base consisted of the peasants who provided a livelihood for all by tilling the land. Each vassal had full control over his own territory in return for definite and well-recognized obligations of a personal and military character due to his overlord. This arrangement accorded the vassal his requisite protection, while it provided his overlord with the power and prestige he desired. As medieval kings were not powerful enough to assert their authority over the local communities of their realms, feudal lords acquired a considerable degree of independence. Thus, the fiefs were regarded in economic and political terms as nearly autonomous units. Decentralisation was supreme and remained so until feudalism yielded to the rising tide of nationalism and royal power.

The weakness of central authority enhanced the power of the Church, which adapted itself to the feudal system by accumulating vast landholdings and by extending its influence through its own vassals and serfs. As Church officials became feudal lords themselves, the division of power between Church and state (the former was supposedly supreme in matters of faith and morals, the latter in temporal affairs) became difficult to maintain in practice. Thus, the foundations were laid for the contest between secular and ecclesiastical authorities that tran­spired during the later Middle Ages.

In the eleventh century, Europe entered a period of political, economic and cultural transformation.

One of the most important developments that stimulated the economic and cultural revival of the eleventh and twelfth centuries was the rise of towns and the emergence of a new urban civilisation. Potent factors in urban growth were the rapid expansion of trade and the increase in popularity of fairs, i.e. organized occasions for commercial exchange. During the crusades, the Mediterranean had been reopened as a major West European trading route and new trading possibilities were recognized and exploited. The first to profit from these trade events were the Italian coastal cities (such as Venice, Genoa and Pisa) that gained in strength, independence and prosperity. The increasing number, size and power of commer­cial cities naturally cultivated the urban middle class and the expansion of its political influence. This new urban class was a powerful force that generated new currents in medieval Europe, as opposed to the inertia of the old agrarian feudal order. The latter was characterised by localism, uniformity and repetition that rendered it inherently stagnant and custom-bound. In contrast, the urban movement was based on diversity and novelty accompanied by a dynamic and more tolerant outlook on life. This promoted the introduction of novel social, economic, political and legal elements into medieval life and stimulated cultural endeavours. As the townspeople struggled for greater economic and political freedom, they redirected the political evolution of Europe and accelerated the decline of feudalism.

The new upward trend of culture manifested itself in a significant increase in literary and artistic output and educational activity, and a revival of classical studies. Alongside the traditional forms of education centred around monasteries and churches, secular education emerged as a vital force in the intellectual devel­opment of the European society. Unlike the ecclesiastical schools where teaching concentrated mainly on dialectics and theology, secular schools also focused on practical subjects such as medicine and law. In connection with the study of law, one of the most significant cultural developments occurred: the establishment of the first medieval universities. The organization and administration of the medieval universities varied considerably, but a common element existed as they were structured like guilds under a corporate form of control. In the early medieval schools, such as the famous law school of Bologna, teachers and mature students organized themselves into closely-knit communities to facilitate their pursuit of scholarly interests without any outside interference. From the thirteenth century onwards, an increasing number of universities were established throughout Europe and more than seventy were in existence at the close of the Middle Ages.

The eleventh and twelfth centuries are marked also by the long struggle for supremacy between the Empire and the Papacy. This struggle became known as the ‘investiture contest’ as it revolved around the right of secular authorities to partici­pate in the choice of bishops and other churchmen and to invest them not only with their secular but also their spiritual authority. Pope Gregory VII (1073-1085) rejected the concept of the Papacy as a bishopric of the emperor, demanding supreme authority in all Church affairs and asserting the supremacy of the Church over the state. Drawing upon the writings of early Church fathers, such as St Augustine, he contended that a ruler (whether a king or an emperor) was subject to the universal power of the Church and could only hold office as long as he performed his duties in accordance with Christian principles. The supporters of monarchical authority countered with the theory of the divine right of kings, arguing that while a king should rule justly and for the benefit of his subjects he was answerable to God alone and not to priests for any failures. Gregory’s theories and policies led to conflict with Emperor Henry IV (1056-1106) and war between the papal and the imperial parties raged sporadically throughout Europe until 1122. In that year, a compromise was reached by means of a Concordat signed in the German city of Worms. The Concordat of Worms stipulated that the emperor should abandon the right of investing his bishops with the symbols of their spiritual authority. It recognized the Church as a separate, autonomous body vested with jurisdiction over a defined constituency and governed by a distinct body of law, the canon law. At the same time, non-ecclesiastical political entities and secular legal orders were recognized. The Concordat of Worms was a compromise that reflected a gain for the Papacy. Only when the monarchs had acquired sufficient power during the late medieval period could they effectively challenge the supremacy of the Church.

The period between the thirteenth and the fifteenth centuries witnessed the gradual transition of European civilisation from medievalism to the modern age. The most important factors in the institutional background of the decline of the medieval order was the emergence of strong nationalistic monarchies, the growth of towns and the urban middle class, and the decline of the Roman Catholic Church. After the death of Emperor Frederick II (1250), the medieval concept of emperor­ship was undermined. Germany transformed into a collection of essentially inde­pendent principalities, duchies and bishoprics. A power that could ultimately unify the German states only emerged after the rise of Prussia in the seventeenth century. In France, feudal institutions were gradually abandoned and the country moved towards a centralised state under the authority of the king. During the reigns of Louis IX (1226-1270) and his grandson Philip IV the Fair (1285-1314), the power of the feudal lords was curbed, the administration was centralised and the jurisdic­tion of the king’s courts extended over the entire country. Philip became the first European monarch who could defy the Roman Catholic Church, and his victory over Pope Boniface VIII (1294-1303) meant that the Papacy could never again safely contest the power of the French monarchy. In England, as in France, centralised political authority grew stronger. After the decline of the German imperial influence in Italy, city-states such as Venice, Genoa, Florence and Milan cultivated independence and established themselves as leading financial, commer­cial and cultural centres. Finally, the closing phase of the Middle Ages featured a sharp decline in the power of the Papacy that had raised its pretensions to the highest level under Pope Innocent III (1198-1216). This derived from the triumph of nationalism and nationalistic political theory over medieval theocratic unity. The end of the fifteenth century exhibited disintegration in the institutional basis of medievalism: the dominant agricultural economy, feudal politics and a universal and omnipotent Church. With the emergence of the Renaissance, the dawn of the modern age was imminent.

The sixteenth century is commonly described as the period of the Renaissance and the Reformation. This period features the revival of the spirit of classical antiquity in the spheres of literature and art, as well as a challenge to existing authority and entrenched tradition. The Middle Ages were over. Gone too was the internationalism that for centuries had been the foundation of political philosophy and ecclesiastical practice. By the close of this period the Holy Roman Empire was an empty shell. The rulers of the territorial states that now existed in the Continent scarcely admitted even a titular allegiance to the emperor. Similarly, the Papacy no longer received the obedience of Western Christendom. Its dominance was called into question by the new churches established in the lands where the teachings of Luther held sway. A new political theory emerged from the ruins of imperial and Church internationalism. In the eyes of Renaissance thinkers, such as Machiavelli and Bodin, the state was not directly concerned with the promotion of religion or morality, but demanded for itself the obedience and loyalty of its subjects. One of the most important developments of this period was that the world burst its bounds. Columbus reached America in 1492, and Vasco de Gama discovered the sea route round the Cape to the Indies in 1497. These discoveries, together with the fall of

Constantinople to the Ottoman Turks in 1453, meant that the Mediterranean was no longer the principal trade route for all Western Europe. As the economic supremacy of the Italian maritime city-states declined, Spain, Portugal, England and Holland, which had been remote from the main flow of commerce, now were in a position to become powerful commercial nations.

In many matters, the seventeenth century saw the continuation of the trends that emerged in the sixteenth: nation states were consolidating their frontiers and establishing their spheres of influence; within states, political power was mainly in the hands of monarchs, who claimed absolute authority over their subjects; religion remained a source of conflict both within and between states; and journeys of exploration continued side by side with the colonization of newly discovered lands. Furthermore, although agriculture continued to dominate economic life, commerce was expanding and industrial production was becoming increasingly significant. On a political level, this century saw the decline of Spain, which yielded to France the position of the most powerful state in Europe, and the rise of the Netherlands into a major commercial and military power. In Germany the century was one of calamity originating in religious conflict: the attempt by Protestant nobles in Bohemia to place a Protestant on the throne triggered the Thirty Years War (1618-1648), which laid the country in ruins. The Treaty of Westphalia (1648), which ended the conflict, accelerated the decline of the Holy Roman Empire as a political organization, although the Empire lingered on as a Hapsburg title until the beginning on the nineteenth century. With the rise of the concept of the nation state, the focus of scholarly and intellectual inquiry shifted from theology to political philosophy. The demand of the age was clear: give us real knowledge of the human condition and of the nature of the relationship between the state and the individual, so that we can create a device to secure social order. Now that the medieval order, centered around the Church and the feudal system of social relationships, has collapsed what form of government could secure order? What mechanism of social control could be devised and on what basis? What is the just foundation of political obedience? Whence comes the authority of the law? These questions no longer admitted of the ready answers that could be given when all princes were assumed to derive their powers from the emperor, who was recognized as the supreme earthly authority in matters temporal. New circumstances now gave rise to new theories, and of those theories important political events were to be born in the period that followed.

The eighteenth century was the period in which the ancient European structures of authority and legitimacy were irreparably fractured. This century saw the American Revolution and the loss of Britain’s North American colonies; the French Revolution and the commencement of the Napoleonic wars; and the beginnings of the Industrial Revolution. The century also saw the culmination of the intellectual movement that prepared the ground for revolution, known as the ‘Enlightenment’. The Enlightenment brought with it a new sense of optimism, as opposed to medieval pessimism, and a new understanding of human nature based on the notions of rationality and freedom. With the rise of the modern concept of the nation state, intellectual inquiry focused on the nature of the relationship between the citizen and the state, and the question of what rights an individual had, or should have, against the state, especially against a state that acted tyrannically towards its citizens. Two major sets of ideas furnished the intellectual foundations of this period of social and political change: social contract theories and utilitarianism. The essence of the social contract theories is the idea that legitimate government is the result of the voluntary agreement among free and rational individuals. An important point about the social contract theories is that they express the idea that the state rests for its legitimacy upon the consent of its subjects. Laws can legiti­mately be used to ensure compliance if they have been properly approved by citizens who are party to the social contract. Utilitarianism is primarily a normative, ethical theory that lays down an objective standard for the evaluation and guidance of human conduct. That standard is derived from the assumption that the overriding aim of morality and justice is the maximization of human welfare or happiness. In the field of law, the spirit of the Enlightenment is reflected in the movement towards legal reform, a movement that had its roots in the seventeenth century rationalist natural law thinking. The advocates of reform were convinced that legislation provided an instrument that could be used to remedy social problems, and thus to maximize general happiness according to a rational scheme. This belief that laws and institutions could be reformed to accord with the dictates of reason swept through Europe and led to the codifications of the late eighteenth and nineteenth centuries.

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