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Lectures for A Medieval Survey

Lynn H. Nelson

Medieval Law

minima non curat lex


By 1300, medieval law was no longer dominated by personality, local custom, trial by ordeal, kinship and compurgation, wergeld, or individual rights of judgment. Two powerful and often conflicting legal systems had emerged, however, and an increasing portion of the population were gaining the power to make law.


During the thirteenth century, law developed a greater complexity and sophistication. This was partly the result of new influences, a new outlook, and the general crystalization of society.


Thirteenth-century society was much less flexible and tolerant than twelfth-century society had been. The challenges of popular heresies, the "excesses" of philosophical speculation, the actions of Frederick II, and other conflicts had led to a general desire for harmony and order -- the gothic cathedrals, summa theologiae, inquisition, etc. The basic function of law is to make human actions more regular and predictable, hence the increased prominence of law.


The realist philosophy held that justice was a real thing independent of human will that could be discovered by the application of reason. Divine law was the ultimate will of God, unknowable except through revelation; natural law was the set of regulations through which God governed the phyical universe; human law was the attempt of human beings to discover and observe the regulations that God had established for the proper governing of mankind.

To know justice was to know God.


New influences

There were several powers that attempted to exert their authority through legal codes.

  • a. Central monarchies

    The central monarchies were gaining greater power and were eliminating powers that intervened between them and the people.

    Feudal courts were eliminated and replaced by a series of royal courts to which the people could appeal. It was necessary to accommodate or to reconcile various local customs.

    Accommodation led to an emphasis upon written evidence, and this in turn led to the regularization of legal forms and the appearance of professional legal scribes: the notaries.

    Reconciliation led to the reduction of local laws and customs to set of general principles: common law.

    At Bologna, originally a notarial school in italy, teachers discovered Justinian's Codex iuris. Its sophistication and emphasis upon the supremacy of secular central authority recommended it to monarchs. Bologna became an important center of legal studies, and Roman law spread throughout Europe.

  • b: The Church

    The church controlled matters that involved oaths and the sacraments: testaments, marriage and divorce, and even many business contracts. It also handled all matters of heresy and cases involving clergymen.

    A complex system of appellate courts arose, a number of special papal courts, and an ecclesiastical law code, canon law. Specialists in canon law soon arose. The church had means of enforcing its decisions: excommunication (which carried considerable weight) and interdict being two.


The centralized monarchies were forced to ally with the middle class in order to eliminate the power of the aristocracy, diminish that of the church, and gain the tax money they needed. This led to the rise of representative assemblies that were often able to gain concessions from the monarchs.

These concessions ran counter to the realist concept of the origin of law and justice, but became extremely important, allowing the growth of municipal law, business law, and the increasing sophistication of the corporations that had replaced the kindred as the integrating force in society.

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