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Summary of

Typology of Legal Sources of the Middle Ages

by Beatrice Pasciuta et Guido Rossi

This chapter presents a classification of medieval legal sources, dividing them into three main categories: normative sources, doctrinal sources, and sources of practice. The authors examine each category, its scope, characteristics, and interactions, emphasizing the complexities and fluidity of medieval legal culture.

Trois types de sources juridiques (Three Types of Legal Sources)

The authors begin by clarifying that no legal taxonomy is objective; rather, it reflects subjective choices based on specific criteria. To offer a broad framework capable of accommodating the diversity of medieval legal sources, the authors divide them into three macro-categories:

  1. Sources normatives (Normative Sources): Texts containing legal rules legitimately promulgated by recognized authorities, including customary law.
  2. Sources doctrinales (Doctrinal Sources): Analytical works that reflect on legal norms, helping to understand their interpretation and application.
  3. Sources de la pratique (Sources of Practice): Documents that result from the concrete application of legal norms, such as court records or contracts.

The authors caution against reducing these categories to a linear process (creation → analysis → application), as legal norms were often redefined and reshaped by practice and doctrine. Instead, the three domains are interrelated, constantly interacting with one another.

Sources normatives : temps et espace (Normative Sources: Time and Space)

The chapter highlights the vast scope of normative sources and the need to examine them within the coordinates of time and space:

  1. Time: Unlike modern perspectives, the medieval worldview valued the past as an authoritative model. The Roman Empire, as an ideal Christian polity, was a point of reference, with its laws regarded as timeless and immutable.
  2. Space: Normative sources could be universal (e.g., Church law or Roman law) or local, bound to specific territories such as cities or kingdoms. The universal laws of the Church, unlike the static Roman laws, were living and evolving, applied across vast geographical areas.

The authors contrast the universal aspirations of Roman and canon law with the more localized laws of kingdoms and municipalities.

Les sources normatives universelles du passé : le droit romain (Universal Normative Sources of the Past: Roman Law)

The chapter explores the monumental influence of Roman law, specifically the Corpus iuris civilis of Justinian, which became the foundation of medieval legal studies:

  • Justinian’s codification included the Codex, Digest, Institutes, and Novellae, providing a systematic body of Roman law.
  • While the Roman legal texts were initially forgotten in the West, they were rediscovered in the 12th century, particularly in Bologna, marking the birth of Libri Legales (Legal Books), which organized Roman law into five volumes.
  • The Littera Bononiensis tradition became the basis for medieval legal studies, even though the original Littera Florentina manuscript of the Digest remained relatively unknown to medieval jurists.

The adaptability and authority of Roman law allowed it to serve as a foundational legal framework throughout Europe.

Les sources normatives universelles contemporaines : le droit canonique (Universal Normative Sources of the Present: Canon Law)

Canon law, unlike Roman law, was a living legal system that evolved with the needs of the medieval Church. The papacy played a central role in its development:

  • The Décret de Gratien (Decretum Gratiani), compiled in the 12th century, was a key milestone, organizing earlier canon law into a coherent whole.
  • Papal decretals, responses to specific legal questions, became essential tools for the Church’s growing jurisdiction. Collections like the Liber Extra (1234) of Gregory IX and later compilations such as the Liber Sextus and Clementinae continued to modernize canon law.
  • By the 16th century, these texts formed the Corpus iuris canonici, a canonical counterpart to Roman law.

Les sources réglementaires spéciales (Special Normative Sources)

Special normative sources refer to laws that were neither universal nor timeless but applied within specific territories and periods:

  1. Droit romain et législation municipale (Roman Law and Municipal Legislation):
    Cities, particularly in Northern and Central Italy, produced municipal statutes influenced by Roman law. These statutes, organized into sections on governance, judicial procedure, and taxation, reflected the economic and political needs of urban communities.
    • The rivalry between cities fostered legal innovation, as more effective rules were often imitated by neighboring municipalities.
  2. Regna (Kingdoms):
    In kingdoms, sovereigns centralized legal authority by producing laws applicable to their realms. Notable examples include Frederick II’s Liber Augustalis in Sicily and Alfonso X’s Siete Partidas in Castile. However, in some regions, such as France, strong local customs persisted, delaying legislative centralization.

Sources doctrinales et sources de la pratique (Doctrinal Sources and Sources of Practice)

The chapter shifts focus to sources that explain or apply the law:

  1. Doctrinal Sources: Jurists analyzed Roman and canon law, producing commentaries, glosses, and treatises to clarify ambiguities and adapt ancient norms to contemporary needs.
  2. Sources of Practice: These include court decisions, notarial records, and privileges. Judges and notaries, often trained in Roman legal principles, applied the law pragmatically. Documents produced in this process became valuable sources for understanding medieval legal systems.