Author: Manola Civiletti

This chapter examines the evolution of legal sources in Poland, focusing on the legislation of the Sejm (Diet) during the late Middle Ages and early modern period. The authors analyze how Polish law was shaped by multiple influences, including canon law, Roman law, local customs, and the legislative activities of the monarchy and noble assemblies. The discussion highlights the role of parliamentary institutions in the development of statutory law, as well as the broader European context in which Polish legal traditions evolved.

Les sources du droit dans le Royaume de Pologne (Sources of Law in the Kingdom of Poland)

The legal culture of Poland developed through a combination of different sources:

• Customary Law: The foundation of early Polish legal traditions, often transmitted orally before being codified in statutes.
• Canon Law: The influence of Church law was particularly strong in matters related to family, marriage, and morality.
• German Law (Saxon-Magdeburg Law): Urban centers adopted German municipal law, which coexisted with Polish legal traditions.
• Royal Legislation: Kings played an essential role in enacting laws, particularly from the 14th century onward, when monarchs began codifying legal norms.

The coexistence of these legal traditions created a pluralistic legal environment, where different sources of law were applied depending on the context.

La Diète (Sejm) de Pologne: un organe législatif (The Polish Diet: A Legislative Body)

1. Formation and Institutional Development
• The Sejm emerged as a representative assembly in the late 15th century, composed of noble deputies (sejmiks), senators, and the king.
• The Sejm gained legislative authority through a process of negotiation between the monarchy and the nobility.
2. Legislative Competencies
• The Sejm passed statutes (konstytucje) that regulated taxation, military service, and noble privileges.
• It also played a role in judicial matters, particularly through its influence on the Crown Tribunal, Poland’s highest court.
3. Consensus and Decision-Making
• The principle of unanimity (nemine contradicente) was central to the Sejm’s functioning.
• Later, this practice evolved into the liberum veto, which allowed any single deputy to block legislation, leading to political stagnation in the 17th century.

La législation de la Diète: évolutions et portée (Legislation of the Diet: Evolution and Impact)

The chapter traces key legislative milestones:

• 1347: The Statutes of Casimir the Great, an early attempt at legal codification.
• 1505: The Nihil Novi constitution, which prevented the king from enacting laws without the Sejm’s approval.
• 1569: The Union of Lublin, which merged Poland and Lithuania into a single legal system under the Polish-Lithuanian Commonwealth.

These legislative acts contributed to the development of constitutionalism in Poland, reinforcing the idea that law should be based on collective decision-making rather than absolute royal authority.

Conclusion

The Polish Sejm played a crucial role in shaping the country’s legal and political traditions. Its legislative authority was rooted in a balance of power between the monarchy and the nobility, making it a distinctive institution in European legal history. The chapter highlights how Polish legal traditions, while influenced by external sources, developed in a unique way, reflecting the country’s political culture of noble democracy.

This text explores the development, characteristics, and significance of paleography in studying legal sources.
It emphasizes the critical role of writing systems, abbreviations, and manuscript traditions in understanding medieval legal texts.

La paléographie des sources juridiques
(The Paleography of Legal Sources)

Paleography studies the history of writing, its production, and its evolution. For legal historians, understanding the diverse and sometimes obscure writing styles—from clear Carolingian minuscule to nearly indecipherable scripts—is essential. Originating in the 17th century with Mabillon’s De Re Diplomatica, paleography expanded as a key auxiliary science for historical research, developing further in the 19th and 20th centuries with contributions from scholars such as Traube, Mallon, and Cencetti.

Les mots de la paléographie
(The Language of Paleography)

The terminology of paleography includes concepts such as:

• Ductus The style and speed of writing, which can be formal (carefully executed) or cursive (rapid and ligature-rich).
• Module The geometric comparison of letters to shapes like squares or rectangles.
• Gravity The thickness and elasticity of lines, influenced by the writing instrument used. These elements provide the foundation for analyzing and describing handwriting.

Les abréviations
(Abbreviations)

Latin writing incorporated abbreviations as early as the Roman era. These were further developed in the Middle Ages, with six types identified:

1. Truncation Omission of final letters (e.g., īn for inde).
2. Contraction Omission of internal letters (e.g., ds for Deus).
3. Symbol-based Abbreviations Using signs like 9 for con or 7 for et.
4. Relative Signs Symbols indicating omitted letters (e.g., ¯ for m or n).
5. Ligatures Overlapping letters into a single graphic symbol.
6. Tironian Notes Shortened expressions, such as & for et.

Les écritures latines au Moyen Âge
(Latin Scripts in the Middle Ages)

The scripts of medieval Latin manuscripts evolved from the Carolingian minuscule, a standardized and widely adopted script of the 8th–9th centuries, which replaced earlier regional styles such as:

• Insular Script: Developed in Ireland and Britain.
• Visigothic Script: Used in the Iberian Peninsula.
• Beneventan Script: Found in southern Italy.

Each of these regional scripts reflected unique cultural influences and persisted even as Carolingian minuscule became the dominant script.

La minuscule caroline
(The Carolingian Minuscule)

The Carolingian minuscule marked a renaissance in Latin script, promoted under Charlemagne’s rule. Its clarity and legibility facilitated the spread of knowledge across Europe. The script featured regular letterforms, clear word separation, and minimal abbreviations, becoming the basis for later scripts, including the humanistic minuscule of the Renaissance.

L’écriture gothique
(Gothic Script)

Emerging in the 12th century, Gothic script evolved from the Carolingian minuscule. It was denser, narrower, and more angular, with broken curves and compact letters. Regional variations included:

• Littera Bononiensis Used in Bologna with shorter ascenders.
• Littera Parisiensis Smaller and more rugged, common in Parisian manuscripts. By the late Middle Ages, Gothic script was replaced by the humanistic minuscule in Italy, driven by a revival of classical ideals.

Le cas de la paléographie juridique
(The Case of Legal Paleography)

Legal paleography specializes in the study of juridical manuscripts, focusing on their handwriting, abbreviations, and punctuation systems. It addresses the peculiarities of legal texts, such as glosses and marginal annotations. Although not a formal discipline, legal paleography has significantly contributed to re-dating early manuscripts of the Corpus Iuris Civilis and understanding the transmission of legal knowledge.

Les systèmes de référencement des gloses
(Reference Systems for Glosses)

Glosses—annotations explaining or interpreting legal texts—were categorized into:

• Notabilia Highlighting key points.
• Allegationes Cross-references linking specific text fragments.
• Explanatory Glosses Detailed interpretations of complex passages.

Systems for referencing glosses evolved from symbols like dots and lines to alphabetical markers. These systems streamlined the study and navigation of legal manuscripts, particularly as the pecia copying system standardized manuscript production.

Les allégations
(Allegations)

Allegations in legal glosses provided precise references to texts within the Corpus Iuris Civilis or Corpus Iuris Canonici. Different parts of the corpus, such as the Digest (ff.) or Code (C.), were marked with unique abbreviations. The chapter outlines the evolution of these referencing methods and their significance for interpreting medieval legal texts.

Conclusion

This study demonstrates the importance of paleography for understanding medieval legal manuscripts. By analyzing writing systems, abbreviations, and glossing practices, researchers can uncover the intellectual and cultural contexts of legal traditions. Paleography remains a vital tool for interpreting the transmission and evolution of legal sources in medieval Europe.

This chapter examines the evolution of manuscript production and annotation techniques for the Corpus Iuris Civilis during the twelfth century, focusing on the paratextual features such as glosses, signs, and layout systems. It provides an analytical framework for understanding the development of medieval legal manuscripts and their role in legal education and the dissemination of Roman law.

Introduction

The introduction situates the chapter as a methodological guide for analyzing twelfth-century legal manuscripts. It highlights how scribes adapted and standardized their practices over time, creating a chronological framework that can help date manuscripts. The chapter complements Joanna Frońska’s codicological study, offering additional insights into the paratextual innovations of earlier manuscripts.

Gloses, signes et repères
(Glosses, Signs, and Markers)

The glosses, signs, and markers added to the manuscripts reveal the pedagogical and intellectual challenges faced by early legal scholars. These annotations document the experimental stage of legal education, where professors developed interpretative frameworks for Justinian’s texts. The glosses provide invaluable insights into the evolving legal culture and the efforts to adapt Roman law to medieval contexts.

Vue d’ensemble des pratiques documentaires
(Overview of Documentary Practices)

The scribes’ work reflected a collaborative dynamic between legal scholars and scribes. Manuscripts were often updated with new glosses and corrections, sometimes involving the erasure of earlier layers. The progressive standardization of layout and annotation systems helped create a unified framework for legal texts.

Production par étape des manuscrits
(Step-by-Step Production of Manuscripts)

Manuscripts underwent multi-stage production processes. Texts were often copied and annotated incrementally, with colored rubrics, initials, and decorations added later. Margins and interlinear spaces were increasingly filled with glosses and signs, requiring innovative layouts to maintain readability.

Adaptation des pratiques italiennes
(Adaptation to Italian Practices)

Northern Italian production centers, particularly Bologna, led the development of manuscript practices. These techniques influenced scribes across medieval Europe, who often imitated Italian layouts and styles. However, regional variations persisted, creating distinct local adaptations of manuscript traditions.

Reprise des modèles textuels (Adaptation of Textual Models)

The annotation and layout systems developed for Roman law manuscripts were later applied to Lombard and canon law texts. The influence of Justinian’s textual structure on canonical compilations of Decretales underscores the integration of Roman and canon law traditions.

Dispositifs paratextuels
(Paratextual Devices)

The evolution of paratextual elements, such as symbols and diagrams, facilitated navigation and comprehension. Early devices to mark and connect related passages, like "red signs" or tiny drawings of objects, were later replaced by more systematic approaches. Innovations such as notabilia and allegationes became standard tools for highlighting and cross-referencing significant text segments.

Les gloses explicatives, notabilia, et allegationes
(Explanatory Glosses, Notabilia, and Allegationes)

• Explanatory Glosses: Clarified grammatical and substantive content, evolving from interlinear annotations to structured marginal glosses.
• Notabilia: Highlighted key passages or points of interest, often visually emphasized through triangular shapes or enlarged initials.
• Allegationes: Directed readers to related text segments, using abbreviations and standardized formats to streamline cross-referencing.

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.

This chapter explores the concept of normativity, distinguishing between legal normativity and other forms of social normativity. It examines how law interacts with other normative systems, such as ethics, religion, economics, and science, while also analyzing the historical evolution of legal categories and their relationship with social reality. The discussion focuses on the autonomy of law, its epistemological foundations, and the role of institutions in shaping legal structures.

Avant le droit : la normativité (Before Law: Normativity)

The chapter opens by questioning the place of law within the broader landscape of normativity. While legal norms provide a structured framework for ordering society, they are not the only regulatory mechanisms. Scientific, economic, ethical, and religious norms also shape human conduct, often challenging the monistic view that sees the state and law as the sole sources of order.
Napoli highlights the historical shift from legal monism to institutional pluralism, which recognizes multiple normative orders coexisting alongside legal rules. This complexity demands a comparative perspective, where law is examined not in isolation but in relation to other forms of normativity. However, despite this pluralistic environment, legal normativity retains a unique feature: its ability to reassert itself as the sovereign framework through structured institutions and authoritative reasoning.

Droit et temporalité (Law and Temporality)

Law operates within a specific temporality distinct from that of social practices or political institutions. Each legal discipline—civil, penal, administrative—follows different historical rhythms:

• Civil law preserves legal categories that date back over two millennia.
• Public and administrative law, by contrast, developed as distinct disciplines much later, particularly from the 18th century onward.

Napoli references Reinhart Koselleck’s concept of “structural repeatability” (répétabilité structurelle), emphasizing that legal techniques endure across centuries, maintaining continuity despite changing historical contexts. While legal concepts remain adaptable, they retain a level of abstraction that allows them to be reinterpreted rather than replaced. This explains why legal traditions, such as Roman law, persist in shaping contemporary legal reasoning.

L’institution (The Institution)

The concept of institution is central to understanding how law functions within society. However, its meaning differs between legal and sociological interpretations:

• Sociology (Durkheim, Mauss, Fauconnet) sees institutions as social facts—collective structures that preexist individuals and impose behavioral norms.
• Law views institutions as the result of acts of institution, where a legal operation creates a new reality through classification and formal recognition.

Napoli critiques the sociological approach for neglecting the act of instituting, which involves naming, defining, and categorizing social relationships. He argues that law does not merely reflect social norms; it actively constructs new realities through legal qualification.
For instance, in Roman law, the verb instituere refers to the act of designating an heir (heredem instituere), a performative operation that creates a new legal subject. Similarly, in Christian theology, the phrase Jesus Christus instituit ecclesiam signifies not only the founding of the Church but also the transmission of authority to its successors. Both cases illustrate how law and theology share a foundational function, transforming abstract principles into institutionalized realities.

Pour faire le point (Summary and Key Questions)

The chapter concludes with a series of critical reflections on legal normativity:

1. What distinguishes legal normativity from other forms of normativity?
2. How does law structure time, and how do legal categories persist across history?
3. How does the legal concept of institution differ from sociological interpretations?
4. To what extent is “social fact” a relevant concept for law?

Napoli argues that understanding law requires recognizing its autonomous epistemological status, while also acknowledging its interaction with social sciences. Rather than seeing legal norms as mere reflections of social realities, he emphasizes their creative function in shaping institutions and structuring human interactions.

This chapter explores the concept of legal sources from both a historical and juridical perspective. It examines the classification of legal sources, their transmission, and the role they play in shaping legal traditions.
The author emphasizes the dynamic interaction between law, legal literature, and the broader historical context in which legal texts were produced and interpreted.

Sources historiques et sources du droit (Historical Sources and Legal Sources)

The chapter begins by distinguishing between historical and legal sources. For historians, a source is any surviving testimony from the past that allows for historical reconstruction. These sources can be textual (manuscripts, inscriptions, archival documents) or material (artifacts, buildings).
For jurists, a legal source is a text that has legal authority, establishing or revealing norms that are in force. Despite these differences, historians and jurists share a methodological approach, as many documents studied by historians were originally produced for legal purposes. Archives primarily preserve records such as contracts, judicial decisions, and administrative acts, all of which reflect legal norms and practices.

La littérature juridique (Legal Literature)

Legal literature encompasses scholarly writings on law, including commentaries, treatises, and doctrinal analyses. Unlike legislative texts, these writings interpret, systematize, and expand upon existing legal sources.
The emergence of legal literature in the 12th century was linked to the rise of scholasticism, a method of study that emphasized authoritative texts and systematic reasoning. The rediscovery of Justinian’s Corpus iuris civilis played a crucial role in this development, providing a foundation for medieval legal scholarship. Legal texts became central to education, judicial practice, and governance, influencing the intellectual and political landscape of medieval Europe.

Genres d’ouvrages juridiques et communautés textuelles (Legal Text Genres and Textual Communities)

Medieval jurists produced various types of legal texts, including:

• Glosses: Annotations on authoritative legal texts.
• Summae: Systematic treatises summarizing specific legal topics.
• Ordines iudiciorum: Procedural manuals for courts.
• Quaestiones: Collections of hypothetical legal cases.

These texts were written for different audiences, including scholars, judges, notaries, and legal practitioners. The production and circulation of legal writings created a "textual community" of jurists who shared common references and methods.
A case study of Pillius de Medicina illustrates how legal scholars adapted legal doctrines to local needs. In Modena, Pillius developed the concept of dominium utile, a legal category that applied Roman law principles to feudal land tenure. His writings not only reflected but also shaped the socio-economic realities of his time.

Le droit comme système d’abstractions (Law as a System of Abstractions)

Medieval jurists did not merely interpret legal texts; they also constructed abstract legal concepts. They formulated general principles that could be applied to diverse legal situations. For example, the dominium utile doctrine allowed vassals to claim ownership-like rights over fiefs, integrating feudal and Roman legal traditions.
Legal reasoning relied on citation chains, linking different sources to build coherent arguments. This method reinforced the authority of legal scholarship and ensured continuity within the legal system.

La législation des nouveaux pouvoirs (Legislation of New Powers)

The rise of territorial states in the 12th and 13th centuries led to an expansion of legislative activity. Jurists played a key role in drafting laws for monarchies and municipalities, incorporating principles from legal literature into new statutory frameworks.
The famous maxim rex superiorem non recognoscens in regno suo est imperator ("The king who recognizes no superior in his kingdom is an emperor") reflects the growing autonomy of kings in legislating for their realms. This legal transformation, influenced by juristic doctrine, contributed to the emergence of centralized legal systems.

Les sources du droit en pratique (Legal Sources in Practice)

Understanding medieval law requires examining how legal norms were applied in daily life. Documents such as court records, notarial acts, and municipal statutes reveal the practical implementation of legal principles.
Legal documents were often shaped by procedural requirements. For example, trial records were formulated to anticipate potential legal challenges. Similarly, chronicles and historical narratives often served legal functions, documenting rights and privileges for future reference.
Historians studying legal sources must account for their juridical context, recognizing that such texts were crafted not merely to describe reality but to assert legal claims.

Conclusions

The chapter concludes by reaffirming the need to interpret legal sources within their historical and juridical contexts. While legal norms may persist across centuries, their meaning and application evolve with changing political and social conditions. The study of legal sources thus requires both a technical understanding of law and a broader appreciation of historical transformations.