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.

This text explores the materiality and functional design of medieval legal manuscripts, focusing on their layout, glossing systems, production, and circulation. It highlights how these manuscripts evolved to meet the practical needs of legal education and practice while reflecting broader social and intellectual contexts.

Mise en page (Page Layout)

The layout of legal manuscripts reflects their specific functional needs. Early manuscripts featured long-line text formats, but two-column layouts became the norm to efficiently accommodate normative texts and glosses. Visual elements like rubrics, initials, and paragraph marks provided navigational aids, compensating for the lack of foliation or pagination.

Evolution du format et articulation du texte (Evolution of Format and Textual Articulation)

The format and textual articulation of manuscripts evolved alongside scholarly practices. Early legal manuscripts were compact, but later volumes expanded in size to incorporate more extensive glosses. The hierarchical structuring of text—using color-coded initials and divisions—enhanced usability and became increasingly sophisticated.

La mise en glose : gloses anciennes et signes spéciaux (The Glossing System: Early Glosses and Special Symbols)

Glosses, essential for interpreting legal texts, were arranged in various formats. Three main types included explanatory glosses in the margins, cross-references linking related laws, and notabilia that highlighted important points. Red symbols, alphabetical markers, and other paratextual devices ensured efficient navigation.

Mise en page d’apparats des gloses (Layout of Gloss Apparatus)

The layout of glosses became more standardized over time. By the 13th century, glosses formed structured blocks around the main text, marked by initials and paragraph signs. These layouts ensured that commentary could be read simultaneously with the base text or located easily for reference.

Additiones et sigla des glossateurs (Additions and Glossators’ Marks)

Later glossators added new layers of commentary, often marked with sigla (abbreviations of their names). These additiones updated or supplemented earlier glosses, reflecting the evolving nature of legal scholarship. The identification of glossators and regional schools through these annotations provides insights into the intellectual networks of the time.

Mise en texte et mise en glose : solutions spatiales (Text and Gloss Layout: Spatial Solutions)

As glossing systems expanded, scribes devised creative solutions to fit commentary alongside the main text. Techniques included adding extra pages, using symbols to connect split glosses, and employing decorative elements to guide readers. These innovations balanced functionality and aesthetic appeal.

Mise en page des textes non-normatifs (Layout of Non-Normative Texts)

Non-normative texts like commentaries and treatises adopted simpler layouts, reflecting their supportive role to normative texts. While they lacked the extensive glossing of legal manuscripts, they mirrored the structural divisions of the primary texts, maintaining rubrics and visual hierarchies.

Les mises en page particulières : les diagrammes juridiques (Specific Layouts: Legal Diagrams)

Legal manuscripts often included diagrams, such as consanguinity and affinity trees, to visually represent complex legal relationships. These tools, essential for fields like marriage law, were highly structured and often spanned multiple pages, demonstrating the functional integration of visual aids in legal scholarship.

Production et provenance (Production and Provenance)

The production and dissemination of legal manuscripts were shaped by academic and professional needs. Initially created in ecclesiastical settings, their production later centered on university towns, where specialized workshops standardized layouts and ensured high-quality outputs.

Système de copie par exemplar et pecia (Copying System: Exemplar and Pecia)

The exemplar and pecia system revolutionized manuscript production by allowing simultaneous copying of standardized sections. Originating in Bologna, this system ensured consistency and efficiency, supporting the growing demand for legal texts in academic institutions.

Circulation des manuscrits : origine et provenance (Manuscript Circulation: Origin and Provenance)

Legal manuscripts were highly portable, often traveling with students and scholars. Ownership marks, colophons, and other annotations document their movement and use across regions. These traces provide valuable insights into the diffusion of legal knowledge and the social contexts of manuscript use.

Conclusion

Frońska’s work highlights the sophistication of medieval legal manuscripts as both physical and intellectual artifacts. Their layouts and glossing systems were not only functional but also indicative of the academic and cultural contexts in which they were created. The production and circulation of these manuscripts played a vital role in the dissemination of legal knowledge, shaping the evolution of medieval legal traditions across Europe.