Содержание
- 2. Introduction The expression "civil law system" refers to a big group of contemporary legal systems. These
- 3. Introduction (2) Today the civil law systems includes the legal systems of: continental Europe Central and
- 4. Blue: civil law systems; red: common law systems; orange: Islamic law systems; brown: other systems.
- 5. A society without a state The social and political landscape of the Middle Ages is radically
- 6. The incompleteness of power The medieval prince concerns himself only with that which will help him
- 7. From anthropocentrism to “reicentrism” This situation is accompanied by a deep change in mentality: Classic civilization
- 8. The anthropocentric society of Rome, founded upon an optimistic faith in man’s abilities to subdue nature,
- 9. One of the defining events of the first centuries of the nascent Middle Ages was the
- 10. On the other hand, there was the Roman Church, whose influence grew steadily after the fourth
- 11. The weakness of political power The result was that the political system of the Middle Ages
- 12. The law is in the things In these relationships, to which the political system of the
- 13. This type of law is more organizing than empowering (or potestative in technical language). The difference
- 14. The autonomy of law The second fundamental point is that the law acquires its own autonomy.
- 15. Not “state” The incompleteness of the power of the Medieval political organizations advises against using the
- 17. Community is everything In the Middle Ages individuals have no value, the community is everything. The
- 18. The Church reinforces the idea of community The Church also contributes to this fundamental role of
- 19. Eclipse of Roman law & the new law system In the early Middle Ages, the harsh
- 20. This means that the law is not designed from above and projected upon the facts, fitting
- 21. The primacy of custom in Medieval law So far we have seen two guiding principles in
- 22. Since it is an action at root, custom conserves two necessary underlying characteristics: custom originates from
- 23. Every region has its own customs. Since custom does not lend its weight to artificial and
- 24. The very rich flowering of customs in early medieval Europe can therefore be seen as a
- 25. The princes are required to respect and adhere attentively to custom as much as their subjects
- 26. Particularism The prevailing legal landscape of the Middle Ages is made up of a broad framework
- 27. Historical sources document this lively diversity, with widespread use of terms such as consuetudo regionis, consuetudo
- 29. The central role of notaries In this context, the vital role of originator of laws is
- 30. Drawing heavily on common sense, the notary strives to reconcile the demands of the parties in
- 31. The limited power of the princes What seems to us to be the primary and typifying
- 32. Justice Religious, political and philosophical writings of the Middle Ages all emphasize that the greatest virtue
- 33. The power of the prince is, and will be for all the duration of medieval jurisprudence,
- 34. The medieval monarch shows no creative pride; he limits himself to making manifest in his lex
- 35. The Church and canon law The Church of Rome is the pre-eminent figure at every level
- 36. In order to obtain salvation, there was a need for a society of the faithful –
- 37. At the end of the first millennium the negative aspects of the canon law of that
- 38. Divine law / humane law Ivo catalogued the many discrepancies and contradictions (discordantiae) that had accumulated
- 39. Below divine law comes human law (ius humanum), which originates from the Church, from jurists and
- 40. In so doing, Ivo provided an accurate interpretation of the canon law which took account of
- 43. The Eleventh and Twelfth Centuries At the end of the 11th century the substantial changes which
- 44. The return of urban civilization The collective consciousness also appears transformed: the former wariness which forced
- 45. The rise of the merchants Given the greater abundance of goods for supply in the late
- 46. Culture The early Middle Ages possessed plenty of schools and centers of great learning which carried
- 47. Although the cultural void has been filled, the political void remains. The kind of intrusive government
- 48. The collective consciousness still does not think of the prince as a legislator – that is
- 49. Custom is a friendly, nurturing source from which to generate law: it respects local differences and
- 50. Overcoming fragmentation However, custom’s innate tendency towards fragmentation meant that it became unsuitable as the sole
- 51. There were two sources of law suitable to achieve this aim: lawmaking and scholarship. These were
- 52. Scholarship was the only source which, in the absence of a comprehensive political system, could gather
- 53. The Glossators of Bologna A school of jurists in Bologna has special importance; they are now
- 54. The jurists of the Late Middle Ages are University professors An important difference with the Roman
- 56. Medieval jurists transform Roman law Medieval jurists respected the form of Roman law, but interpreted it
- 57. A systematic work While the basis for the opinions of early Roman jurists is not readily
- 58. Accursius and his “Great Gloss” The "Great Gloss" (also known as "Glossa ordinaria" or "Glossa magistralis")
- 61. Role of custom When the Corpus Juris Civilis and theological doctrine could not supply them with
- 62. With their work on the Corpus iuris civilis the "glossators" and later the "commentators" created new
- 63. Medieval cosmopolitanism The ius commune was a law without borders, as is proper for a scholarly
- 65. The Universities The ius commune was born in the culturally fertile terrain of north-central Italy, specifically
- 66. A problem that had to be addressed was the relationship between the common law and local
- 67. In this period, monarchs tended to concern themselves with matters of public import ignored by the
- 68. Legal pluralism Does this mean there was a hierarchy for sources of law? That is what
- 69. Within the same political entity there can be various producers of law, because the politico-legal medieval
- 70. Finally, there was the ius commune – constructed from the interpretation of the ‘universal laws’ (Roman
- 71. Feudal law The political and legal class of the Middle Ages is characterized by the following
- 72. In the legal sphere, this hierarchical structure, although belied in effect by the reality on the
- 73. The Middle Ages are truly the historical moment in which the divisions between private and public
- 74. The interrelationships soon became personified by a class of people, all of whom found roles in
- 75. In the middle of the 12th century, the sum of customs and judicial rulings, by now
- 76. And so scholars did study feudal law, giving rise to writings that are often of great
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