History
Medieval Law and Order
Medieval law and order in Europe was characterized by a system of feudalism, where local lords held authority over their territories and administered justice. The legal system was based on customary law, with trials often decided by ordeal or combat. The church also played a significant role in legal matters, particularly in cases involving moral or religious offenses.
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7 Key excerpts on "Medieval Law and Order"
eBook - PDF- Paolo Grossi, Laurence Hooper(Authors)
- 2010(Publication Date)
- Wiley-Blackwell(Publisher)
The second fundamental point, and it is one which follows closely from the first, is that, when viewed in this light, the law acquires its own auton-omy – despite being submerged in history, and despite being buried under the corporeality of the various interests and fluctuating demands of society. The law emerges as the ordering principle of society, which strives for legal solu-tions which allow society to continue independently of who wields power. And, contrary to what occurs under the leaden cape of statutory law (in late modernity, for example), where the law becomes the expression of a central-ized and centralizing will ( legal monism ), we will observe that the Middle Ages are, throughout, an age of legal pluralism . The medieval period demon-strates the possibility of the coexistence of diverse legal orders emanating from diverse social groups, even whilst the sovereignty of one political authority over the territory those groups inhabit remains unquestioned. It is in this incompleteness of medieval political power, I believe, that the vital key to grasping the ‘secret’ of the developments in the experience of the law in the early medieval period lies. The distinctive features of medie-val law from the beginnings of the era onwards stem directly from this incompleteness. Given these considerations, the distinctiveness of medieval law imposes upon us certain cultural scruples. We must proceed with extreme caution when deploying vocabulary and concepts closely associated with a modern vision of the law. Indeed, in my opinion we must avoid such terms and ideas for fear of provoking grave misunderstandings. The most problematic of these concepts, although by no means the only one, is the notion of the state , which many historians, legal and otherwise, transplant without hesitation to the Middle Ages. Leaving aside the fact that ‘state’ could also be used by medieval writers to signify one’s rank or social standing, what is most notable for our purposes
eBook - PDFLEGAL HISTORY
A European Perspective
- R. C. Caenegem(Author)
- 1990(Publication Date)
- Hambledon Continuum(Publisher)
What also counts for the ordinary man is how accessible the law and its organs are to him and how effectively and justly they protect him. This social aspect is, we believe, more important than many refinements of the schools, although one would not think so judging from the attention given to it by legal historians. We would, therefore, like to present briefly the following four questions. How accessible was the Law in the Middle Ages? Was the Law an agent of oppression or liberation? Is legal history concerned with the struggle of ideas or of interests ? Did the Rule of Law reign in the Middle Ages? 13. -Popular access to law andlaw courts We can do no more here than make a few observations dealing with the composition of the courts and the language of the Law. 'People's justice', as a 69. R. Ganghoffer and P. Levresse, Le droit romain en Alsace du 12e au 16e circle [lus Romanum Medii Aevi, V 4 g], Milan 1977, pp. 30-31. 70. D. Mellinkoff, The Language of the Law, Boston, Toronto 1963, pp. 95-133. Law in the Medieval World 137 judicial form of direct democracy whereby a meeting of ordinary citizens found the judgments or expressed their agreement to what was proposed, occurred in the early Middle Ages, but was reduced by Charlemagne's institution of the courts of scabini, judges appointed for life 71 . For centuries the law courts consisted of limited numbers of judges (aldermen, scabini, vassals etc.), who were alone empowered to find and pronounce judgment, which it was forbidden to reject (prohibition of 'Urteilschelte' for ordinary citizens) 72 . The primitive democracy persisted in as much as ordinary people were still admitted to the court sessions, the procedure was public and oral and the judges belonged to the same social strata as the parties (feudal courts for vassals, borough courts for burgesses) and had not been trained in some legal system that was unknown and hardly comprehensible to the ordinary man.
eBook - ePub- Roscoe Pound(Author)
- 2010(Publication Date)
- Perlego(Publisher)
status quo. This conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in relations of service and protection and a social organization which classified men in terms of such relations and required them to be held to their functions as so determined. Where the Greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the Middle Ages thought of a stationary society resting upon authority and determined by custom or tradition. To each, law was a system of precepts existing to maintain this stationary society as it was.In the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. With the gradual disintegration of this order and the growing importance of the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were preserved. Men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. The demand was no longer that men be kept in their appointed grooves. Friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means devised to meet the needs of a different social order whereby they were made to chafe under arbitrary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be devoted in the succeeding centuries. Accordingly the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion.Transition to the newer way of thinking may be seen in the Spanish jurist-theologians of the sixteenth century. Their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason. This theory differs significantly from the idea of antiquity, although it goes by the old name. The Greeks thought of a system of limiting men's activities in order that each might be kept in the place for which he was best fitted by nature—the place in which he might realize an ideal form of his capacities—and thus to preserve the social order as it stands or as it shall stand after a rearrangement. The sixteenth-century jurists of the Counter-Reformation held that men's activities were naturally limited, and hence that positive law might and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to conscious ends. Where Aristotle thought of inequalities arising from the different worth of individual men and their different capacities for the things which the social order called for, these jurists thought of a natural (i.e., ideal) equality, involved in the like freedom of will and the like power of conscious employment of one's faculties inherent in all men. Hence law did not exist to maintain the social status quo
eBook - PDF- Jeffrey L. Forgeng(Author)
- 1999(Publication Date)
- Greenwood(Publisher)
To some degree, they were participants Medieval Society 9 i i Laborers at work. [Salzman] in the feudal structure, yielding labor and taxes to their feudal lords, taking an active part in manorial institutions such as the manor court, and providing officers for the enforcement of the lord's manorial rights. It is far from certain, however, that the official distinctions between aris- tocrat and commoner or free and unfree were as important to the peasant as they were to his manor lord. Regardless of the serfs' resentment of their status, the distinction between serf and free commoner does not seem to have played a role in determining social status among com- moners, and manorial records are full of small acts of resistance to the lord's authority. In the day-to-day life of the medieval commoner, rela- tionships within the local community probably mattered more than the official feudal hierarchy. The feudal and manorial structure went hand in hand with government and law. Political and judicial authority Law and followed the contours of the feudal structure, with local Government manor lords exercising local jurisdiction, regional feudal lords wielding power over wider territories, and kings claiming a sov- ereign power that reached all levels of society. Generally speaking, law was seen as consisting of a community's traditional customs, and the function of a lord was to uphold those customs, consulting with his subordinates about their nature and applicability in any given situation. 10 Daily Life in Medieval Europe A lord also exercised political authority, but he was again expected to consult with his subordinates on matters that traditionally required their advice. In this way feudalism allowed, at least in principle, for the con- sent of the governed. The local manor lord presided over the manor court, but it was his peasant tenants who constituted the jury that ac- tually ruled on legal disputes.
- Hector MacQueen(Author)
- 2018(Publication Date)
- EUP(Publisher)
First, it examines the existence and operation of the courts of private lords in the twelfth and thirteenth centuries, with special reference to their proprietary and disciplinary jurisdictions. Second, it discusses the development of royal justice, stress-ing the clear pattern of regularisation and its assertion of ultimate control, although not of a monopoly, over justice in the feudal courts. The third theme is the interaction between royal and lordship courts, which came to rest in the later Middle Ages on a theory of the jurisdictional superiority Common Law and Feudal Society 34 of the king’s courts, while still leaving a substantial role for private justice, not only through arbitration and informal dispute-settlement mechanisms, but also in the formal arena of the lord’s court. However, this should not be seen either as the product of the weakness of the royal courts, or as meaning that there were competing or alternative systems of justice each playing according to its own rules. Royal justice was regularly administered and was capable of exercising considerable authority; moreover, it was also needed when the feudal courts reached the limits of their jurisdiction and authority. THE TWELFTH-CENTURY BACKGROUND The twelfth century was a period of major change in Scottish society: it witnessed the coming of the reformed monastic orders, the establishment of burghs and the settlement of Anglo-Norman knights on lands through-out much of the country. All of these innovations involved the grant of lands to incomers, by the king and others, usually recorded in charters which were expressed in tenurial form, whereby the grantee was to hold the lands of ( tenere de ) the grantor in return for some service. It is the grants made to the Anglo-Norman knights which we think of as most characteristically feudal, in that the service specified was primarily mili-tary, and the lord had, or came to have, rights of wardship, marriage and relief over a deceased tenant’s heir.
eBook - PDFA Sociology of Constitutions
Constitutions and State Legitimacy in Historical-Sociological Perspective
- Chris Thornhill(Author)
- 2011(Publication Date)
- Cambridge University Press(Publisher)
Spanish society remained marked by a very high level of legal particularism, and the aspiration to legal uniformity remained unfulfilled. However, this law book also defined the monarchy as the primary centre of justice, and it aimed to concentrate the most important elements of juris- diction around the crown (II,1,1). 48 The close interdependence of state and law was thus the most vital conceptual construct in the slow emergence of post-feudal states possessing, or aspiring to possess, a monopoly of political power, and the formation of distinctively political institutions was closely correlated with the abstraction of a general legal apparatus. In fact, deci- sively, in each case considered above it was the interdependence of law and state that allowed the state to project itself as a public body or actor, and this construction of the state played the most vital role in enabling states to organize and apply their power as a distinct, positive and autonomous facility. In many instances, the processes of generalized legal formalization that defined high medieval European society involved little more than 46 On this in general see Marongiu (1953: 702). 47 This is a common argument. But in this case see Petit-Renaud (2001: 180–1). 48 I refer to the 1807 edition of the Siete Partidas. constitutions and the formation of early states 57 the establishment of formally drafted summaries of existing common laws or customs. In most cases, it was not until a much later point in history that judicial power was fully centralized and a consolidated body of public law was established. In most European countries supreme judicial functions were still attached to unstructured royal courts, which were convened as the monarch moved around the land.
eBook - PDF- Michael Lobban, Ian Williams(Authors)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
2 Networks and Influences Contextualising Personnel and Procedures in the Court of Chivalry The jurisdiction and operation of the Court of Chivalry in the fourteenth and fifteenth centuries has, to date, attracted comparatively little schol- arly attention. 1 The Court of Chivalry (also known as the Court of the Constable and Marshal, or of the Lord High Constable) was responsible for matters of military organisation and discipline arising not only at home but, uniquely for any English tribunal, overseas. 2 Its remit included disputes over military contracts 3 and complaints concerning the spoils of war (such as prisoners and their ransom). 4 With the advent of the Hundred Years War in 1340 and renewed fighting against the Scots, the number of military expeditions and theatres of conflict expanded. So, too, did the potential for controversies over the right to bear heraldic coats of arms. As a result, the Court also became the prime venue for 1 A general account of the entire history of the English Court of Chivalry was published by G. D. Squibb, The High Court of Chivalry: A Study of the Civil Law in England (Oxford: Clarendon Press, 1959), but its focus is primarily on the post-medieval period. The medieval history of the Court has been principally examined to date by the late Maurice Keen: M. Keen, The Laws of War in the Later Middle Ages (London: Routledge & Kegan Paul, 1965); M. Keen, ‘The Jurisdiction and Origins of the Constable’s Court’, in J. Gillingham and J. C. Holt (eds.), War and Government in the Middle Ages: Essays in Honour of J. O. Prestwich (Cambridge: Boydell Press, 1984), pp. 159–169. For a comprehensive new study of the origins and jurisdiction of the Court see: A. Musson and N. Ramsay, Law and Arms: The Medieval English Court of Chivalry (forthcoming). 2 For a comparative view see: A. Musson and N. Ramsay (eds.), Courts of Chivalry and Admiralty in Later Medieval Europe (Woodbridge: Boydell Press, 2018).
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