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University of Basel

Insights into the history of law

Felix Hafner, Patricia Kaiser

The Middle Ages played an important role in the development of European law. Central to this was the fact that two different legal systems – the ecclesiastical system of Canon law, on the one hand, and the secular system dominated by Roman law, on the other hand – operated alongside each other at the time.

These two legal systems – the Canon law and the Roman law – are represented symbolically on the seal of the Faculty of Law at Basel University (founded in 1460), which depicts the Pope and the Emperor. After studying both systems of law, graduates received the title licentiatus utriusque iuris and on completing their dissertation are awarded the title of doctor utriusque iuris. We still find traces of this dualist approach. Even today it is said that someone studying law is reading “Jura” – in German “Rechte” or “Rechtswissenschaften” – all plural.

Of course, these two legal systems had their roots not in the Middle Ages but in the ancient world. As the name suggests, Roman law was an achievement of the Romans, while Canon law originated in the structures of the early Christian church. However, both systems reached their peak during the Middle Ages.

The evolution of Roman law

The year 533 was a decisive turning-point in the development of Roman law. It was then that the Eastern Roman Emperor Justinian issued four books of laws and statutes – dubbed the Corpus iuris civilis only in the 16th century – that primarily codified Roman private law. The most important of these books, the so-called Digest (from the Latin “Digesta”, meaning “ordered excerpts”) or Pandects (from ancient Greek “Pandektai”, meaning “all-inclusive”) – was a systematic compilation of a vast number of legal cases, with accompanying commentaries by Roman jurists.

In the Germanic territories, Roman law mutated into what is known as vulgar law after the collapse of the Western Roman Empire. This was no longer based on the sophisticated jurisprudence of the Roman lawyers (for example, regarding the distinction between possession and ownership); in codes such as the Frankish Lex Ribuaria, from the 7th century, it was heavily infiltrated by elements of Germanic law. Roman law managed to survive only within the church. This turned out to be particularly important for the later development of Canon law – the Lex Ribuaria itself states that the church is governed by Roman law (ecclesia vivit lege Romana). Otherwise, Roman law was consigned to oblivion for a long time. The dominant influence was instead German tribal law influenced by customary law.

In the 11th century, medieval law began to move in a different direction, following the rediscovery of the Digest by Italian jurists. This was the start of a longer process, known as the reception of Roman law, which was of huge significance for legal history. In the northern Italian cities, law schools were established at which Roman law was taught. In this respect, Bologna was of fundamental importance, as their jurists – known as glossators – produced annotations on the Roman legal texts. These law schools formed the core of one of the world’s oldest universities – the University of Bologna, founded in the 12th century. From the start, therefore, the appearance of universities was closely linked to the establishment of schools and faculties of law. Through their subsequent work as practitioners, the lawyers trained at these universities contributed to the development in continental Europe of a “ius commune”, influenced by Roman law, alongside traditional local customary law.

The beginnings of a modern legal system

The 12th century saw parallel developments in ecclesiastical law, again centered on Bologna. Here, the dominant contribution came from the monk Gratian, who taught Canon law at Bologna’s School of Law. He was the author of the so-called Decretum Gratiani, a collection of papal decrees and acts of church councils and synods. Gratian managed to resolve the contradictions between some of these texts; for this reason, he gave his work the title Concordia discordantium canonum (Harmony of discordant rules). In the 16th century, it was combined with other texts in a work comprising six books and published as the Corpus iuris canonici.

Canon law was not confined to questions of church governance. Much of it also dealt with legal matters that are now subject to secular law, such as matrimonial and contract law. In addition, it was not restricted to private law, also covering norms of administrative law, in its organizational provisions, and criminal law, in its procedural law. Famously, in a development whose impact continues to be felt today, the 11th and 12th centuries saw the formalization of the inquisitorial process. Instead of relying on private actions and trials by ordeal, like the traditional accusatorial procedure under customary law, it required the authorities to initiate proceedings and gather evidence. In this way, the church created an autonomous legal order during the high Middle Ages; in it we can even glimpse the first signs of a modern Western legal system.

The church hierarchy and administration may have been steeped in the law, but it would be a mistake to equate this with the establishment of a modern constitutional state governed by the rule of law and guaranteeing the freedoms of individuals. Medieval Canon law was a long way from achieving this. Nevertheless, the idea to which it gave rise – that political power should be bound by the law – had profound consequences for the state, too. Here, the example of England’s Magna Carta (1215) comes to mind. This required the English king to seek the agreement of a committee of his barons before raising taxes and prohibited him from imprisoning free men and members of the nobility without judicial or legal sanction.

Although the rights guaranteed by Magna Carta were limited to feudal lords, today it is regarded as an important milestone in the history of fundamental and human rights. In this connection, it is worth noting that England did not adopt Roman law; instead, its legal system was heavily influenced by Canon law.

Securing the “Landfrieden“

Turning to the area that makes up modern Switzerland, we find that the Confederation had its genesis in the late Middle Ages. The various confederacies established at that time, not only in today’s central Switzerland but also in other parts of Europe, were based on treaties or charters resembling treaties. Those affecting the areas that make up modern Switzerland were later termed “Bundesbriefe” (federal charters). The network of alliances established during these dangerous times, when the feudal system prevalent within the Holy Roman Empire was showing signs of falling apart, was aimed primarily at securing the “Landfrieden”, neither placing legal constraints on the exercise of political power, nor guaranteeing the freedoms of individuals.

Although initially during the Middle Ages, the Confederation were open to influences from Roman law, later they adopted a skeptical stance, as the following anecdote illustrates: In the 16th or 17th century, a doctor of law from Constance argued a case before the high court in Frauenfeld on the basis of Roman law. However, this was not appreciated by the court: “Wir Eidgenossen fragen nicht nach dem Bartele oder Baldele und anderen Doctoren; wir haben sonderbare [eigenständige] Landgebräuche und Rechte. N[R]aus mit Euch Doctor!“ (“We Confederates don’t care about Bartele (‘Barty’) or Baldele (’Baldy’) and other authorities; we have our own customs and laws. Away with you, doctor!”) By Bartele and Baldele, the court meant Bartolus de Saxoferrato and Baldus de Ubaldis, who served as professors of law at Italian universities during the 13th century. They were not only known as “post-glossators” but also as “commentators” – they not only glossed the Roman legal texts but also wrote commentaries on them.

At the University of Basel, Bartolus in particular was everpresent, as it was said that no one could be a lawyer without being a “Bartolist” (nemo iurista nisi Bartolista). The accession of the university city of Basel to the Confederation in 1501, therefore, also served to strengthen the position of Roman law, as rediscovered and revised by scholars during the Middle Ages, in the areas that make up modern Switzerland.

Professor Felix Hafner is Professor of Public Law at the Faculty of Law at the University of Basel; Patricia Kaiser, MLaw, was a student and academic assistant at the Faculty of Law until May 2014.

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