History of European Law: First Lecture, an overview of legal evolution

Introduction to the History of European Law

The goal of this course is to provide students with useful tools to understand both the past and the present regarding the fundamental elements of law. Law consists of both very ancient and very modern elements, going through periods of stagnation and rapid change. As F. Pollock stated, legal ideas and institutions follow a development path similar to living species and deserve a distinct study, rather than being treated as mere incidents in general history.

Sources of Law

Legal systems reveal their identity through their sources. The main ones are:

1. Legislation - The authoritative source that imposes behavioral rules on subjects.
2. Legal doctrine - The intellectual activity of professionals and scholars aimed at identifying, interpreting, and systematizing legal norms, as well as envisioning new ones.
3. Legal practice - The expression of legally relevant behaviors rooted in community customs and judicial decisions.

These sources are interconnected: legislation reflects the intellectual and customary framework of the time, legal doctrine is influenced by the cultural and normative context, and legal practice records the choices made by communities and courts.

Evolution of Legal Sources

In the Middle Ages, laws were primarily customary. From the late 18th century, legislation became the dominant source through reforms, codifications, and statutory laws. From the 12th century onwards, a new legal science emerged as an autonomous source. The history of law aims to clarify how doctrine and practice shaped legal norms, analyzing the evolution of solutions developed to meet two fundamental needs:

• The need for justice.
• The need for certainty.

The Concept of "Europe" in Legal History

For decades, law has been considered one of Europe's major cultural achievements. However, European history is also marked by violence, oppression, and colonialism, necessitating a global perspective on legal history. European law has been seen as a political instrument for building a Rechtsgemeinschaft (community of law), an expression of a shared cultural unity. The history of European law traces the evolution of a common civilization, defined as a "republic of legal culture."

Development of Law in Europe

The historian's task is to explain change over time, highlighting both continuity and discontinuity. Medieval law was based more on concrete experiences than abstract norms. Legal pluralism in the Middle Ages stemmed from the medieval concept of sovereignty.Two fundamental principles of medieval law were:

1. The principle of personality of law - Law was tied to individuals, their ethnicity, and lineage rather than the territory.
2. The principle of territoriality of law - Over time, a person's place of residence became more important than their ethnic identity in determining applicable law.

The principle of personality allowed multiple legal orders to coexist within the same territory, while territoriality gradually became dominant. According to Guterman, the medieval legal system was more international because it was not based on state action but on a mixture of personal norms and local customs. During the barbarian invasions, the Germanic tribes maintained the Roman legal system for the conquered populations, acknowledging the superiority of Latin legal tradition.

The Role of Society in Medieval Law

In the Middle Ages, law was not only about command and power but also about social organization based on historical values. The concept of medieval sovereignty was very different from the modern one. The absence of a centralized state led to the proliferation of intermediary social groups, such as clans, guilds, and religious brotherhoods, which acted as legal representatives of their members. The Middle Ages were an era of legal and political pluralism, with a highly fragmented social organization that persisted until the French Revolution. The medieval individual did not exist as an autonomous subject but only as a member of a community. Here is the lecture transformed into a continuous text:

Law in the Medieval World

The Middle Ages span roughly a thousand years, encompassing a multitude of nations and cultures. This period saw the emergence of the Roman-Germanic community after the fall of the Western Roman Empire in 476 AD, alongside the Byzantine civilization in the East and the Arab world with its distinct legal traditions.

Legal Pluralism in the Middle Ages

During this millennium, Europe underwent dramatic transformations, making it impossible to speak of a single "medieval law." Instead, a variety of legal systems coexisted, shaping a world of legal pluralism. Contrary to the traditional view of the Middle Ages as the "Dark Ages," this period is one of the most fascinating in European legal history. For centuries after the Germanic migrations, law was tribal, linked to kinship and blood ties. Only towards the end of the Frankish period did the territorial principle begin to take precedence, meaning that the place of residence became more important than tribal affiliation. The Germanic peoples, unlike the Romans who were ruled by an absolute emperor (legibus solutus), valued political liberty. As they settled in the Mediterranean, they established relatively stable socio-political structures.

Germanic Legal Traditions

Germanic political culture differed significantly from that of the Romans. In Rome, power was sacred and rulers were seen as divine manifestations. In contrast, Germanic societies viewed power pragmatically, with kings acting as custodians of existing laws (custos iusti) rather than lawmakers. Tacitus, in his Germania, described the Germanic tribes as nomadic warrior societies that relied on hunting and warfare rather than intensive agriculture. They did not recognize private property, and land was distributed annually based on social status. The armed militia was the primary public institution, and adulthood was achieved upon entering the army. In times of crisis, leaders were chosen from the most influential military families, but governance remained collective rather than monarchical. Justice was based on private retaliation (faida), although compensation through payments, often in livestock, was gradually introduced. Women had no independent rights and were always under the authority of male relatives. Marriage was essentially a transaction, with the bride being sold to the groom's family.

Legal Consequences of Germanic Migrations

As the Germanic tribes established kingdoms in former Roman territories, they faced the challenge of governing much larger native populations while maintaining their own legal traditions. The coexistence of different legal systems led to a distinction between the laws of the conquerors and those of the conquered. Germanic rulers preserved their legal traditions, while the native Roman population continued to follow Roman law, albeit under the authority of the new rulers. This marked the beginning of the personality of law, where different ethnic groups within the same kingdom followed their respective legal systems.

Germanic Law as Customary Law

For Germanic societies, law was essentially custom. They believed in supernatural justice through fire and water ordeals (iudicium Dei), and trial by combat remained widespread until the 13th-14th centuries. Customary law, though often unwritten, was the primary source of legal norms. Custom is a dynamic phenomenon, constantly evolving. Some customs reflect long-standing values, while others spread rapidly across different regions. Some customs emerge through force, while others become established due to pressure from ruling authorities. In the early Middle Ages, Europe saw an intense reliance on customary law, making this era a true "age of custom." Between the 9th and 11th centuries, the rise in interactions between different peoples led to legal conflicts. Some of these issues were addressed through specific legal provisions, such as the Edict of Liutprand, which allowed individuals to abandon their ancestral laws and adopt the legal system of another group in contractual agreements.

Development of Local Customary Law

Three key aspects defined the development of local customs:

1. Extreme legal pluralism - The fragmentation of local customs reached its peak, but the core principles of law remained consistent across different regions.
2. Continuity of the personality principle - Customary law filled gaps not covered by Roman, Lombard, or Carolingian legal texts.
3. Revival of Roman legal traditions - While Germanic customs dominated, remnants of Roman law continued to influence legal developments.

Over time, there was a growing trend toward writing down customary laws. Initially, the Germanic peoples had no professional jurists, as law was learned informally through community practices. However, as societies became more complex, legal professionals became necessary to document and interpret laws.

Legal Privilege and the Medieval Social Order

Medieval society was not based on equality but on privilege. Different groups sought legal advantages over others, and law was applied differently based on status and affiliation. Customary law ensured that kings could not become absolute rulers, maintaining a balance of power within medieval society.

Legal Pluralism vs. Statutory Law

Unlike modern legal systems, which are based on centralized statutory law (legal monism), the Middle Ages were characterized by legal pluralism. Various legal systems coexisted, often based on ethnic identity or social class. For example:

• Romans continued to follow a version of Roman law, even as it became more customary in nature.
• Franks, Burgundians, and other Germanic tribes adhered to their traditional laws.
• Carolingian kings introduced new legal codes that were neither purely Germanic nor Roman.

Emergence of Local Customs and Feudal Law

As different peoples lived together, legal customs began to develop locally, becoming common to all inhabitants of a given area. Documents from around the year 1000 show village-specific customs regulating contracts, inheritance, and sanctions. The rise of feudalism brought new legal structures, such as leges feudorum for the nobility and ius mercatorum for merchants.

The Role of the Church in Medieval Law

The Church developed its own legal system, codified in canons from Church councils and papal decretals. The Dictatus Papae (1075) established the Pope's exclusive right to create new laws. Over time, Church councils were increasingly controlled by the papacy, reinforcing papal legislative authority. The Germanic tribes generally accepted Christianity, but initially in its Arian form, which was later condemned as heretical. Despite this, Christianity played a central role in shaping medieval law and governance.

Customary Law and the Evolution of Legal Thought

Two fundamental elements defined customary law:

1. Material element (diuturnitas) - A custom becomes law through long-term repetition and social acceptance.
2. Psychological element (opinio iuris ac necessitatis) - A practice is legally binding only when people believe it to be obligatory.

The process of legal transformation often involved fiction: new laws were adopted under the mistaken belief that they already existed. This paradox, highlighted by jurists like Hans Kelsen and François Gény, suggests that customary law often evolved from persistent misunderstandings.

Custom and International Law

In modern times, customary law plays a key role in international law. State practices become binding when there is a shared belief (opinio iuris) that they are legally required. However, the exact nature of this principle remains debated among legal scholars.