Thinking like a lawyer in the eleventh century

The Institute of Historical Research Earlier Middle Ages seminar is on tour through Senate House this year, while the IHR is refitted, and at the end of February, we went upmarket to the Chancellor’s Hall to hear Charles Radding from Michigan State University give the Volterra Lecture on “The recovery and use of Justinian’s Code in eleventh-century Italy”. I’d better say at once that this lecture assumed an audience knowing rather more about early medieval legal history than I actually do, so if some bits are slightly garbled, apologies.

Radding started by pointing out that the traditional historiography, which assumes that the Corpus Iuris Civilis (a.k.a the Justinian Code) had been known and used in Italy ever since the sixth century, is wrong. It’s not possible to find evidence of the Code between the sixth and the eleventh century (apart from a few collections from Milan and Pavia in the 880s) and the Code isn’t cited in documents. The only bit of the Corpus that was circulating was the Novels.

Radding’s main focus was on one specific manuscript: Pistoia Archivo capitolare AC106, which contains an epitome of the Code (a text which he thinks was created in around 1020). The Pistoia manuscript was misdated to the tenth century, but he reckoned it was from the third quarter of the eleventh century. It’s on very scrappy parchment and written in about 50 different hands, some only writing a few sentences. It’s also intensively glossed, with many variant readings, and has a lot of extra constitutions added. Radding argued that this was a manuscript possibly copied by something like a chambers: a group of professional lawyers who were reconstructing the bits of the Code they found useful over a 30-40 year period.

After about 1090, the epitome of the Code was outmoded, because the text of the whole Code had been recovered by then. But what had happened meanwhile is that the professional jurists of north Italy, who had written texts like the Pistoia manuscript, had learnt how to think like lawyers from their study of the epitome. You can see this from the way they were bringing procedures from Roman law and citations from the Code into Lombard law.

Radding is currently editing one version of the eleventh century Liber papiensis, which includes the text of the Lombard laws, but also glosses and pleadings. The Liber papiensis, which I’d have liked to hear more about, is a text that looks like something intended for use, in contrast to the law codes I’m using to seeing from the Carolingian periods. We got given as a handout the discussion of Rothari 232, which is a law about recovering a stolen horse. What this version adds to the seventh century original is the detailed procedure: how to summon legally someone who’s bought your stolen horse and what you do if he’s sold it on or claims it’s always been his or that he bought it not knowing it was stolen. The practical lawyers who compiled this kind of work, however, also wanted to bring in Roman law. The book frequently cites the Code and its epitome, taken from the base text of the Pistoia manuscript. To the compilers, moving between Roman law and Lombard law was possible: the principles of legal argument were the same, even if the specific details were different.

The result of such study was a snowball effect, with more and more Roman law texts recovered and studied. In another 100 years it was Roman law that was taught in Italian universities, not Lombard law. The legal profession had created itself. Whether, as Susan Reynolds sceptically tends to point out, this actually meant that the result was a better legal process is unclear. But what we can see via the manuscripts is a very different sort of law emerging from these anonymous eleventh century groups.

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2 thoughts on “Thinking like a lawyer in the eleventh century

    • That’s an interesting question. From my limited knowledge, I think the identity parade is a relatively recent development: the OED has the earliest use of the term “identification parade” as from 1908. It presupposes, after all, both a concern to ensure accurate justice that isn’t characteristic of most of history and such large-scale and mobile societies that it’s a problem identifying criminals. Early medieval society is a much smaller and more local one – far fewer people and much less travelling. The population of England in the late eleventh century, for example, has been estimated at around 3 million at most. So I imagine that you would be far more likely to recognise a particular criminal.

      The other thing is the key role played in early medieval society by the concept of “fama”, good or bad reputation. Quite often those described as “witnesses” in the sources aren’t actually people who have personal knowledge of a specific crime/event. They’re more like character witnesses: they’re there to state in general terms that the accused is a good, upright person. Although we don’t have specific accounts of criminal cases brought before early medieval courts, I imagine that the normal procedure if some crime had been committed by an unknown would be to accuse the person who local rumour suspected of being guilty (and in small-scale societies such rumours might be surprisingly accurate – they didn’t need to set up Neighbourhood Watch schemes). Then it would be up to that person to clear themselves. But as I said, we don’t really get accounts of criminal cases till the later Middle Ages. (If you want to see criminal law in action for the early modern period, meanwhile, there is now the fascinating free resource of the Old Bailey Online).

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