Civil Law, Canon Law & Roman Law

Medieval Written Law - II

By: Plinio Corrêa de Oliveira

 As we continue on the topic of royal establishments that we dealt with in the last article, a question arises: What were the limits of a law made by the King? He could not destroy the authority of the feudal Lords or diminish it; also, he could not suppress the customs or modify them except in the cases when they violated morals, the public order, the dignity of those involved or Catholic doctrine.

The legislative power of the King, according to many French scholars, was limited by these factors:

• For a royal law to be valid it must to be turned toward the common good;
• It must be reasonable;
• It must not offend against the rights of God and good customs;
• It must not harm the rights of others;
• The King must ask advice of others and not act arbitrarily.

King Edward I asking advice
of Bishops, from
The Decrees of Kings of Anglo Saxon & Normandy

These five elements were indispensable for a royal law to enter in force with the consensus of all.

Let us note in passing on the matter of the right to resist a law and point out that this right existed in the Middle Ages. This fact often surprises liberals even in our days. We will deal further with this matter in another article.

It is evident that the King had greater authority over the lands over which he was the direct feudal Lord. For these lands, the royal establishments were much more numerous. The King had the plenitude of authority over his own lands, and, therefore, he legislated more copiously with regard to them. Something similar could be said of the feudal Lords, who had the right to make laws for their fiefs.

In summary, we have defined that the written laws were laws that had to fully accord with justice and Catholic doctrine; further, in the case of royal laws, they must serve the interest of the whole Kingdom and, in the case of the feudal Lords, the interest of the whole fief.

Thus, we have the written laws of the King and those of the fiefs, which must be viewed in parallel with the customs for us to be able to understand the whole legislative edifice of a medieval country.

The role of Canon Law in civil society

There were two other categories of laws upon which I will touch summarily to sketch a full outline of this matter. These were the laws born from the application of Canon Law or Roman Law.

 

The Abbot of Cluny,
appointed by the Pope,
governed a territory that included many villages

Everything that referred to the Church was regulated by Canon Law. The Church was flourishing at that time with countless religious institutions and thousands of clergymen, monks and nuns in each country. In many regions there were cities and even entire fiefs that were under the temporal government of these Church institutions.

Further, the Church legislated over many family and societal matters that today are in the sphere of the State: marriage, education, births and deaths, hereditary successions, etc.

All these matters used to fall under the rule of Canon Law and the right to legislate on them belonged to the Church, which at times was represented by the Bishops, at times by a Superior of a Religious Order, or even sometimes by the Holy See, as, for example, when a city or a territory was offered as a gift to St. Peter or the Pope, which was not a rare procedure.

We see, therefore, that there were many people in civil society who were ruled not by the State Law but by Canon Law.

The customary role of Roman Law

We have already noted that Roman Law entered France only with a consuetudinary role. In the West, even 800 years after the death of Roman Empire, Roman Law conserved its prestige and, in certain places of Southern France, it was customary to resolve problems by applying Roman Law.

It is important to understand that it was the customs of a region that generated the laws in those places where Roman Law was applied. In the Middle Ages people did not conceive of Roman Law as the law of the State; this conception only began to be adopted with Humanism and the Renaissance and then continued into modern times. In the medieval period, Roman Law was used only to resolve problems in a region, as a law useful for the interests of those particular individuals.

In summary, we see that medieval man had two types of civil laws: the laws issued for particular individuals, families or groups, which were the customs; and the laws elaborated by the State, which were the written laws or establishments. These establishments could be, in turn, of two types: those made by the King, the royal establishments, and those made by the feudal Lords.