Search This Blog

Thursday, May 10, 2012

On Law and Archeology

Dear all,
I have a couple of questions to ask you. Try to answer using the knowledge you acquired during the course on Medieval and modern legal history.

1) During Prof. Gadeyne's lectures, we have seen that in the late antiquity we can observe a "privatisation" of public spaces in the city of Rome. This is a very typical phenomenon of the whole Middle Ages, with particular reference to late antiquity/early Middle Ages. I am thinking about the development of the so called "patrocinium" and of the "buccellari". Can you tell me what they were? You will certainly find the answer in Ennio Cortese's "Le grandi linee della storia giuridica medievale".

2) Spolia: In the Middle Ages (starting from late antiquity)  to renew meant to "reuse" the past. This is true not only for great monuments like the Arch of Constantine, but also for legislation. The idea that codes are to be written ex novo is a very modern one. Can you tell me what is the difference between "consolidations" and "codifications" according to Mario Viora? What was the Content of the Theodosian and Justinian Codes? Can you describe the phenomenon of the canon law falsifications of the 9th century? Which was at that time the role of "auctoritas"?

The Arch of Constantine can also be seen as a visual representation of the phenomenon of "vulgarisation" of the law in the eraly Middle Ages. You have seen that the engravings of the period of Constantine where not as refined as the others. The point wasn't that the artists weren't that good anymore, but that their audience  was different and they had to apply a new, simplified language. That is comparable with what happened in the framework of law.

As you can understand, late antiquity was a period of great changes and innovation, a period in which very different cultures, religions, languages came suddenly together: don't think that it meant only decadence! 


  1. about the distinction between consolidations and codification, the main aspects are two: 1) the law material inside consolidations is older, and a consolidation only collects it, such as law rules or judicial opinions made by jourists; in codifications instead there's also new law rules next to older ones (e.g. marriage law or family law or contract law in the code civil, there are new rules which are different about olders). 2)codifications only collect law material, and not erase it, which continue to be applied in courts and tribunals, instead a codification claims to be the only law rule in a particular subject (e.g. civil code in civil law; criminal code in criminal law, and so on), annulling all precedent rules, and being not integrable by other parts of a legal system (e.g. arbitrary interpretations of tribunals or lawyers). 3)the language:an innovation of codifications in the XIX century was the choise of the national language to write the code instead of the latin.

  2. About the privatization of the public spaces it was interesting to see how different was the process after 1870:the spaces,first of all the one of the Court of Cassation,were meant to be public and open to everyone differently from the clergycal spaces,characterized by a particular élite of people.

  3. Just to give a different point of view from Lucio(who says a right thing): consolidation is the prelude of coding, but it differs in one crucial point: the consolidation can be integrated from different sources. It could be complemented by the ius commune or by jus proprium. Instead the code is a unique and exclusive source of law.
    About falsification in the 9th century i remeber the Pseudo-Isidorean Decretals. It was the most extensive and influential set of forgeries found in medieval canon law. The authors were a group of Frankish clerics writing in the second quarter of the ninth century under the pseudonym Isidore Mercator. They aimed to defend the position of bishops against metropolitans and secular authorities by creating false documents authored by early popes, together with interpolated conciliar documents.

  4. I want to analyze in particular the phenomenon of the canon law falsifications of the 9th century. In about 850 the scholar or scholar group known with the pseudonym “Pseudo-Isidorian” was responsible of the “Pseudo-Isidorean (False) Decretals”, the most extensive and influential set of forgeries found in medieval Canon law. Some of the documents held in it are the Hispana Augustodunensis, the Capitula Angilramni, the Capitularia Benedicti Levitae and the Donation of Costantine. The central goal of the anonymous Frankish group of authors of these collections was to strengthen the position of the bishops and to rectify the poor condition of ecclesiastical-state affairs. The result was accomplished by means of falsified and forged texts that were attributed to the esteemed authority of the old law (for example popes) and the Carolingian princes. Forged documents were not unusual in the early Middle Ages. A complex of forged texts was produced in the early sixth century as a result of the schism between Pope Symmachus and Laurentius in Rome, it is called “Symmachian Forgeries” and its aim was to demonstrate that the pope could be judged by no human authority. What is relevant in my opinion is that these forgeries show that medieval men had a very different conception of falsification than we do today, because they falsified charters that preserved customary, unwritten rights they were sure they possessed.

  5. About the development of the "patrocinium" and of the "buccellari" I have found i the book written by Ennio Cortese, "Le grandi linee della storia giuridica medievale" that we can find the origins od the Patrocinium in the 1579, with the "Edictum teodorici". It was a collection of rules promulgated by the Goths for Italy; but they followed strictly the roman rules,bringing to light the old roman legislation, simplifying the roman rules to apply them to reality.Inside it we have many criminal laws, but also civil laws, with the rising of the PATROCINIUM.It was the protection of the settler. The settlers were not anymore slaves, but free men. Their freedom was linked to the cultivated land. The settler couldn't abandon the land, otherwise he was chained. The Patrocinium was born beacuse of a tax system which looked only to the empire's needs.So, for the poor people became necessary to refer to a patron, who paid taxes directly to the state, obtaining preferential payments.
    The "Buccellarii", instead,were born in the roman empire and in the Byzantine empire and formed a miilitary unit, formed outside the state recluting,but directly recluited by noble as personal ranks.The numbers of the Buccellarii grew with the crisis of the central state, because numerous settlers and artisans asked protection to a patron, who gave them weapons and wages.

  6. This comment has been removed by the author.

  7. Patrocinium is to sell to a person belonging to a more high social level, procedural actions to get protection in return for loyalty.
    You may find features of feudalism. We see the new concept of tutele of legal rights of people no longer entrusted to' public power, but to another subject.
    It was a common pratice even though it was banned by edict of Theodoric, the Theodosian code, and later by Justinian code.
    Patrocinium was also addressed to buccellari that were the private milities of the sir. They provided protection and services in exchange for temporary gifts which often consisted of lands.
    Buccellario can keep the gifts and the weapon received unti he gives obsequium; free men could choose to change the patron, but this would entail the return of goods received.
    Finally, the gifts were inherited by the children of buccellari if they had continued to lend obsequium to sir.