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This chapter demonstrates the over-complexity of the law relating to testamentary formalities in early modern law. The discussion is based on the characteristic interplay between Roman law, Canon law, and local law. It covers wills and codicils, the forms of wills, and internal formalities.

This chapter analyzes the changing nature of the references to sources in Scotland in the 100 years or so after the founding of the College of Justice. It traces a decline in the overt reliance on Canon law through examination of the sources cited in the Jus feudale of Thomas Craig, written around 1600, and the Practicks of Sir Robert Spottiswoode, collected from the 1620s to the 1640s. It shows the continued significance of Canon law, but a failure to cite it by Spottiswoode, other than in his reliance on it for procedural issues. While Sinclair’s Practicks demonstrate that Scotland had a typical mix of ius commune (Canon and Civil laws) and ius proprium (Scots customs and statutes), Craig and Spottiswoode’s works suggest that in the intervening period there had been a subtle change out of which emerged a competing understanding of the nature of Scots law, located within the structure of the law of nature and nations in a Europe of developing nation states with imperial ambitions.

Scots and English law have common roots evidenced in the connection between Glanvill and Regiam Majestatem but their paths diverged. Scotland followed the Civilian tradition while the English Common law took its own path in terms of legal terminology, legal training and ideas. However the Canon law and through it Roman law was important in Chancery and other specialised jurisdictions in England and when treatise literature developed there is Roman influence especially through Pothier. English law is therefore not as completely isolated from the Civilian tradition as is often suggested by concentrating on the work of the Common lawyers and their desire to claim independence of that tradition.

This article examines three issues – the distinction between Roman law and the Civil law derived from it; reception of legal systems and the place of Roman and Civil law in Scottish legal education. The first important distinction is frequently overlooked, leading to misunderstanding of the extent to which ideas were developed out of the Roman texts, for example, the foundations of private international law, and ignorance of the complexity of the history of the Civil law and its potential influence. Reception of a legal system need not mean full acceptance of it and Scotland drew upon the Civil law rather than adopting it and also drew on the Canon law which brought the first connection with the Civil law. The reduction in the teaching of Roman law and hence understanding of it reduces the scope for its continuing influence but also is a loss to legal education by reducing exposure to the thinking of great lawyers.

This chapter examines the intricacies of the Catholic Church's canon law. It first provides an overview of the Code of Canon Law and the criticisms hurled against it before turning to a discussion of the discomfort of many contemporary Catholics when confronted with canon law. It then explores the social imaginary in which canon law is embedded, with particular emphasis on hierarchical order, the priority of community over individuals, the priority of “the Right” over rights, and structured inequality within the church. It also looks at benevolent despotism, the issue of of substantive vs. formal rationality, and paternalistic administration.

This chapter argues that the subject of theology and jurisprudence in Scotland falls into two distinct and often independent histories, the first concerning the reception of Canon law in Scotland prior to the Reformation in respect of both ecclesiastical and civil law, the second concerning the reception of the ‘law of God’ into ecclesiastical and criminal law during the era of the Reformation. The continued authority of Canon law in Protestant Scotland is considered alongside the development of the Church of Scotland’s disciplinary jurisdiction and the criminalization of sin. Areas in which these two distinct histories intersected in respect of marriage law and the law of incest are considered. The interaction of theology and jurisprudence among the writings of Scotland’s earliest legal writers and earliest institutional writers is also considered, including the influence of Calvinism on criminal law, and of scholastic moral theology on Scots private law.

Chapters 2 and 3 discuss the formation of embargo as a policy and a discourse in 1179–1250s against multiple backgrounds: development of continental common law, emergence of the penitential forum, and papal policies on Christians’ relations with others. Chapter 2 explains the legal structure of the embargo aimed at Muslims and exposes the hierarchy of papal concerns it reflected. The establishment of a degree of papal jurisdiction over Christians’s trade with Muslims was an issue of ‘proper order’ within Christendom inherently intertwined with the pastoral concern with the control over—and the salvation of souls. Second came a concern with the sustenance of Christian communities interwoven with the papacy’s need to accommodate their interests. The effect that Christian trade could have on Muslim military power thus yielded to ‘domestic’ concerns. Given the conceptual and empirical challenges involved, categorical positions on the embargo’s impact on trade flows are not sustainable.

Examines legal mechanisms whereby the Catholic church sheltered spousal murderers and other criminals and the King acted as God’s proxy to extend pardon to criminals during the Catholic Holy Week. It also shows the central role of the church in the alleviation of punishment and the accompaniment of those marching to the gallows. It establishes that forgiveness was thus also critical to the legitimacy of the Church and its hegemony, both a complementary and competing force relative to the monarchy.

The law of monastic exemption is seldom viewed through an early medieval lens. Overcoming this historiographical problem, this chapter defines the character and growth of monastic exemption in a period comparatively lacking in legal expression and rhetoric. It examines how it operated, how it was defined, and what it meant to contemporaries. In what ways did its early practice shape later canon law? What were the precedents which framed later legal developments? To advance our understanding further, the technical form of exemption is stripped down to its constitutive elements. This methodological approach offers a richer understanding of monastic exemption in the early Middle Ages, in turn revealing its inherent value to the papacy in making concessions to the law over many subsequent centuries.

This chapter examines the Holy See’s critical response to the Versailles Peace Settlement of 1919 and to the subsequent territorial rearrangement of Europe. It also analyses in detail Benedict and Gasparri’s relations with the powers in the post-war world, especially Britain, France, Germany and Italy, the USA and the USSR, and the so-called ‘successor states’. In this chapter the Vatican’s first responses to the persecution of the Church in Mexico and Russia are described. It then focuses on Benedict’s role as head of the Church, particularly his promulgation of the Code of Canon Law and continuation of the reform of the Roman curia. Especially interesting are the initiatives which he took in relation to the Eastern churches, both those in communion with Rome and those not, and his landmark encyclical on the missions, Maximum Illud. It concludes with an assessment of Benedict’s place in the history of the papacy.

Chapter three builds on the disturbing composite portrait of the heretic linking that social fear with the rise and development of anti-heresy legislation, legal procedure and policies of repression aimed at controlling and eliminating the perceived threat. Heresy is therefore applied criminology. This chapter sketches out the nature of the ordojuris of criminal procedure which was the guiding principle of the Hus trial. One cannot adjudicate the fairness, legality or any other question about the trial by engaging in anachronistic assumptions and therefore a clear understanding of prevailing legal norms at the end of the Middle Ages is indispensable. In addition to the ordojuris, there are a number of relevant statutes and practices pertaining to heresy trials in the medieval period. These are placed into context. This chapter outlines the legal theory behind the repression of heresy.

Chapter 1 explores the Council in Trullo, the foundation stone of Eastern Orthodox canon law. This was the centre-piece of Justinian II’s attempts to morally reform the empire in anticipation of a divinely sanctioned reconquest of the Near East. Extending the work of his father Constantine IV, Justinian sought to repackage imperial ideology along stridently Christocentric lines, positioning himself as Christ's vicegerent on earth and the leader of the Christian community. Moreover, Justinian sought to unite the Christian world behind a campaign of moral reformation, a campaign announced and enforced through the canons issued at Trullo. However, subsequent defeat to the Arabs would discredit this package designed to win divine favour, and laid the foundation for the reforms of the eighth century.

This chapter examines gender relations in the Main Valley, primarily among ecclesiastics and secondarily among the laity, and traces how they became more complex and conflicted over the course of the eighth century, under the impact of the early stages of the Carolingian reform movement. Several reformers sought to increase restrictions on religious women, to limit their ecclesiastical activities, and emphasize segregation of men from women. This trend posed a challenge to the gender-egalitarian culture that was favoured by the Anglo-Saxon immigrants to Francia and their continental collaborators, and particularly threatened the widespread commitment to syneisactism, a form of religious life that encouraged sexually chaste contact between men and women. However, the chapter also shows, through examination of a selection of legal manuscripts, how the reform ideas were often resisted on the ground through the ability of feminist scribes to edit and shape the texts they produced.

This chapter begins with a summary of the aims and objectives of the volume and a historiographical review of the existing literature. It then examines the features, positive and negative, of the legacy of the pontificate of Pius X (1903–14). In particular, it focuses on the longer-term effects of Pius X’s innovations in the liturgical field, his inauguration of the process of codifying Canon Law and his reform of the Roman curia, and his attempts to improve training for the priesthood. It also analyses the longer-term effects of the ‘modernist’ crisis that dominated his reign and the consequences for the papacy during the July crisis of 1914 of Pius X’s and Cardinal Merry Del Val’s mishandling of the Vatican’s diplomatic relations with states.

The Fifth Chapter (Economy and the Legal Framework) returns to Agamben’s genealogy of economy discussed in the introduction and tackles his critique of Foucault’s genealogy of pastoral power. Following a presentation of what is known in canon law literature as “the principle of economy” it discusses the resemblances and differences between pastoral economy and political sovereignty as revealed in the state of exception.

This article addresses a particularly troubling form of property: slavery in fifteenth-century Dubrovnik. The practice of slavery depended upon law: its articulation lay at the intersection of the Roman law of the ius commune, canon law, local customary and statute law, and natural law. The texture of these different legalistic frameworks provided ways of articulating the problems, discursive and ethical, of treating people as property. The essay explores these tensions by looking at slave contracts, and practices of manumission: slaves could purchase their freedom with their own property (peculium). Both manumission and peculium were inflected by favor libertatis, the acknowledgement that the rigidity of law was a problematic way to deal with people. Further tensions are explored in the context of the criminal liability of slaves. Finally, the essay turns to the range of contracts from outright slavery to indentured labour, and asks how this spectrum problematizes concepts of property.