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The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.

This chapter presents an overview of the development of medieval incest law, in relation to biblical teaching and Greco-Roman law. It raises questions about the rationale for a system of taboos that had become so complex by the early 13th century that to avoid hardship the number of prohibited degrees of relationship were drastically reduced by the Fourth Lateran Council in 1215. Various modern hypotheses about the medieval taboo are reviewed. Fear of inbreeding and deformity is rarely mentioned. What justified the inclusion of such distant relatives, and why the ban on in-laws and ‘spiritual incest’? How seriously did medieval people take these laws? Among the aristocracy, at least, they seem often to have been honoured in the breach. The practice of selling of dispensations to marry within the prohibited degrees was condemned by Luther, among others.

This chapter examines the handling of the property of the one who committed suicide. As far as can be divined from the treatment of a suicide's property, it examines by whom suicide was conceived to be a wrong. It considers ethical comments on suicide, and the doctrines embedded in law, implicitly or explicitly, have their own message in this context. In particular, it estimates the degree to which the Church may have influenced suicide laws in any of its varied roles. The first section depicts usages which treated property and body as the same. The second section looks more closely at the rules of confiscation. The third section deals with the main modifications allowed by late medieval law, to understand in what respects the economic debt was seen as open to remission.

Water rights in England developed first through the application of title and nuisance actions to land-use disputes, and then by the adaptation of Roman law doctrine as lawyers categorized the results of such litigation. This chapter analyses the medieval law of proprietary incidents emerging from these two juristic sources.

This chapter presents the sources and editions of medieval learned law. As well as guidance on the texts, it offers advice on how to approach the study in more general terms. It draws on and updates an earlier introductory booklet which appeared in Dutch and German under the title Utrumque Ius. The discussion covers the text of the Corpus iuris civilis, Roman and Canon law, the Corpus iuris canonici, procedural law, feudal law and a strategy for research.

This chapter makes a modest contribution to modern understanding of the law of hypothec by investigating a single aspect of this legal institution and its transmission into medieval learned law. The investigation focuses on the manner in which the medieval jurists engaged with a particular rule of law and the way in which they developed it. The argument is divided into two sections. First, an account of the Roman law of hypothec is provided in order to explain the context of the rule in question. Secondly, the transmission of this rule into medieval learned law is examined.

This chapter discusses the medieval law of treason and its development up to the mid-16th century, reviewing case histories from the reign of Henry VI to the reign of Philip and Mary, with extended analysis of treasonous words in the reign of Henry VIII. It reviews some legislation and case histories from an earlier period before dealing with the speech offences against Queen Elizabeth and her Stuart successors. In examining the law governing treasonable speech and its application in 15th- and 16th-century England, it notes that the treason laws of early modern rested on medieval foundations. Though periodically modified, strengthened, or adjusted, the framework that protected the Tudors and Stuarts was centred on the legislation of Edward III. Some lawyers discerned an older common-law tradition concerning treason, but the core of both theory and practice was derived from statute.

This chapter examines the immediate background of the emergence of the highly influential insular canonical collections and investigates the way they relate to the earliest canonical texts compiled in Ireland and Anglo-Saxon England. It discusses the Irish collection of canons Collectio Canonum Hibernensis and the Canons of Theodore, and explores how the compilers of canonical literature approached an age-old problem inherent to medieval canon law. The chapter also outlines the governing principles which characterised insular canonical thinking and shows that the Collectio Canonum Hibernensis was firmly grounded in an insular canonical tradition.

This chapter explores the ways slavery was defined in the medieval and early modern ius commune. It studies some of the consequences of that definition of slavery for men and women in Europe. It first defines ius commune as a combination of canon and Roman laws that led European legal education and shaped the practice in European courts between the 12th and 19th centuries. One section focuses on the texts of Roman law, while another addresses the problem of defining slavery. This is followed by a discussion of the legal changes that occurred from the eras of Roman law until medieval law.

This is the story of how the church sought to establish norms for slave ownership on the part of ecclesiastical institutions and personnel and for others’ behavior toward such slaves. Chronicles, letters, and other documents from each of the various historical periods, along with an analysis of the various policies and statutes, provide insight into the situations of these unfree ecclesiastical dependents. Although this book is a serious scholarly monograph about the history of church law, it has been written in such a way that no specialist knowledge is required of the reader, whether a scholar in another field or a general reader interested in church history or the history of slavery. Historical background is provided, and there is a short Latin lexicon. This chapter discusses ecclesiastical slavery in the eleventh through thirteenth centuries and provides an in-depth analysis of the official canon law relevant to the question of ecclesiastical servitude.

In one form or another Latin and Welsh have coexisted and interacted in Wales from the Roman period onwards: whether in the quasi-charters of the Lichfield/Llandeilo Gospels, Braint Teilo ‘The Privilege of Teilo’ in the Book of Llandaf, the verse of the family of Sulien in Llanbadarn, the lament for the Lord Rhys in the Peniarth 20 Brut y Tywysogion (with its quotations from Ovid and Boethius), the various chronicles (such as the Cronica de Wallia), or the Medieval Welsh laws of Hywel Dda (the last two preserved in both Latin and Welsh). This chapter explores some consequences of that coexistence, and in particular how in some contexts Medieval Welsh became distinctively Latinate and how in certain respects the Latin of medieval Wales arguably became Cambricised.

This chapter investigates the way in which developments in medieval learned law contributed to the formation of a more general doctrine on the ignorant seller's liability for latent defects, as far as such liability is imposed by the law; in other words, not based on warranties or contractual clauses voluntarily agreed upon by the parties, or on the seller's malicious intent. The differing remedies in the Roman texts allowed the medieval jurists to develop contrasting solutions to complex intellectual problems as they weighed up alternate advantages and disadvantages.

This chapter begins with a discussion of how the substantive law of torts in the Middle Ages was inherently messy, mainly because the law of torts always responds retrospectively to alleged wrongdoings. It then discusses strict liability and the role of fault and the scope of trespassory liability.

This is the story of how the church sought to establish norms for slave ownership on the part of ecclesiastical institutions and personnel and for others’ behavior toward such slaves. Chronicles, letters, and other documents from each of the various historical periods, along with an analysis of the various policies and statutes, provide insight into the situations of these unfree ecclesiastical dependents. Although this book is a serious scholarly monograph about the history of church law, it has been written in such a way that no specialist knowledge is required of the reader, whether a scholar in another field or a general reader interested in church history or the history of slavery. Historical background is provided, and there is a short Latin lexicon. This chapter discusses slavery in the kingdoms of the Visigoths, the Franks, the Lombards, and other Germanic peoples from about 500 CE to the eighth century.

This chapter gives a brief history of the city from its conquest from the Muslims in 1238 to its rapid rise as the centre of the Crown of Aragon, the wider polity of which it was a part. It then turns to consider the experiences of immigrants who moved to Valencia during the fifteenth century, exploring the various opportunities available to them and why women, in particular, came from other parts of the kingdom of Valencia, Castile, Aragon and Catalonia. The second part of this chapter sets the theoretical framework for marriage in late medieval Valencia by considering what made marriages valid in the eyes of the canon law, civil law and community opinion. It explores canonical legal strictures regarding marriage in the medieval period and then more specifically looks at synodal legislation. The next section of this chapter focuses on the civil marriage contract and examines the secular legal precepts that governed marital property. Lastly, this chapter analyses the social definitions of a marital union using witness testimony from dowry restitution cases. These criteria both complemented and differed from those defined by canon and secular laws.

This chapter shows how central to the later medieval law of torts was the division between the action of trespass and action on the case. The former lay for invasive interferences to land, goods, or the person; the latter covered a range situations where loss had been caused wrongfully. The formal division between trespass and case, and the crystallization of negligence are discussed.