Dictionary and Thesaurus
minima non curat lex1. When the Germanic tribes entered the lands of the Western Roman empire, they brought many of their customs and traditions with them, among them being those customs and traditions that comprised their system of justice. The bases of those systems among the various peoples appear to have been much the same.
A. The operative unit of society was the kindred, the clan or extended family. When the member of one kindred harmed the member of another in person or in property, the aggrieved persons relatives sought retribution in what is now termed a vendetta or feud. Given the collective nature in which people operated, it should come as no surprise to find that retribution was not sought specifically from the person at fault, but from him or any member of his kindred. The problem with this system is that retribution betprends upon an equivalence between injury and punishment, and this is not always a simple matter to establish. It is only human for a plaintiff to consider the value of his loss more highly than the defendant gauges his own responsibility. There was always the danger that a kindred would consider that there opponents had been overreachig in their retribution and would seek their own retribution as a means of striking what they might consider a suitable balance. Such games of tit for tat could go on for years with men being killed long after the original basis of complaint had been forgotten. This was the case with the famous feud between the Hatfields and McCoys of Appalachia in the United States.
B. At some period in their development, the Germans tried to overcome the defects of this system of maintaining law and order. They turned to their chieftains to act as arbitrators in disputes between kindreds. The first matter was to reach a decision on the facts of the case, and several means arose.
1. Compurgation. Compurgation meant that the person accused of a crime was required to swear an oath that he was innocent and, depending on the seriousness of the offense, he might be required to persuade a greater or lesser number of the leading members of his kindred to swear the same oath along with him. The may seem similar to the modern practice of offering character witnesses, but was really quite different. If it turned out that the defendant were lying about his injury he and all of his compurgators were liable to suffer the same punishment. In addition, the leaders of a kindred might not be willing to places the lives and properties of members of their clan at risk in order to support a person who they knew not to be of the highest character. So if was that some people were abandoned by their own kindred and had to flee the vengeance of the relatives of their victim.
2. Ordeals. Lacking compurgators or by order of the arbitrator, the accused, after having taken a solemn oath of his innocence, might be required to undergo any of a variety of ordeals to prove his innocence. Such ordeals included that of cold water, in which the defendant was bound hand and foot and thrown into a pool of water that had been previously blessed by a priest. On the belief that holy water would reject a liar who had foresworn a holy oath, it was believed that the guilty would float and the innocent would sink. In the order of hot water, the accused would put his hand in boiling water while swearing his oath. The hand would immediately be bandaged and if, after a week, it was found to be not badly blistered, the person was considered innocent. Although these procedures may seem extremely crude to people today, one should consider that a person would think long and hard before entrusting his fate to such painful processes. One suspects that most conflicts were settled long before they reached the stage of the defendant undergoing an ordeal.
3. Trial by Combat. Believing that God would not allow the guilty to prosper, important matters were often settled by the ordeal of combat. Neither the plaintiff nor the defendant actually had to enter the field of combat, but were allowed to choose champions to fight in their place. Each combatant would swear by the right of the cause of the person whom their represented and, in the ensuing combat, God would strengthen the arm of whichever had sworn to uphold the right. This may seem more than a bit happistance, but this particular custom persisted into the Middle Ages not only as an important element of civil law, but was sometimes called upon to settle disputes between nations. In fact, trial by combat persisted into the present day and underlies both the basic principles and minor details of modern law. The defendant is represented by an attorney as is the state, and they engage in a form of combat with acting judge acting to ensure that the opponents follow proper procedure. The courts in countries of Anglo- Saxon heritage generally proceed in accordance with an adversarial system derived ultimately from the early medieval Germans' custom of trial by combat
C. The "Barbarian" Codes
In the course of time and under the influence of the Roman example, several of the monarchs of German tribes attempted to reduce their customs and traditions to a written form. The result was the so-called barbarian codes. 2. During the thirteenth century, law developed a greater complexity and sophistication. This was partly the result of new influences, a new outlook, and the general crystallization of society.
3. Thirteenth-century society was much less flexible and tolerant than twelfth-century society had been. The challenges of popular heresies, the "excesses" of philosophical speculation, the actions of Frederick II, and other conflicts had led to a general desire for harmony and order -- the gothic cathedrals, Summa theologiae, Inquisition, etc. The basic function of law is to make human actions more regular and predictable, hence the increased prominence of law.
4. The Realist philosophy held that justice was a real thing independent of human will that could be discovered by the application of reason. Divine law was the ultimate will of God, unknowable except through revelation; natural law was the set of regulations through which God governed the phyical universe; human law was the attempt of human beings to discover and observe the regulations that God had established for the proper governing of mankind.
5. New Influences
There were several powers that attempted to exert their authority through legal codes.
a. The central monarchies were gaining greater power and were eliminating powers that intervened between them and the people. Feudal courts were eliminated and replaced by a series of royal courts to which the people could appeal. It was necessary to accommodate or to reconcile various local customs. Accommodation led to an emphasis upon written evidence, and this in turn led to the regularization of legal forms and the appearance of professional legal scribes: the notaries.
Reconciliation led to the reduction of local laws and customs to set of general principles: common law.
At bologna, originally a notarial school in Italy, teachers discovered Justinian's Codex iuris. Its sophistication and emphasis upon the supremacy of secular central authority recommended it to monarchs. Bologna became an important center of legal studies, and roman law spread throughout europe.
b: The Church controlled matters that involved oaths and the sacraments: testaments, marriage and divorce, and even many business contracts. It also handled all matters of heresy and cases involving clergymen. A complex system of appellate courts arose, a number of special papal courts, and an ecclesiastical law code, canon law. Specialists in canon law soon arose. The church had means of enforcing its decisions: excommunication (which carried considerable weight) and interdict being two.
6. The centralized monarchies were forced to ally with the middle class in order to eliminate the power of the aristocracy, diminish that of the church, and gain the tax money they needed. This led to the rise of representative assemblies that were often able to gain concessions from the monarchs.
These concessions ran counter to the realist concept of the origin of law and justice, but became extremely important, allowing the growth of municipal law, business law, and the increasing sophistication of the corporations that had replaced the kindred as the integrating force in society.
By the end of the century, medieval law was no longer dominated by personality, local custom, trial by ordeal, kinship and compurgation, wergeld, or individual rights of judgment. Two powerful and often conflicting legal systems had emerged, however, and an increasing portion of the population were gaining the power to make law.
Lynn Harry Nelson
Emeritus Professor of
The University of Kansas
Hosted at WWW-Virtual Library @ www.vlib.us