chapter  V
30 Pages

THE APPLICATION OF LAW

I The medieval system of positive law cannot be conceived as a homogeneous and unified body of legal rules. Three distinct systems of statutory enactments can clearly be discerned: Roman law, as transmitted through Justinian’s compilation and modified subsequently by additional legislation of the Emperors; canon law, as represented in the various collections; and thirdly, the Germanic Lombard law.1 To these must be added the numerous statutes of the municipalities and independent States, around which enactments there cluster many customary formations of law, mostly of a supplementary and interpretative character. This complex mosaic of legal systems naturally presented many difficulties to the application of the abstract legal rule to the given set of concrete circumstances. The problem was to find the abstract rule appropriate to the particular case. It is not therefore surprising to find that this heterogeneous legal system gave rise to many problems, discussions, and controversies, the solution of which eventually became a question of applying fundamental principles. The solution of problems emerging from this complex structure of positive law pre-supposed the theoretical recognition of the fundamental principles which underlay the idea of all law and from which could be deduced special theses capable of direct application. This theoretical recognition was the distinctive task of the scholar jurists. Their scientific discussions of the problems connected with the application of law give us an insight into many domestic conditions, throw light upon the spiritual and temporal claims of the ruling (and often rival) powers, and lastly allow us to see the clash of ecclesiastical and secular jurisdiction with the eyes of the disinterested, pure lawyer, who anxiously strove to obtain an equitable solution of problems vitally affecting the smooth working of the social organism. These scientific discussions on the part of the medieval jurists show their zeal to lay down a clear line of demarcation between the various bodies of law and to attempt a delimitation of jurisdictional powers, from the standpoint of the body politic based on Christian principles. In this field the investigations of our jurist carry particular weight and are especially interesting, because he has at his disposal not only the necessary theoretical equipment for dealing with these problems, but also the appropriate practical experience gained by him in his capacity as a judge and as an advocate. His commentaries leave no room for doubt as to the magnitude of the various difficulties and problems which confronted him in his official capacity

1 On the importance of Lombard law in the Middle Ages, see Vinogradoff, Roman Law in Medieval Europe, and ed., by Prof. de Zulueta, pp. 47 seq., Engelmann, Die Wiedergeburt der Rechtskultur, pp. 97 seq., and Prof. Hazeltine, ‘Roman and Canon Law’ in Cambridge Medieval History, vol. v, p. 730.