Dictionary and Thesaurus
minima non curat lex
1. 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 depends 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 overreaching 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 happenstance, 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 physical 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.
to know justice is to know god.
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.
Summary
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.
Medieval Law on the Internet
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