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This volume brings together papers by a group of scholars,
distinguished in their own right, in honour of James Brundage. The
essays are organised into four sections, each corresponding to an
important focus of Brundage's scholarly work. The first section
explores the connection between the development of medieval legal
and constitutional thought. Thomas Izbicki, Kenneth Pennington, and
Charles Reid, Jr. explore various aspects of the jurisprudence of
the Ius commune, while James Powell, Michael Gervers and Nicole
Hamonic, Olivia Robinson, and Elizabeth Makowski examine how that
jurisprudence was applied to various medieval institutions. Brian
Tierney and James Muldoon conclude this section by demonstrating
two important points: modern ideas of consent in the political
sphere and fundamental principles of international law attributed
to sixteenth century jurists like Hugo Grotius have deep roots in
medieval jurisprudential thought. Patrick Zutshi, R. H. Helmholz,
Peter Landau, Marjorie Chibnall, and Edward Peters have written
essays that augment Brundage's work on the growth of the legal
profession and how traces of a legal education began to emerge in
many diverse arenas. The influence of legal thinking on marriage
and sexuality was another aspect of Brundage's broad interests. In
the third section Richard Kay, Charles Donahue, Jr., and Glenn
Olsen explore the intersection of law and marriage and the
interplay of legal thought on a central institution of Christian
society. The contributions of Jonathan Riley-Smith and Robert
Somerville in the fourth section round-out the volume and are
devoted to Brundage's path-breaking work on medieval law and the
crusading movement. The volume also includes a comprehensive
bibliography of Brundage's work.
Several different approaches to medieval legal history are evident
in these articles. The first group uses law to investigate the
principles that governed society, whether clearly articulated or
not, and to ask how the intellectual structures of the ius commune
affected the institutions of government and the presuppositions of
the people. The second group of articles illustrates the importance
of returning to the manuscript sources of later medieval texts,
rather than relying on the early printed editions. In both parts
Professor Pennington also focuses on the lives of individual
jurists, contending that these provide a key to the understanding
of their thought, their position in society, and the connections
between the two. One of these articles is published for the first
time here, while a number of others have been revised and up-dated
for publication. Plusieures approches differentes A l'histoire
legale du Moyen Age sont refletees au travers de ces articles. Le
premier groupe se sert de la loi pour explorer les principes qui
gouvernaient la societe - que ceux-ci soient clairement exprimes ou
non - et afin de demander comment les structures intellectuelles de
l'ius commune affectaient les institutions gouvernementales et les
presuppositions du peuple. Le second groupe illustre l'importance
du retour aux sources manuscrites des textes medievaux tardifs,
plutAt que de se fier A des impressions anciennes. Au travers des
deux parties du volume, le professeur Pennington se concentre aussi
sur la vie de certains juristes, avanAant qu'il s'agit lA d'une des
clefs permettant de comprendre leur pensee, leur place dans la
societe et le rapport entre ces deux facteurs. Un des articles est
publie ici pour la premiere fois, alors qu'un certain nombre
d'autres ont ete revises et mis A jour pour leur reimpression.
Gratian has long been called the father of Canon Law. This latest
volume in the ongoing ""History of Medieval Canon Law"" series
covers the period from Gratian's initial teaching of canon law
during the 1120s to just before the promulgation of the Decretals
of Pope Gregory IX in 1234.Gratian's contributions to the birth of
canon law and European jurisprudence were significant: he
introduced a new methodology of teaching law by using hypothetical
cases and by integrating - and inserting in the texts themselves -
his own comments on the canons. He also used the dialectical method
to analyze legal problems that he raised in his cases. Though this
methodology was first developed by Peter Abelard and others in the
schools of Northern France, Gratian was the first to apply it to
legal texts with the publication of his Decretum (ca. 1140).
Because the Decretum was not just a collection of texts but an
analysis of the sources and doctrines of ecclesiastical law, his
book enjoyed immediate success across Europe. The Decretum was
adopted by teachers from England to Italy and Germany to Spain.
Gratian's successors later applied his methodology to the papal
appellate decisions (decretals) that gradually became the
foundation of canon law in the later Middle Ages.In this volume,
distinguished legal historians contribute noteworthy essays on the
commentaries on Gratian, the beginnings of decretal collections and
commentaries on them, and the importance of conciliar legislation
for the growth of canon law. There are also chapters on the
influence of Roman law on canon law and the teaching of canon law
in law schools.Contributors are James A. Brundage, Anne Duggan,
Charles Duggan, A. Garcia y Garcia, Joseph Goering, Michael H.
Hoeflich, Peter Landau, Wolfgang P. Muller, Jasonne Grabher
O'Brien, Kenneth Pennington, and Rudolf Weigand.
The power of the prince versus the rights of his subjects is one of
the basic struggles in the history of law and government. In this
masterful history of monarchy, conceptions of law, and due process,
Kenneth Pennington addresses that struggle and opens an entirely
new vista in the study of Western legal tradition. Pennington
investigates legal interpretations of the monarch's power from the
twelfth to the seventeenth century. Then, tracing the evolution of
defendants' rights, he demonstrates that the origins of due process
are not rooted in English common law as is generally assumed. It
was not a sturdy Anglo-Saxon, but, most probably, a French jurist
of the late thirteenth century who wrote, "A man is innocent until
proven guilty." This is the first book to examine in detail the
origins of our concept of due process. It also reveals a
fascinating paradox: while a theory of individual rights was
evolving, so, too, was the concept of the prince's "absolute
power." Pennington illuminates this paradox with a clarity that
will greatly interest students of political theory as well as legal
historians.
Understanding the rules of procedure and the practices of medieval
and early modern courts is of great importance for historians of
every stripe. The authors and editors of this volume present
readers with a description of court procedure, the sources for
investigating the work of the courts, the jurisprudence and the
norms that regulated the courts, as well as a survey of the variety
of courts that populated the European landscape. Not least, the
authors wish to show the relationship between the jurisprudence
that governed judicial procedure and what happened in the court
room. By the end of the thirteenth century, court procedure in
continental Europe in secular and ecclesiastical courts shared many
characteristics. As the academic jurists of the Ius commune began
to excavate the norms of procedure from Justinian's great
codification of law and then to expound them in the classroom and
in their writings, they shaped the structure of ecclesiastical
courts and secular courts as well. These essays also illuminate
striking differences in the sources that we find in different parts
of Europe. In northern Europe the archives are rich but do not
always provide the details we need to understand a particular case.
In Italy and Southern France the documentation is more detailed
than in other parts of Europe but here too the historical records
do not answer every question we might pose to them. In Spain,
detailed documentation is strangely lacking, if not altogether
absent. Iberian conciliar canons and tracts on procedure tell us
much about practicein Spanish courts. As these essays demonstrate,
scholars who want to peer into the medieval courtroom, must also
read letters, papal decretals, chronicles, conciliar canons, and
consilia to provide a nuanced and complete picture of what happened
in medieval trials. This volume will give sophisticated guidance to
all readers with an interest in European law and courts.
Fruits of the most recent research on the worlds of the eleventh
and twelfth centuries are presented in this collection. It features
several articles on textual criticism with important revisions to
controversial texts and their readings, as well as pieces on
cultural history, an investigation into monetary history, and
analyses of the legal and political mechanisms of conquest.
Contributors: MARTIN AURELL, NICHOLAS PAUL, ROBERT F. BERKHOFER
III, STEFAN JURASINSKI, JULIE KERR, KIMM STARR-REID, TARA GALE,
JOHN LANGDON, NATALIE LEISHMAN, ALAN M. STAHL, KENNETH PENNINGTON
This newest volume in the History of Medieval Canon Law series
surveys the history of Byzantine and Eastern canon law. Beginning
in the Patristic Age, Susan Wessel outlines the evolution of
ecclesiastical law before the Council of Nicaea (325 A.D.). She
covers the earliest documents and councils in the Christian
tradition, and concludes that the councils replaced other sources
of authority as bishops moved to a more democratic model of church
organisation. Heinz Ohme then offers a detailed analysis of the
Greek councils and the writings of the Greek Fathers. He treats the
sources of canonical material of Byzantine canon law down to the
Quinisext Council (Trullanum, 692). Spyros Troianos presents a
comprehensive survey of the Greek canonical collections and their
compilers from the fourth to the eleventh century. In extending his
coverage to 1500, Troianos provides bibliographical and
biographical information about the most important Byzantine
canonists who remain virtually unknown in English language
literature: John Zonaras, Alexios Aristenos, and the Byzantine
Gratian, Theodore Balsamon. With Hubert Kaufhold's contribution,
the book also explores the wide range and variety of law in Eastern
Christian communities, including Western Syrians (Jacobites), the
Copts, Ethiopians, Armenians, Georgians, Nestorians, and Maronites.
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