Medieval Law and Society: Custom, Church, and Economy
Businesses Inter Vivos
At this time, bargaining practice was formed from the usual, local customs and conventiae (generic convention). The legal league contract, as the Romans knew it, did not exist at this time because there were no powers that ensured the fulfillment of these agreements (it was a messy and socially insecure environment). That’s why a business that achieved great flowering at this time is the exchange (or barter). Although it is wrong to understand this lack of formal regulation in business as a free pass to negotiate as one wishes, one must do so in regard to the customs agreed upon by the locality where they live.
In Particular, Agricultural Contracts
Early medieval agrarian contracts were exquisitely customary (based on custom). Agrarian contracts in the first medieval practice of bargaining demonstrated its vitality and versatility. At this time, the precarious and libel were invented, which are not specific agricultural contracts, but rather are available contractual forms (a kind of agricultural business guide, adjustable to every local custom).
In the agricultural sector, it is important to regulate the appearance of the grower (a specialist subject who introduced a new crop, especially arboreal (tree) in some areas).
For economic reasons at the time, energy work became a way of acquiring property, meaning one could come to own a piece of land by working it in a good way for a long time.
Chapter V: Legal Presence of the Church
1. Formation of a “Canon Law”
Medieval civilization is the result of the Catholic Church (Fabian Salinas).
In the High Middle Ages, the vacuum created by the absence of a state gave way to the Catholic Church of the time to fulfill the cultural, social, and political roles. The Church served these roles very well because they possessed a parish organization that allowed them to penetrate even the most remote corners of rural areas (the Church had influence throughout medieval society). This Church took over and even shaped the custom and legal tradition of the time.
Religious society, which is an autonomous body, felt the need for a structured legal system to establish individual rights, a canon law (canon law is a medieval fruit; it is born, nurtured, and matured in that period). Benedictine XV promulgated the first Codex, stating its legality was not from a civilian power, but descended from Christ himself, the divine legislator.
Canon law was not modeled on the state because the state is subject to the legal dimension, but not the canonical, which puts the religious sphere above the legal.
The Catholic Church is the safest source of transmission of Roman law, and this takes the concept of law as computer, social foundation, and instrument of power. The Church also sees canon law as an instrument of salvation, as a means to achieve eternity.
During the first millennium, canon law was the mirror of the problems faced by the Church itself, which were mainly two:
a) Interior: The threat of continued heretical and pernicious movements rising within the same community.
b) Foreign: The threat of invasion of secular powers, dangerous when masked in a supposed protection of the Church (as is the case of the Carolingian monarchs).
2. Originality of Canon Law
There is an eleventh-century text that reflects the formation process of canon law. It is the methodological treatise by Ivo, Bishop of Chartres, of unquestionable relevance. This text attempts to integrate the discordantiae (unconformity), the discordance of law. During the first thousand years, the Church had such a variety of texts and disparate views within the same Church that it was thought necessary to unify the Church in a single work.
11. Fundamental Truths: Perfect Imperfection of the Individual and the Community
The group provided security and protection. Moreover, the Church proposed the salvation of the soul in the bosom of the community and not in isolation. The individual is seen as a part of the whole; without the community, the individual is nothing because they are flawed before God.
Fundamental Truths: Medieval Law as a Legal Order
Medieval law is based on an anthropological order because order is the only way to reach unity, peace, and harmony. The right is in order and also gives order to society.
Chapter IV: Figures of Experience
1. The Custom as an Institution
The law is the stabilizing foundation, not mixed with the everyday and disorder. The order of society and its customs are changing the order. They are the foundation of order, and the individual is cast into them because the custom is maintained by the community. On the other hand, the law is only a container of customs (lex et consuetudo). So the law is flexible to custom, which tends to become law. Act means the outcome of popular consent and the enactment regia.
2. Prince, Individuals, Things Spiral Out of Habit
The prince must govern guided by fairness and justice, understood as equity and justice in correspondence with the nature of things. He is not considered a creator of law, but an interpreter (of customs). Customary law is born from below, from the reality of morals, and is inscribed in things. That produces legal particularism.
The Real Situations
The best analysis of law in this time is to approach it from the real issues that people lived at the time. In the exquisitely proto-medieval agriculture, the man-land relationship is vital and the central hub of society.
The Romans divided the classics of the real world: dominium (individual sovereignty, freedom, and independence of action of the dominus), possessio (de facto relationship with the thing), and detentatio (only contact with the thing, use or enjoyment of this thing).
The new legal proto-medieval civilization believed that this conception of law was too anthropocentric and therefore rejected it. The conception of proto-medieval right pointed, rather than to man’s faculties (such as classical Roman), to the participation between things and men (e.g., the land-man ratio). In other words, the proto-medieval legal vision related directly to real situations and not to the faculties of man, as in Roman law.