Medieval Legal Experience: Custom, Sacred Law, and the King’s Role
ITEM 4. Character of the Medieval Legal Experience
4.2. The Good Old Law
The law is good because it comes from the past, tradition, and ultimately from God; therefore, the old law is good law. Characteristics of medieval law: The main feature is the lightness of political order (Grossi), derived from late antiquity. Political power in the High Middle Ages showed relative indifference to the law and did not deal with everyday legal problems. Lawmaking regulated the minimum content of political power, not relations between individuals. An act of will independent of established law was inconceivable. The mandatory consequence is the autonomy of law. The law is a manifestation of society, providing solutions to relevant problems of everyday living. Law is the voice of society, not political power, reflecting the basic conditions of medieval life. This also leads to legal pluralism, where law manifests in a pluralistic way. We can speak of a choir of legal sources in the early medieval period. Against this background, we will examine the two main characteristics of medieval law: customary law and sacred law.
4.2.1. Customary Law
Law results from social interaction, independent of political power. It originates slowly and directly from the bottom of social reality, as an agreement or imposition of rules by status. Often, a lord imposes duties that, given his position, become law. Use and customary law are upgraded to a standard; it is normal and customary. Property law forms and explains the times. To explain the medieval mentality, Grossi speaks of the medieval workshop practice. Life unfolds in precarious conditions; political power is weak, and culture is limited (only spaces reserved for worship), but nature is a strong and present force. As a result, society is plagued by famine and epidemics. People depend on nature. The forest is seen as a source of goods and fears (e.g., fantastic animals in folk tales like Little Red Riding Hood).
Features:
- Naturalism: Law is tied to facts, attached to the structure of living together, and guided by effectiveness. Naturalism implies the preeminence of phenomenal reality.
- Primitivism: Especially in the early Middle Ages, it involves a unique relationship with natural reality, where humans cannot objectify things. Individuals are part of nature. Time is counted in terms of nature’s rhythm. The core of the law is not the individual but things, which are the carriers and repositories of meaning. For example, primitive people read rights into things. One who settles on noble land enters into a dependency relationship with the Lord and must accept obligations. In the medieval world, there are three key policy events, which are powerful sources of rules: 1. Land; 2. Blood (insoluble kinship right); 3. Time (amending legal relations without human will). These facts minimize individual action in rule generation to respect the nature of things.
- Reicentrismo: This puts things at the center. The earth holds the deposit of unwritten rules regulating the coexistence of people living on it. These characteristics can be summarized in two:
- Factuality: Law is attached to facts; it follows from the nature of physical and social things.
- Historicity: Law is appropriate to the circumstances of the moment. Medieval law mirrors society because it springs from it, and the community preserves and modifies it. The community precedes and shapes the individual. Law arises from and is part of the community, which identifies with it and recognizes it as its most precious heritage. Therefore, there is no difference between the producer and the recipient of the norm. The creators of the law are those who comply. The identification between law and community means that conflicts are social and legal conflicts. Law arises from the community for the community, with a limited space to run. Law is localized, as it is specific to each community, although local laws are similar.
Since material resources were scarce, transmitting law was difficult. The law was rudimentary, simple, and common knowledge, not scholarly but experiential. Law was present in common use and community experience. Therefore, lawyers were unnecessary, although some had specialized knowledge. Law is conceived as tradition, the old law transmitted through generations. Novelty is seen as wrong, and new additions to the law are often viewed as abuses. Thus, no one creates law; they only state, discover, and interpret ancient law, which comes from God.
4.2.2. The Sacred Pilgrimage of Law
Sacred law reflects the deepest convictions of medieval thought. God, as the source of all existence, is also the origin of law. There is no distinction between the supernatural and natural order; the latter represents the former. Medieval thought is marked by two trials: 1. The expulsion of Adam and Eve from paradise; 2. The final judgment. Justice is administered with divine connotations, and trials are held in churches or under a tree, symbolizing the union between heaven and earth. God’s presence is also seen in the role of the oath in trials. These are also called judgments of God: cases where God’s presence is invoked to resolve disputes. God is omnipotent and knows everything, wanting to reveal the truth of the facts. Law expresses God’s will, so it is a consecrated law.
4.3. Judge King
The king’s position is to maintain and defend the established order. He is not a legislator and cannot create a new order. The idea of creating a new order is unthinkable because it is already established by God. The king resolves conflicts according to the pre-established order. Therefore, the king is only an interpreter and defender of the good old law.
4.4. Legal Pluralism
That the king can only interpret the law refers to two core values: “Immanent: the nature of things” and “Transcendent: God.” Below the tumultuous and precarious everyday experience lies a certainty in the belief in a divine order. People believe in a metahuman existence created by God. Order always refers to God’s will, manifested in the nature of physical and social things. Law belongs to the basic order, reaching a key dimension of the medieval Fazana. Local orders are an important source of local rights, as exemplified by a Comunicacion.