Visigothic Law & Roman-Canonic Common Law
A) The Palatine Office (Oficium Palatinum)
Around the Visigoth king, there was a group of individuals called the Oficium Palatinum who performed both public and private functions. The Oficium Palatinum consisted of a series of palatine counts (comites palatini) acting as agents of the monarch, by royal delegation of power, who took care of palace government and the organization of court life.
- Comes cubiculii: Responsible for the royal chamber.
- Comes scanciarum: Managed the palace provisions.
- Comes notariorum: Responsible for the chancery service and controlled documents.
- Comes patrimonii: Responsible for the administration and control of land and the Crown’s heritage, and tax collection.
- Comes thesaurorum: Royal treasurer.
- Comes stabulii: In charge of the cavalry.
- Comes spatariorum: Responsible for the royal guard.
- Comes civitatis Toletanae: Governor and judge responsible for the royal city.
It would also incorporate the young nobles educated alongside the monarch’s children. The Palatine Office was a very large assembly since, along with the above components, all staff of court services also formed part of it, including the slaves who served there. It should be noted that there was confusion between the public nature of some positions (e.g., the Comes Notariorum) and private practitioners. Most likely, it was formed gradually and was not created as a specific entity at a particular time.
B) The Royal Council (Aula Regia)
The Aula Regia is the product of the consolidation of the monarchy that recognizes and integrates the major social and political forces of the Visigoth kingdom into the government apparatus. Over time, the Senate lost its effectiveness and was displaced by this new body. The Aula Regia, as the supreme political body, advised the Hispano-Gothic monarchs and assisted them in the government of the kingdom. From the Palatine Office, a complex structure developed in an extended process, consolidating into the Aula Regia in the mid-seventh century.
Besides the magnates and courtiers, there were others who held titles of count. Therefore, the Aula Regia integrated, besides the Palatine Office, several groups of noblemen and gentlemen:
- Magnates: Court earls residing in the palace without exercising a specific position.
- Counts delegated by the king for the government of a province.
- Parareg counts: Appointed by the monarch as judges to cities.
- Counts who were at the forefront of military units.
- Members of the privy council who were also judges of the king’s tribunal.
- Gardingo: Individuals who, although they had no specific role or governorship, enjoyed the trust and friendship of the king and were beneficiaries of land grants, establishing special loyalty relationships with the king at the level of the Aula Regia.
Kings consulted with the Aula Regia on the most important matters of the kingdom. In concurrence with the Councils of Toledo, the Aula Regia collaborated with the monarch in legislative matters. Its participation in government or administrative tasks is more uncertain, but its advisory role was very important. Furthermore, in its judicial capacity, the Aula Regia, or a representation of it, acted as the supreme court of the monarch, deciding cases that were brought before the king or as an instance to judge high ecclesiastical and secular magnates.
C) Roman-Canonic Common Law
Roman-Canonic Common Law is built on two fundamental elements: Roman law and the canon law system, to which a third element is incorporated: commentators of texts based on feudal law. Let’s focus on what can be defined as the Janus face of common law.
1. Roman Law: The School of Bologna and the Glossators
Among law schools, the School of Bologna stood out, which intertwined lessons in grammar, rhetoric, and law. The recovery of studies of Justinian’s work is due to the School of Bologna, highlighting its lawyers: Irnerio and his disciples. They began a new way of studying law, giving it its own place as knowledge and science, and making use of the Digest.
The gloss was their method of work, consisting of textual exegesis of commented paragraphs: they explained and fixed the scope of each term, analyzed the glosses, clarified them, and related them to other concepts. It was supposed to be a comprehensive effort to read the text, both literally and in its context, that is, it was to get the letter or spirit of each precept, the inspiring mens legis. From this methodological principle, the commentators were trying to reach the construction of harmonious, systematized, and logical legal dogmas. These studies, together with canon law, were essential for the dissemination of common law.
The successors of those lawyers, as commentators, were Accurzio (ordinary gloss or Glossa Magna: prevailed in legal practice and served for the knowledge of the Corpus Iuris Civilis) or Azo of Bologna (who wrote a compendium or summa of the Code of Justinian, Summa Codicis, widely disseminated in the legal practice of the following centuries).
2. Canon Law: Gratian and the Decretists
Along with ius civile, canon law is fundamentally the other pillar of the reception of common law in medieval legal systems. In the 11th century, Pope Gregory VII urged the unity of the Church’s law, aimed at developing a universal canon law dictated from Rome. Canonical privileges were to be constructed under the new, unified direction of the pope and based on papal resolutions and answers, rather than on council canons.
The monk Gratian, in Bologna, conducted between 1140 and 1142 a work known as the Decretum Gratiani (Decree of Gratian), which was actually entitled Concordia discordantium canonum, to systematize and order the contradictory canonical texts. Gratian succeeded in separating theology from canon law. Just as the glossators did with the Corpus Iuris Civilis, the Decretum was discussed and studied by the so-called decretists, jurist-theologians specialized in studying Gratian’s Decretals.
The Decretales were the answers given by Popes Alexander III and Innocent III on legal issues raised by individuals. Given their importance, Pope Gregory IX commissioned Raymond of Peñafort to prepare the Liber Decretalium or Decretales Gregorii IX (Decretals of Gregory IX). The Decree of Gratian and the Decretals of Gregory IX were studied and commented on by the so-called decretists (first by the former and then by the latter) and constitute the most direct sources for the formation of the Corpus Iuris Canonici, as well as when drafting the Code of Canon Law in the 20th century.