Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

Giaro, Tomasz

Medieval Canon Lawyers and European Legal Tradition. A Brief Overview

dc.contributor.author	Giaro, Tomasz
dc.date.accessioned	2022-02-04T11:42:28Z
dc.date.available	2022-02-04T11:42:28Z
dc.date.issued	2021
dc.description.abstract	The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to the most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by the so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and finally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was effective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codification.	pl
dc.identifier.citation	"Review of European and Comparative Law", 2021, T. 47, nr 4, s. 157-187	pl
dc.identifier.doi	10.31743/recl.12727
dc.identifier.uri	http://hdl.handle.net/20.500.12153/2238
dc.language.iso	en	pl
dc.publisher	Wydawnictwo KUL	pl
dc.rights	Uznanie autorstwa-Użycie niekomercyjne-Bez utworów zależnych 3.0 Polska	*
dc.rights.uri	http://creativecommons.org/licenses/by-nc-nd/3.0/pl/	*
dc.subject	canon law sources	pl
dc.subject	two swords doctrine	pl
dc.subject	utrumque ius, transnational law	pl
dc.subject	soft law	pl
dc.subject	codifica-tions	pl
dc.title	Medieval Canon Lawyers and European Legal Tradition. A Brief Overview	pl
dc.type	info:eu-repo/semantics/article	pl