A Presumption That Does Not Lapse - MA Thesis (2024) - English Abstract

Bulletin of Medieval Canon Law, 2020

RQ 67; Freiberg-Basel-Wien 2020) = Buch der Päpste -Liber Pontificalis El derecho frente a la relación del hombre con la tierra en el tránsito de la Edad Media a la Edad Moderna, ed. Emma Montanos Ferrín (Madrid 2019) = El derecho frente a la relación del hombre

The Cambridge History of Medieval Canon Law, ed. Anders Winroth and John Wei (Cambridge: Cambridge University Press), 79-95, 2022

The Early Church 11 caroline humfress 2. Early Medieval Canon Law 32 abigail firey 3. Canon Law in the Long Tenth Century, 900-1050 46 greta austin 4. The Age of Reforms: Canon Law in the Century before Gratian 62 christof rolker 5. The Reinvention of Canon Law in the High Middle Ages 79 wolfgang p. mü ller

2019

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DIRITTO CANONICO E CULTURE GIURIDICHE NEL CENTENARIO DEL CODEX IURIS CANONICI DEL 1917, 2019

Essay discusses the relationship of canon law, Roman law, feudal law, and English law in the twelfth and thirteenth centuries.

Journal of Modern Science, 2022

It is believed that in the post-modern age the legal security and the predictability of judicial decisions have entered a crisis because the principle of the judge’s subjection to the statute is also in crisis. The Roman law could teach us that the legal security and the predictability of judicial outcomes have experienced a pre-modern age where they were not linked to the modern principle of the judge’s subjection to the statute but were instead linked to the principle of unambiguous, clear and precise wording of the legal paradigms which the judge was subjected to in order to deliver his judgment. According to the Roman foundations of the European law, the institutions of the European Union have drawn our attention back to the necessity of unambiguous, clear and precise legal text. The Latin sources analysed here show the use of the formulae («precise, strict, and simple») and not of the statutes as a guarantee of predictability of judgement outcomes and as a control of the sentences of the judges. We may say that the judge in the Roman formulary procedure was subject to the magistrate’s formula and not to the statutes, because the relationship was between the judge and the formula and not between the judge and the statute. In conclusions, the current crisis of the statute should not necessarily lead us to abandon the need to guide the judges’ decisions with clear, precise and unambiguous legal paradigm.

In this volume dedicated to medieval canon law expert Kenneth Pennington, leading scholars from around the world discuss the contribution of medieval church law to the origins of the western legal tradition. The stellar cast assembled by editors Wolfgang P. Müller and Mary E. Sommar includes younger scholars as well as long-established specialists in the field. Müller's introduction provides the first comprehensive survey of investigative trends in the field in more than twenty years. Subdivided into four topical categories, the essays cover the entire range of the history of medieval canon law from the sixth to the sixteenth century. The first section concentrates on the canonical tradition before the advent of academic legal studies in the twelfth century. The second addresses the formation of canonistic theory. The third and fourth sections consider the intellectual exchanges between canon law and other fields of study, as well as the practical application of canons in day-to-day court proceedings. Though the twenty-seven essays included in this volume are quite diverse, taken together they provide an outstanding overview of the latest research and cutting-edge scholarship on the topic.

Review of European and Comparative Law, 2021

The Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to 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 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,...

This essay offers an account of the task of medieval legal history, suggesting that its importance lies in its ability to recognize and explain the most alien features of our legal past. In so doing, the discipline of medieval legal history makes what is alien intelligible while preserving its essential differences. It is the delicate and difficult task of engaging with our past without judging the past by the needs of the present, without taking our own limited perspective to be universal, but also without relegating our past to a mere object of antiquarian curiosity, thus cutting off the possibility of understanding the relation of our past to ourselves. * Associate Professor of History and Law, University of Wisconsin, Madison.

Rechtsgeschichte Legal History, 2010

In Romano-canonical procedure, confessed criminals could not be examined on their accomplices, except for enormous crimes. In these cases, however, twelfth-and thirteenth-century canonists disagreed about the probative value of these statements. According to some jurists they could be deemed as a full proof, while others held that they only counted as a presumption. Nevertheless, from the thirteenth century the doctrine reached a consensus that the statements of the defendants had to be further corroborated in order to have effect. These principles were also confirmed in the inquisitorial procedure against heresy. This essay, providing a survey of the manuscripts, reconstructs the stages of the debate on this topic, distinguishing among the contribution of the Anglo-Norman, Parisian and Bolognese schools.

This paper will investigate the errors that can make the judgment null and void and, therefore, produce the reversal of the res judicata. Res judicata is considered the irrevocable end of a correctly constructed judicial proceeding. We will try to find out what, in the Sixteenth and Seventeenth centuries, gives substance to this assumption in order to better understand the discipline of the miscarriage of justice of the time. We will see what the differences are between final judgment and res judicata; the elements which constitute the authority of the res judicata and the iuris et de iure presumption which gives it foundation; and the judicial errors made in a criminal judgment that are taken into consideration by the jurists. The errors that can be made by the judge while judging are directly proportional to the powers entrusted to the judge itself by the political order within which he operates. The power of judging and the duty to do it according to certain rules converge upon the figure of the judge. The res judicata produces effects precisely because it is the result of the correct interaction between such power and such duty. The power of judging which the political order entrusts to the judge is limited by the fact that he has carried it out within the rules established by the same political order. The widening and narrowing of these limits have repercussions on the irrevocability – or better, on the capacity of not being rescindable – of the res judicata which, in the most extreme hypothesis, could be valid and therefore produce its effects even in the case where the judge operates without respecting the rules . The sources that have been consulted for this paper are essentially of a doctrinal nature and they refer to a period that goes from the end of the Fifteenth to the Seventeenth century. Jurists, that have been taken into consideration, belong to the territories of present-day Germany and central-northern Italy and are known as ius commune jurists.