To be published in the Rivista internazionale del diritto comune 26 (2006)

The Birth of the Ius commune: King Roger II’s Legislation

 Ken Pennington

Charles Homer Haskins wrote about the Normans in Sicily as elegantly and insightfully as anyone before or since. In The Normans in European History he expressed his admiration for King Roger II (1130-1154)[1]:

It is not too much to call the kingdom of Roger and his successors the first modern state, just as Roger’s non-feudal policy, far-sightedness and diplomatic skill have sometimes won for him the title of the first modern king.

Haskins may have admired Emperor Frederick II even more but argued that many of Frederick’s virtues had their origins in Roger’s cosmopolitan Palermo[2]. “No where else”, he observed, “did Latin, Greek, and Arabic civilization live side by side in peace and toleration”[3]. He pointed out that Sicily was the “natural meeting-point of Greek, Arabic, and Latin civilization, and a natural avenue for the transmission of eastern art and learning to the West”[4].

The scattered artifacts and architectural monuments that remain of Roger’s capital city, Palermo, provide startling and evocative evidence for Haskins’ generalization. Art historians have demonstrated that Roger exploited all three cultures in his kingdom. They have argued that he imported objects, craftsmen, and materials from all over the Mediterranean to build and decorate his buildings. These multi-cultural artisans also provided him with his robes, the symbols of his office, and even his tombs[5]. Historians have long known that Roger adopted Byzantine and Arabic practices and utilized Greeks and Arabs in his court; he was indeed “a ruler between East and West”[6].

Roger II produced a body of legislation that scholars have dubbed the Assizes of Ariano. His legislation was important for several reasons: no other secular European prince promulgated such a sophisticated body of laws in the first half of the twelfth century; no other ruler ordered his legislation compiled into a systematically organized collection; his legislation reveals a close connection to the teaching and study of Roman law in Northern Italy; his constitutions may be the earliest example that we have of the nascent Ius commune’s influence on secular law; and, finally the Emperor Frederick II’s commission of jurists incorporated more than half of his legislation into the Constitutions of Frederick II in 1231 (also called The Liber Augustalis or The Constitutions of Melfi in the older literature[7]) that remained the law of the land in Southern Italy until the early nineteenth century[8]. If one wished to join Haskins in signaling the importance of the Normans in European history, one could do far worse than choosing Norman legislative activity in Sicily as a milestone in European legal history[9]. Scholars have debated, disputed, or not recognized the reasons that I have just given for the importance of Roger’s legislative activity. I will try to justify all of them in this essay.

Roger’s Legislation, its Transmission, and Sources

The early years of Roger’s reign were turbulent. He was born in December 1095. Although he ruled in his own name from 1112 as count of Sicily and Calabria, his authority and rule were precarious. His fortunes improved in the late 1120’s. First he inherited Apulia from his cousin William in 1127, and in 1128 Pope Honorius II recognized his claim to the Duchy. Roger supported the wrong pope, Anacletus II, against Pope Innocent II in the Schism of 1130 but profited greatly. Anacletus granted him Sicily, Apulia, and Calabria. However, he trampled on papal prerogatives when he had himself crowned King of Sicily on December 25, 1130. His temerity led to a long dispute with the papacy. In 1139 Pope Innocent II led an army against Roger. The pope was defeated and taken prisoner near Gallucio. Consequently Innocent was forced to recognize Roger’s royal claims and dominions in the Treaty of Mignano.

Two passages from the chronicles have led scholars to believe that 1140 was a key date for Roger’s legislation. Romuald of Salerno wrote that around 1140 King Roger ruled over a tranquil kingdom in which chamberlains and justiciars maintained peace. The king promulgated new laws and abolished bad customs[10]. Historians have argued that an even more important piece of information is contained in the chronicle of Falco of Benevento. He described a council in the city of Ariano in which the king enacted “innumerable acts” and a “terrible” edict in which coins from Rouen were banned from the realm[11]. Falco condemned Roger’s debasement of the currency[12]. Scholars have concluded from this passage in Falco’s Chronicle that some form of a collection of laws preserved in Vatican and Montecassino manuscripts was promulgated at Ariano ca. 1140[13].

The Vatican manuscript is a crucial piece of evidence for Roger’s legislative activity and for legal culture in the first half of the twelfth century. Vat. lat. 8782, has been generally dated to the late twelfth century[14]. The original text contained four works: fol. 1r-46vb: A collection of Lombard law (Liber legis Langobardorum or Liber Papiensis) with extensive marginal glosses[15]; fol. 47r-48v: <Excerpta Codicis>, constitutions taken from Justinian’s Codex arranged systematically according to their place in the Codex[16]; fol. 49r-91va: The text of Justinian’s Institutes with several layers of glosses[17]; fol. 91rb‑94va: contains Roger’s legislation. A later hand – but not much later – added two works to the end of the manuscript: fol. 94va-fol. 95rb: the twelfth-century-jurist Bulgarus’ letter to the Papal Chancellor Haimeric, in which he described the main parts of the procedure that should be used in courts and also distinguished between the functions of a judge (iudex) and an arbiter (arbiter) [18]. Marginal glosses were added to Bulgarus’ text that alerted the reader to those Roman law texts Bulgarus used and quoted in his work[19]. The final piece on fol. 95v-fol. 96v is another tract on procedure that dates to the early twelfth century[20]. None of the texts in the manuscript was written later than 1141[21]. It was, beyond a doubt, a manuscript of a jurist. Although the age of manuscripts cannot be an exact science I would date Vat. lat. 8782 to the middle of the twelfth century at the latest. The crucial piece of evidence is not the script, about which there can be disagreement, but the citations to the Digest and the last two tracts on procedure that were added to the manuscript. The paleographic evidence that argues for a middle of the twelfth-century date is the siglum that the scribes used to cite texts from Justinian’s Digest in glosses to the Institutes and in the glosses Bulgarus’ letter to Haimeric. By the late twelfth century the jurists and scribes uniformly used ff. to signal a reference to the Digest, but earlier they used a capital D with a line though the center of the letter[22]. No late twelfth-century scribe would cite the Digest using the archaic capital D with a line through it. The two treatises on procedure also provide evidence of a mid-twelfth-century date. Bulgarus’ treatise and the anonymous tract were quickly superseded by other more detailed and sophisticated tracts on procedure. It is difficult to imagine any jurist’s wanting to have these two texts appended to the manuscript after ca. 1160.

Montecassino, Biblioteca dell’Abbazia, 468, on the other hand, is a composite manuscript consisting of three parts. The last two sections clearly date to the early thirteenth-century. The second part of the manuscript contains works from the late twelfth and early thirteenth centuries and the legislation of Roger II[23]. Furthermore, the texts of Roger’s constitutions are shortened and altered in the manuscript; the textual tradition is almost always much inferior to the Vatican manuscript[24]. When Frederick II’s commission of jurists compiled his Constitutions they did not use a text of Roger’s legislation from the Montecassino tradition but a text very close to the one in the Vatican manuscript[25]. Consequently, Montecassino cannot be used as evidence for the transmission, shape and form of Roger II’s legislation. Rather it is a much later “epitome” of uncertain date and origin[26].

A significant piece of evidence for understanding the transmission of his legislation is the text that we have in the Vatican manuscript. It was composed in the standard format of a legal compilation or collection. By the twelfth century, and even long before, collections of laws had a standard structure. In contrast to the text of Roger’s legislation in the Montecassino manuscript, the Vatican manuscript conforms to the standard format of a compilation of laws in every detail. There is a prologue to the collection, the work is divided into titles, the text is formatted in two columns – which was almost universal by the twelfth century – and individual laws under each title are distinguished by a x-large initial letter provided for the first word of each law[27]. Because scholars had dated the Vatican manuscript to the late twelfth century, some had attributed the compilation to the reigns of either William I or William II[28]. Since Stürner’s edition of the Constitutions of Frederick II it is indisputable that all the laws in the Vatican manuscript are Roger II’s and not a mix of later Norman legislation. Therefore, if I am right about the date of the Vatican manuscript the compilation of Roger’s Constitutions must date to his reign. We are dealing, in other words, with a precocious royal compilation of laws.

Caspar and other older scholars have all concurred that Roger promulgated a code at Ariano in 1140[29]. Recent scholarship has assumed that the collection was privately made; that is Roger II did not order that his statutes be gathered together[30]. An argument for that conclusion might be that we do not have a single example of a ruler ordering his laws to be compiled officially in the twelfth century[31]. If Roger had ordered his legislation to be compiled and officially published his act would have preempted Frederick II’s Constitutions as the first code of laws promulgated by a secular ruler in Europe. It would have been an extraordinarily early exercise of royal legislative prerogatives. Some scholars have also advanced the argument that the collection of statutes in the Vatican manuscript was late twelfth-century and was not the work of Roger II’s jurists but of a later compiler, who perhaps worked during the reign of King William I or II[32].

Any conclusions about the role that Roger may have had in producing the compilation of laws in the Vatican manuscript must begin with the prologue. The first thing that strikes the reader is the use of the imperial “We”. It begins[33]:

It is proper and necessary, O barons, that we not presume concerning ourselves, the state of our entire kingdom, and its riches[34]. We have received it from the abundance of divine grace. We may render our thanks for the divine gifts from which we have our power with obedience , in order that we may not seem completely ungrateful for so much grace.

The anonymous author(s) of the prologue who has given a voice to Roger II must have been an official(s) of the royal chancellery[35]. The text has clues to his background and training. The phrase “Dignum et necessarium” has legal resonances. The statute Digna vox (Cod. 1.14(17).4) was one of the classic statements in Justinian’s Codex defining the authority of the prince[36]. “Necessitas” was, by the twelfth century, a key norm in law[37]. The prologue’s description of the king’s debt to God and of his obligations is pictorially represented in a remarkable mosaic of Christ’s bestowing a crown on Roger in the church of Santa Maria dell’Ammiraglio (La Martorana), constructed during the 1140’s. The prologue and the mosaic might have been crafted at roughly the same time[38]. Roger’s age in the portrait is congruent with his age in the 1140’s, ca. 45-50 years old. The prologue continues to gloss the portrait in that mosaic[39]:

This thing that he says, we are inspired by the gift of The Bestower, His having said “Through me kings reign and law-givers render justice (Proverbs 8.15-16)”. We consider that nothing is more pleasing to God than if we simply offer him that which we have known him to be, namely Mercy and Justice.

The author of the prologue made an important change in the biblical citation by changing the Vulgate’s “iusta” to “iustitiam”. The passage from Proverbs 8.15-16 was compressed to emphasize the king’s duty to render justice[40]. The connection of mercy and justice had a long tradition in Christian theology and in the legal tradition, but, as this prologue was written, jurists began to understand that “misericordia” was flawed as a legal concept. During the twelfth century “misericordia” was replaced by a much more rigorous concept, “aequitas” in the jurisprudence of the jurists[41]. At this point, the author of the prologue switched from theology to law[42]:

A certain judicious man who was learned in law calls the interpreter of law priests (Dig. 1.1.1) [43]. And rightly so we who have been granted the authority of right and law through His grace ought partly to re-establish and partly to reform laws[44] to bring them into a better state. We who have known mercy should treat laws more mercifully in all things and interpret them favorably (Dig. 1.3.18) [45], especially when their severity leads to inhumanity (Dig. 1.3.25) [46]. We do not do this from arrogance as if to say that we are more just or <more> moderate in promulgating and interpreting laws than our predecessors because of our watchfulness (Inst. Proemium)[47].

This section of the prologue outlines a clear conception of legislative authority based primarily on the first titles of Justinian’s Digest. The author’s knowledge of Roman law was deep enough to adapt language of Roman law and allude to key words that he took from the Digest and the Institutes, incorporating them into the prologue without simply repeating the exact language of Justinian, but he did so with unmistakable references to it. The legal language of the prologue also establishes Roger’s status as a “princeps”, the prince of Justinian’s compilation, whose authority to promulgate, abrogate, and derogate law was unlimited. The same symbolism emerges from the disparate objects that still survive from his reign. In the 1130’s Roger had ordered the construction of the Cathedral in Cefalù and at the same time commissioned two porphyry tombs for his corpse[48]. Porphyry had long been connected with the symbols of imperial rule and had been incorporated into papal and ecclesiastical monuments[49]. The lions that supported one of the tombs are also traditional symbols of the prince’s power. At the same time in which the tombs were sculpted, Roger commissioned the royal mantle now in Vienna with the same symbolism of lions[50].

The author of the prologue then returned to his biblical allusions to reflect on Christian mercy, a theme that was especially important in canonistic thought of the early twelfth century:

But because we sin in many things (James 3.2)[51] and are more prone to sin, we think that it is proper for us in our time to have mercy on sinners with the appropriate moderation. Just as Christ has instructed us saying: “Be merciful then as your Father is merciful (Luke 6.36)”[52]. And the king and prophet: “All the paths of the Lord are mercy and truth (Psalm 24.10)”[53]. Without a doubt we shall be judged because a sentence without mercy will be rendered on him who rendered judgments without mercy (James 2.13)[54].

Ivo of Chartres in his Prologue and Alger of Liège were two early twelfth-century canonists who wrote extensively on the concept of mercy[55]. Luke 6.36, James 2.13 and James 3.2 appear in their works when they discussed mercy and later in the dicta and chapters of Gratian’s Decretum. Psalm 24.10 was also commonly cited in canonical literature[56]. This evidence does not mean, I think, that the author of the prologue was a canonist. He flaunted his knowledge of Roman law and did not cite any canonistic texts. His biblical citations prove, however, that he knew the canonical and theological literature in some detail, and, more importantly, how to incorporate theological and biblical concepts into his thought. His knowledge of Roman law and his use of biblical texts that circulated in canonical collections probably indicate a general legal background that was most likely formed in Northern Italy. Bologna was the only place in Europe where both laws jostled each other cheek by jowl in the first half of the twelfth century. I will present conclusive evidence for the compiler’s having used an early twelfth-century Bolognese work to organize Roger’s Constitutions in the next section of this essay.

The prologue concluded with a statement of purpose and law[57]:

We want therefore and we command that you faithfully and quickly receive the laws in the present body that we have made public whether they were promulgated or compiled by us (Inst. Proemium)[58].

The first and most important point that we can conclude from this final command is that Roger promulgated a body (corpus) of laws by adopting the language of Justinian’s Institutes[59]. He called his laws “sanctiones”, which is exactly the same language used a century later when Emperor Frederick II promulgated his Constitutiones[60]. Unless we wish to dismiss the evidence of the prologue, the “sanctiones” in the Vatican manuscript are the body of laws that Roger promulgated.

We will never know whether Roger promulgated this code in Ariano or somewhere else. An assembly at Silva Marca in 1142 has also been suggested[61]. There is evidence that Roger issued “sanctiones” throughout his reign, but none of the laws in the Vatican manuscript can be dated[62]. The evidence from the prologue would indicate that it was written in the late 1130’s or early 1140’s. The primary evidence for that dating is the author’s focus on mercy in the prologue. That theme is much more compatible with the first half of the twelfth century than later.

The only textual evidence for calling Roger’s collection or the statutes themselves “assizes” is the thirteenth-century rubric attached to the statutes in the Montecassino manuscript[63]. If we stick to the evidence of the early twelfth century, the titles “Assizes of Ariano” or “Assizes of Roger II” should no longer be used to describe Roger’s legislation because the term was not used during Roger’s reign[64]. A better title would be Roger II’s Constitutions, which I will use for the rest of this essay. I think that the prologue provides quite good evidence that at sometime during his reign Roger had a trained jurist or jurists compile a collection of his laws that he had promulgated since he had been crowned king in 1130. The result was a precocious example of legislation, and another piece of evidence for the Norman’s extraordinary capacity to govern.

In the next section of this essay I will demonstrate that only a trained jurist could have drafted Roger’s constitutions. If I am right, then the author or authors of the prologue were probably responsible for the compilation and the drafting of the Constitutions as well – although they might not have been the same person(s).

One final point should be made about the prologue. It is similar to the oration that Otto of Freising reports Emperor Frederick I gave at the Diet of Roncaglia in November 1158. Frederick’s “speech-writer” did not use the same texts from Justinian to support his rhetoric. Nor did he quote the Bible extensively. He did, however, clearly use the expertise of jurists from Bologna to draft his speech[65]. Roger II anticipated him by, perhaps, almost two decades.

Roger’s Constitutions and the Emerging Jurisprudence of Roman Law

The fundamental question that I wish to address in this section is the state of legal learning and expertise at Roger’s court. Ennio Cortese has written that the traces of Justinian in Roger’s constitutions leaves one rather perplexed. During the reign of Roger II there was no southern school of law that might have spread the learning of Justinian’s codification in his kingdom[66]. When, however, we consider the architectural and artistic remains from his reign we can see that he exploited local artisans and materials and also imported other craftsmen from as far away as Constantinople. Art historians have granted Roger and his court a broad, cosmopolitan culture that was more sophisticated than any other princely court in Western Europe. In that context Bologna was not very far from Palermo.

Scholars have been divided in their judgments about his legislation. Erich Casper waxed eloquent. The Normans, he wrote, had a natural legislative talent and a grand political talent. Everywhere they settled they left a mark of their presence in the juridical life of the people. In England the most impressive example of their talent was the Domesday Book. In Italy their capacity to govern can be seen in Roger’s legislation[67]. Zecchino has no doubts that Roger’s court was a flourishing home to jurists from Bologna and elsewhere[68].

However, other scholars have diminished the Sicilian Norman juridical achievements for various reasons. Since it has been generally assumed that the Vatican manuscript dated to the late twelfth or even the thirteenth century, scholars have attributed the compilation and editing of the text to jurists who worked during the reigns of Kings William I and II, or even during the reign Emperor Frederick II[69]. Donald Matthew has recently given the most negative assessment of Roger’s legislation[70]:

The texts were cobbled together unsystematically from a variety of sources... two-thirds of them are in substance not original at all, since they are derived from either Books 1 and 9 of Justinian’s Codes or from Book 48... of the Digest... The most plausible explanation for the two manuscripts <of the constitutions> is that in the second half of the twelfth century, an ecclesiastical institution with legal jurisdiction, such as Cassino or the archbishopric of Salerno, itself made a collection of <Norman> legal rulings.

I have already tried to demonstrate that the Vatican manuscript dates to the middle of the twelfth century. I have also argued that the prologue in the Vatican manuscript must be for the collection of legislation that follows it and that a skilled jurist with a broad background must have drafted it. In the following section I will not analyze all of Roger’s legislation but will examine a few constitutions in detail to illustrate the jurist’s professional competence and learning. I shall also provide evidence that Roger’s jurist used an important tract of procedural law that the famous teacher and jurist Bulgarus wrote between before 1141.

Roger’s Constitutions have been described as “not being an organic whole” and as having “imperfections”[71]. This conclusion asks not only the wrong question but also gives an anachronistic answer. Roger’s was not comprehensive like Justinian’s codification, but no twelfth-century jurist would have thought to compile such a code. When Frederick II promulgated his Constitutions a century later, it too was far from comprehensive. Secular codifications would remain disjointed segments of mosaics that only partially pictured the legal systems for which they were designed. Comprehensive codes belong to the modern world and the jurisprudence of Austinian sovereignty. Modern civil law codes do attempt to cover all parts of the legal system, but law in the Middle Ages could be found in many cupboards, not just in the legislative authority of the state. In a society in which customary law still played such an enormous role, in which x-large areas of the law were in the hands of ecclesiastical courts, and in which whole areas of the law such as procedure and law merchant were not thought of as being within the purview of the legislator, no jurist would ever have attempted to compile a code that incorporated every jot and tittle of the law of the land[72].

Roger’s Constitutions do look strange to modern eyes. The last sentence of the prologue declared that the Constitutions contained statutes promulgated and compiled by him. What appears unusual to us is the number of constitutions that were taken from Justinian’s Codex, reworked, and promulgated by Roger as law in the Kingdom of Sicily. Scholars have continued to maintain that Roger’s legislation was simply taken from pre-packaged excerpts of Roman law (of which there is not a single surviving manuscript that might provide evidence for such an assertion) [73]. Of the 69 statutes in the Vatican manuscript nine have close verbal similarities to texts in the Codex and seven take their inspiration from texts in the Digest – although none of Roger’s constitutions is taken word for word from Justinian’s codification[74]. The list of “borrowed or excerpted” texts from Roman law (terminology that we will see is not an accurate description) comprises only 17 of the 69 constitutions. There are many other conceptual and verbal borrowings in Roger’s legislation from Roman law, but the rest of the constitutions cannot be called “excerpts” from Roman law. Rather they were influenced by Roman law terminology, concepts, and jurisprudence.

This point is particularly important for understanding the sources for Roger’s legislation. Scholars have conjectured that various existing collections or other unknown epitomes of Roman law must have been Roger’s jurists’ sources. This conjecture assumes that no one at Roger’s court could navigate Justinian’s complex codification. That might have been a reasonable conjecture if his jurists had only used the Codex. However, they used the Digest intensively. That book was not for amateurs or dilettantes. A person needed extensive legal training to exploit the Digest. In any case, the Digest never circulated as an epitome in the West.

Consequently, the general assumption that has pervaded the literature until now — that Roger’s jurists used abbreviated versions of the Codex or excerpta from the Codex and Digest — cannot be sustained. Until now no link has been shown between any earlier abbreviated Codex[75]. More importantly, if one consults Gero Dolezalek’s comprehensive survey of Roman law manuscripts one finds that there are no collections of excerpts or florilegia from which a non-jurist might have drawn his material[76]. It is time, I think, to stop citing mythical and improbable sources that Roger’s jurists might have used.

The evidence of Roger’s legislation clearly shows that his jurists had access to and used the entire Codex and Digest. They incorporated the last section of the Digest to have been rediscovered, the Digestum novum, into his legislation; this part of the Digest was used and cited as early as the 1110’s in canonistic sources[77]. Roger’s jurists borrowed from Justinian’s codification extensively; that was common practice in the first half of the twelfth century. Gratian’s Decretum, which was finished in its final form ca. 1140, incorporated a x-large number of texts word for word from Justinian’s Codex and Digest[78]. Like Roger’s jurists, Gratian adapted and edited the Roman law texts in creative ways. In part he was simply following a long tradition of incorporating Roman law into canonical texts, but like Roger’s jurists Gratian shaped Roman jurisprudence to fit his needs. From this perspective Roger’s jurists were not doing something unusual when they shaped Roger’s legislation with Roman texts and norms; they were doing what compilers of legal collections commonly did in the first half of the twelfth century.

In order to justify some of the statements that I have made in the last two paragraphs, let us look at several constitutions in Roger’s codification and compare them to their Roman law sources. One point should be made clear at the beginning. We have to distinguish between the jurist(s) who compiled Roger’s legislation and his learning, and the jurist(s) who drafted his legislation (although he [they] might have been the same in some or in all cases). We are evaluating the level of legal learning of the people who drafted his legislation and the competence of those who compiled his code. From now on I shall refer to Roger’s jurists in the singular, but we should remember that we may be speaking about a group of them, not a single person.

Roger’s Constitutions (= RC) are organized almost exactly according to the arrangement of topics in Justinian’s Codex. The jurist who arranged RC in the Vatican manuscript had to know the entire Codex in order to do that. The first titles of RC, 1-16, deal with the authority of the lawgiver, the rights and privileges of the church, ecclesiastical crimes and persons. RC’s Titles 17 to 43 deal with criminal law, malfeasance in office, and marriage law. I shall begin with a straightforward example, which is one of the few constitutions that is taken almost word for word from Justinian’s codification. As will become clear, however, the changes that the jurist made in the text prove that he did not just lift them out of a body of excerpts or a florilegia. RC 14.1 is a constitution that the Emperors Theodosius and Honorius promulgated in 394 A.D. On the basis of the constitution Roger ordained:

Entertainers and others who earn money using their bodies in public performances shall not wear the habits of those virgins who are dedicated to God. They may also not wear the monastic or clerical clothing. If they do, they will be beaten publicly.

The Latin texts are:

“Mimi” first appear in Roman sources during the time of Cicero. The word is derived from the Greek and always had an equivocal meaning. In the ancient world it meant an actor in mimes, who had a questionable status in society. The title that the jurist chose for RC 14 tries to give the word a wider definition. In medieval Latin “ioculatores” could mean a jester, musician, or minstrel. We get a glimpse of their ambiguous role in medieval society from Abelard’s rant in his Theologia Christiana. He accused bishops and doctors of the Christian religion of inviting entertainers, tumblers, magicians, and singers of shameful things to their palaces on solemn feast days, the same people whom Plato had banned from his city[79]. These prelates then rewarded them with money robbed from ecclesiastical benefices and from the alms for the poor[80]. Roger’s constitution had a broader application than the statute in Justinian’s Codex. Entertainers were forbidden to wear any clerical grab whatsoever. Further, a public and harsh punishment was imposed on those who violated the law.

The inspiration for the punishment may have come from canon law. There is no punishment in Justinian’s codification that calls for a public beating – the Romans loved beatings – but never prescribed public beatings. However, Pope Gregory the Great declared that crimes against clerics should be punished with public beatings and exile[81]. It seems likely that Roger’s jurist knew this letter of Gregory that is found in 15 extant canonical collections and decided that a public beating was just what fitted those who publicly demeaned the clerical habit[82]. Even this fairly uncomplicated example illustrates the skill and considerable learning of whoever drafted this constitution in Roger’s chancellery.

Another example. RC 17.1 was a constitution on sacrilege and royal prerogatives. It may seem at first to be similar to RC 14.1. However, Roger’s jurist significantly altered the Roman law text on which it was based. RC 17.1 mandated that:

No one may dispute a judgment, legal opinions, laws, or deeds of the king; it is similar to a sacrilege to dispute his judgments, laws, deeds and legal opinions, and whether anyone he has chosen is worthy or judges <worthy>.

Like RC 14.1 from the first few words the statute looks as if it had been taken almost directly from Justinian’s Codex:

As with RC 14.1 the jurist based Roger’s constitution on a text in the Codex but expanded its application and adapted it to royal Norman governance in Sicily[84]. He did not, however, make arbitrary changes. The most obvious editorial additions were those that broaden the scope of the statute to cover much more than judgments. The king’s laws, deeds, and choices for royal offices were also placed above criticism. A more significant and subtle change was changing “instar” to “par”. The jurist understood that “instar” would have meant that someone who doubted the decisions of the prince committed a crime that was “like” or “equal to” a sacrilege. He substituted “par” for “instar”. His decision was not, however, linguistic, but juristic. He undoubtedly knew the text in Justinian’s Digest in which the Roman jurisconsult Paul observed that usufruct was “similar”, “pars”, to dominium (ownership) [85]. I say undoubtedly because it is the only place in the Digest where this subtle distinction is made. Later commentators on this constitution, which was incorporated into the Constitutiones of Frederick II made the same connection to the same text in the Digest[86]. The legal implication of this change was clear. To doubt the judgment of the prince was not a sacrilege, but similar to one. The later jurists drew the obvious conclusion from this change in wording. Since someone who questioned the decisions of the prince did not commit sacrilege, the prince’s actions could be doubted and disputed if there were just cause[87].

These first two examples are simple ones. Most of the constitutions have a much more complicated relationship to their Roman law sources and are not close renderings of Roman law texts. RC 6.1 on the rights of those who take sanctuary in churches demonstrates the jurist’s skill in drafting a statute and in formulating points of law:

With this present law that will be valid perpetually in our kingdom, God willing, we ordain that no one of any status shall be driven or taken out of churches into which they seek sanctuary. No one may demand that which is owed by them from the venerable bishops or yconomi. Anyone who presumes to transgress this statute shall be face capital punishment or the loss of all their property. While they are in sanctuary the fugitives may not be denied food. However if a serf, or colonus, or serf who is bound to land shall have fled from his lord or has taken refuge in a church with stolen property, he may be given to his lord with the property he has taken. He may be properly punished for the type of crime that he has committed. Or if some one has interceded for him he may be returned to grace. No one can have his right (ius suum) taken away from him.

The jurist edited and redacted two sections of Justinian’s text with great care as can be seen in a comparison of the two:

In spite of the extensive editing the contents of both statutes are very similar: Sanctuary is a right that anyone can claim; a person in sanctuary cannot be denied food in order to force him out of the church; and the penalties for violating these rules are the same: death or confiscation of property. Servile thieves are to be treated humanely if they seek sanctuary, but, in the end, when they leave the sanctuary they and their stolen property must be returned to their owners, and they are subject to the appropriate punishment.

The classification of servile sanctuary seekers in Justinian’s Codex is brought into conformity with Sicilian social and legal practices in Roger’s statute. Roger’s jurist distinguished a “servus” from a “servus glebe”, which seems to correspond to an “adscripticius” in the Codex. In RC 6, which was not included in Frederick II’s Constitutiones, Roger’s jurist thought that “servus glebe” better described a villein than “adscriptitius”. I am not sure that we can know exactly what difference in servile obligations he wished to define. Years later King William II promulgated a constitution that also made a similar distinction[88]. Thirteenth-century Southern Italian jurists considered “adscriptitius” to be a general term. They subdivided serfs into “adscriptitii” who were personally bound to their lords and those who were bound because of rights attached to property[89]. We may not, however, be able to read their understanding of the terms back into Roger’s Constitution. However, Jeremy Johns has pointed out that one finds similar legal distinctions incorporated into Arabic legal documents describing villeins. He suggests that Roman law terminology may have penetrated Arabic documents as early as the 1140’s and was further refined during the reign of William II (1183)[90]. He has noted that this distinction cannot be found in Islamic law. It was also not found in Justinian’s codification[91].

Besides “servus glebe” the last sentence of Roger’s constitution cannot be found in the text of the Codex: “Nemini quippe ius suum est detrahendum (No one can have his right taken from him)”. This maxim provides conclusive evidence of the jurist’s legal learning. The jurist created a pithy legal maxim to summarize a more general point in Roger’s legislation and in Justinian’s text: no one can be deprived of their rights, neither the supplicant for sanctuary nor the owners of serfs. Roger’s jurist could have gotten the wording and concept from only two places in Justinian’s codification, in the Digest or in the Institutes, which both contain exactly the same quotation of Aelius Marcianus[92]. Roger’s jurist did not, however, simply pick the maxim out of Roman law fully formed. He refashioned the phrase, “nec cuiquam hominum ius suum detrahi”, into a general rule of law[93]. Further, the passages in both the Digest and the Institutes were closely connected to the subject of Roger’s statute. They protected a slave-owner’s rights but only if the slave had been treated justly. The message that Roger’s jurist wished to convey with his maxim was clear to anyone who knew law: whether the slave’s owner selected punishment or forgiveness, his choice had to be based on just cause and not on his arbitrary will. This elegant maxim or “regula iuris” could have been formulated only by someone who had a substantial understanding of the legal issues raised by Roger’s statute and a very good knowledge of the jurisprudence of Roman law. Even more importantly he had to understand the importance that legal rules were beginning to play in medieval jurisprudence[94].

RC 6.1 demonstrates that Roger’s jurist had a substantial knowledge of Roman law. The best and most convincing evidence that he possessed the fine hand of a Bolognese-trained jurist is found at the very end of the compilation. Roger had promulgated two statutes that established rules for judicial malfeasance (RC 43.1-2):

<43> If a judge is guilty of malfeasance

<1> If a judge has accepted money and renders a judgment of guilty in a criminal case or renders a death sentence, then he shall be subject to capital punishment.

<2> If a judge fraudulently and with wrongful intent rendered a judgment contrary to the laws, he irrevocably loses his power to preside over a court. He will be made infamous, and all his property will be confiscated. However if a judge renders an erroneous judgment because of ignorance of the law or because he was not learned in law, he shall be thrown upon our royal mercy and judgment.

Both of these constitutions were incorporated into Frederick II’s Constitutions (Book 2.50.1 and 2.50.2), although in reverse order. Frederick’s jurists preferred to place RC 43.2 first because it dealt with civil penalties while RC 43.1 covered criminal malfeasance. There were provisions of Roman law that covered both types of malfeasance on the bench, but when these statutes were originally promulgated they did not betray the slightest echo of Roman law terminology or texts[95]. The compiler of Roger’s collection, however, signaled that he was very aware that judicial malfeasance was an issue in Roman law by providing a Roman law tag as the title to introduce both constitutions: “Si iudex litem suam fecerit”. Unless readers knew Roman jurisprudence fairly well, that title did not immediately tell them that it treats malfeasance of judges[96]. Consequently Frederick II’s jurists changed the rubric to “De pena iudicis qui male iudicavit” (The punishment for a judge who has judged wrongly)[97]. “Si iudex litem suam fecerit”, however, did become the common, short-hand phrase that the jurists used to describe judicial malfeasance in the Ius commune for centuries[98].

The compiler of Roger’s Constitutions could have lifted the title from four places in Justinian’s codification[99]. From whichever place in the Digest or Institutes he took the phrase his use of it demonstrates again a good knowledge of Roman law. A comparison of the most relevant texts in Justinian that deal with judicial malfeasance with Roger’s statutes show not a trace of direct influence of Roman law on Roger’s legislation:

Roger’s legislation was much more harsh than Justinian’s. The death penalty and infamy were not part of the Roman tradition for judicial misbehavior. Those were Norman innovations. Confiscation of property for judicial malfeasance had been a Roman norm[100].

If Roger’s constitutions did not borrow directly from Roman law (although indirectly, perhaps, because Roman law did treat judicial malfeasance), the compiler of Roger’s code arranged these two statutes by following the organization of Bulgarus’ tract on procedure that is contained in the same Vatican manuscript. The last two constitutions and Bulgarus’ last paragraph have a perfect correspondence of theme and structure. The only difference between the two is that Bulgarus’ wording is heavily dependent on his Roman law sources for his wording and terminology:

As I have mentioned above in my description of the Vatican manuscript, Bulgarus’ text is glossed. It was added to the manuscript slightly later than Roger’s Constitutions. The glosses to Bulgarus’ treatise cite the same Roman law texts that I have quoted above and two more that deal with judicial malfeasance[101]. Further, these glosses cite Dig. 5.1.15 and 50.13.6 from which the compiler could have taken his rubric “Si iudex litem suam fecerit”. Consequently, it is possible that the compiler of Roger’s Constitutions might have had a glossed text of Bulgarus’ treatise in front of him. Whether glossed or not, he arranged his material according to Bulgarus’ text. That cannot be pure chance. The two texts were both placed at the end of both works; both were connected only remotely to the topics that preceded them[102]; and both arranged the texts in the same way: first a judge’s criminal malfeasance, then malfeasance caused by the judge’s ignorance of the law.

The compiler’s use of Bulgarus’ treatise on procedure written to Haimeric helps us to determine when Roger probably promulgated the compilation of his Constitutions. Bulgarus wrote his treatise between 1123 and 1141, which was Haimeric’s term as papal chancellor. Haimeric was a Frenchman, had been a canon in Bologna, and played an extraordinary role in the papal curia for almost twenty years[103]. Bulgarus’ treatise was widely disseminated. Its importance was enhanced by both the reputation of its author and of its recipient. Jurists who needed guidance for the complicated rules of procedure found it a handy guide – particularly in its glossed version[104]. Haimeric had both Bolognese connections and Southern Italian connections[105]. It is striking that Gratian quite likely used a glossed version of Bulgarus’ tract ca. 1140 to finish off and shape the procedural sections of his Decretum[106]. This would lead us to conclude that Roger issued his Constitutions ca. 1140, which would be a reaffirmation of the traditional date.

It can lead us to a further conclusion about the use of Roman law in Roger’s Constitutions. The complexity, careful editing, and drafting of Roger’s statutes must preclude the assumption widespread in the literature that they were drafted and promulgated at one time[107]. Furthermore, I think it is clear from the examples I have discussed that whoever drafted Roger’s constitutions did not just pluck them out of excerpts, Latin or Greek epitomes or florilegia. Roman law was an important source but was not consistently used in Roger’s legislation. Some statutes drew heavily on Roman law for their wording and text; many others have no trace of Roman law terminology, even when Roman law texts could have provided models (as RC 43). In a rough way, one might be tempted to date Roger’s Constitutions according each statute’s use of Roman law. One could cautiously conclude that statutes without any trace of Roman law were promulgated earlier than those that have clear connections to Roman jurisprudence. From the evidence of his legislation one can, I think, assume that after Roger became king he recruited jurists from the law school in Bologna to bring their expertise to Palermo sometime during the 1130’s. Since Roger would not have issued statutes as a count, we can probably safely date his legislation in the Vatican manuscript to after 1130.

The Reception of Roger’s Constitutions in the Constitutions of Frederick II

Frederick’s commission of jurists placed 39 of Roger’s 69 statutes in the Vatican manuscript into Frederick II’s Constitutions. A careful study is needed of the reception of those statutes in Frederick’s law code. It would include an analysis of why Frederick’s jurists did not take up the 30 statutes they omitted. In any case when one includes the 27 statutes that Frederick’s jurists identified as belonging to kings William I or II, the Norman imprint on Frederick’s Constitutions is substantial. Since Frederick’s Constitutions remained in force until the early nineteenth century and were commented on by two distinguished jurists, the Norman contribution to the jurisprudence of the Ius commune was significant.

I have made the argument in this essay that Roger’s legislation and the compilation of his Constitutions must have been drafted and compiled by a trained jurist. The jurist must have come from Bologna, and Roger probably imported a jurist sometime after he became king in 1130. His laws are as cosmopolitan as the art and architecture in his capital city, Palermo.

One last example from Roger’s legislation throws light on his purpose, the sources of his constitutions, and also on their influence. In RC 26 Roger outlined his legislative duties and authority and described a bad marriage custom that resulted in clandestine marriages in his kingdom. Roger declared that henceforth marriages should be contracted publicly in a church through the ministry of priests[108]:

Because the promulgation of laws, the governance of the people, the guidance to long standing customs (mores), and the abrogation of bad customs (consuetudines) is the duty and care of the king , we deem it proper and equitable to thwart pullulating vices that might otherwise take root with the strict judgment of our edict. A bad custom (consuetudo) has presently penetrated the usages of a part of our people like a pestilence and disaster. It is absurd, therefore, repugnant to the long standing customs (mores) established by the sacred canons, and a practice never before heard by Christians that those who wish to marry, to procreate legitimate children, and to bind together in an indivisible life-time of companionship [Institutes 1.9.1 and Dig. 23.2.1] would not seek the favor and grace of God in His house. This sacrament should only be forged, in Christ and in the church, as the Apostle says [Ephesians 5.32], through the ministry of priests.

The arenga to this constitution is extraordinary for the first half of the twelfth century. Its author displays a remarkable understanding of the king’s law-making authority and employs language that echoes the prologue to the Constitutions in the Vatican manuscript. He exhibits a training in the rules of rhetoric that can be found in the papal chancellery during the 1140’s but not normally in secular documents. The language of most of Roger’s statutes is more pedestrian, but there are several in which his chancellery demonstrated the same sophistication and ability to employ metaphor and rhetoric to articulate royal policy as in RC 26[109].

The careful distinction that the jurist makes between “mos” and “consuetudo” also reflects his legal training. In his Decretum Gratian employed Isidore of Seville’s definition of “mos” as a “long-standing, repeated custom”[110]. Roman jurists had always maintained a clear distinction between “mos” and “consuetudo”. “Mos” was founded on reason, antiquity, and could be considered as the equal of law. In Justinian’s Digest Gaius held “mos” not “consuetudo” to be the equivalent of “lex”[111]. Justinian’s Institutes further specified that “Diuturni mores” (long standing usages), which have been approved by the consent of those who conform to them, “resemble law”[112]. The author of the RC 26 could have been drawing upon Justinian, Gratian, or both[113].

Not only the language but also the content of RC 26’s arenga is similar to the prologue. The text begins with a reference to proper and equitable authority of the king’s legislative power and reiterates the prologue’s assertion that the king ought to change and reform laws in his kingdom[114]. As in the prologue the author cites the Bible and Roman law. The citations were not, however, traditional. Medieval biblical exegetical traditions had used Ephesians 5.32 to make the point that Christ’s marriage to the Church was a model for human Christian marriage. The text had a long tradition in the theological discussions of marriage[115]. However, the author added a clause that had no precedent in the Western theological tradition: the sacrament of marriage should be made legitimate by the ministry of priests[116]. The term, “ministerium sacerdotum” had been commonly used to describe the necessity of the priest’s role in the Eucharist but not in marriage. A source for the necessity of the priest’s benediction and participation in a marriage (but not a mandate for the priest’s ministry) can be found in Greek canon law. Emperor Leo VI introduced the requirement that a valid marriage had to receive the blessing of a priest ca. 907 A.D. It has been suggested that Leo’s legislation sanctioned customary practices that were already widespread in Greek Christian populations[117]. The requirement that a priest should give his blessing to a marriage was an important reform initiative in the West during the Carolingian period but did not become standard practice and did not shape customs in the Western Church[118]. Roger, however, mandated that a public ceremony, officiated by a priest, was essential for a valid, legitimate marriage.

The author’s adaptation of the definitions of marriage that he found in Justinian’s Institutes and Digest illustrates what we have already seen: Roger’s jurist did not slavishly accept Roman law. Justinian’s Institutes had defined marriage as “Viri et mulieris coniunctio, individuam consuetudinem vitae continens (the joining of a husband and wife that embodies the indivisible custom of life)”, while the Roman jurist Modestinus defined it as “Coniunctio maris et feminae et consortium omnis vitae (the joining of a husband and wife and resulting in life-time companionship)”, a text that Justinian’s jurists put in the Digest[119]. The definition of marriage in the Institutes became generally accepted in canon law during the twelfth century. Anselm of Lucca, Ivo of Chartres, Gratian and many others included the Institutes’ definition in their collections of canon law[120]. “Individua consuetudo vitae (indivisible custom of life)” was not, however, an easy concept[121]. Demonstrating again his remarkable familiarity with Roman law (for the first half of the twelfth century), Roger’s jurist melded the texts of the Institutes and the Digest to create a much more transparent definition of marriage. His formulation “indiuisibile uite consortium alligare (to bind together into an indivisible life-time of companionship)” combined both definitions that he found in Roman law in a clear and elegant way.

The dispositive section (dispositio) of the statute laid down stringent rules for marriage and draconian punishments[122]:

We ordain by the present law, which, God being favorable, will have perpetual validity, that we impose on everyone wanting to contract a valid marriage the necessity to have the marriage ceremony solemnly celebrated after they have been betrothed if they wish to bequeath their patrimony to future heirs. They may ask for the benediction of the priests in the church and after a scrutiny bestow the ring and submit to the sacerdotal prayers at a time and a place that is suitable and convenient. Otherwise they know that they are violating our royal statute and that from our statute <it is established> that they will not have legitimate heirs either testate or intestate (with or without a will) if their heirs are born from an illicit marriage. Wives will not have their dowries or other rights due to them.

The statute concluded with two exceptions to the general mandate[123]:

We derogate this statute for all those who have already contracted marriage at the time it was promulgated. We also depart from the obligation of necessity <to observe these rules> for those who wish to marry widows.

The statute provided a period of time for the couple to comply (“quisque pro suo modulo seu commodo”) with the rules. Greek canon law provided for cases in which the ordinary forms and ceremonies could not be fulfilled immediately for cause[124].

Roger’s constitution was incorporated into Frederick II’s Constitutiones with significant changes. The arenga was entirely omitted. The provisions were imposed on all men of the realm, but “especially for the nobility”[125]. Frederick’s jurists reached back to Justinian by placing special emphasis on the nobility’s duty to contract marriages openly and publicly[126]. They also added the specification that marriages had to be publicly as well as solemnly celebrated[127]. Frederick’s jurists gave this statute the inscription of “Rex Rogerius”, but they felt free to change the original text. Compilers of medieval legal collections had long been accustomed to “editing” legal texts to bring them into concord with legal practice or with the wishes of the new legislator[128]. Strangely, they did leave Roger’s exception in place that marriages contracted before the promulgation of the constitution were exempt. Since the statute had been in force for almost a century that could mean that its provisions were not widely followed in Frederick II’s Sicily.

James A. Brundage has remarked that Roger’s and Frederick’s legislation was “in marked contrast to the usual rules elsewhere in Europe and in flat contradiction to canon law”[129]. Although Roger II’s legislation left a firm imprint upon Southern Italian law[130] and also on the Ius commune, later jurists felt that they had to explain the contradictions between the Ius commune and Norman legislation[131]. Those jurists who commented on Frederick’s Constitutiones decided that Roger’s statute meant that a marriage must be celebrated “in facie ecclesiae”[132]. The obligation that some ceremonies and deeds, not just marriage, must be witnessed in the church to have validity became commonplace only in the twelfth and thirteenth centuries. “In facie ecclesiae” became a touchstone piece of evidence for evaluating the validity of a marriage ceremony, especially during the pontificates of Popes Alexander III and Pope Innocent III[133]. Roger’s legislation was part of a development in the Latin Church that ultimately, if not directly, led to the Council of Trent’s canon on marriage, Tametsi dubitandum non est, in which marriage “in facie ecclesiae” became the sine qua non of a valid marriage[134].

***

Roger II’s Constitutions are another piece of evidence that Palermo was a cosmopolitan center of extraordinary sophistication and unusually advanced artistic and intellectual activity in the first half of the twelfth century. The Normans seem to have had a special gene for cultural assimilation. Their tastes and attitudes may have been shaped and formed by the societies over which they held sway, but their ability to take in and absorb what was best from their subject populations and cultures remains a striking sign of their genius. Roger’s Constitutions also provide the best evidence that we have outside Roman law manuscripts for the influence of the school of law in Bologna on secular law in the first half of the twelfth century. In the context of the recent debate about when Roman law began to be taught in Bologna, Roger’s Constitutions provide substantial evidence that Bologna was producing jurists who had a highly developed and deep understanding of the entire corpus of Roman law by the 1130’s. This evidence argues strongly for a school that was not in its infancy[135]. There has been room for debate about when the teaching of Roman law became important in Bologna because we have very few Roman law manuscripts from the period ca. 1075-1130 that might provide certain evidence for teaching activity[136]. However, ca. 1140 that changed dramatically. The three texts discussed or mentioned in this essay demonstrate the penetration of Roman law outside the classroom at that time. Roger’s Constitutions, Bulgarus’ letter to Haimeric, and the addition of extensive Roman law texts from the Digest and the Code to the dicta of the last recension of Gratian’s Decretum ca. 1135-1140 converge to give us a vivid picture of the Ius commune’s “Big Bang”[137]. It was the historical moment when a dead legal system’s jurisprudence, which had been confined primarily to the classroom – as far as we can tell from the extant evidence – exploded and began to exercise its gravitational pull on customary law, institutions, and intellectual life of medieval society. And, as we have seen, the reputation of the school at Bologna was already strong enough to attract the attention of the royal court in Palermo and to persuade Roger that the new legal “experts”, “iurisperiti”, with their “libri legales” could benefit his realm. A crucial element of this story is the ineffable but undeniable fact that it was in the 1130’s that the authority and jurisprudence of Roman law as found in the “libri legales” became generally recognized as a source, a model, and quarry from which the iurisperiti could influence and shape law and institutions of the ius proprium. The extraordinary, shimmering mosaics of the Cappella Palatina where Roger held his court and prayed are a visual counterpoint to the surprisingly precocious role that Sicily played in the birth of the Ius commune.