14 1. The Statutory Theory of Proof: The Construction of an Edifice In the eleventh and early twelfth centuries, profound changes occurred in the history of Western legal order. Before these two centuries, legal institutions had grown inseparable fromthe other social institutions, such as religion and custom. Prior to the eleventh and the twelfth centuries, law remained unsystematized and no professional legal corps had yet developed. Law was deeply embedded in the other social institutions surrounding it, and it was passed on to new generations chiefly as part of oral tradition; therefore, it was conceived of as unchangeable and stable."^ Starting in the eleventh centurv, an immense population growth plus increasing internal and external trade within Europe as well as between European areas and other lands came to lead Western Europe through radical transformations.5 These larger societal changes serv’e as a background for the judicial revolution that took place in the Italian city-states of the eleventh and especially twelfth centurv.^ It was from the late eleventh century onwards that an Independent systemof canon law began to develop, a systemthat then served as a model for the subsequent bodies of secular law: the feudal, mercantile, urban, manorial and royal systems of law. Despite important differences between canon and Roman law, the students of both bodies of law shared essentially the same methodology, and there was a bond of mutual influence between the two branches of law.^ The story of the revival of Roman law and the legal profession that started in the universities of Italian city-states of the eleventh century and the spreading of Roman-canon lawto most parts of Europe during the following five centuries in the form of ius commune is a well known one.*^ Fromthe point of view of this study, one thread of the rich texture of the late medieval growth of ■* Berman 1983 pp. 49-50. Bloch 1962 pp. 69-71. ^ Even though generally considered decisive, the break with the past was not complete. On the predecessors of the eleventh century law schools and the attempts at systematization of Lombard law fromthe ninth centurv onwards, see Raddmg 1988. ^ Wieacker 1967 pp. 78-80; Berman 1983 pp. 273-275; Hattenhauer 1992 pp. 254-260. For a description of ins ntrnrnqne and its dissemination through the medieval universities; see Koschaker 1953 pp. 55-164, Berman 1983 pp. 120-164, or Friedrich Carl von Savigny’s classical Geschichte des romischen Recht im Mittelalter of 1834 (Savigny 1956, part III, pp. 152-419). Whitman (1990) gives a vivid account of ins commnne as a complex choice-of-law system, where Roman-canon law was only one, although hierarchically the highest, possible “common law” to be established between two litigants. Whitman 1990 pp. 8-9. Flowever, whereas Roman law remained always and everywhere a subsidiary source of law, canon law was the positive law of the Church. Furthermore, Roman law was considered basically immutable, although subject to reinterpretations; canon law, in turn, was a dynamic and developing system. Berman 1983 pp. 204-205.
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