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14 - Craig, Cujas, and the Definition of Feudum: Is a Feu a Usufruct?

from BLACKSTONE, FEUDALISM, AND INSTITUTIONAL WRITINGS

Published online by Cambridge University Press:  25 October 2017

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Summary

In an essay on the Roman law of property, David Daube commented that “[t]here is no scholarly effort independent of fashion … and idiosyncrasy”. Alan Watson has added that “the self-selection of scholars” tends also to make historical objectivity difficult, since those “who choose to specialize in Roman law will tend to admire the Romans and their achievement in law- making”. These remarks are as apposite for the sixteenth as the twentieth century. In a century whose scholarly strife equalled (and indeed was related to) its political and religious strife, one strongly contested issue was the origin and nature of the feudal law, on which the Renaissance scholars ranged themselves into “Germanicists” and “Romanists”. Though a fascinating debate, reflecting many of the traits of Humanist study, it has received little attention among modern scholars of the sixteenth century, with the exception of Donald Kelley. This paper will be devoted to the disagreement of Thomas Craig of Riccarton with Jacques Cujas’ Romanist view that a feu (feudum or fief) was the grant of a usufruct of property belonging in dominium to the grantor.

Kelley has claimed the sixteenth century as that of the beginning of ideology, and it is therefore worth noting Craig's recognition of the significance of the factors which Daube and Watson argue skew scholarship. He commented that “once we dignify this law with the name of the most ancient then, since each man – as tends to happen in all important matters – favours himself and his own people, he attributes its origin to himself and his own nation”.He then goes on to refute what he described as Italian opinions that feudal law originated in Roman institutions, French opinions that it originated in Gaulish society, Spanish opinions that it originated in Celtiberian customs, German opinions that it could be discovered in Tacitus's description of German customs, and Greek opinions that it derived from a constitution of Constantinus Porphyrogenitus. In contrast, Craig claimed that feudal law dated from the invasion of the Roman Empire by the northern tribes, and he gave a brief history of its development from then until its maturity in the eleventh century.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 401 - 412
Publisher: Edinburgh University Press
Print publication year: 2015

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