This chapter tackles two principal problems with connecting the formulas to a real world: their often difficult or incorrect (by classical standards) Latin, and the late Roman and early Merovingian legal language that has led to them being labeled as antiquarian fossils. The chapter argues that the idiosyncratic Latin of the formulas in fact communicated essential content in regions where the spoken languages were evolving into Romance, as well as (with the help of glosses and occasional vernacular words) where they were Germanic. The obsolete (or obsolescent) legal language reflects a legal culture in the eighth and ninth centuries in which – especially in western areas with strong Roman roots – references to Roman law and procedure still meant something. Roman legal language gave some documents an imprimatur of authority. Descriptions of antique procedures bore a recognizable relationship (though not necessarily an exact correspondence) to how those transactions were actually carried out. In short, the legal and formulaic inheritance of Rome in the western regions of the Carolingian world contributed to a normative framework that lent authority and legitimacy both to documents and to the legal procedures that they recorded.

The opening chapter examines the forebears of Cicero’s notion of will in Greek thought and Roman usage in the period before his birth, with special attention given to the playwrights Plautus and Terence. There was no “will of the people” in classical Greece. The demos wielded power not by delegation but in active, autonomous decision. There is no special discourse of representation in classical Athens, because in classical democracy (unlike today) there is no permanent governing class. In the Republic, Plato proposes that reason and appetite reside in different parts of the soul; though we succumb to appetite despite “knowing better,” in a harmonious soul as in a just city, reason must rule. Plato’s star student is the first to propose a full theory of human action, but neither Aristotle’s boulesis (the desire for ends) nor his prohairesis (the choice of means) map onto the faculty that Latin speakers would call voluntas. It is the Stoics, and particularly Epictetus, who have been credited by some as inventors of the will due to their intense focus on regulating our inner responses to events and forming the correct intention.

In this chapter, I examine how voluntas helps the young lawyer Cicero craft arguments and structure relationships with Roman clients, witnesses, and juries. In the De inventione and forensic speeches, we see his struggle to reconcile tradition with new intellectual tools. As he seeks to bring ratio more fully into Roman legal culture, voluntas plays a plural and ambiguous role. It is an instrument of rational inquiry, as in the competing schemata of criminal responsibility he examines in the De inventione. As it has always been in Roman law, voluntas is the desire of a legally relevant individual, emanating from and attributable to him alone – the marker of his agency and responsibility. So, too, however, is it used to signify the collective goodwill of an audience, which Cicero makes clear is the expert orator’s plaything. The “goodwill” sense of voluntas adds greatly to its durability in moral philosophy. While a sententia or iudicium pertain to a specific question, voluntas marks an ongoing choice or disposition, such as the will of a legislator, to be conserved. Cicero’s objectives for the law go largely unachieved in his time, but they expand Rome’s intellectual field of vision.

This chapter provides a history of the idea of custom both in definitions and as presented in texts about lay legal life before the coutumiers. The first part of the chapter examines the struggle to define custom from late antiquity to the time of the coutumiers. It shows that thinking about and defining custom in its legal capacity was no obvious thing: while there where common definitional elements, the quest to define custom was marked by debate and a lack of consensus that would continue into the fourteenth century.

The main question scholars have asked about the coutumiers is the extent of ‘penetration‘ or ‘influence‘ of Roman law on customary law. That there was influence is an undeniable fact. While the history of the coutumiers is undoubtedly connected to and overlaps with Roman law, this chapter challenges current historiography, which places Roman law at the centre of the development of written custom. Instead of asking how well an author knew his Roman law or how much of it was used in each text, this chapter looks more widely at citation practices, to establish what authorities were used and with what reverence they were treated. The citation practices in the coutumiers betray their authors’ confidence vis-à-vis the more august Roman law. These authors used learned law in service of their own projects but did not feel bound by its authority – unlike university thinking that famously placed Roman law in the middle of the page and medieval commentary in the marginalia. Roman law was certainly an important source for some coutumiers, but rather than treat it reverentially as an authority their authors used Roman law to build something new, lay, customary, and vernacular.

This chapter analyzes the earliest medieval evidence for the position of advocate. It argues that, rather than relying on top-down sources such as Frankish legal texts (capitularies) and the canons of Church councils, we need to focus on what named advocates are described as doing in eighth- and early ninth-century sources. Taking this approach, it demonstrates that advocates first emerged in the Frankish empire in the mid-eighth century and then proliferated rapidly under Charlemagne. Contrary to the standard argument that these Carolingian advocates were official, legal representatives for ecclesiastics at court, the chapter contends that – from the beginning – advocates were closely tied to the local territorial interests of monasteries and churches and frequently pushed the limits of their formal responsibilities.

Jewish status as citizens of the Roman Empire since 212 CE devolved during the three centuries from Constantine to Heraklios through political, legal, religious, social, and economic restrictions and suffered from mob pressures resulting in periodic pogroms. A complex Christian program led and implemented a state policy to convert the Jews to the dominant Christian religion in order to achieve the eschaton via the return of the crucified messiah, whom the majority now worshipped as God incarnate.

This chapter examines the involvement of the Roman empire in administrating education in provincial cities during the High Empire, through regulation of exemption from tutelages. It uses the case of Aelius Aristides, who appealed against his own exemption being revoked. The chapter traces the various interests and forces which shaped provincial education both in the civic arena as well as in the imperial one.

According to a tradition recorded by the second-century Christian writer Hegesippus, the grandsons of Jude, Jesus’ brother, were denounced to the Roman emperor Domitian (81–96) because they, like Jesus himself, were descendants of King David. Fearing a restoration of David’s kingdom, Domitian summoned Jesus’ relatives to his imperial court and interrogated them directly: “Domitian asked them if they were descended from David and they admitted it. Then he asked how much property and money they had, and they replied that they only had 9,000 denarii between them, half belonging to each. And this, they said, was not in the form of cash but the estimated value of only thirty-nine plethra of land, from which they paid taxes and supported themselves from their own labour.” Having seen their calloused hands for himself, Domitian proceeded to question the men about Christ and his kingdom, “its nature, origin, and time of appearance.

This chapter explores the concept of ‘entangled legalities’ in the context of pre-modern and (post-)modern localised legal orders: regional, imperial, national, international, transnational and postnational. The first section explores the juridification of the international legal sphere; it contrasts private international law approaches with postnational law approaches, exploring the ways in which the recent postnational shift from hierarchical to heterarchical governance structures in fact leads us back to fundamental questions first posed by (Classical) Roman law. The second section focuses on the striking predominance of ‘strong’ legal norms in current analyses of transnational and postnational legal entanglements. The third section, in contrast, argues for a shift in scholarly emphasis away from ‘strong’ legal norms towards a more explicit focus on the importance of strategic legal argumentation in the constructing localised legalities, via a case study of the multiple juris(dictional)-generative practices revealed in the record of a specific, sixth-century, Roman (Byzantine) dispute settlement: P. Petra IV.39.

This chapter analyzes the gradual and escalating development of human rights and religious freedom protections over the past two millennia. The chapter surveys the discovery and accumulation of rights and liberties in biblical texts and their interpretations over the centuries; in classical Roman law and the medieval civil, canon, and common law sources that built on the Bible and Roman law; in the Protestant Reformation and the Protestant–Catholic conflicts and revolts that followed; in Enlightenment liberalism and modern constitutional reforms born of democratic revolution; and in twentieth-century international human rights documents beginning with the 1948 Universal Declaration of Human Rights. Setting up the more detailed studies that follow, the chapter identifies several essential and enduring questions about the intersections of religion, human rights and religious freedom that still confront states and churches today.

This chapter analyzes the gradual and escalating development of human rights and religious freedom protections over the past two millennia. The chapter surveys the discovery and accumulation of rights and liberties in biblical texts and their interpretations over the centuries; in classical Roman law and the medieval civil, canon, and common law sources that built on the Bible and Roman law; in the Protestant Reformation and the Protestant–Catholic conflicts and revolts that followed; in Enlightenment liberalism and modern constitutional reforms born of democratic revolution; and in twentieth-century international human rights documents beginning with the 1948 Universal Declaration of Human Rights. Setting up the more detailed studies that follow, the chapter identifies several essential and enduring questions about the intersections of religion, human rights and religious freedom that still confront states and churches today.

This chapter examines the involvement of the Roman empire in administrating education in provincial cities during the High Empire, through regulation of exemption from tutelages. It uses the case of Aelius Aristides, who appealed against his own exemption being revoked. The chapter traces the various interests and forces which shaped provincial education both in the civic arena as well as in the imperial one.

The chapter explores the paradoxes of the abundant sources for the west, where only a limited proportion of the population understood the dominant written language of communication, Latin; and until the fourteenth and fifteenth centuries, the reams of fiscal and judicial records which survive come mostly from a fairly narrow band of senior clerics. But the clergy were not monolithic, and their impact on the actual practice of governance varied north and south of the Alps. Much depended on the extent to which principles of Roman law and the habit of living in towns persisted. Yet there is striking consistency both in the prerequisite virtues of a ruler propounded by clerical writers and in the essentials of inauguration ritual. The law which a king swore to uphold at his coronation was not made at will: he was expected to govern consensually and heed good counsel. Who could give such counsel and what constituted reasonable constraints on the king’s volition changed over time. In some realms, assemblies developed the authority to approve taxes and become law-makers in the late middle ages: the monarch’s exercise of his authority was tempered by popular demand.

Chapter 6 circles back to the question of what we understand property rights to mean, earlier chapters having made a general case for property rights as a lens through which to study sovereignty and having addressed the question of who is the sovereign who holds those rights. The chapter looks at the roots of different aspects of contemporary sovereign rights in both Roman law and English contract law. It looks at what these different traditions of property have to say about sovereignty with respect to both domestic politics and international relations, and how they interact with other ideas that legitimate the modern state such as popular sovereignty and nationalism. It connects the Roman tradition with a national interest in autonomy, and the English tradition with a national interest in multilateralism. It highlights the conceptual tensions between these traditions as practiced in contemporary international relations.

This chapter considers Roman and canon law, the English common law tradition and French juristic thought. Roman and canon law jurisprudence of the fourteenth and fifteenth centuries are taken together because fifteenth-century jurists tended to reiterate the works of fourteenth-century ones. The chapter considers whether jurists contributed to the early development of international law. The impact of humanism on law is also discussed – notably in the case of Lorenzo Valla's destruction of the authenticity of the Donation of Constantine. The English common law tradition is considered through the writings of Sir John Fortescue: notably his justifications of English kingship. The French juristic tradition is considered through its two most important theorists: Jean de Terrevermeille and Claude de Seyssel. Terrevermeille made the most detailed contributions to the notions of the mystical body of the kingdom ever put forward in the Middle Ages. Seyssel, through elaborating the three bridles on royal power (religion, justice and the police) justified an absolute monarchy limited by higher norms, a solution fundamental for centuries throughout the ancien régime