Medieval Legal Theory: Jurisdiction and Conflict of Laws

Conflict of Laws and Normative Criteria

Commentators developed casuistic criteria for decoupling the problem of conflicts between norms. These norms belonged to a unique pattern of "national" law or political subjection. For instance, contracts and wills were governed by the law of venue (the forum law); personal status was governed by the law of the person concerned. These solutions are subsumed under the formula that the scope of the rules is dependent on the level of power that issues them. For example, in the case of real estate, the law agrees with the territory; in the case of individuals, it coincides with the study of subjects. This approach promoted the adoption of flexible solutions and the rejection of rigid, abstract, and immobile casuistry.

The Theory of Naturalism of Political Power

This theory concerns the order and legitimacy of political power, including the authority to make rules of law and declare the law. It is manifested in the commentators' sensitivity to the order implied by reality and the variability of assumptions that this reality necessarily entails.

• In the early Middle Ages, an authoritarian conception of legislative power and jurisdiction dominated, under which it was an attribute of the prince. All powers exercised in society were seen as having this source. Legislative power was the result of a delegation of jurisdiction. The gloss publicist insisted on the nature of power when defining a public authority with the power to say the right and to institute equity.

There were various different powers, hierarchies, and scopes. The commentators argued that powers in society have a natural origin, independent of any top-down award, as the very existence of social bodies naturally implies their management—this is the right of self-governance. This tends toward a conception of political power as belonging to the same order of things which, by instituting organized human bodies, had issued a self-regulatory authority. As Baldo states: "There are people under the law of nations, but the government cannot exist without laws or statutes; hence, by the mere fact of existing peoples, they have a government implicit in their own being."

Since society was fragmented and divided, power could not logically always have the same content. Thus, the late medieval theory of iurisdictio distinguished various levels and spheres of power.

Distinctions in Iurisdictio

At the base of the conceived iurisdictio was the legal distinction between:

• Ordinary Jurisdiction: As provided by law or custom, and comprising a totality of causes.
• Delegated Jurisdiction: A privilege granted for a special kind of cause, a particular case, or an individual.

The Concept of Imperium

Differing depending on the scope of powers, different subtypes of iurisdictio emerged, notably imperium.

• Imperium: A set of powers that the Court has on its own initiative. The imperium is divided into:
• Merum Imperium: Which includes the highest political powers seeking the usefulness of the community as a whole.
• Mixtum Imperium: Comprising the power to act independently of the judge and see to the realization of particular interests.