Before the thirteenth century the kings of England and France made
law not so much by explicit acts of legislation as by the framing of
charters and of writs to ensure that their grants were observed. It is
probably because their most frequent acts were grants and confirma-
tions of the traditional rights of landholders that early medieval kings
have sometimes been regarded as doing no more than declare and
amend custom.^10 The revival of ‘scientific jurisprudence’, and with it a
concept of positive law-making, found its immediate expression not in
royal statutes but in Gratian’s codification of Church law about 1140.^11
His Decretumaimed to draw together and harmonize all the regulae
made for the Church in the course of eleven hundred years. Indeed, he
is conscious that he is dealing with an even longer tradition of law-
making, which spanned the entire history of human society and
stretched from Moses; through Mercurius Trismegistus, Solon, the
Twelve Tables, the named laws of Republican Rome such as the Leges
Iuliaeof Caesar and Augustus, the writings of the imperial jurists and
the decrees of the Christian emperors Constantine and Theodosius;
down to the councils and synods of the medieval Church.^12
Law-making in this tradition was not for Gratian a random exertion
of power: true laws were framed for the common utility of citizens and
not for private advantage, accorded with nature and with the usages of
the country, and were suitable to the place and the time. Gratian’s
legislator has the function of developing and correcting the organic
body of law of a particular community. Law (ius) was made up of laws
(leges), which were written constitutions, and of long-used customs, but
the latter could be taken for law only when written constitutions were
lacking. Good customs were laudable and to be followed where they did
not contradict law and reason; in particular the customs and traditions
of the Church were to be respected, but only if they were truly universal,
for ‘the locality does not commend the custom, but the custom the
locality’. In the eyes of the Church a custom without truth was simply
ancient error, and the local and various customs of the people were
Law-books, custom, and legislation 193Majestatem amongst Medieval Law-Books’, Juridical Review(1984), 109–10; R. R. Davies,
‘The Peoples of Britain and Ireland 1100–1400: III. Laws and Customs’, TRHS, 6th ser. 6
(1996), 7.
(^10) F. Kern, Kingship and Law in the Middle Ages, ed. and tr. S. B. Chrimes (Oxford, 1939),
is the classic statement of this view.
(^11) Glanvilland Regiam Majestatemboth begin with a statement, taken from Roman law,
of the legislative responsibility of the ruler: see Acts of the Parliaments of Scotland, i. 135; cf.
E. H. Kantorowicz, ‘Kingship under the Impact of Scientific Jurisprudence’, in Twelfth-
Century Europe and the Foundations of Modern Society, ed. M. Clagett, G. Post, and
R. Reynolds (Madison: Wisconsin UP, 1966), 98–9.
(^12) Gratian, Decretum, ed. E. Friedberg (Leipzig, 1879: repr. Graz 1959), distinctionesIV,
VII, XV: Gratian found his list of law-makers in Isidore of Seville’s Etymologiae, V. i; Harding,
‘Legislators, Lawyers and Law-Books’, 238–9.