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Ettore Majorana Foundation and Centre for Scientific Culture ETTORE MAJORANA FOUNDATION AND CENTRE FOR SCIENTIFIC CULTURE RIVISTA INTERNAZIONALE DI DIRITTO COMUNE 17 `ý+aAwR1 t GG EDIZIONI --IL--CIGNO Ro\1A 2006 ERicE KENNETH PENNINGTON The Birth of the Ius commmnune:King Roger II's Legislation Charles Homer Haskins wrote about the Normans in Sicily as elegantly and insightfully as anyone before or since. In The Normans in European History he expressed his admiration for King Roger II (1130- 1154)1: It is not too much to call the kingdom of Roger and his successors the first modern state, just as Roger's non-feudal policy, far-sightedness and diplomatic skill have sometimes won for him the title of the first modern king. Haskins may have admired Emperor Frederick II even more but argued that many of Frederick's virtues had their origins in Roger's cosmopolitan Palermo2. "No where else", he observed, "did Latin, Greek, and Arabic civilization live side by side in peace and toleration"3. He pointed out that Sicily was the "natural meeting-point of Greek, Arabic, and Latin civilization, and a natural avenue for the transmission of eastern art and learning to the West"4. The scattered artifacts and architectural monuments that remain of Roger's capital city, Palermo, provide startling and evocative evidence for Haskins' generalization. Art historians have demonstrated that Roger exploited all three cultures in his kingdom. They have argued that he imported objects, craftsmen, and materials from all over the Mediterranean to build and decorate his buildings. These multi-cultural artisans also provided him with his robes, the symbols of his office, and even his tombs5. Historians have long known that Roger adopted I (Boston-New York 1915) 233. 2 Ibid. 234. 3 Ibid. 235 a Ibid. b To justify this generalization would require many pages of text, illustrations, and numerous footnotes; I shall cite just a few works to give an entree into the literature: Ernst Kitzinger, The Mosaics of St. Mary's of the Admiral in Palermo (Dumbarton Oaks Studies 27; Washington, D. C. 1990); William Tronzo, The Cultures of his Kingdom: Roger II and the Capella Palatina in Palermo 23 Mxeni rENtiIxaro.N Byzantine and Arabic practices and utilized Greeks and Arabs in his court; he was indeed "a ruler between East and West"G. Roger II produced a body of legislation that scholars have dubbed the Assizes of Ariano. His legislation was important for several reasons: no other secular European prince promulgated such a sophisticated body of laws in the first half of the twelfth century; no other ruler ordered his legislation compiled into a systematically organized collection; his legislation reveals a close connection to the teaching and study of Roman law in Northern Italy; his constitutions may be the earliest example that we have of the nascent Ius commune's influence on secular law; and, finally the Emperor Frederick II's commission of jurists incorporated more than half of his legislation into the Constitutions of Frederick II in 1231 (also called The Liber Augustalis or The Constitutions of Melfi in the older literature7) that remained the law of the land in Southern Italy until the early nineteenth century',. If one wished to join Haskins in signaling the importance of the Normans in European history, one could do far worse than choosing Norman legislative activity in Sicily as a milestone in European legal history9. Scholars have debated, disputed, or (Princeton 1997); the superb exhibition catalogue Mobiles officinae: Die königlichen Hofwerkstätten zu Palermo zur Zeit der Normannen and Stattfcr im 12. and 13. Jh. (Vienna 2004); Josef Deer, The Dynastic Porphyry Tombs of the Norman Period in Sicily, translated by G. A. Gillhoff (Dumbarton Oaks Studies, 5. Cambridge, Massachusetts 1959). 6 For an introduction see Hubert Houben, Roger II of Sicily: A Ruler between East and West (Cambridge Medieval Textbooks; Cambridge-New York 2002; translated from the German by Graham A. Loud and Diane Milburn, from Roger II. von Sizilien, Darmstadt 1997) especially 99-165. Manlio Bellomo sketches the administrative and legal institutions of Roger's kingdom in Socielä c diritto nell'Italia medievale e moderna (Libri di Erice 30; 4th ed. Roma 2005) 195-242; see also the important study of Jeremy Johns, Arabic Administration in Norman Sicily: The Royal Diwan (Cambridge Studies in Islamic Civilization; Cambridge: 2002). 7 There is a growing scholarly consensus that the titles that scholars have given to Roger's and Frederick's legislation are misleading and inaccurate. I will address the question of the titles at several points in this essay. 8 The appearance of Wolfgang Stürner's magnificent edition of the Constitutions has made work on Norman legislation much easier. In his introduction he has dealt with many of the contentious problems surrounding Roger's and William II's laws; on the question of the title of Frederick's Constitutions see Stürner, Die Konstitutionen Friedrichs 11. für das Königreich Sizilien (Monumenta Germaniae Historica, Constitutiones et Acta Publica imperatorum et Regum, 2 Supplementum; Hannover 1996) 7.8. 9 Norman legislation in England during the twelfth century was not nearly as sophisticated as that of their cousins in the South. Patrick Wormald has written: "<In the eleventh and twelfth centuries> The Italian materials would alone argue 24 THE BIRTH OF THE HIS COMMUNE KING ROGER II'S LEGISLATION not recognized the reasons that I have just given for the importance of Roger's legislative activity. I will try to justify all of them in this essay. Roger's Legislation, its Transmission, and Sources The early years of Roger's reign were turbulent. He was born in December 1095. Although he ruled in his own name from 1112 as count of Sicily and Calabria, his authority and rule were precarious. His fortunes improved in the late 1120's. First he inherited Apulia from his cousin William in 1127, and in 1128 Pope Honorius II recognized his claim to the Duchy. Roger supported the wrong pope, Anacletus II, against Pope Innocent II in the Schism of 1130 but profited greatly. Anacletus granted him Sicily, Apulia, and Calabria. However, he trampled on papal prerogatives when he had himself crowned King of Sicily on December 25,1130. His temerity led to a long dispute with the papacy. In 1139 Pope Innocent II led an army against Roger. The pope was defeated and taken prisoner near Gallucio. Consequently Innocent was forced to recognize Roger's royal claims and dominions in the Treaty of Mignano. Two passages from the chronicles have led scholars to believe that 1140 was a key date for Roger's legislation. Romuald of Salerno wrote that around 1140 King Roger ruled over a tranquil kingdom in which chamberlains and justiciars maintained peace. The king promulgated new laws and abolished bad customs10. Historians have argued that an the existence of a vigorous legal profession. Leges Henrici and its ilk are confirmation that there was none in England", The Making of English Law: King, Alfred to the Twelfth Century, 1: Legislation and its Limits (Oxford 1999) 470, and more generally pp. 465-483. See Leges Henrici priori, ed. and trans. L. J. Downer (Oxford 1972) 31; see also the remarks of Mario Caravale, `Giustizia e legislazione nelle assise di Ariano', Alle origini del costituzionalismo Europeo: Le di assise Ariano, 1140-1990 (Ariano Irpino 1996) 3-20 at 18-20, who emphasizes the point that both Norman kings emphasize their unitary authority over their kingdoms and their administration of justice. io Romuald of Salerno, Chronicon, ed. C. A. Garufi, Rerum Italicarum Scriptores (Bologna 1928, also Cittä di Castello 1935) 226: "Rex autem Rogerius in regno suo perfecte pacis tranquillitate positus, pro conservanda pace iustitiarios camerarios et per totam terram instituit, leges a se noviter conditas promulgavit, malas consuetudines de medio abstulit". For a good treatment of in law custom medieval see Andre Gouron, `Coutume contre loi chez les premiers Publications glossateurs', de la Societe d'histoire du droit et des institutions des de droit anciens pays dcrit, III: Renaissance du pouvoir ldgislatif et genese de l'etat, ed. Andre Gouron et Albert Rigaudiere (Montpellier 1988) 117-130 and 25 FiE,\'NEIiI eD,tiý. ý: croN even more important piece of information is contained in the chronicle of Falco of Benevento. He described a council in the city of Ariano in which the king enacted "innumerable acts" and a "terrible" edict in which coins from Rouen were banned from the realm". Falco condemned Roger's debasement of the currency'2. Scholars have concluded from this passage in Falco's Chronicle that some form of a collection of laws preserved in Vatican and Montecassino manuscripts was promulgated at Ariano ca. 114013. The Vatican manuscript is a crucial piece of evidence for Roger's legislative activity and for legal culture in the first half of the twelfth Kees Bezemer, `French Customs in the Commentaries of Jacques de Revigny', TRG 62 (1994) 81-112, with a detailed bibliography. 11Falco of Benevento, ed. Giuseppe Del Re, Cronisti e scrittori sincroni della dominazione normanna nel regno di Puglia a Sicilia, 1: 1 Norinanni (Napoli 18.15) 251: "Rex... Arianum civitatem advenit, ibique de innumeris suis actibus Curia Procerum et Episcoporum ordinata tractavit. Inter cactera etenlin suarum dispositionum, edictum terrible induxit... ut nemo in toto eius Regno viventiuin romesinas [coins from Rouen] accipiat... et mortali consilio accepto monetam suam introduxit, unam vero, cui ducatus nomen imposuit, octo romesinas valentem".
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