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The Birth of Territory$
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Stuart Elden

Print publication date: 2013

Print ISBN-13: 9780226202563

Published to Chicago Scholarship Online: January 2014

DOI: 10.7208/chicago/9780226041285.001.0001

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The Rediscovery of Roman Law

The Rediscovery of Roman Law

(p.213) Chapter Seven The Rediscovery of Roman Law
The Birth of Territory

Stuart Elden

University of Chicago Press

This chapter discusses the importance of Roman law, and in particular its codification under the Byzantine Emperor Justinian, to the question of territory. The main focus is on the two most important post-glossators or commentators: Bartolus of Sassoferrato and Baldus de Ubaldis. They put the law to work in fourteenth century Italian cities, and crucially made the argument that territorium and jurisdiction went together. Crucially territorium becomes not simply a property of a ruler, but the object of rule itself. These are practical arguments - Bartolus’s work on river boundary law, for instance, is a combination of legal argument and practical techniques. The final part of the chapter looks at how this work provided a missing basis for assertions of temporal power: in distinction to the universal aspirations of the papacy, temporal power was geographically determined. Within his kingdom, the king had the same power as the Emperor in the Empire. The legacy of this work is found in the reform of church law of Nicholas of Cusa and in secular legal theorists such as Francisco de Vitoria’s writing on colonisation and Hugo Grotius’s work on the law of the sea and the rights of war and peace.

Keywords:   Justinian, Roman law, glossators, territorium, Bartolus of Sassoferrato, Baldus de Ubaldis, river boundaries, Holy Roman Empire, Francisco de Vitoria, Hugo Grotius

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