The ius commune and the Making of Medieval Rights Theory, 1100–1360

Abstract

This dissertation is a study of the idea of individual rights in medieval European law and theology, ca. 1100–1360. It examines the terms dominium and ius in Roman juristic usage, and explains how and why the idea of ius (which means both “law” and “right”) changed in late-medieval law and theology. Two separate ideas of individual rights appeared in the later middle ages, one in academic law, and the other in canonistic and theological writing. The former remained beholden to the systematic jurisprudence of the Roman jurists, insofar as it preserved the distinction between rights in property and rights arising from obligations. The latter often ignored this distinction. As a result, the later middle ages transmitted to early modern European thought two incompatible ways of thinking about rights. The dissertation suggests that their incompatibility had long-lasting consequences for rights theories in European and Anglo-American law.