Ordines Judiciarii

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A type of legal literature that flourished from the 12th to the 16th century. The ordines were treatises that described procedure in courts. Although some dealt exclusively with procedure in ecclesiastical courts, it was more common, at least from the 13th century, for them to treat also of civil procedure, according to Roman law and Canon Law. The similarities between the two procedures were more significant than the differences.

Purpose. The ordines were practical in purpose and design. They described, sometimes in extraordinary detail, judicial procedure step by step, from initial citation to final sentence and appeal. Some ordines treated only specific parts of judicial procedure (e.g., the examination of witnesses). The medieval ordines varied considerably in length, from just a single folio to a large folio volume. The distinction between the ordines and other similar works, namely formularies and consuetudines, was not precise. Generally speaking, formularies were collections of forms of instruments used in a legal action. Yet many formularies arranged the forms according to the steps followed in court and, in addition, introduced the forms with rubrics; this made them not wholly unlike many ordines which contained examples of forms. The formularies, however, were of greatest utility to notaries; the ordines, to practicing lawyers. The consuetudines described the procedural practice actually in use in a specific court without references to laws, canons, and authors; the ordines, on the other hand, stated general procedural principles with the usual references, besides including frequent references to regional and local laws and customs.

Important Examples. The earliest extant ordo is probably the very short Excerpta legum edita a Bulgarino causidico, composed before 1140. The Anglo-Norman school of canonists in their notable production of canonical works of great variety during the 12th century was responsible for many ordines (e.g., Ulpianus, Otto of Paris). An anonymous ordo called Ordo iudiciarius Causa II, quaestio I was completed in 1171, probably at Amiens or Reims; and before the end of the same century there appeared the Ordo iudiciarius Bambergensis (c. 118285), the Rhetorica ecclesiastica (c. 1190), and other ordines by such canonists as Peter Blois, William Longchamp, Peter de Cadorna, Eilbertus of Bremen, and Ricardus Anglicus. The treatise Actor et reus, a procedural dialogue, was composed in England in the early years of Innocent III's pontificate. Another important and popular ordo was that of tancred (c. 121416). It underwent many redactions, was translated into French and German, and became the model for subsequent ordines.

Those ordines composed after 1234 took account of the procedural titles in the Decretals of gregory ix. Among the extant treatises from this period are those by Gratia of Arezzo (after 1234), Peter Penerchio (Scientiam, c. 123540), william of drogheda (Summa aurea, 1239), Master Arnulph (Summa minorum, c. 125054), and the lay canonist giles of foscarari (c. 126366).

This type of canonical treatise reached its highest peak with the Speculum iudiciale of William duranti the elder, in 1272, which underwent redactions, acquired additions, and became the standard procedural treatise for the late Middle Ages. It exercised a commanding influence on the treatises written by John Urbach and John Berberius in the 15th century and by Ulrich Tenngler in the early 16th century.

Bibliography: Tractatus universi juris duce et auspice Gregorio XIII, 18 v. (Venice 158486). l. wahrmund, ed., Quellen zur Geschichte des römisch-kanonischen Processes im Mittelalter, 5 v. (Innsbruck-Heidelberg 190531). h. kantorowicz and w. w. buckland, Studies in the Glossators of the Roman Law (Cambridge, Eng. 1938). s. kuttner, Repertorium der Kanonistik (Rome 1937). s. kuttner and e. rathbone, "Anglo-Norman Canonists of the 12th Century," Traditio 7 (194951) 279358. j. f. von schulte, Die Geschichte der Quellen und der Oliteratur des kanonischen Rechts, 3 v. in 4 pts. (Stuttgart 187580). a. van hove, Commentarium Lovaniense in Codicem iuris canonici, v. 15 (Mechlin 1928), v.1. a. m. stickler, Dictionnaire de droit canonique, ed. r. naz, 7 v. (Paris 193565) 6:113243.

[f. d. logan]