The Jurisprudence of the Forced Share: The High and Late Middle Ages
Norwegian Academy of Sciences, “Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today” (Routledge, Ole-Albert Ronning, Helle Moller Sighe & Helle Vogt, eds., 2016 Forthcoming)
89 Pages Posted: 19 Jan 2016
Date Written: 2016
This paper represents a continuation of themes I explored in The Jurisprudence of the Forced Share in the Ancient World. The article is divided into four main sections. In the first two sections, I examine three basic sets of ideas that would prove of vital significance to medieval lawyers as they justified the forced share. These were: (1) the ideal of reciprocity that came to be expressed in the noun pietas; (2) the relationship of natural law and natural rights to the moral obligation to provide for one's young; and (3) the expectation that all families would be characterized by an ideal the scholastic writers called natural love. The second two sections of the paper then explore principally the writings of the medieval canon lawyers and focus on several related themes: (1) the reemergence of the idea of testamentary freedom and the corresponding effort to restrain it through the mechanism of the forced share; (2) the jurisdictional claims of the Church to interpret wills and to judge testamentary disputes; and (3) the justification of the forced share as the final legal expression of pietas, reciprocity, natural love and natural rights.
Keywords: Roman Law, Law of Succession, Inheritance, Children, Marriage, Family, Familial Affection, forced share, inheritance, canon law, Catholic Church, medieval law, reciprocity, children, families, spouses, natural rights, natural law, Roman law, testamentary freedom, wills and trusts
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