Intro_continental_legal_science [Unlocked]

Middle Ages, some rulers had founded universities specially intended for their subjects and to provide for the needs of their administration and government.)

The first universities were not deliberate foundations: they were spontaneous associations or corporations…

The universities were elitist, first in the intellectual sense. The courses of study were long (seven years or more was normal) and demands were high. Familiarity with Latin was essential in order to take part in 'disputations', as well as to learn the Corpus iuris (often by heart) and the Gloss. Secondly, the small circle of students was elitist by social origin. Studies were often pursued abroad and were expensive; bursaries were rare… most belonged to the nobility or the haute bourgeoisie, which in early modern times supplied the administrative classes and the noblesse de robe. … Finally, the students made up an elite by virtue of their rights: members of the university enjoyed numerous privileges, notably that they were not subject to the jurisdiction of the ordinary courts.

In early modern times in particular the circle of university educated lawyers tended to form an exclusive elite… <in> administration and legal practice.

Bellomo M. The common legal past of Europe (1000-1800). p.

123.

The Spread of Universities in Europe.

One glance at a map of Europe in the mid-15th century shows that every region proclaimed its vocation for university teaching … there were everywhere tens of universities in which the original libertas scholarium <liberty of the students> was entangled in and governed by the apparatus of the studium and student associations (universitates, nationes) and professors’s associations (collegia) and had less and less room for action. At the same time, universities tended to have a political and cultural bent strongly linked to the fortunes of the principalities or

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the <kingdoms> and determined by the will of the lord (prince or sovereign) or the acquiescent or competing will of the bishop or the pope. The cities and the patricians who ruled them could also have a part in university affairs, proof positive that the problems of university teaching had become just as important as problems and views connected with the intellectual disciplines that the universities cultivated and transmitted from one generation to another. (p. 123)

Why Were Universities So Successful?

Although the universities faced an impressive number of problems and although it is striking to observe how deeply they were rooted in the city and its neighboring territory and how greatly they contributed to the prosperity of vast segments of society, we cannot ignore other possible reasons for the schools’ success…

The only explanation is that they did so because the law that was taught in those institutions was of vital importance for individuals, families, and kinship groups; for the cities and for the kingdoms, for the emperors, and for the church… because the law had to be known in all its aspects; it required full mastery if it was to be used not only on occasions for learned theoretical reflection and for demanding scholastic debates but also in the courts, in notarial practice, in arbitration to avoid lawsuits, and in the peaceful acts of any person who enjoyed property and wanted to dispose of it to his own profit or that of his heirs. Because it was a law essential for acts of public governance, for the legitimation of power, conquered or inherited, for tutelage of the interests of groups or segments of society. Because it was a law indispensable for nourishing the hopes of people engaged in administrative careers who populated the emerging structures of local bureaucracies, lay and ecclesiastical. Thus, it is not only reasonable but necessary to see these as the reason for the universities’ development: otherwise, we would have to credit the rise and the success of the European universities to collective folly. (p. 124)

… the programs of study of European schools of jurisprudence –

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both… royal, imperial, or papal foundation – came to concentrate uniquely on the civil and canon ius commune.

The Role of Learned Jurists in the 14th century

Bellomo M. The common legal past of Europe (1000-1800). p. 195–202.

the jurists <controlling legal science>… achieved a social rank that translated into… prestige, power, and wealth. This occurred in two closely related ways.

<Already in the 12th century> Nigelius Wireker wrote… “Jurists are everywhere where there is money and power, at the king's court and in the dwelling of the pope, in civil society and in die monasteries." They assumed an aspect and a function: 'They advance stiff as a ramrod, and they cling to kings."

Fables and <student> poetry also treated the theme of a rich and powerful jurisprudence. … The law was a road to the summits of power. This was how the common people viewed legal science…

… It was true that the legal field remained clearly distinct from those of ethics and theology, but that distinction by no means signified a total separation, among other reasons, because intuition or observation showed them to have a common goal. Thus, <glossator> Placentinus… <argued> that <legal science> was a "most holy thing,"… that it taught everyone, young scholars in particular, the three cardinal qualities of character, which were generosity, strength of soul, and even chastity. Placentinus explained all this in the cathedral of Bologna, because… the school year was always begun in the house of God with the professors normally speaking right along with (although after) the ecclesiastics who carried out the religious part of such functions. This setting inevitably evoked the idea, current at the time that the law contributed in its own distinct way to the “betterment to a perfect state”

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of humankind that was the focus of all medieval culture.

The <idea of> universality of the Roman and canon law and of the "system" of the ius commune, conceived of in the dual perspectives of coordination within the ius commune and coordination between the ius commune and the ius proprium, had consequences…

First, the jurists' position was strengthened vis-à-vis heads of government but also in relation to the craftsmen and merchants who furthered production and commerce. They also reinforced their ties to the ecclesiastical world, because the two groups displayed common intentions…

Second, a ius commune and a universal "science" permitted, postulated, and by their very nature required an extremely open communication among those who undertook legal studies, because jurists could easily recognize one another, not only when they came from the same city or the same region but throughout Christendom… We have the phenomenon that the sociologists call a "horizontal integration of the elites" among the jurists of the various cities of Europe… This formidable process of horizontal integration multiplied its own powers of expansion… in direct proportion to the spread of universities throughout Europe.

Thanks to a universal science and a universal law, a vertical integration was also realized among those city elites, the pope and the emperor, who reigned at the summits of the two universal organizations, and the sovereigns of the various countries of Europe at the summits of the great monarchical organizations. There were in fact thousands of opinions given, letters written, and instances of technical assistance rendered to the pope, the emperor, or the kings on the part of juristdoctors, who always made use of the ius commune, civil and canon.

… the chief components of legal reality in the fourteenth century was the unity of the law (ius commune and ius proprium), the universality of legal science, the solidarity of jurists as a group, which

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the unity and the universality of the ius commune helped them to achieve, but which was also aided by their close relations with the local and central political powers.

… The political class has always had to deal with jurists, even on the political terrain of power struggles between the jurists' corporations and the constituted governmental powers. The law was repeatedly suggested as a means for setting limits for the actions of the lord or the prince.

Once again, Bartolus gave a clear statement of the question: the lord was not a tyrant <if he> acted "according to the law”; a lord was a tyrant if he "did not rule his principality legally”. Thus, the jurist reserved to his own domain an area of specific pertinence that excluded lords and princes: "Because today Italy is full of tyrants, we may look to jurists in matters touching tyranny” – <so reads a 14th-century manuscript in the Vatican Library>.

<While> the fourteenth-century "lord" accepted the idea of listening to and even submitting to the jurist's judgment, but the "prince" of the new times was no longer willing to expose himself to that judgment or to respect the confines of an exclusive legal domain.

The Bartolists

Bellomo M. The common legal past of Europe (1000-1800). p. 210–211.

…<well until the 18th century> the juridical scene in northern Italy was still largely dominated by a traditional method that recognized Bartolus of Saxoferrato as its figurehead; hence, those who continued Bartolus's work and shared his stance and his vision of the law, either out of interest or from conviction, were known as Bartolists.

The ‘Bartolist’ system also dominated <the practical jurisprudence in much of Europe until the age of the late 18th

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century>.

Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 52– 55.

2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000, chapter 4.

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, p. 71–75. <LMS resource>

4.Bellomo M. The common legal past of Europe (1000-1800). Washington: The Catholic University of America Press, 1995. p. 74–77, 126–148, 184–202. <LMS resource>

Supplementary readings

1.Brundage J.A. The rise of professional canonists and development of the ius commune, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung, 1995, № 81, p. 26–63. <DigiZeitschriften>

2.Dawson J.P. The oracles of the law. Michigan, 1968, p. 138–145. <LMS resource>

3.Gest J.M. Notes upon continental legal literature // University of Pennsylvania Law Review and American Law Register. 1921. Vol.

69.№ 2. P. 121–141. <jstor.org>

4.Tamm D. Roman law and European legal history. Copenhagen: DJØF, 1997, p. 206–208. <LMS resource>

5.The Creation of the Ius Commune: From Casus to Regula. Eds. John W. Cairns, Paul J. Du Plessis. Edinburgh, 2010, chapters 1, 3. <LMS resource>

6.Verger J. Schools and universities // The new Cambridge medieval

1998. vol. 7 (c. 1415-c.1500), p. 220–242.

7.Verger J. The universities // The new Cambridge medieval history. ed. M. Jones, Cambridge University Press, 2008. vol. 6 (c. 1300-c. 1415), p. 66–81.

of the Italian Commentators?

3)How did the sources and methods of the Commentators differ from that of the Glossators?

4)What examples of biased interpretation of the legal sources can illustrate the methods of the Commentators?

5)What is consilia and why they were important?

6)How did the Decretalists differ from the Decretists in terms of the legal sources and methods of their interpretation?

7)What does the ius commune mean? How did it differ from ius proprium?

8)What laws were of paramount importance for the ius commune? Why?

9)How were medieval universities connected with the

ius commune?

10) How can you describe the role of learned jurists in the 14th and 15th centuries?

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Topic 4. Expansion of ius commune in Western Europe in the 13th to 15th century

Topic outline

Causes of expansion of ius commune in France, Spain, Germany from the 12th to 15th centuries. Political and legal fragmentation under the feudal system in Western Europe and the rising need for common legal rules. Theoretical and practical reception of Roman law in the West. A growing juridical nature of public administration through borrowing from ius commune. The rules of the ‘learned law’ applied to regulate economic transactions.

Demand for legal knowledge. Spread of the universities in Europe, with support from the church and the secular rulers. The prevalence of mos italicus and the rise of legal profession.

Ius commune for the Roman Catholic Church. Learned men’s assistance in editing the sources of the canon law, in church court proceedings, in church administration. Expansion of the jurisdiction of the church courts in the Middle Ages. Church and preparatory steps for reception of Roman law.

Ius commune and secular powers. Learned men at kings’ service. Written editions of local customs with the help of the legal science. Replacement of local customs by ius commune. Discrepancy in expansion of ius commune in various parts of Western Europe.

Some examples from Southern France (Lo Codi), Northern France

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(Coutumes de Beauvaisis), Spain (the Siete Partidas) and Germany

(Constitutio Criminalis Carolina).

Excerpts from Readings

Expansion of the ius commune in the West.

There are different terms to describe the process of the expansion of the ius commune in Western Europe can be conceptualised:

––legal transplant, acculturation, or assimilation (academic publications in English)

––revival, or renaissance (publications in French and Italian)

––reception (publications in German)

The (originally) German term ‘reception’ is predominantly used in Russian publications, as well.

The concept of Reception of Roman Law.

Van Caenegem R.C. An historical introduction to private law, p. 46–47.

Over the centuries, Roman legal doctrine permeated legal practice by various paths (which will be examined), and the medieval learned law thereby influenced the development of law to a greater or lesser extent in all parts of Western Europe. This reception of a foreign law may be called legal acculturation or a 'legal transplant'. (Alan Watson)

There is nothing exceptional about the reception of a foreign legal system which is regarded as technically superior. Sometimes this is a sudden, deliberate process; sometimes a slow infiltration, a gradual, imperceptible osmosis. A well-known example of assimilation of the

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