Intro_continental_legal_science [Unlocked]

first kind (apart from the reception in Germany at the beginning of modern times) is the decision of the Japanese authorities in the nineteenth century to introduce western (mainly German, although also French) civil law, in a conscious policy of westernization aiming to free the country from its feudal shackles. In this instance, Japan opted for a foreign law, but for a live contemporary one.

By contrast, the assimilation of ius commune in the Middle Ages depended on the law of an empire and civilization which had vanished centuries ago, and of which the Corpus iuris was (so to speak) merely an embalmed relic. Thus the thread of a thousand-year evolution, which had provisionally broken off in sixth-century Byzantium, was taken up again in twelfth-century Italy.

Reception of Roman law as a unique phenomenon in world history.

Reception of Roman law as a particular intellectual and social process of rationalisation of public life

Wieacker F. A history of private law in Europe with particular reference to Germany, p. 7.

European legal science took off at the beginning of the High Middle Ages when scholars applied to the study of the Corpus Iuris the forms of explanation and instruction inherited by the trivium (i.e. grammar, logic, and rhetoric) from late antiquity. Jurists who were trained in such schools, soon began to assume the functions and to develop the techniques of diplomacy, administration, and finally judicature. Their dominance in public affairs ensured forever the peculiarly legalistic character of Western society, its habit of seeing problems as legal and discussing them rationally, a habit which has stamped society, the state, and the economy, even contemporary administrative technology, in such a way that life would be unimaginable without it. It distinguishes Western society from all other cultures known to us.

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The ‘reception’ of Roman law is nothing other than the diffusion throughout Western and Central Europe of this intellectual and social process.

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[A note from the instructor] In the recent publications scholars prefer to write about the expansion of the ius commune, and not just that of the learned Roman law. This underlines the importance of the canon law and the ecclesiastical courts which paved the way to the receiving of both legal systems of the ius commune in Europe.

Causes of the expansion of the ius commune.

Van Caenegem R.C. An historical introduction to private law, p. 71–76.

Any historian who is not content merely to recite facts must ask himself what caused the remarkable but incomplete success of Roman law in the Middle Ages and early modern times.

…In part it must be attributed to the intrinsic qualities of the Corpus iuris, which is the product of a highly developed civilization and the long experience of one of the greatest legal nations in history.

…Roman law appeared to be a modern system, progressive, orientated to the future, while customary law was traditional, antiquated and bound up with an increasingly obsolete stage of development. Roman law also had the advantage of being taught and studied in the universities, which in the late Middle Ages represented the centres par excellence of learned thought… Jurisprudence was a skill which had necessarily to be acquired in the school of Roman law.

Yet the intrinsic qualities of the ius commune do not alone explain the Romanization of the West. The teaching of the Bolognese masters, excellent though it was, would hardly have been sufficient in the

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absence of other powerful social factors.

The church was the first of the great powers of the medieval world to lend resolute support to Roman law… Centralization, hierarchy, bureaucracy, rationalization from above, the importance of law and administration: these were all elements contained in Roman law which the church authorities could use…

Kings and emperors also realized the advantages they could derive from Roman law… For the sovereigns of the late Middle Ages, the Corpus was above all an inexhaustible reserve of arguments to reinforce their positions. The Corpus says nothing about the rights of the people or limits on the power of the state; it knows nothing of democracy. Principles which support the omnipotence of the emperor and the majesty of the state therefore stand out all the more clearly.

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The jurists.

The authorities of the emerging nation states secured the services of graduates of law faculties. In addition to ideas and rules, the universities could supply officials trained in the reasoning and argumentation of the learned law. From the thirteenth century, legists are to be found occupying influential positions in central institutions and courts of justice even beyond the Mediterranean world. In France they sat in the Parlement de Paris from the mid-thirteenth century…

Large and powerful cities were also conscious of the advantages to be derived from having officials in their service whose legal education had equipped them to carry out the specialized tasks of municipal administration… the professional education offered in the law faculties could be turned to their advantage, and that in the huge arsenal of the Corpus it was not too difficult to discover quotations which could support their own interests.

… medieval thought did not object to citation of ancient sources completely out of context or their application to situations for which the

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Romans had never intended them. The Corpus iuris could therefore satisfy the most diverse demands.

In the twelfth century Roman law was still regarded as an instrument of imperial power; but its application in the thirteenth century in the cities of northern Italy (where Bologna had become a staunch focus of opposition to the emperor) was such that in 1224 Frederick II created a university in Naples favourable to his own interests, where the Corpus would be interpreted and elucidated more 'correctly'…

Finally, legal circles made their own contribution to the diffusion of the learned law. Advocates, always on the lookout for arguments to suit their own cases, did not hesitate to cite the Corpus iuris to impress their audiences.In his defence a litigant had no option but to call another advocate who could either cite other texts of the Corpus…

Besides, it was useful not just for the parties but for judges too, when confronted with new problems: the ius commune was so extensive and the consilia so abundant and detailed that, in the absence of a customary rule, judges could be sure of discovering a principle in the learned law…

Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity over Two Millennia (2002), p. 73–86.

The reromanization of the West

That Western Europe would one day discover Justinian’s law book was to be expected: renewed contact with the Greek world and the Crusades – inter alia to Constantinople – would have seen to that. And one can suppose that the discovery would have stirred interest and caused academic discussion, comparable to present-day studies of the law of the Egyptian papyri or the Assyrian clay tablets. It was, however, far from self-evident that the ‘rebirth’ of the Corpus iuris in the twelfthcentury School of Bologna would be the start of a triumphal march that would change the legal face of Europe. Why should the discovery of the

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laws of a bygone civilization affect the West so deeply? And why should the previously unknown law book of a Byzantine emperor, who had ruled over a tiny part of the Latin world, change the character of Western law? … It is obvious that this romanization … was not caused by one single factor: complex influences were at work...

Legal causes

There was, to begin with, a purely legal cause, i.e. the intrinsic quality of the Corpus iuris and the medieval teaching it produced. European law in the eleventh and twelfth centuries was archaic, feudal, provincial, harking back to the Germanic tribal past, and administered orally. Very little was put in writing, and of law schools, law books and legal treatises there was very little: only some poor, unsophisticated and shapeless attempts, guided neither by central legislation nor by great central law courts.

The ius commune, by contrast, offered everything the archaic ‘first feudal age’ lacked. Its great law book contained the best the Romans, the most gifted jurists the world had ever seen, had written down. Its language was elegant and technical, the norms and ideas clearly formulated and presented in a structured, systematic way: the sheer quality of the Digest was bound to dazzle people who were looking for the best law available. The teaching of the Schools produced professional jurists, Roman-canonical procedure demanded professional judges, and papal legislation, often emanating from law professors, sustained the rise of a law, as required by logic and progress. To people who were used to parochialism, the universality of Roman law must have been impressive: here were a legal system and a legal science that had belonged and could belong again to the whole civilized world. The vision arose of a law that was timeless and literally utopian, in the sense of belonging to no particular place. The definition of contract and of the obligations it creates, and the enumeration of the other sources of obligations – these were abstract and self-evident data, which seemed to flow from reason itself and to be equally valid in ancient Beirut or medieval Bologna and Orleans… how revealing was

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the discovery of a court procedure based on rational enquiry and ignorant of the ordeals of water and iron and judicial combat (which was not much more than a slightly camouflaged fight to the death between the parties in ‘litigation’).

Political causes

…the ‘common learned laws’ of the Faculties provided intellectual ammunition to the ecclesiastical and secular leaders who were building modern, centralized power structures. Popes, kings and regional princes were leaving the archaic feudal age behind and erecting the well-ordained and forcefully led organizations that became typical of modern Europe. It is obvious that the message of the late imperial Corpus iuris fitted their plans perfectly, as it was full of the majesty of the state and the unlimited power of the emperor, who ‘was not bound by the laws’ and whose ‘pleasure had the force of law’… The Corpus iuris favoured a centralized and hierarchical state and an organized, streamlined bureaucracy.

…If the ius commune influenced the modernization of government, it did not cause it: things had started to move before the professors of law were teaching and their pupils manning the councils of state and the law courts…

…Modern statehood was produced not by Justinian, but by rulers who wanted to provide orderly government and by their subjects who wanted efficient administration. The intellectuals and the sophistication to carry the reforms through came, however, to be largely provided by the ius commune and the two Faculties of Roman and canon law.

Cultural causes

… <In the Middle Ages> Truth was discovered, not through observation but through correct understanding of the Ancients, the ‘giants’ upon whose shoulders the medieval ‘dwarves’ were sitting. It was no different with jurisprudence. Here also one great authority from Antiquity contained the ultimate perfection in legal science, so the best

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way to become a jurist was to assimilate the timeless revelation of the Corpus iuris. In this climate of obedience to ancient authority the Christian Middle Ages had to overcome the objection that it was of pagan origin… So the way the Corpus became the object of veneration and literal explanation fitted perfectly into the general approach of the age to the giants from Antiquity (and, of course, to the holy books of Christendom).

Economic causes

…The Corpus iuris was the product of a highly developed cosmopolitan economy and was clearly more suited to the emerging West of the later Middle Ages than the customs of the closed agricultural and manorial world of the motte-and-bailey castle…

…It was only after the School of the Commentators had turned its attention to the practical needs of its own time that the ius commune became directly relevant and eventually affected the contracts and obligations current in every-day life.

Ius commune – a good thing?

… Until the twelfth century the whole of Europe shared the same archaic feudal customs, but then society began to move towards a more adequate and rational law. On the Continent this was eventually achieved through the assimilation, in varying degrees, of the ‘learned written laws’…

<Without ius commune> Whatever way the Continent took, its law would have looked – for better or worse – very different from what exists today. There would have been more national systems, as Europe would have lacked the cosmopolitan learning of the Schools, and those laws would have been based on custom and the case law of superior courts rather than legal theory.

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How the ius commune shaped positive law.

Bellomo M., The common legal past of Europe (1000-1800), p. 152–154.

Anyone redacting a norm as a way to fix a fluid custom in writing or to flesh out the will of a citizen assembly or a prince used the Latin language and… the lexical paraphernalia specific to the Roman jurists. Thus, such a person knew, and had to know, Justinian’s Corpus iuris civilis, because the technical terms of juridical science were set out in that corpus and transmitted by it. If he spoke of dominium (proprietary right), of obligatio (legal obligation), or of emptio-venditio (purchasesale), he necessarily did so in reference to the meanings that those terms bore in the laws of Justinian, whether he wanted to use them in that precise sense or to more away from that meaning.

The notary was in an analogous position with respect to the wishes of the private persons who expected him to help them make out a will… The notary had to use a prescribed language (Latin) and a specific technical language (that of the ius commune)…

In both cases, the increasing precision in the technical language perceptible in the sources beginning in the late eleventh century can be explained only if we keep in mind that knowledge of the ius commune was essential for the redactor of a law or for the notary…

The interpreter of the law, be he a judge who had to hand down a decision or a lawyers who needed to construct a defence, was involved in a similar operation. Even if a norm of ius proprium (royal, communal, or other) or a clause in a contract that needed to be interpreted was an obligatory point of reference, the judge or the lawyer could not ignore the common and accepted meanings of the technical terms that he found in the law or in the notarial act. In other words, he could not be unaware of the ius commune, which established the significance of those terms and which even designated… the legal concepts and doctrines that were the inheritance and the wealth of every

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jurist.

…Thus, it was totally irrelevant whether the ius commune, as positive law to be applied, was first or last in the hierarchies of sources of law. What mattered were simply the concepts and doctrines that were the stuff of the ius commune, the principles that inspired it, and the values that it expressed.

…they gave concrete form to a system of values and of superior and absolute principles. They offered a standard of evaluation, a model of representation, and a tool for understanding that surpassed the fortuitous and contingent nature of the ius proprium. Thus the ius commune, in its objective and metahistorical consistency, also became functional, in and of itself, for safeguarding the interests of the jurists and of their class, whether the jurists were aware of this function or not, and whether they appealed to and stressed the universality of the ius commune…

Robinson O.F. European legal history: sources and institutions,

p. 69.

In spite of this primacy of the statutes, the civil law (the doctrines of the Commentators) was the general subsidiary law and it could prevail in various ways. First, statutes might expressly incorporate the Roman law or ius commune, and to that extent, the Roman law shared the primary authority. Second, statutes might use technical terms or concepts of Roman law, which would almost inevitably be interpreted in the civilian sense, as, for example, when referring to legal capacity or to pupils or minors. It was accepted that statutes were to be interpreted in such a way as to involve the least divergence from the civil law. For example, <commentator> Dinus, in his Cinsilia, says: ‘Doubtful words in statutes are brought within the interpretation and understanding they bear in the ius commune’, and Baldus similarly held that statutes were to be interpreted so that they involved the least correction of the civil law. Even when statutes attempted to restrict this extension by requiring strict interpretation in the sense in which they had been passed, it could

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often be argued that they required declaratory interpretation in the light of other available sources of law.

Thus the giving of opinions by civilian doctors provided a communis opinio, which ran far more widely than the particular jurisdictions, and so played a major part in the creation <and the expansion> of the ius commune. In Italy the work of the doctors can be seen as a substitute for the court of appeal or legislative authority that made possible the existence of a common law in other countries. The opinions of men like Alexander Tartagni of Imola (doctor of civil and canon law at Bologna), who himself selected the first four volumes of his Consilia for printing before his death in 1477, or Philip Decio, who was also a canonist as well as a civilian, and for three years a judge of the Parlement of Grenoble <in France>…

Hierarchy of the Sources of Positive Law.

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

151.

Ius commune and Ius proprium as Positive Law: Hierarchy of the Sources.

… legal sources in Europe came to be organized in order of precedence as a way to provide judges with guidance and a basis for their decisions. We usually find the highest priority given to the law that was the most direct expression of the organs of government: the royal law in various European kingdoms, the statute in the municipal communes, or the feudal law in territories ruled as counties, duchies and principalities. Customary law had a lower priority: the judge could apply it when he failed to find a disposition that fit his case in the law of the first level of priority. Failing these, the judge was either invited to adjudicate according to justice <that is, according to an equity that he was to determine in the specific case before him> or permitted to search for an appropriate norm in the corpus of civil and canon laws of the ius

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