Intro_continental_legal_science [Unlocked]

commune.

… ius regium, statutum, consuetudo, ius commune. These terms are all placed on the same plane, in the sense that they are always understood within the context of ‘positive law’ and with the meaning they have in that context…

The geography of the expansion of the ius commune.

Van Caenegem R.C. An historical introduction to private law, p. 67–68.

… the spread of learning in Roman law was not limited to canon law… Roman law increasingly affected legal life and practice in Europe in general. The degree of Romanization varied greatly from one country to another, but none completely escaped. The Roman law of the medieval universities therefore shaped and steered the development of law throughout Europe.

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In some areas of the Mediterranean world, learned law was adopted as early as the thirteenth century as the basis of the legal system.

In Italy and the south of France the learned Roman law penetrated more easily owing to the tradition of Roman vulgar law. In Italy the university centres of learned law were clearly an important factor in Romanization. Twelfth-century Italy was also the European country in the most advanced state of development, not only politically but also socially and economically. There were strong cultural links between the Occitan region in southern France and Lombardy and Tuscany: the Italian glossators had already lectured in the south of France in the twelfth century, and universities and law teaching emerged there during the first half of the thirteenth century. The conversion of Roman vulgar or customary law into learned law could therefore take place in Italy

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and in the Midi spontaneously and without official intervention. Practitioners there recognized without difficulty the superiority of the ius scriptum <written (learned) law> taught at Bologna, and naturally preferred it to the local primitive and underdeveloped laws which had grown up over the centuries on the basis of Roman vulgar law.

In France, the voluntary adoption of the ius scriptum in the south and the preservation of ancient Germanic customary law in the north brought about and institutionalized a division between the region of written law and the region of customary law which was to last until the end of the ancien régime. The <French> Crown tolerated this division, but it always refused to recognize that Roman law was applied in the south because of imperial authority; instead, in its view it was founded solely on the ancient practices of the region, which had to be respected by the king…

At a later period the learned law was introduced and adopted as national law in some northern regions, and replaced disparate and inconvenient customs. This was the case in Germany, where the Reception began towards 1500…

Lopez P. Comparative Law in a Changing World. p. 57.

Eventually, through the Bologna lectures and the dissemination of Roman law through its scholars filtering through to the courts and legal practice, Roman civil law, as interpreted by the Glossators and Commentators, became the basis of a common body of law and legal commentaries, a common legal language and a common approach to teaching and scholarship. This is often called the common law of Europe, or the jus commune. Hence, from the 12th to about the 16th century, the Corpus Juris became the basis for legal science throughout Europe. Judges could apply Roman law and not local laws or customs to cases that came before them because of the existence of a ‘pluralism of legal sources’, which meant that courts were free to apply the law from a number of possible sources and, thus, from any book of authority, not being confined to local customs if they were found

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lacking. Roman law was later accepted in the Italian courts as part of the custom of the courts.

As far as other ‘Receptions’ of Roman law were concerned, large scale instruction in Roman law in France only took place in the 13th century… Of course, in Italy, Spain and southern France, Roman law had never completely disappeared. In northern Europe, only customary law remained, which varied from place to place. In northern France, the Reception began much earlier than in Germany, but was less widespread and happened somewhat gradually. The German courts did not receive Roman law until the end of the Middle Ages, around 1495… By all accounts, the Reception was completed in the course of the 16th century.

The common law of Europe that eventually emerged towards the end of the Middle Ages was, therefore, a mixture of local statutes and customs, a form of Roman law as interpreted by the various schools of thought and canon law. The unity achieved by the reception of Roman law into the civil law was further reinforced by canon law, which had become the universal law of the Western Church and which remained in use even in the darkest days of Roman law. English courts, on the other hand, never received Roman law at all, despite the fact that it was early known and taught, due to centralisation of courts at an early stage, powerful monarchs and the pragmatic character of early English law.

Essential Readings

1.Van Caenegem R.C. An historical introduction to private law. Cambridge, New York: Cambridge University Press, 1992, p. 67– 83.

2.Robinson O.F. European legal history: sources and institutions. 3. ed. London: Butterworths, 2000, chapter 7.

3.Stein P. Roman law in European history. New York: Cambridge University Press, 1999, chapter 4. <LMS resource>

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Supplementary readings

1.Bellomo M. The common legal past of Europe (1000–1800). Washington: The Catholic University of America Press, 1995. p. 78–125 <LMS resource>

2.Dawson J.P. The oracles of the law. Michigan, 1968, chapters 3–4. <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.Hazeltine H.D. Roman law and canon law in the middle ages // The Cambridge Medieval History. Cambridge: University Press, 1968. Vol. 5. P. 697–764.

5.Vinogradoff P. Roman law in medieval Europe. London, NY: Harper, 1909, chapters 3, 5. <LMS resource>

Questions

1) What is ‘reception’ of Roman law in medieval Europe? Is it different from the expansion of the ius commune?

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2)When did the expansion of the ius commune take place in Western Europe?

3)Why did the ius commune change positive law?

4)How did the ius commune shape positive law?

5)Where in Western Europe did the ius commune expand first?

6)What hierarchy of the sources of positive law was established under the influence of the ius commune?

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Topic 5. School of French humanists in the 16th century (mos gallicus)

Topic outline

Critique of mos italicus for its methodological limitations, obscure doctrines and corruption of the learned lawyers. Humanism and Reformation in the 16th century and their implications for legal science.

The school of French legal humanists and its foundations: Italian Renaissance and Reformation. The classical ideals and the programme of comprehensive restoration of the civil law.

Mos gallicus: new methodology of the humanists: philological and historical studies of Roman law. Discovery of different epochs of Roman history and admiration for the heritage of the classical lawyers instead of Justinian’s compilators. The methods of textual interpretation: division, ‘common places’, historical scale.

Drawbacks of the humanist methodology: focus on the past instead of the present, partial systematization of the civil law. Isolation of university professors in France. The leading role of practicing advocates and judges of the parliaments.

Excerpts from Readings

The Humanist Movement and Legal Science.

Brief Description.

Van Caenegem R.C. An historical introduction to private law, p. 55–57.

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Sixteenth-century jurisprudence was dominated by the achievements of the Humanist School of Roman law. The last school to profess the primacy of the Corpus iuris, it nonetheless adopted an approach very different from that of the glossators and commentators. Its rise was but one manifestation of the renaissance of Antiquity which, from the end of the Middle Ages, profoundly influenced European science, arts and letters. The impulse once again – but for the last time – came from Italy. The positive stimulus for the Renaissance was a new enthusiasm for the culture of Antiquity…

… The negative side was the often-harsh disdain the humanists directed towards the 'Middle Ages', an expression they coined to describe the obscure centuries between the cultural peaks of Antiquity and their own time…

The founder of the Humanist School was Andrea Alciato (d. 1550), an Italian jurist who studied in Pavia and Bologna, where he became the pupil of Jason de Mayno; he then taught at Avignon and Bourges, and later at Italian universities. The university of Bourges became the main centre of the mos gallicus, owing principally to Jacques Cujas (d. 1590). He was the most outstanding exponent of humanism, and he taught in Bourges (with a few interruptions) from 1555 to 1590. Jacques Cujas approached his subject with an exceptional mastery of Roman law and philology

There were also distinguished German and Dutch proponents of humanism. In Germany, Ulrich Zasius (d. 1535), a friend of Erasmus, was one of the first legal humanists. In the Netherlands… Mattheus van Wesembeke (Wesenbecius, d. 1586) <and others>.

Several jurists of the Humanist School were implicated in the religious conflicts of the Reformation and were compelled to go into exile because of their beliefs. This applies notably to the Frenchman Hugues Doneau (Donellus, d. 1591) who took refuge and taught in Germany and in the northern Netherlands. … he became renowned for his immense learning and total lack of any practical sense… His

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Commentarii iuris civilis in twenty eight books had great success in Germany and the Netherlands.

Bellomo M., The common legal past of Europe, p. 204–205.

The new legal humanism had representatives in Italy <most notably, Andrea Alciato; but generally there were few "humanists" among the Italian jurists>, in Germany, and in Spain. In German speaking lands there was Ulrich Zasius (1461–1535), active in Freiburg, who was sensitive to the influence (through Basel) of Erasmus of Rotterdam and Bonifacius Amerbach. Spain had Elio Antonio de Nebrija… and Antonio Agustin.

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Andrea Alciato (1492–1550), is considered the major representative of the humanistic school of Italian jurisprudence. In his work, which is impressive for both its mass and its quality… Alciato by and large maintained a balance between demands for renewing and refashioning the law and acceptance of die weighty legacy of Italian legal doctrine of the thirteenth and particularly the fourteenth centuries. (p. 209–210)

French school of Mos Gallicus.

Bellomo M., The common legal past of Europe, p. 206–208.

… it was in France, with the so called mos gallicus, that humanism offered the most serious challenge to a still-vital equilibrium that had gradually formed from the thirteenth century on within a system of iura propria based in the ius commune.

The first group of French humanists

Some French jurists were motivated by a "nationalistic" sentiment that they displayed openly. They claimed full and preeminent validity for French law on the two levels of the particular laws (city and

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seigniorial law; royal law), and they assigned to the royal law the function of a general law in respect to the local laws (coutumes, statutes, and so forth).

The task of discrediting the Justinian compilation fell in particular to Francois Hotman (1524–90)… the author of a diffuse work, the AntiTribonianus, in which he attempted to strip bare … the failings, and the errors of the Byzantine compilers. (Tribonian, as is known, headed Justinian's legislative commissions and bore the major responsibility for compiling and editing the Corpus).

The second group of French humanists

The jurists of the second group worked to reformulate the materials and the arguments of the Corpus iuris civilis on a more rational level and on the plane of historical relativity and to redistribute them in a new architecture. Such men took care to point out (and they made it abundantly clear by the way they themselves operated) that the various topics and legal institutes were bundled together in no proper order in the Justinian compilation, where they were sometimes juxtaposed and sometimes divided among titles and books that were organized with no logical or systematic arrangement. A new order was needed. Among the many jurists who shared such ideas were Guillaume Budé (Guillelmus Budeus, 1465–1530), François de Connan (Franciscus Connanus, 1508–51)… Francois Duaren (Franciscus Duarenus, 1509–59), Charles Dumoulin (Carolus Molineus, 1500–66), and, above all, Hugues Doneau (Hugo Doncllus, 1527–91) and Antoine Favre (Antonius Faber, 1557–1624)…

The third group of French humanists

Jurists of the third current in French legal humanism were less apt to expose their political motives and less explicit about their polemic biases. Some of these were jurists who continued to study the Corpus iuris emits in depth, but with a shift in method and within the context of other sources, which they sought with passion and sometime found,

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with good luck…

They also inaugurated modern philological studies in the field of law…They used Roman law as testimony to the past; as documentation that made it possible to know an epoch, a civilization, and a culture… At most Roman law could be regarded as the base or the foundation <but not the ready-to-use solution> for a present that was completely different…

One of the best known of the jurists in this third current in French legal humanism was Jacques Cujas (Jacobus Cujacius, 1522–90)… A few decades after Cujas came Denis Godefroy (1549–1622), the author of <the first modern critical> edition of Justinian's Corpus iuris civilis, and Jacques Godefroy (1587–1652), who wrote a masterly commentary to the Codex of Theodosius II <of 438>.

Critique of Mos Italicus.

Bellomo M. The common legal past of Europe, p. 204–205.

New currents of thought <in the 16th century>… rose to confront the traditional jurisprudence of the fourteenth century (Bartolus and his successors)…

<Legal> humanism challenged the authority of the ius commune, weakening the certainty, universality, and eternity that it advocated and claimed as its own. When humanism proposed mutability and uncertainty as historical perspectives, it crumbled the monolithic structure and the theoretical basis of the ius commune. …

… for the humanists the relationship between the ius commune and the ius proprium had been broken… They insisted that the law of the kingdom or the principality should no longer be considered ius proprium but a general and common law that stood in contrast to the variety of customary laws and local statutes. In this point of view the ius commune became either a residual law or a law to be taken into

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