Intro_continental_legal_science [Unlocked]

care. But the degree to which French law was being "systematized" is evidenced by the great popularity of encyclopedias and réperloires. These were handy reference books arranged under topic headings, with the alphabet providing whatever system there was. They too laid great stress on court decisions, though some also summarized the views of the authors.

As France rolled along through the eighteenth century the total output of legal literature reached enormous proportions. In the contest to fill shelves in the libraries, the legal writers raced ahead of the court reporters.

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Roman law had been continuously "received" <in France> from the thirteenth century onward. It occupied some vacant areas almost completely (for example, the law of obligations) but in others it was gradually interwoven with ideas of French origin, penetrating some areas much more than others. Indeed, the freedom of choice that borrowers retained in using or adapting Roman law rules added one more factor of uncertainty. Roman law did not provide, as in Germany, the starting point in analysis, the accepted standard with which deviant rules must be reconciled, the stable, organizing element in constructing a national "common law." France did not have what the "common law" gave to Germany—a large body of widely accepted and well-known rules to which most lawyers would habitually recur. French law was more a kaleidoscope, presenting different views to different observers, than it was a structure with a firm foundation that called for the talents of an architect

French law before the Revolution thus offered little encouragement to system-builders. It is significant that there was only one Dumoulin. He was an organizer of extraordinary power, but he came too early, was too preoccupied with practical issues and had too much to assimilate to provide more than a framework on which others might have built…

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What was mainly missing <to unify the laws in France> was some contribution from the academic profession. The law schools, it is true, purported to teach and gave that minimum of legal training that was required for entry to bench and bar… But French law schools, after an early and most promising start, had gone progressively into decline. The demand for their product – training in Roman and canon law – had not been sustained. Some of the professors were learned men; some even wrote some expert opinions. But unlike their counterparts in Germany they had not been called on for leadership in solving hard problems, in recasting doctrine, in erecting new structures of theory. The law professors had remained in the shadows while effective leadership passed to the courts and, among authors, to practicing lawyers…

... the draftsmen of the French Civil Code … confronted a vast literature, produced mainly by practitioners for the purposes of practice a mixture of customary law, Roman law, and doctrines established by court decisions.

Developments in Spain: the Second Scholasticism.

Bellomo M. The common legal past of Europe (1000–1800), p. 225–230.

If we look to Spain, however, and in particular to Salamanca, the picture changes radically. In the early sixteenth century a totally new and original legal culture formed and developed in Spain, which then expanded and took hold throughout Europe among the dominant currents of legal thought.

This new jurisprudence was based on the Summa Theologica <The Sum of Theology> of St. Thomas Aquinas and on the theoretical approach that had long been known as scholasticism. Historiography thus calls this revival "Late Scholasticism" or "Second Scholasticism" – the "Secunda Scholastica." I prefer the latter term because it removes all

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ambiguity concerning the profound novelty of Spanish legal doctrine in the sixteenth and seventeenth centuries.

These were… the centuries in which Spain was the most important area of all Europe. Between the late fifteenth century and the seventeenth century Spain truly lived its Golden Age… not only for the splendor of the reigns of Isabella of Castile (1451–1504) and Ferdinand of Aragon (1452–1558) and later for the power and size of the empire of Charles V (1500–1558) and Philip II (1527–1598), but also for its wealth, accumulated by plundering the subjected "savage" populations of West Africa and the "Indies" (the Americas) and from the extraordinary profits it made from the slavetrade and the exploitation of the economic resources of the "new worlds" (gold, and especially silver).

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In Spain of the Golden Age, Salamanca and its university served as the focal point for the new spiritual forces and the ideas that were turning the old Europe upside down.

In Salamanca, theology was the sovereign discipline, and Francisco de Vitoria (1492–1546) a Dominican friar emerged to head one leading school…

Francisco de Vitoria's work was centered on quintessentially theological interests, but his theology was open to the world and he was intensely curious about the savage "souls" of populations little known at the time. As he wrote, "The office and calling of a theologian is so wide, that no argument on any subject can be considered foreign to his profession”...

… A theological basis of thought thus encouraged a vision of human law that was both a projection of divine will and a creation of man, but only to the extent that man was capable of receiving and interpreting the signs of the divine wills that were impressed in nature…

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… Francisco de Vitoria saw and understood the entire known world, old lands and new regions and continents alike, as a whole and as an entity consisting of Christian republics: "Any commonwealth is part of the world as a whole, and in particular . . . any Christian country is part of the Christian commonwealth”…

Due to this new perspective, after centuries in which the laws of Justinian it had been not only accepted but regarded as sacred texts, authoritative, complete, and perfect,… the content of those laws was discovered to have defects and their organization was denounced as chaotic (a criticism that to some extent echoed the conclusions of legal humanism).

A return to “nature” and a trust in reason to interpret that "nature" became the guidelines of the new political and spiritual reality. The "Secunda Scholastica" developed precipitously on this front. Its leading figures, beside Francisco de Vitoria (who died young in 1546), were Domingo Soto (1495–1560), Martin Aspelcueta, called Doctor Navarrus (1493–1586), and Melchior Cano (1509–1560), whose interests were more strictly juridical, Fernando Vasquez (d. 1568), and in particular Diego Covarruvias (1512–1577). Juan de Sepulveda (1490–1573) and Bartolomc de Las Casas (1474–1566) also played important roles in defining the cultural scenario of the "Secunda Scholastica."

[A note from the instructor] The influence of the Second Scholasticism on practical jurisprudence in Spain and in other parts of Western Europe is subject to debate among the academics until these days. Anyway, as the Golden Age of Spain was over, the Spanish legal thought gradually fell into decline and lost its European significance in the 17th and 18th centuries.

However, it is certain that this legal school exercised a substantial influence on Hugo Grotius and at least partly lived on in his teachings.

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(see below)

Developments in Germany: usus modernus Pandectarum.

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

69

… the learned law was introduced and adopted as national law in some northern regions <of Europe>, and replaced disparate and inconvenient customs. This was the case in Germany, where the Reception began towards 1500… A German version of the ius commune was developed in early modern times and is known as the Usus Modernus Pandectarum ('new use of the Pandects or Digest'). The last flourish of the Usus Modernus was in the nineteenth century, particularly in the work of Bernhard Windscheid (d. 1892), the most important of the pandectists.

Bellomo M. The common legal past of Europe, p. 217–223.

The <late> "Reception" of the Ius commune in Germany.

In 1495 <in the "Holy Roman Empire"> the imperial Supreme Court, the Reichskammergericht, was founded; it respected the timehonored structures but brought them up to date and bound them more closely to German lands. This court was composed of assessores <assessors>, one-half of whom were doctores in iure <doctors of law> and the other half aristocrats and experts in judicial procedures. The first sat on the "learned bench," the second on the "noble bench." The structure of the court was coherent with a policy of giving the ius commune priority among the normative systems that could be applied in particular, with giving it precedence over local customary laws. The supreme court was to decide cases and set sentences primarily "according to the common law of the empire," hence the judges hail to know Justinian law and canon law, according to the Roman principle of

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iura novit curia (the court knows the law). In this sense, the ius commune was the "norm" of the imperial order, and as such it was to be respected and applied.

Local law was in quite a different position. It was at base customary law or was derived from customary law. Judges were not obliged to know it, and for that reason it did not fall under the principle of turn novit curia. If one of the parties to the legal action requested its appli cation, however, the judges were obligated to admit local law if it could be "proved" (like any other fact), and, if this proof was positive, it was to be taken into account and applied, but only insofar as it was consonant with the relevant precepts of the ius commune.

This was how an event of capital importance in the history of the ius commune in the early modern age took place. Historiography calls it the "reception" of the ius commune (which means the Roman law) in Germany.

In carrying out this operation, the strong jurist class that backed up the German princes, barons, and city oligarchies in the administrations of the small, compact local governments showed proof of intuition and political talent. For some three centuries jurists had grown in numbers, many of them trained in terra aliena (in foreign lands), particularly in Italy, where the natio teutonica (German nation) in fourteenth-century Bologna is known to have been so numerous and to have carried such weight that the sources called it the membrum precipuum (principal part) of the entire universitas ultramontanorum and Padua had been and continued to be so popular among Germanspeaking students that life in that city took on many Germanic ways. By the mid-fourteenth century a tightly-knit network of new universities had developed throughout German-speaking lands: as we have already seen (chap. 5), they included the universities of Prague (founded 1348), Vienna (1365), Heidelberg (1386), Cologne (1388), Erfurt (1392), Leipzig (1409), Rostock (1419), Freiburg (1457), Basel (1460), Tübingen (1477), and more. Within a century, and often after only a few years, one broad cultural area after another had a center where

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young people could pursue their intellectual and professional training in their own lands. Young Germans interested in the law studied the ius commune, civil and canon, in ways very similar to the ways the law was studied in Italy. They even studied analogous problems of the connection and coordination of the norms of the ius proprium and the ius commune – problems that were felt even more strongly in German lands because everyone knew that the empire was "Germanic," and in German lands the emperor's law could not help but have the force of positive law.

Thus, as we consider the vicissitudes of the "reception" of Roman law in German lands, we need to keep an eye on the jurist class. Even more, the proliferation of new universities also needs to be considered in relation to the solid social and political position that the jurist class had achieved; it also needs to be regarded as one of that class's most efficient ways to consolidate its position, replenishing its ranks as time went by and calling attention to itself as a unique political force in European society.

The "reception" of Roman law and the "pre-reception" that some scholars see as preceding it were in reality aspects of a slow and continuous historical process that affected students first – hence, that affected German jurists in the great university centers of Italy and France. It was a historical process that gradually soldered differing peoples together into one cultural and professional amalgam by means of a common method based in the use of one language – Latin – and by an appeal to common legal concepts, doctrines, and institutions.

Working within this historical process, promoting it and nourishing it, there were jurists with a strong group identity who banded together in active corporations. As they used the ius commune as an instrument for controlling the normative systems of the particular laws and as an all-inclusive "system," such jurists were quite capable of sensing the political potential in it.

It is no coincidence that in the early sixteenth century the

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"received" Roman law was greeted with hostility by another powerful group. The portions of the feudal forces that were most strongly en trenched in defense of seigniorial customary law felt threatened…

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From Italian "Practical Jurisprudence" to the Usus modernus Pamdectarum in Germany.

While the "reception" of the ius commune was making headway in Germany between the fifteenth and the sixteenth centuries, in Italy the times were ripe for "practical jurisprudence." This movement drew strength from the method known as the mos italicus (to distinguish it from the mos gallicus), a method rooted in the perennial legacy of Bartolus and the commentators and consiliatores of the fourteenth and the fifteenth centuries. But in the new climate that was forming in Europe during the sixteenth and the seventeenth centuries, new voices were raised, and figures who differed substantially from the founding tradition of the ius commune rose to prominence and blazed new paths.

The first trend to emerge and become consolidated was known as "practical jurisprudence." It preceded a second movement, the Usus modernus Pamdectarum, with which it was in part intertwined. …

This second methodological trend, the Usus modernus Pandect arum, began in Germany after the "reception" of Roman law in 1495. The name of this event came from an expression coined considerably later by Samuel Stryk, a jurist who lived from 1640 to 1710 and was a professor at Frankfurt an der Oder and at Halle, a famous work of whose was entitled Usus modernus Pandectarum (roughly, "Romanistic Practice Brought into Line with the Needs of the Times").

The Usus modernus Pandectarum put its stamp on a long period in German jurisprudence that included prestigious names, among them Hermann Conring (1606–1681). The jurists who proposed an usus modernus of Justinian's Pandects praised German jurisprudence for its powers of assimilation. They stressed the "national" character of the

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new law and pointed to the way that "German" jurisprudence had adapted to new needs while utilizing the ancient law. Part of this adaptation process was an ingrained habit of using the ius commune, made "national" by the everyday activities of judges and lawyers. It was also the result of theoretical reflection, however, capable of reinterpreting the norms and doctrines of the ius commune, of transferring them to a new cultural terrain, and of reorganizing them sector by sector.

If European jurisprudence remained "systematic," and if the very idea of "system," as it had been experienced and practiced for centuries, could function in the nineteenth century as a central motive force and a cardinal sign presiding over the relaunching of legal science on the European continent, it owed it to the remodeling and the perpetuation of the institutions and the experiences of the grand tradition of Italian legal doctrine, as these were relived and reinterpreted in the rich German experience of the Usus modernus Pandectarum.

Developments in The Netherlands: the Roman-Dutch law and the ‘Elegant School’.

Van Caenegem R.C. An historical introduction to private law,

p. 70.

In the northern Netherlands, Roman-Dutch law was a unique development: in Holland the customs had not been homologated, and the ius scriptum had not been formally introduced by way of authority. Jurisprudence therefore evolved a new synthesis of Dutch law and Roman law, adapted to the society of its time. Roman-Dutch law rapidly acquired an uncontested prestige and its influence was considerable right to the end of the ancien régime.

Van Caenegem R.C. An historical introduction to private law,

p.58.

… These lawyers were above all practical, but they took a lively 158

interest in ancient history and literature. It is quite right, therefore, to speak of the 'Elegant School' to denote the lawyers of the United Provinces who integrated the style and quality of the humanists into their practical work.

Towards the Great Codifications of the 18th century.

Elgar encyclopedia (1st edition), p. 398

The road towards the great codifications

It is, notwithstanding much research, still an open question to what extent this natural law thinking really changed the application of positive law, ius commune, in concrete cases… Law had become a public affair, a subject for debate in the salons and coffee houses. Basic human rights were formulated in a variety of social contract theories… No longer were books about law merely published in Latin, but in the native languages too.

The manifold criticisms of the administration of justice and its sources of law led to enhanced appreciation of the legislation, or even codification. Codes were considered the panacea for all the evils which stuck to the old system of law. It was not only Roman law which was challenged. The most ferocious propagandist of legislation, Jeremy Bentham, rejected customary law as much as Roman law (and for that matter natural law too). So did Voltaire in France, or Schorer in the northern Netherlands. Consequently the position and prestige of Roman law had changed since the second half of the 17th century. Many people, jurists included, considered Roman law as a corpus alienum, a foreign transplant of remote origin. At the same time, the significance of indigenous law (ius patrium) increased. In the Netherlands Frederik van der Marck (1719–1800) was still a rare bird as promotor of native law. In France, however, something like a national law, the Droit commun de la France, came into being, developed from the royal legislation, the customary law of Paris and Roman law jurisprudence.

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