Intro_continental_legal_science [Unlocked]

education (which mainly consists of practical training) involves a substantial amount of theoretical coursework. All young lawyers’ perspectives on law will thus be formed at the university. They begin their discovery of the law with abstract and conceptual reflections of the sort that might be taught to English finalists in their jurisprudence course, for instance on the distinction between ‘the objective law’ and ‘subjective rights’ and on the nature of ‘absolute’ and ‘relative’ rights. They study the various theories about the distinctions between private law and public law and between general private law and commercial law. They become acquainted with the various categories of crimes and will learn to distinguish justification and excuse sharply. By this means they acquire a structural foundation and a conceptual system at an early stage that later enables them to classify any new legal phenomenon and to integrate it somehow into that system. As a result, all practising lawyers are, in principle, ‘learned lawyers’ whether they work in a law firm, as a judge or anywhere in the legislative process; indeed, a relatively high proportion, roughly ten percent of the law graduates, will have read for a doctoral degree before going into practice. These products of university teaching will never dismiss academic opinion out of hand, let alone simply ignore it. On the contrary, many judges and practitioners regularly join in the academic discourse by participating in conferences, teaching in the law faculties and contributing to law reviews and commentaries. An important five-volume commentary of the Civil Code, the ‘Reichsgerichtsrätekommentar’ which saw a number of editions between 1910 and the 1980s was exclusively written by judges of the Imperial Court and, later, the Federal Supreme Court. Today’s standard commentary, the ‘Palandt’, is almost entirely produced by judges.

Main Legal Schools in European History.

An “ant-hill” of legal science (for this metaphor see above) had been being built for over nine hundred years by several major legal

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schools.

Black’s Law Dictionary, 9th ed. by Brian A. Garner, p. 1463.

“School <in its third meaning>. A group of people adhering to the same philosophy or system of beliefs”.

In sum, any legal school presupposes a set of common philosophical (ideological) assumptions, methods, sources, forms of doctrinal works. Hence, the structure of reviewing each school in the topics that follow.

Main Legal Schools on the Continent:

the Glossators

the Canonists (subdivided into decretists and decretalists)

the Commentators (also post-glossators or consiliators) (mos italicus)

the Humanists (mos gallicus)

the school of usus modernus Pandectarum

the school of exegesis

the German historical school

the Pandectists

Continental legal science took shape through several stages of its development:

1)Emergence of theoretical legal science in Western Europe thanks to the schools of the Glossators and Canonists in the 12th to 13th century.

2)Completion of the universal legal system (ius commune) for the Western Christian world by Italian commentators and its

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expansion in Western Europe in the 14th to 15th century.

3)Critique of ius commune by French humanists and its reform in the 16th century.

4)Rise of national legal sciences in Western Europe during the last three centuries (16th to 18th) of the feudal Ancien Régime.

5)Perfection of the bourgeoise national legal sciences in the 19th century and progressive expansion of this model in the world.

Essential Readings

1.Cruz, P. de. Comparative Law In A Changing World. Sidney, 1999, p. 66-67. <LMS resource>

2.David R. Academic works, reason, equity // International encyclopedia of comparative law. Tübingen, J.C.B. Mohr, 1984, vol. 2, chapter 3, p. 138–145. <books.google.com>

3.Dedek H., Schermaier M. German Law, in: Elgar Encyclopedia of comparative law. 2nd ed. Northampton, Mass.: Edward Elgar Pub., 2012, no. 7.2 (legal theory) <LMS resource>

4.Van Caenegem R.C. European Law in the Past and the Future: Unity and Diversity Over Two Millennia. Cambridge University Press, 2003. P. 45–48.

Supplementary readings

1.Braun A. Professors and judges in Italy: it takes two to tango // Oxford Journal of Legal Studies. 2006. vol. 26, no. 4, p. 665–679. <jstor.org>

2.Jestaz Ph., Jamin Ch. The entity of French doctrine: some thoughts on the community of French legal writers // Oxford Journal of Legal Studies, 1998, vol. 18, no. 4, p. 415–437 <jstor.org>

3.Vogenauer S. An Empire of Light? II: Learning and Lawmaking in

legal science as analytical activity?

4.How can legal science influence on law-making?

5.How can legal science influence on judicial decisionmaking?

6.Is legal science or doctrine recognised as a formal source of law nowadays?

7.Are judges on the Continent allowed to cite academic works in their decisions?

8.Which country in Continental Europe is especially committed to legal science?

9.How does legal science shape legal education in continental Europe?

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Topic 2. Emergence of legal science in Western Europe: glossators and canonists in the 12th to 13th century

Topic outline

The fall of the Western Roman Empire and subsequent disappearance of jurisprudence in the early Middle Ages. The phenomenon of the West Roman vulgar law. The remaining knowledge of Roman law and schools of liberal arts. “The Roman Church lives according to Roman law.”

The school of glossators at Bologna and the emergence of theoretical legal science in Northern Italy in the end of 11th and 12th century. The main causes of this revival: the rise and economic prosperity of Italian towns, political struggle between the emperors and the popes, fragmentation and archaic nature of existing laws and customs.

The school of canonists at Bologna. Sources of canon law: the making of Decretum (1140), early commentaries to it, the papal legislation.

Scholastic methodology of both schools at Bologna. Its roots in ancient logic and rhetoric. Main features of scholasticism: text authority, search for truth inside the text, rules of formal logic, resolution of textological contradictions. The common rules of logic in scholasticism: definition, division, classification. The limits of scholastic interpretation.

The results of scholastic study of Roman legal texts: glosses, collections of questions and rules, sums, the Gloss of Accursius (mid-13th

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century).

Excerpts from Readings

Customary Law in Europe before Legal Science

Van Caenegem R.C. An historical introduction to private law, p. 24–27.

Antecedents: the early Middle Ages, c. 500-c. 1100.

Evaluation

Each age has the law it deserves. It is therefore natural that the West in the early Middle Ages had a law adapted to the new political, economic and intellectual situation; and so a system of administering justice which was fragmented, but adequate for the needs of an agrarian and military society. The law of the period was inevitably lacking in complexity, devoid of theory and general principles, imbued with irrational and sacred elements, and knew nothing of learned jurists or professional practitioners…

Jurisprudence

During the first centuries of the Middle Ages legislation had only a secondary importance. Jurisprudence as such <in the sense of legal science> did not exist: there is no trace of legal treatises or professional legal teaching. The collections of capitularies, which are sometimes found in the same manuscripts as the texts of national laws, were written for the use of practitioners and were not subject to doctrinal exposition in commentaries or manuals.

Some rudiments of Roman thought were known through <scarce> texts… But these isolated traces of ancient legal culture were not studied or analysed. In any case the law schools and lawyers who would have been capable of such work had disappeared. The sources of the period reveal ignorance of Roman law, and sometimes of the law of the capitularies…

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Even canon law, which enjoyed considerable prestige, inspired no study or theoretical commentary: the authors of collections contented themselves with bringing together the existing rules…

The law therefore remained essentially an oral law, whose principal source was custom. The law of the kingdom was not unified but varied from tribe to tribe (initially) and from region to region (in later centuries).

Bellomo M. The common legal past of Europe (1000-1800), p. 44–47.

Age without jurists

<Before the 11th century> in Europe all norms were oral… written texts of the barbarian laws were exceptional… there were variations in content in orally transmitted norms or norms for which a written version was not readily available…

<All that> we need to take into account when we consider the concept of the jurist in the early Middle Ages in Europe. Formally speaking, in this early period, the ‘jurist’, as that professional category came to be defined in the 12th century, did not exist and could not have existed.

There were no ‘jurists’ in royal courts in which royal advisors worked modestly to enable some barbarian kings to give ‘laws’ to their kingdoms. The written redactions of the laws that have come down to us show that the authors of those texts did not have a cultural heritage adequate to the task, either from the point of view of a command of grammar and syntax or from the legal point of view, and that they encountered grave difficulties when they transliterated into Latin –– the language that was used and had to be used –– terms from languages totally different from Latin…

On the level of activity we might call ‘legal’, the concept of the jurist did not exist.

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<in the kingdom of Langobards in Northern Italy> the iudex (judge) was the person who certified the outcome of a judiciary duel… ‘Judges’ were simply those who judge, people who in real life and at a specific moment and a particular time…. found themselves in the position of having to adjudicate. Such men were not professionally engaged in that activity… An entire group –– men able to bear arms, members of the landed aristocracy, or the clergy –– could act as ‘judge’.

… <when knowledge of a particular custom was required> the ‘judge’ might suspend the ‘trial’ and call on the testimony of others among the older and more trustworthy men from the same place or a nearby place… These ‘jurists’ did not ‘interpret’ a norm or a law… Or rather… the possibilities for interpretation were so brad and gave so much liberty to the ‘judge’ as to lose all sense of specificity or of following rules that might take textual form into account, look for substantive meaning, or seek the internal logic of the norm or of similar norms. It is difficult to imagine that the ‘judges’… many of whom were illiterate, were capable of posing sophisticated problems of that sort… <They> were indeed judges for a day or an hour… <They> were not ‘men of law’ but ‘men of justice’.

The Law Is Not an Autonomous Science. (from the 6th to 11th centuries)

Furthermore, there could be no ‘jurists’ where there was no autonomous ‘legal science’. The law, in fact, was seen as identical with the arts of reasoning and expression, on the one hand, and with ethical standards, on the other.

This is a consistent point of view in both reflection and practice throughout the early Middle Ages (6th to 11th centuries)…. According to <Isidore of Seville (d. 636)>, law was regarded as subsumed under these branches of encyclopedic knowledge: technical terms and their primary meanings belonged to grammar; explanation of those terms and their logical concatenation belonged to dialectic; their explication was the province of rhetoric. <in sum, the arts of the trivium>.

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The law also meant rules for living, hence every precept (by custom, by edict, or by legislation) must operate in the realm of ethics, which gave discipline to life and was the earthly projection of divine order…

In short, the juridical realm took on a more varied coloring and became equated with the realms of ethics and theology. This is why ecclesiastics rose to prominence… Within the communities of the time it seemed natural to turn to the parish priest, the bishop, the monk, or the canon not only for soul’s salvation but also for protection of one’s more terrestrial interests or for help and moral support in mundane business affairs… The man of the church was thus a divine judge and a terrestrial judge, he was a theologian, a ‘jurist’, a rhetorician, and a ‘notary’; he knew and judged harmful human acts and illicit thoughts as ‘sins’ but at the same time as ‘illegal’ civil or criminal behavior.

<...>

In that epoch ‘legality’ was not known as a value, and the ‘law’ was not looked to as an accepted, just, and rational way to prevent or resolve conflicts between individuals and order the life of the community. When, sporadically, a ‘law’ did surface among so many customs, it only expressed the idea that the ‘law’ must guarantee a free search for justice, either through the individual efforts of a judge or a notary or through the collective consolidation of customary acts, or else the ‘law’ was an accidental, occasional episodic but authoritative and written expression of the ‘justice’ discerned in a particular instance. (p. 50)

Revival of Roman Law Studies in the Middle Ages: Context and Causes

Van Caenegem R.C. An historical introduction to private law, p. 24–27.

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