Search Results

This chapter begins by discussing the need for a new European ius commune and the possibility of some global implications of its use. It then talks about the history of the European common laws starting with Roman law and its universality. Moreover, it explains the mobility of people as well as the mobility of laws. The chapter also discusses topics such as the nature of the new common laws; the early expansion of the ius unum and common law; the essential tradition of the ius commune; the ius commune as prototype; common law as common law; common law originating from England, France, Germany, and Spain; and other common laws of Europe.

This chapter traces the historical connections between the law and the state. Topics covered include codifications and the state, textual foundations of the ius commune, and legislative codifications and the legal profession. It shows that even in more recent times, it was often the legal profession, rather than the political legislator, which ultimately determined the sources of the law and their authority in legal discourse.

This chapter focuses on a key document within the process of the Europeanisation of private law legal scholarship, the Principles of European Contract Law (PECL). It suggests that these principles can be considered as a contemporary manifestation of a genuinely European tradition which used to be called ius commune and argues that they can also serve a catalyst for a Europeanisation of private law ‘from within’ and ‘from below’. The chapter contends that these principles should be taken into consideration not only by comparative lawyers but, particularly, by all those engaged in shaping and elucidating national legal doctrine.

This chapter focuses on only one aspect of procedural law: that relating to citations, the process by which parties were summoned to appear before a court. It examines three specific parts of the law of citations. First is the question of its necessity. Did one have always to issue a formal citation before adjudication? Second is the question of time. How long an interval had to come between service of the citation and the required appearance in court? Third is the question of the citation's contents. How much information had to be placed in it to establish its validity? The task is to investigate how the ius commune came into being. The three topics chosen are important and are illustrative.

This chapter sets out the basic structures within which heresy-detection took place, looking at the cooperation and conflicts between church and crown, and the conduct of investigations by bishops, inquisitors, royal justices, and other officers. The nature of the ius commune is outlined and the implications of the Stubbs-Maitland dispute drawn out. Encroachment on heresy jurisdiction by royal justices is discussed, as is the use of episcopal visitation against heresy and the question of whether there was a papal inquisition in England.

This chapter traces the developments in Scots law from 1600 to 1830. The mindset of Scottish lawyers changed significantly over the course of the eighteenth century. In 1700, Scots law was best understood as representative of the usus modernus Pandectarum; there had developed in the seventeenth century, out of the older view of the ius proprium and the ius commune a Roman-Scots law, in which the ius civile was progressively integrated with Scottish material, all justified and rationalised by the ius naturale and the ius gentium. By 1800, however, the view that ‘the Civil Law was our Common Law’ seemed quite outdated. While well into the eighteenth century the term ‘common law’ had meant the Romano-Canonical ius commune, now it was used, rather in the fashion of England, in opposition to statute law: the lex non scripta as distinct from the lex scripta.

This chapter looks at the possibilities and impossibilities of an ius commune, a common European law, particularly in the area of tort law. There has been strong support for discussing the harmonisation of national private laws in Europe, including the national tort laws. The chapter discusses the thresholds for harmonising the national laws, for example the fact that they hold different approaches to tort law. In France, the main goal is compensation of the victim and distributive justice (featured by the major general strict liability rule for things), whereas in England tort law is mainly about regulating conduct and corrective justice (embodied in the tort of negligence). In Germany, the approach focuses formally on regulating conduct but this happens in a strict way which means that, in fact, distributive justice is the leading principle. The chapter looks at the rules on fault liability and stricter liability as well as common law and codified law.

This chapter deals with instances of litigation and follows the habits of the civilians with regards to judicial proceeding. The rough identity of procedure in spiritual and secular assemblies, one that had characterized the Anglo-Saxon era and persisted even into Norman times, was gone. Civil procedure was to be one of the areas of ecclesiastical law least affected by either the Reformation statutes or incursions by writs of prohibition from the royal courts. The law of civil procedure in the ius commune had an organic character, one capable both of growth and of admission of regional differences, while it still retained the same roots and basic shape. It kept a recognizable identity in places that were geographically very far removed from each other. Procedure in the Court of Chancery and other equitable jurisdictions took over parts of the former civilian procedure.

This chapter explores the ways slavery was defined in the medieval and early modern ius commune. It studies some of the consequences of that definition of slavery for men and women in Europe. It first defines ius commune as a combination of canon and Roman laws that led European legal education and shaped the practice in European courts between the 12th and 19th centuries. One section focuses on the texts of Roman law, while another addresses the problem of defining slavery. This is followed by a discussion of the legal changes that occurred from the eras of Roman law until medieval law.

This chapter analyzes “ius constitutionale commune in Latin America” (ICCLA) in light of comparative international law. For the proponents of ICCLA, this represents a common public law of the region that emerges through judicial dialogue among the Inter-American Court of Human Rights (IACHR) and Latin American national courts. This chapter questions this assumption, first by focusing on the ideological and theoretical genesis of this project, which is the product of a trans-regional academic discourse centered on a German conception of European constitutionalism (Gemeineuropäisches Verfassungsrecht). Next, it addresses the main features of the regional judicial dialogue, considering whether it truly reveals a pluralistic conversation, or instead denotes a monologue promoted by the IACHR. It argues that the latter comes closer to the truth, a conclusion that leads to a reconsideration of the pluralistic narrative about ICCLA. This, in turn, raises serious doubts about the emergence of ius commune in Latin America.

This chapter shows that the law on testamentary formalities in the Latin American countries is historically rooted in the European ius commune and that it has preserved this tradition to a remarkable extent until today. Ordinary wills must be made in writing, either before a notary and witnesses (public will), or before witnesses alone (private will). The recognition of holograph wills on the other hand is still rather limited. As testacy rates are generally low, legislatures seem to have felt little pressure to adapt to the necessities of modern times. At the same time, there is a slow, but clearly perceptible trend towards the relaxation of formal requirements, which is also supported by court practice.

The law of enrichment in many ways reflects the character which South African law generally has developed over the past three centuries. In certain respects it has unmitigated antiquarian features. In others it displays a refreshing modernity. On important occasions it has shrunk from taking the bold step required; in others it has rushed ahead without proper caution. Often, however, it has found just the right balance. Thus, it embraces many of the solid, classical solutions of the ius commune while at the same time having rough, unhewn aspects which cry out to be fashioned properly. This chapter describes how these features of the South African law of unjustified enrichment came about, and asks what is to be learnt from this historical process for the future development of this field of the law.

This chapter deals with the fourth of the consensual contracts, societas or partnership. Societas is not based primarily on an antagonism of interests, its essence is the polling of resources such as money, property, or labour for a common purpose. The first section looks at partnership based on the Roman law. The second section looks at societas from Justianian, ius commune, and traces its history up to modern developments.

This chapter looks at the legal humanists' approach on the concept of iurisdictio, and at the reaction of civil lawyers to the humanists' critique. It explores the reasons why legal humanists rejected the traditional interpretation of iurisdictio as found in the Accursian Gloss and subsequently developed by the mainstream civilians, and it highlights the difficulties that the same legal humanists encountered when they sought to provide a new and coherent interpretation. While quite united in their offensive against the civilians' understanding of iurisdictio, legal humanists could hardly agree on anything when it came to offer an alternative interpretation. The problem was not (or not so much) that each humanist had a different view as to the precise meaning of some Latin terms. Faithfulness to the pristine sources and Classical Latin came at price: once rejected the Bartolist architecture, the whole legal framework would just collapse. This was the main reason why civilians sought to reply to the humanists' attack and to shield the concept of iurisdictio from the accusation of unfaithfulness to the Roman sources. Civilians were as deeply imbued with Classical culture as their humanist counterparts, so they took the accusation of unfaithfulness to the Roman sources very seriously. But civilians were first and foremost lawyers. Important as they were, Roman sources remained a means to an end.

This introductory chapter begins with a review of studies on the history of European law and the well-known narrative about the development of a pan-European ius commune or universal common law, ca 1100–1400. It then sets out the main purposes of the book, which are to flesh out the grand narrative with detailed studies covering the learned laws — civil, canon and feudal; and to provide greater access to the sources and conventions of this field of study. An overview of the subsequent chapters is also presented.

This chapter looks into the effects of debasement of monetary value on pre-existing debts during the sixteenth and seventeenth centuries. It analyses the ideas of Charles Dumoulin regarding the prevailing monetary theory and compares them with the views of his contemporaries. Dumoulin proposed a new interpretation of the Roman and Canon Law texts on which monetary law of the ius commune was built. He based his opinion about the age-old issue of repayment after debasements on a rational understanding of money, derived from its actual use in exchange. Before him, by distinguishing between ius commune and custom, Alberto Bruno had come to a similar result, when custom allowed debtors to render payment in any gold or silver coin. French law assimilated Dumoulin’s doctrine, but German jurist remained faithful to the ius commune principle, that after debasements pre-existing debts must be paid in the old coins.

This chapter further discusses the significance of the ius commune in Scotland through an account of the looting of law books from Edinburgh in 1544 by an English knight. The account agrees with earlier scholars that the books looted were connected to the Abbey of Cambuskenneth, as a number of the volumes can be linked with, first, Patrick Paniter, Abbot of Cambuskenneth 1513–1519, and, second, his successor Alexander Mylne, Abbot 1519–1548. What is interesting about the books is that, along with a magnificent Bible, they constitute a significant part of the main sources of the ius commune, both Canon law and Civil law, together with some of the standard commentaries on them.

Late medieval Roman and canon law jurisprudence provided the origins of European notions of a universal rule of law in two senses: a legal order of universal extent and a structure of higher norms of universal application. Whereas modern international law is primarily concerned with the horizontal relationship between states, medieval jurists mainly considered the vertical relationship between universal and territorial powers. They developed de iure–de facto arguments to justify a plurality of sovereign states within an overall universal legal structure. Contributions to the elaboration of theories of just war were also made. We must be cautious about claiming that late medieval jurists contributed to the development of early international law as normally understood. Nevertheless, early-modern theorists of international law referred back to the work of their medieval juristic predecessors. A new research question is emerging about the usefulness of using the term ‘international’ in interpreting medieval jurists.

This chapter discusses how the law confers privileges on the Jews as cives, except in the spiritual forum. Nonetheless, while in the Papal State, the privileges of being cives were never entirely erased. It was the burdens and the confessional aspects of ancient Roman Law that came ever more to the fore. To these burdens were added evolving legal interpretations that facilitated the “offerings” and denunciations that upended the life of Anna del Monte and many others. However, Jews were not the only ones affected. The demands of the burgeoning modern state fell ever more heavily, and in new ways, on all residents. Using the tools of ius commune to augment centralized authority, the state began to interfere unprecedentedly in the personal life of its residents.