Birth of a European Ius Commune PDF

21 January 2025 Tuesday Birth of a European Ius Commune The study of law in Europe - The legal revolution that took place in Europe in 12th and the 13th centuries was shaped by 3 main segments. 1) the discovery and reconstitution of the Roman law texts mainly corpu...

21 January 2025 Tuesday Birth of a European Ius Commune The study of law in Europe - The legal revolution that took place in Europe in 12th and the 13th centuries was shaped by 3 main segments. 1) the discovery and reconstitution of the Roman law texts mainly corpus iris civilis 2) the adaptation of a new method to analyze them called Scholasticism 3) the invention of a new environment to do so universities. - In this time period basically everyone started to be trying intellectual. A new profession was born, people who made living by teaching, advising and writing books. Reconstructing ancient texts - scholars have already known about the 6th century compilations of roman law ordered by Emperor Justinian. Although they had some forms of copies in di erent parts of the continents, none of these forms were trustworthy enough nor complete. - A brief version of the Code (imperial legislations) was available so where a few parts from the Institutes (manual for students), the Digest (volumes containing juridicial opinions) was not - Towards the end of the 11th century, a copy of the digest arrived to Bologna literally magically. No one knew who was responsible. (It was probably tied to the struggle between the German emperor and pope Gregory because both of the sides were searching for new fragments of law to back their claims.) - Following the rediscovery of the digest a few individuals started reconstructing the legal compilations by Justinian. The methodology - Identi ed as Scholasticism, it was assumed that the ROman texts were written with a hidden harmony. 1 fi ff  - One of the favorite methods was the distinctio. Which is basically analyzing two texts that seemed similar but pointed out di erent solutions. Scholars demonstrated that even tho the texts look familiar, they were about di erent topics so they didn’t contradict to each other. - From the 12th to the 16th century (considered as the formative period for the European legal science) jurists debated about the principles, terminology and the structure of the roman law. The environment - How the new system operated - The combination of new sources, methodology and uni environment created an innovative system of law. Until the mid thirdtheenth century the debates were mainly on ancient texts and they were oral. Although we have some written fragments as well. Thew fragments mainly contain glossa. - A gloss is a brief annotation between the lines or on the margin of a text to explain the terminology, main points etc. - Staying faithful to the scholastic methods, glossators tried harmonizing di erent fragments that looked like they were contradicting each other while they were actually not. - A short gloss attributed to Rogerius (who was teaching at bologna uni at the time now known as the father of the glossators) he was analyzing the Instititues (the Manuel for law students), he observed that it de ned justice as “the constant and perpetual desire to give each man his due”. He concluded that the word desire here was a purposeful choice. It was meant to explain the students that even if the goal of reaching justice was failed, the intention was what mattered. 2 fi ff ff ff - Then he made an analyze about the commission and the omission (I will explain this later orally) - In conclusion Rogerius justi ed some of the most important terminologies that are still used in our day. - From 14th century jurists started basing their analyses on the glosses, not the roman texts themselves. - During this period jurists also started giving consilia (written opinions on matters of law) - Another remarkable gure of the 14th century is Bartolous of Saxoferrato (teacher, judge, jurist etc). - Typical of his work were treaties on the legal consequences of changes in rivers (a metaphor I will explain orally as well) upon property rights and jurisdiction. - He concluded that rivers could add or remove land and that this had consequences for the riverbank; and it was in his nature to change. - Basically his studies were about the territorial jurisdiction Canon law -Scholars studied the canon law texts with the same methodology; Scholasticism. - One of the most important gures in canon law is Gratian. - He collected and examined di erent sources of canon law, he enumerated the sources described church hierarchy and the rules that regulated this hierarchy. As well as church property, the religious orders, marriage, sins etc. This compilation (Concordia discordantium canonum) later known as the Decretum was uno cial but it was so reliable it started being followed as if it had been formally settled. - Some other compilations of canon law followed like decrateles and liber sextus and clementinae. These compilations together got the 3 fi fi fi ff ffi  name Corpus Iuris Canonici in order to distinguish them, yet make them parallel to the Corpus Iurius Civilis. - Other scholars started following Gratius; glossing, commenting developing vocabularies on the canon law texts.(just like they did in the roman texts) - As a result of the similarities in method and places of creation, over time canon law and roman law were hard to distinguish between. - Example of this fusion was the development of the Romano- canonical court procedures in 12th and 13th centuries. Feudal law - This law governed the relations between lords and their vassals as well as between the various lords. It also de ned lords’ duties and how individuals become vassals and what they owed their masters, use of land and inheritance etc - The scholarly literature on feudalism introduced the study of feudal law to universities. As a result of that the feudal law was romanizeted. - It enabled jurists to conceptualize public authority as the outcome of a pact between rulers and ruled that included mutual obligations. IUS COMMUNE - The study of the roman, canon and feudal law in medieval study centers and universities by scholars who reconstructed the texts while applying the Scholastic method led them to revolutionalise the European normativity. - It proposed a new vision, despite the wide variety of the concrete answers proposed in di erent parts in Europe, juridical thought wasn’t particular to a place, society or time. A law for all Ius Commune 4 ff fi Spreading Ius Commune - Some European territories where a ected earlier or more intensely than one another but sooner or later, but by the end of the 16th century at the latest some versions of Ius Commune was present almost everywhere. The new juridicial science and preexisting law - Many scholars suggested that ıus commune was standing in opposition with preexisting local, municipal, royal or canon law which it sought to replace. After ıus commune spreader amongst Europe, scholars, jurists authorities had to choose between the ıus commune or the Ius propium (the one existed before) bc it was impossible to obeying both. - It is now proposed that this new method did not replace the ıus propium but it came on top of it. According to this new interpretation pre-existing laws and ıus commune co-existed peacefully. - Ius Proprium was understood as the local version of Ius commune. The Results - This new technique did not remain an abstraction nor did it penetrate only the highest echelons of the society. For example: - İn middle ages ordinary peasants from the Spanish- Portuguese border often fought about their rights on the usage of the lands. Their description of why they have the right to use these lands did not use the correct terminology, nevertheless it represented the juridicial doctrine regarding land rights. How these peasant came to know this stayed ascertain. They themselves gave no clear answer when asked why they believe in such rules applied, they clari ed that the norms they invoked were natural, they were universal and as a result they needed no proof nor explanation. 5 ff fi - After that ıus commune were seen as so logical and reasonable and widely accepted that contemproraries assumed that they were common to all. Birth of The English Common Law - Roman and canon law in uenced England during its time under Roman rule and the christian missionaries the 6th century - After the Norman invasion in 1066, England followed a legal path that incorporated roman and canon law in uences - Norman kings began recording preexisting laws and customs for continuity - Norman kings extended their jurisdiction by creating royal courts, overlapping with local/ feudal courts. - Gradually royal courts became more preferred, establishing the foundation of common law. - Writs (formal written orders) became the primary mechanism for accessing royal courts. Writs authorized disputes to be brought before royal o cials. Over time writs were standardized and recorded in public lists, making them predictable tools for litigations. This transformed royal jurisdiction into a routine system for justice. - Common law emerged as a system of procedural rules. It emphasized remedies tied to rights and a rigid focus on procedural correctness. Legal professionals were trained through Inns of court. - By the 14th century equity courts (chancery) emerged to address cases common law couldn’t resolve. Equity introduced exible remedies and over time, formalized into a parallel legal system that complemented common law. - Over time, parliaments’ role in legislation increased, leading to the modern parliamentary system. 6 ffi fl fl fl - Unlike Ius Commune, English Common law relied on procedural remedies and local solutions. Juries played a central role in England whereas in Europe not that much. - By the 14th and 15th centuries England diverged from Europe, emphasizing a distinct, customary legal tradition. - Key features of the English Common Law - Procedural focus: prioritized correct processes - Writs and remedies: created rights based on a legal sytem - Limited appeals: appeals focused on procedural errors, not factual/ legal interpretations - Independance: Judges relied on procedural consistency, avoiding discretion seen in continental courts. 7