ius commune and reception of learned law Flashcards
reception of learned law
= transfer of results of legistics from the universities into legal practice. It was a Europe-wide process from the 13th to the 16th century and gave rise to the pan-European law, the ius commune.
ius commune
= the body of law that was common to much of Europe in the medieval and early modern periods, based largely on Roman law and canon law. It wasn’t a single unified legal system but rather a collection of shared legal principles, norms, and practices, in contrast to the local laws called iura particularia
Lotharian legend
The claim that Lothair the III had enacted the CIC in 1137 by means of special imperial law was proven incorrect by Hermann Conring in 1643.
establishment of Imperial Chamber Court (1495)
→ initially half of the judges consisted of learned jurists, later legal training became necessary for all members of the court
→ they subsidiarily based judgements in ius commune.
→ The way to the Imperial Chamber Court was open to everyone, dealt with high number of cases.
communis opinio doctorum
- Until the middle of the 17th: presumption of correctness in favour of it when it came to the question of multiple legal interpretations.
- After the middle of the 17th it was questioned as “it can never be stronger than reason itself” (Aloysius von Kreittmayr), but it remains relevant insofar as it meets the requirements of customary law.
- Unavoidable and indispensable in legal practice
weak reception in Scandinavia
— Strong tradition of recording customary law accompanied by early legislative activities, both from the 13th century on
— Some influence of Roman law, but not strong: Scandinavian students studied in Bologna and Paris
— Roman-canonical process introduced in the 13th century
— No works on Roman law by Scandinavian jurists until 1500, but commentaries on the domestic law books from the 13th century on
— Roman law is taught only from the 17th century on in Uppsala
mos italicus
→ developed in Italy, primarily among jurists associated with the medieval universities of Bologna and Pavia.
→ rooted in the scholastic tradition, interpretation through commentaries, glosses, eg. Glossa Ordinaria — Accursius
→ relied heavily on established authority and precedent.
→ drew heavily from the interpretive methods of canon law and Christian scholasticism, emphasizing a hierarchical approach to legal principles.
→ oriented toward practical application by interpreting and applying the existing legal texts and glosses of previous jurists.
mos gallicus
→ developed in France (eg. University of Bourges),
→ interested in understanding Roman law in its original context, seeing it as a historical artifact rather than an absolute authority.
→ influenced by Renaissance humanism, emphasizing the need to understand the historical, linguistic, and cultural context of Roman law.
→ more critical of received interpretations and aimed to go back to the original sources to understand the intentions of Roman lawmakers.
→ more academic, use of philological methods, like analysing language and historical circumstances and theoretical insights rather than direct legal application.
→ New attempts towards systematisation: Identifying general principles and placing the individual sentences in a system
figures associated with customary law in early modern period
→ Johann von Buch: gloss on Sachsenspiegel
→ Bernhard Walther: comparison of traditional customary law to learned law
→ Raymund von Wiener Neustadt: accessible account of roman law with references to deviating rules in customary law
→ István Werbőczy: Tripartitum, with emphasis on differences to ius commune: central source of law until 1959
legal humanism
→ revisiting Roman law with a philological and historical approach, aimed to understand the original intent, language, and social context of ancient Roman legal texts
→ going back to Greek and Latin originals to recover authentic meanings that may have been obscured by medieval interpretations.
→ more interpretive and descriptive, placing value on the historical understanding of texts rather than on practical application
→ more accurate and enriched understanding of Roman legal texts, refining Roman law’s principles and vocabulary.
representatives of legal humanism
Francesco Petrarca
Erasmus
Maffeo Vegio
usus modernus pandectarum
= hybrid of ius commune and customary law under different names: eg. Ius Romano-Germanicum, Ius Romano-Hispanicum
— pragmatic, practice-oriented approach to Roman law, developed in response to the needs of contemporary European courts and legal practitioners. It aimed to provide a flexible, functional legal system suited to the governance and judicial demands of the time.
— adapted these texts to fit modern needs, often blending Roman law with local customary laws and legal practices, it made Roman legal principles workable within a system that also acknowledged local law, creating a more accessible and unified legal framework.
— analytical and practical, emphasizing utility over historical authenticity.
— facilitated the adaptation and application of Roman law across diverse jurisdictions in Europe, especially in German-speaking areas
representatives of usus modernus pandecratum
Herman Conring
Samuel Stryk
Georg Adam Struve
Wolfgang Adam Lauterbach
dutch legal school
→ blend of mos gallicus and usus modernus pandectarum
→ Hugo Grotius: combined iura particularia with ius commune
→ spread to colonies, still relevant in South Africa
policey ordinances
= formal decrees or laws issued by rulers in the 16th-18th century to regulate and manage various aspects such professional code, moral order, poor relief, begging, trade in goods, guardianship, prohibition of luxury.
characteristics and aim of policey ordinances
→ Administration through law-making on all levels: towns, territories, empire
→ The common good as the goal of legislative activities, corresponding to a new idea of ruling: caring for the people, often in a paternalistic way
→ Numerous interferences in the sphere of freedom and private law
Are they private law or public law?
→ Many areas of private law are regulated by the Policey ordinances
→ Regulations have mostly an interfering character
municipal law reformations (15-17th century)
The aim was to remedy current grievances by reverting to the old state of affaires
→ strong Roman-canonical influence, often drafted by learned jurists
→ Legal traditionalism
→ Regulation of procedural law, inheritance law, family law, property law and the law of obligations
examples of municipal and law reformations
- final draft of Austrian Land Law never came into effect, but served as a basis for several separate laws → eg. criminal code (Ferdinandea)
- municipal law of Freiburg im Breisgau — Ulrich Zäsi (Udalricus Zasius)
characteristics of early modern legislation
- Extensive legislative activity, especially at land and municipial levels influenced by ius commune. The uncertainty of ius commune was overcome by passing modern statues influenced by it: conscious and deliberate creation of norms by an organ of a state.
- Towns played pioneering role: new, reformed municipal laws in large numbers
Territories eg. Bavaria also received new laws which helped spreading ius commune. - did not regulate respective areas in a comprehensive manner but concentrated on individual aspects that were regarded important, otherwise customary law continued to apply as subsidiary provisions.
- It was left to the judge to find a penalty (arbitrary penalties)
Constitutio Criminalis Carolina (CCC) (1532)
Imperial law not as wide-spread, but this is an example, enacted by Charles the V in 1532.
→ meant to harmonise criminal procedure and criminal law: model for many other criminal codes
→ after pressure from princes: it is only subsidiary to territorial laws
