Ius Commune (Early/Late medieval period of roman law)

What was the ius commune (and what was it not)

The ius commune was the shared Roman legal framework for many countries legal systems. Each country still had a different system of law, but each shared elements of Roman law in common.

It was not a collective legal system across all of Europe.

What became the new capital of the Roman Empire after the fall of the West

Constantinople / Byzantium

Legal science 6th century Byzantine Empire

Justinian published his Corpus Juris Civilis, and legal science could be said to be flourishing in the Eastern empire.

Legal science post 6th century Byzantine Empire

Justinian dead, Byzantine empire becoming weaker, Legal standards begin to slip and advocates take over as teachers which means that legal practice takes precedence over legal science. Furthermore, jurists no longer exist.

Legal Science 9th century onwards Byzantine Empire

The Greek paraphrase of Justinian’s codification, The Basilica, is written by Emperor Basil and finished by his son Leo the Wise. This book reignites an interest in legal science and gains its own authority.

Legal science 13th century onwards Byzantine Empire

Further decline of legal standards due to political unrest. With the fall of the Byzantine empire comes the discovery of Roman legal texts which have not been used in years and which would eventually come to be used by the glossators and French humanists.

What was happening in the west during the 6th century?

While Justinian’s codification had been made law, it also did not enjoy the same amount of use as it did in the Eastern empire due to Justinian’s failure to regain the West. This meant that the Theodosian Code provided the backbone for the law at this time.

Why did legal standards slip during the Dark ages and what else was happening to Roman law during this time?

-Germanic tribes too busy struggling for power.

-High illiteracy meant that the study of the law was not as prevalent.

-Law at this point was highly reliant on oral custom.

-Roman law began to mix with that of the germanic tribes.

-For example, the Goths were most influenced by Roman law and this is reflected in the code Romana Visigothorum which mixed Roman law and the law of the Goths.

-These codes helped to preserve Roman law when not much else was done to preserve it.

What is the timeline for the reception of Roman law?

-11th to 16th century : formative period of the ius commune

-16th to 17th century : ius commune evaluated by humanists

-18th to 19th century : national codifications of the law of European countries

What made the birth of the ius commune possible?

-The reinvigoration in legal study in the 11th century, spearheaded in places like the University of Bologna where the study of the Digest had become popular.

Who founded the glossators?

Irnerius

What was the key technique of the glossators?

Adding short comments to the Digest which were meant to explain contentious or hard to explain points of law. These were known as glosses.

Aside from glosses, what other things did glossators do?

-Commentaries on their glossing of the Digest, the most well known of these being the Glossa Ordinary which is considered the definitive commentary on the Digest. Another is Summa Codicis Of Azo, phrase was “don’t go to court without Azo as this was a very important textbook for legal practitioners.

Why would some criticise the work of the glossators?

-There was a lack of sources on the history of the Roman Empire so it is possible that some parts of their works are inconsistent with the truth.

What is canon law?

Canons are the laws of the church.

These canons share a great deal in common with Roman Law.

During the dark ages then there lacked a legal system since the Roman legal system had fallen apart, the church stepped in and began to develop its own legal system which was based on Roman law.

What is in common between canon law and Roman law?

-Both had glosses of their key works made.

-Both had a codification (corpus juris civilis / corpus juris canonici)

-Both used the cognitio procedure in their courts.

What school began the commentators?

The school of Orleans with its humanist approach continued the scientific study of Roman law after the method used by the glossators had fallen out of fashion.

What was the aim of commentators in the 13th century?

To make the Roman law fit for contemporary use. This led to the law being used in the dark ages being influenced by the increased academic study of Roman law in universities

What did the commentators do?

Write extensive commentaries on Justinian’s codification, similar to the glossators.

They also wrote collections of opinions on specific legal problems. These works were a catalyst for the reception of Roman law in countries such as Germany.

What is the timeline for the establishment of the ius commune?

12th century : Justinian’s codification lent much of its vocabulary to the canon law and was studied intensely by the glossators.

13th century : the humanist study of the codification in the school of Orleans allowed for legal science to grow beyond the work of the glossators

14th century : the commentators imagined how Roman law would fit into contemporary society.

What made romanisation of the law viable?

Changing socio-economic factors were changing, for example, there were more merchants than had been present previously in the dark ages and this is good for the use of Roman law as the Roman law of contract is a perfect fit for merchants.

Academic disagreement on the reception of Roman law?

Alan Watson says reception was inevitable

Vinogradoff says that it is puzzling that such a legal system has managed to remain for so long