Foreword

With vigor and passion rarely found in a scholarly work, Manlio Bellomo introduces new vocabulary and a sweeping new interpreta­tion ofWestern European legal history. He wrote his history of law for Italian law students.

This book is a textbook, but a textbook with a sharply argued thesis that will interest scholars and students. BeIlomo begins by describing a ^ccwave of codification” that swept over Europe in the eighteenth and nineteenth centuries. He contends that codification has proven to be an imperfect instrument with which to foster legal reform and en­courage flexibility in a legal system. Europe’s reliance on codification has introduced legal ambiguity, rigidity, and uncertainty into all the European legal systems. He believes that a new common law for all of Europe—a political process now underway in the European Com­mon Market—would provide a much better vehicle for legal change and development.

From the modern age Bellomo looks back to when Europe had a common law that transcended national and legal boundaries. This system of law reigned from the twelfth to the seventeenth century. He tells the story of the birth and evolution of that common law—a story that Bellomo thinks could provide a model for how a European common law might be born again. The term “common law” sounds strange to most English-speaking historians when applied to conti­nental legal systems. We speak of common law as being the legal sys­tem that evolved in England from the eleventh century to the present. This historical fact and terminology introduces problems for English speakers. The jurists of the twelfth and thirteenth centuries also spoke of common law, a ius commune. Their common law consisted of Ro­man, canon, and feudal law.

In France legal historians have called the ius commune the “droit savant”; in Germany, the “Juristenrecht” or “das gelehrte Recht”; in the Anglo-American world, “learned law.” Bellomo argues that the terminology itself is not only wrong but misleading. Since “learned law” reeks of the classroom, scholars have dismissed it as unimportant for the growth of legal systems in European kingdoms, principalities, cities, and corporations—systems that Bellomo calls the iura propria. Consequently, scholars have ignored the ius commune because it was the law of the schools, the law of the jurists, the law of the ideal, not the real world. Bellomo demonstrates that this misconception has trivialized the importance of the ius commune and Balkanized the his­tories of national legal systems. With carefully chosen examples he illustrates how the ius commune permeated every crack and crevice of the Iurapropria from the thirteenth to the seventeenth centuries. It created the concepts, the institutions, the procedures, the documents, the doctrines without which the iura propria would have evolved very differently. Bellomo explains that every historian who ignores the ius commune when writing about local legal systems distorts and misun­derstands the ius proprium. Bellomo⁵S powerful admonition, which forms the backbone of this book, is a warning to everyone writing about European law.

In Lydia Cochrane’s elegant and lucid translation, Bellomo⁵S argu­ment and thesis are sharpened for English readers by using ius com­mune for the Italian “diritto comune.” On the rare occasions when Bellomo uses “diritto comune” to mean “common law” in a general sense of a law common to one territory or people, she uses “common law.” The English version of the book has also added short explana­tions that will help the non-Italian reader to understand sometimes difficult and alien legal terms and concepts. In addition, to make the book more useful for English-speaking students, citations to English- language works have been added to the notes and the bibliography.