Ius commune 2nd Iusproprium as One System: The Problem of Legality

It soon began to be clear that the ius commune and the ius proprium shared a system of relations and values that far exceeded the notion of hierarchical sources of law, and at the same time new cultural movements arose that, as we shall see, had little or nothing to do with that hierarchy of precedence.

I might also note one constant, recurrent fact: the contemporaneity of the ius proprium in the extraordinary variety of local situations. The various terms for the particular and contemporaneous local norms known in Spain as fueros and usatges, in France as coutumes, in Italy as statuta or consuetudines often reveal their origins and the reasons for their formation. Thus the statuta reflected a desire for free and autono­mous municipalities and a need to consolidate the internal processes for the institutionalization of autonomous power; consuetudines re­flected the traditions of a people; the usatges and laudamenta curiae showed legal procedures; royal laws and ordonnances expressed the will of a king, count, or duke; concordiae and Landfiiede arose out of com­promises or agreements reached between a lord and a community.

Everywhere in Europe there was a shift from a regime of oral norms (custom, Carolingian capitularies) to a regime of written law, and everywhere, with varying degrees of awareness, people saw the terms of a new law in the written law. At the risk of schematic simpli­fication, we might say that until the eleventh century people believed that conflicts within the society in which they lived could be resolved either per pugnam or per iustitiam, even if here and there the hope was expressed of resolving thempfr iustitiam alone; from the twelfth century on, however, it was thought that all conflicts of interest must be prevented, avoided, or resolved and settled per legem, even if the sizable problem of Iustitia was never lost from sight.

In other words, a new value arose, and without separating from the old faith or from a confident trust in iustitia, it manifested itself and crystallized in the notion of legality.

Two currents coexisted: on the one hand there was the constant practice of the particular norms—a phenomenon uniform in its meth­ods and its animating ideas even in the immense variety of its concrete manifestations. On the other hand, reflecting that practice but also driving it forward, there was the thought of the great jurists of the Middle Ages, men who expressed original and highly significant ideas on equity, human justice, and legality.

This was the thread that bound the ius proprium and the ius com­mune together in one quintessential relationship, a relationship that was implicit, unexpressed, but nonetheless evident and sure. Without the ius commune, the iusproprium would never have had so much vital­ity and so much of an impact on people’s consciousness; conversely, without the notable differences and the variety of the ius proprium, the ius commune would have lacked roots and had no field of operations in which to function.

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