KENNETH PENNINGTON

The concept of the ius commune is almost unknown in Anglo- American scholarship, and the term “common law” sounds strange to most English-speaking historians. However, the fusion of Roman, canon, and feudal law produced a ius commune and a common juris­prudence in Europe between noo and 1800.

That does not mean that Europe had one unified complex of norms adequate for the juridical practices of cities and rural areas in every region. In reality, the situation was more varied and more articulated. All local institutions (for example, a kingdom, a principality, a free city, a feudal or territorial lordship, a corporation, a confraternity, a monastery) had their own juridical norms, and they respected them and applied them (or violated them) whether they were promulgated by a sovereign or by a deliberative assembly or whether they had been fashioned and transmitted orally from generation to generation in the form of customs. All of these various norms belonged within the ius proprium—that is, law proper to particular, individual institutions.

These norms varied greatly; they differed from place to place and from one level of society to another. This means that the unwary trav­eler of the time or the incognizant historian today might have found or still find the legislative panorama in Europe an inextricable con­fusion.

English “common law,” the law proper to the British Isles, was simply one small part of this entire picture. Like the other normative systems, it too was dispersed and intermingled with many local ex­periences, and it too was known and applied within a limited ter­ritory.

Nonetheless, men of the Middle Ages had unshakable certitudes to guide them, aid their understanding, and provide a notion of unity and order. They had ideals and thoughts that molded their intellec­tual attitudes and formed their traditional behavior patterns.

They lived within an entire system of thought, usually with little consciousness that it was a system. They believed that outside of his­tory—hence free from the folly and malice of the realm of possible actions—there were primary and divine values not fully knowable by humankind because man was an imperfect creature condemned to an earthly mortal life when Adam and Eve fell and were driven from the Garden of Eden.

One of these absolute values was justice, not only as it might be revealed and realized in modest human laws but, above all, as it could be intuited in the daily exercise of faith and in the practice of the pre­cepts that God had given to humankind.

Jurists and theologians, in particular after Irnerius and Gratian, knew that the two aspects of justice, the human and the divine, were as closely connected as the two sides of a coin. They were also aware that, as with the coin, the two faces were necessarily distinct. Medi­eval man lived out his life following dual guidelines. He imagined and intuited an absolute justice, but he was keenly aware that he could never know and even less possess that justice; he obeyed earthly laws, but he was conscious that they contained only the palest reflection of divine justice. The jurist, like the sailor far at sea, sought a pole star. He found it in the ancient and “sacred” texts of a great emperor of the past, Justinian, and in the new norms of the Roman pontiffs— that is, in the laws of the two supreme ruling powers of the earth. In comparison with these broader systems, the local laws set forth by a lord or a corporation seemed what they in fact were—instruments of one social group or faction for the defense of partisan interests.

Thus the jurist observed, knew, and even accepted the local experi­ences that made up the ius proprium^ but the common man did not understand that the ideal content of the norms governing daily life was meager.

In the juridical system of that time, the norms of one place or one social level (jus proprium) were closely linked to the norms common to all who believed in Christ (jus commune). This was because the norms of iusproprium found in the ius commune usable concepts, prin­ciples, rules, and technical terminology, at times even drawing on it for a specific fragment of its substance. This was true even when the ius proprium reacted against or diverged from the ius commune*, when this occurred, by choice or out of ignorance, it created a problem of comparison with, hence of relation to, the ius commune.

Thus for the keenest intellects and the greatest jurists in Europe of the Middle Ages, the ius commune turned out to be a formidable uni­fying force. It lay at the center of the law and was the symbol of its unity. Just as Scripture was requisite for the cure of souls and the sa­cred texts remained valid even when in certain places or among indi­vidual sinners they might be neglected or violated, so the “sacred” texts of the ius commune were a necessity for the guidance of society and men’s life in society, and those texts remained valid even when they were not applied or they were contradicted by norms of ius pro­prium or the customs of single communities.

Plurality was thus part of the “system,” and the system itself was inconceivable and would never have existed without the innumerable ιuγd propria linked to the unity of the ius commune. The greater imper­fection of men’s laws (the ius proprium) was related to the lesser im­perfection of the laws of the rulers of the earth (the ius commune), but both laws, in varying measure, contained and divulged only a tenuous glimmer of the Justice that was absolute, divine, hence eternal.

With the advent of humanism in the sixteenth century, this system of thought and its practical applications fell into crisis. Gradually, with Descartes and Spinoza, with the natural law theories of Grotius, with the Enlightenment thought of Rousseau and Voltaire, and with Hegel’s historicism, European thought ended its fallacious quest for earthly perfection. Such perfection—neither known nor knowable— did not, and, according to Christian doctrine, could not, appertain to human thought.

For over two centuries now, Europe has not had, nor could it have had, a common law conceived as a reflection of absolute Justice; it became clear that it was useless to try to bring within human history an imagined eternal Justice whose locus was outside history.

Still, no jurist can be resigned to being only a “man of law” of a transitory and occasional law, and even less of a factious, rapacious, or tyrannical law. Every jurist—if only in a fleeting moment in his professional life—has been or has wanted to be a “man of justice.” When that moment arrives, the medieval “system of the common law” reappears in all its extraordinary potential as a great spiritual re­ality and a fundamental expression of civilization. Then the two sides of the coin, theology and law, still clearly distinct, confront one an­other reunited.

Trappeto (Catania), ι October 1993