Ruins of the Modern Age: The aCodistic55 Vision of the Law
The historian of the law has an obligation to emphasize certain perspectives and an interest in doing so. First, it is now clear that all rigid and Iideistic “codistic” views of the law have lived their allotted span, marked and compromised as they are by exhausting their capacity to respond adequately to the composite social and economic situation today.
Similarly, all “systematic” and “dogmatic” representations anchored to the text of a code are equally dated.Second, it is just as clear that study of the age of codifications cannot take as its point of departure the Enlightenment hope (or utopia) of arriving at the best possible remedy for disorder and confusion in laws, decisions, or doctrines; nor can it rely on the complacent satisfaction that awareness and contemplation of a phenomenon offer those who seek a safe haven.
Third, it is also clear that continental Europe must begin from the beginning to Seekjuridical instruments adequate to repair the damage that massive numbers of laws, the difficulty of knowing them, and men’s decisions can produce.
In this connection, the increasing curiosity and interest of European jurists and scholars in the juridical experience of Anglo-American lands—countries of Anglo-American common law—is an interesting topic that is beyond the scope of the present work but one whose historical relevance deserves more than passing note.
In the same connection, however, there is also historical relevance in a reconstruction of the complex experience of another sort of “common law”—ius commune—in Europe in the twelfth century. In a political and social climate of profound changes, that experience was not only the terrain on which extensive and repeated renovation took place on the European continent but also a secure point of reference in the tumultuous variety of particular systems of law (iura propria).
For a number of reasons, reconstruction of this experience is now easier and has greater significance than some years ago. In the first place, the ius commune no longer bears the weight of the negative views of advocates of the consoling light of the new “codes,” who saw nothing in medieval law but confusion and harrowing contradictions and who predicted that the new codes would be strongholds of order and certainty. The lens (which was at times a distorting lens) of the law as code, through which people were “constrained” to regard historical events in the Middle Ages and the early modern period, now lies shattered. What is more, people today recognize much of themselves and their own times, their doubts, and their problems in the concerns, the uncertainty, the violence, and the anxiety connected with justice during the Middle Ages. Thus an age long held to be remote and judged negatively—even the neutral term “medieval” was used in a pejorative sense—has now come back into fashion.In order to clarify and solidify that experience in collective memory, we need to trace the historical conditions of an epoch that had no “jurists” and few written laws—the long age that began somewhere between the fifth and the sixth century and that ended in the eleventh century. Next we need to trace the changes that in the extremely rapid, intense, and creative crisis of the twelfth century led to faith and trust in the “sacred” texts of the ius commune,, to the everyday practice of written law, and to the emergence of the figure of the “jurist.” We also need to look at attempts that the same age made to strike a subtle and difficult balance among solutions always sought, with declared or implicit candor, in support of an absolute “Justice,” but also defended, out of conviction or as an astute covert, tactical move, to safeguard and guarantee the political and economic spheres of operation of individuals, groups, or social strata.