In the Guise of a Conclusion

With humanism, the “Secunda Scholastica,” and the doctrine of natural law, new paths were open for a critical evaluation of the ius commune. Such evaluations were not always historiographical judg­ments, as was intended; at times they were polemical attacks and at other times projects aiming at revision of problematics, of legal “insti­tutions,” or of systematics.

Thus we have returned to our point of departure. Now we can un­derstand what lay behind the harsher attacks on the “system” of the ius commune on the part of some concerned representatives of legal humanism, the more carefully thought out and Iiistoriographically more productive positions of other currents of legal humanism, and the radically new approaches of the “Secunda Scholastica” and the doctrine of natural law. We can also measure how wrongly and rashly many historians of our own century have adopted critical historio­graphical judgments of the ius commune that were rooted in specific movements for reform and that were the image and reflection, the reason and end, of those movements.

Even today, if we follow the anxieties and the bitter controversies of the sixteenth, seventeenth, and eighteenth centuries and follow them as insiders, taking them as vital questions today just as if the “system” of the ius commune were still a genuine hindrance for con­temporary jurisprudence, we cannot avoid falsifying the historical perspective and limiting ourselves to a scanty comprehension of en­tire centuries of the law in Europe. Those centuries had their own unique, legitimate and vital experience, an experience just as legiti­mate and just as vital as those of later ages.

Thus we have returned to a clearer view of the ius commune after attempting to shatter the distorting lenses that the programs of past attempts at legal reform have imposed on our vision during the last two centuries.

It may even be that recalling these historical developments can be of use in the construction of a new European common law.