THE IUS COMMUEE A GOOD THING?
During the discussion of the causes of late medieval enthusiasm for Justinian some students wondered whether it had been a gain or a drawback for European law. Many legal historians would treat this as a naive question, as it is not deemed to be the scholar’s task to pronounce value judgements.
The discussion, moreover, would have to start with the baffling question of what is good or bad law, which is felt to be more appropriate for a class on legal philosophy. It seemed nevertheless that it would be interesting to dive into a bit ofâ€?counterfactual history’ and to wonder what would have happened if the School of Bologna had not existed. What would Europe and European law have looked like if the Corpus iuris had been confined to the lecture rooms and the seminars of obscure savants and never ventured outside their halls and libraries? Some readers will be inclined to dismiss this as vain speculation: how can we possibly know what would have happened if something which did happen had not happened? The point is that the impact of Roman law did take place, and for the non-speculative mind this should be enough. However, I believe that in this case our answer would not necessarily be purely speculative, because we have the English common law to give us a realistic indication - based on observable fact and not on mere imagination — of what would normally have happened if the whole of Europe had, like England, produced a modern, adequate legal system without the help of the School of Bologna.Until the twelfth century the whole of Europe shared the same archaic feudal customs, but then society began to move towards a more adequate and rational law. On the Continent this was eventually achieved through the assimilation, in varyÂing degrees, of the â€?learned written laws’, whilst in England it was done through the creation, by royal judges, of an advanced national system, using native materials[110] such as the royal writs and the jury.[111]1 believe it is not an unreasonable contention that without Bologna the Continent also might well have taken this same road. There too the central courts of the emerging nation states would have developed modern judge-made systems of law, using native institutions.
There too legal theory would have been a marginal and late afterthought in a practice-oriented world. The law of contract, for example, would not have started with the theoretical exposes of Roman and scholastic thinkers, but would have ended with a doctrine of contract after centuries of practice. Such, as is well known, was the fate of contract in England, where, in the words of Grant Gilmore, â€?the common law had done very nicely for several centuries without anyone reÂalizing that there was such a thing as the law of contracts... The idea that there was such a thing as a general law — or theory — of contract seems never to have occurred to the legal mind until Langdell somehow stumbled across it.’[112] Alternatively the great royal courts might have worked on the basis of one particular customary law: the court of the Chatelet produced a modern law for the Paris area and the Parlement might slowly have imposed this coutume de Paris as the norm for a unified French law. WhatÂever way the Continent took, its law would have looked - for better or worse — very different from what exists today. There would have been more national systems, as Europe would have lacked the cosmopolitan learning of the Schools, and those laws would have been based on custom and the case law of superior courts rather than legal theory.