THE IUS COMMUNE, TRANSNATIONAL BY DEFINITION
The supranational law par excellence was, of course, the ius comÂmune. This is not a paradox but self evident, as it was the learned system produced by the European universities and common to all Latin Christendom.
Based on the study of the great lawÂbooks of Emperor Justinian (d. 565), in which the wisdom of the Romanjurists and the imperial administrators was recorded for all time, it became known as the Corpus iuris civilis. Promulgated as law in the eastern Roman empire after the west had been overrun by the Germanic peoples, it only surfaced in Italy in the late eleventh century. It became the basis of commentaries and teaching, first in Bologna and then in numerous other universiÂties. As the Corpus was in Latin, so were the later commentaries, textbooks, teaching and disputations. As Latin was the spoken and written language of scholars all over western Europe, this reborn or neo-Roman law became the common law of all jurists without the interference of any national boundaries. Around the same time and in the same university of Bologna the systemÂatic study of canon or ecclesiastical law was started, in which development Roman law played a fundamental role: the sciÂence of canon law was impossible without a basis of Roman law. Although Roman law and canon law remained two disÂtinct disciplines, with their own Faculties, they were so closely linked that they are often referred to as the â€?common learned — or written - laws’ and they constitute the two parts of the ius commune. The symbiosis of both legal systems was facilitated by the fact that the Church was supposed to live by Roman law (ecclesia vivit lege Romana), and that ever since the Gregorian reÂform the centralized organization of the Church came to look more and more like that of imperial Rome and that the great sixth-century compilation — containing much of the jurispruÂdence of heathen Rome — was published by a great Christian emperor.The term â€?common law’ (ius commune, droit commun, gemeines Recht) is used in so many senses and contexts that a word of explanation may be appropriate. The English â€?common law’ is so called because it was common to all of England, in conÂtrast to local customs. The ius commune is so called because it was common to all scholars. Gemeines Recht was the name given in Germany after the Rezeption to the common learned law of Germany, based on the ius commune. In French droit commun is sometimes used in contrast to the political sphere (as in crimes de droit commun as against treasonable wrongdoing) but there was also a droit commun Jrancais, created by the endeavours of Ancien Regime scholars who hoped to establish a legal system common to all of France, overarching the existing regional diversities.
Canon law shared with Roman law its learned, systematic character; both were based on written texts and the object of teaching and scholarly classification. However, before the twelfth century canon law was just a set of norms that ruled everyday life and were based on a multitude of canons of Church councils and papal decretals issued in the course of a millennium. Canon law started as applied law and later developed into a scholarly system: it was a set of rules before it became a science. The Roman law of the schools, by contrast, started as a science and eventually entered everyday practice and became applied law.
Medieval canon law was the first common law of the whole of western Europe, as it was administered, taught and studied in the whole of Latin Christendom without any regard for poÂlitical, ethnic or linguistic frontiers. Even after the Reformation had disrupted this old unity, the law of the medieval Church went on to dominate ecclesiastical organization and the lives of ordinary people — especially in matrimonial matters — even in Protestant countries. In the case of England the result of ReforÂmation and Counter-Reformation went even further, as the moÂdern law of the Anglican Church contains medieval elements that were eliminated in the Catholic Church by the Council of Trent (which had no authority in England).
Medieval canon law was applied by separate ecclesiastical courts, competent ratione personae — for clerics — and ratione materiae — mainly in questions of sexual morality (which concerns a very important segment of personal and social behaviour). Church courts were, of course, also competent for questions of orthodoxy and heresy - the ideÂological debate, in modern parlance — so that their impact on the beliefs and the way of life of the people at large was imÂmense, all the more so since their judgements were enforced by the state, the â€?secular arm’ of the Church. These courts were also the places where ordinary people came in contact with the learned law and the learned forms of process, developed by Romanists and canonists from the twelfth century onwards and therefore known as Roman-canonical procedure. For most medieval people, who never approached a university or read a book in their lives, the Church courts in their everyday activity were the only places where they came in direct contact with the ius commune.At a time when many people talk about a possible, future European state, it is noteworthy that the first experiment in that line was the medieval Church, which was a quasi-state and comprised the nations of the present European Union.[12] It was a vast, self-sufficient, self-contained and efficient orgaÂnization, extending over a very large area (from Ireland to the Holy Land, and from Sweden to Portugal) containing numerous nations, languages and cultures. Like the state, the Church had its own rules, organized its own dispute settlement and disposed of its own security arrangements — with its own organs for crimÂinal prosecution and its own prisons. Its financial organization, supported by the supranational Italian banking companies, was a model of efficiency, whereas its fiscal inventiveness for tapÂping new sources of revenue might be a source of inspiration to present-day ministers of finance (let us hope that not too many of them study the system of papal benefices).
The Church lived under a centralized hierarchy, strictly organized from country parishes up to the Roman curia. It had one central government, with many departments, and it had a parliament, the ecumenical council, where representatives from many countries and walks of life met, deliberated and made laws. The power and the role of these Church councils have varied enormously — as is the case with parliaments in modern states — but there have been moments when they seriously attempted to wrest control of the Church from the papal government, and their composition was so international and so comprehensive — containing laymen as well as secular and regular clergy — that they can truly be deÂscribed as the forerunners and prefigurations of the present-day European parliament (particularly since they discussed a wide variety of topics, by no means all ecclesiastical). I am referring, of course, to the great councils of Pisa, Constance, Basel and Florence in what is known as the Conciliar Epoch (late fourÂteenth and first half of the fifteenth century).[13]However, for a variety of reasons the medieval Church was not really a state. It had no army, for though the Crusades mobilized by the papacy could be considered a sort of papal task force, they certainly were no standing army. The Church had no citizenship and no fixed territory but, above all, its raison d’etre was different. Its aim was to guide the faithful to salvation, whereas the state was expected to ensure the external and internal safety of its citizens (even though some modern states think that they have to look after the happiness and wellbeing of their citizens as well). In some ways the medieval Church was like modern multinationals, which also have their own hierarchy, vast budgets, no citizenship, but internal security arrangements (and even external defence mechanisms against hostile take-over bids).
Medieval Roman law keeps surprising every historian.
InÂdeed, here was a West-European system of law, based on a compilation made some six centuries earlier in a foreign emÂpire. Justinian, Institutes, Digest, Code and Novels belonged to the classical world, which was utterly different from feudal and agrarian Europe of AD 11 00; the Digest, the most inspiring part, was even the work of pagan authors. The Roman empire, where the Corpus originated, was a mere memory among the emergÂing nation states of the twelfth century. Moreover, Justinian’s lawbook, which attracted so much passionate attention, had no legal authority in the West at all. It had never been promulÂgated there, either by an ancient east-Roman emperor or by a medieval German king—Roman emperor (that changed only with the German Rezeption around AD 1500). Legally speaking the Corpus had as much binding force in twelfth-century Europe as the Assyrian clay tablets in their cuneiform script have today. And yet the great book and the vast superstructure of lectures and treatises built upon it acquired an authority of their own and became the cornerstone of the modern civil law that, together with the English common law, dominates our own world.One of the attractions of that neo-Roman law was its cosÂmopolitanism, as it was similarly taught, using the same textÂbooks and in the same Latin language, in all western universities, where professors and students from every country congregated (we shall see in chapter 5 what caused this remarkable pheÂnomenon).
At first the study of the Corpus, in the form of literal explaÂnations (â€?glossing’), was a mere academic exercise, but soon the Schools began to take notice of the real medieval world, as the real world took notice of them, and neo-Roman reasoning and categories were applied even to feudal institutions - although the feudal system was undreamt of in the world of Ulpian and Modestinus. Roman law began to influence the courts, first the ecclesiastical and then the secular, and so affected the social fabric in general.
Let us look at one example among many, to show how the law of Bologna was quoted as authority (imperio rationis if not ratione imperii)[14] in the discussion of a purely feudal, typically meÂdieval problem and how customary law became mixed up with Justinian-inspired learning. Feudalism was based on the personal loyalty of the vassal to the lord, to whom he had sworn an oath of fealty. The vassal was expected to stand by his lord, who had provided him with a fief, in all circumstances and against all his enemies. At the top of the feudal pyramid stood the king, who was at the same time the highest feudal overlord and a monarch by God’s grace (hence the term â€?the feudal monarchy’). So the — very feudal - question arose whether a vassal had to stand by a lord who rebelled against the king. In terms of personal loyalty the answer was positive, but in terms of monarchic theory the answer was negative. So which was the top priority, the loyalty to one’s lord or obedience to the head of state? Jean de Blanot, a civilian who died probably shortly after 1281, addressed this much debated question with arguments from Roman law. AdÂmitting that there are arguments for the idea that, on the strength of his personal oath of fealty, a vassal is obliged to support his lord against the latter’s lord, even if he happens to be the king, Jean de Blanot maintains the contrary â€?because a baron who rises against the king violates the IexJulia maiestatis, since it would be like machinating the death of a magistrate of the Roman people; he would act against the emperor (princeps}, as the king of France is an emperor (princeps} in his kingdom’.[15] So in order to protect the monarchic principle against what some considered feudal anarchy, Jean de Blanot invoked a law from Roman Antiquity on the protection of imperial majesty (and preserved in the Digest of Justinian) and assumed that this ancient lex overruled the feudal principle of his own time. He made his step even more daring by the fiction that the king of France was an emperor, which he clearly was not. In fact this was no more than a form of words to express the plausible notion that the king of France was the sovereign monarch of a sovereign country, who occuÂpied in his kingdom the position the Roman princeps occupied in his empire. At first the writings of Jean de Blanot and his colÂleagues were scholarly exercises from the halls of the Schools, but soon they were quoted in court rooms and in the great political councils, and so Roman law began to conquer much of Europe.
Whether this learned ius commune could, in the twenty-first century, play a role in the elaboration of a common European science of private law is a question that naturally arises from the study of the past (and which we shall address in chapter 2).