The Ius commune without Hierarchy

The problem is that a modest reconstruction of a portion of histori­cal reality of that sort neglects at least two fundamental aspects of that reality. First, the ius proprium was not merely a “positive law” that exhausted its reasons for being by offering precepts to judges and op­portunities for arriving at judicial solutions in a situation of conflict of interest.

We need to seek to understand what the iusproprium contained that the ius commune did not, and vice versa, and how they differed. We also need to grasp why neither of these complex normative systems can be reduced to or understood uniquely as positive law.

Anyone redacting a norm as a way to fix a fluid custom in writing or to flesh out the will of a citizen assembly or a prince used the Latin language and, within that language, the lexical paraphernalia specific to the Roman jurists. Thus, such a person knew, and had to know, Justinian’s Corpus iuris civilis, because the technical terms of juridical science were set out in that corpus and transmitted by it. Ifhe spoke of dominium (proprietory right), of obligatio (legal obligation), or of emptio-venditio (purchase-sale), he necessarily did so in reference to the meanings that those terms bore in the laws of Justinian, whether he wanted to use them in that precise sense or to move away from that meaning.

The notary was in an analogous position with respect to the wishes of the private persons who expected him to help them make out a will, make an inter vivos (among the living) transfer of a res (property), or assume a debt or a credit. The notary had to use a prescribed lan­guage (Latin) and a specific technical language (that of the ius com­mune') ; hence, he too wrote of testamentum (will), of obligatio, of emp­tio-ven ditto, and so forth.

In both cases, the increasing precision in the technical language perceptible in the sources beginning in the late eleventh century can be explained only if we keep in mind that knowledge of the ius com­mune was essential for the redactor of a law or for the notary. Conse- quendy, behind the completed act—be it a “law” or a notarial act— there had to have been practical and concrete study of the ius com­mune. Such study was intrinsic to the work at hand, and it served to vitalize that work and to determine its technical value, even when no citations to ius commune texts appeared and no texts of the ius com­mune were applied.

The interpreter of the law, be he a judge who had to hand down a decision or a lawyer who needed to construct a defense, was involved in a similar operation. Even if a norm of ius proprium (royal, commu­nal, or other) or a clause in a contract that needed to be interpreted was an obligatory point of reference, the judge or the lawyer could not ignore the common and accepted meanings of the technical terms that he found in the law or in the notarial act. In other words, he could not be unaware of the ius commune, which established the sig­nificance of those terms and which even designated what Gaius called the variae causarum figurae—the legal concepts and doctrines that were the inheritance and the wealth of every jurist.

In these mechanisms it was not important whether or not the “con­tent” of the norms or of the clauses being negotiated agreed or dis­agreed with the precepts of the ius commune. Thus it was totally irrele­vant whether the ius commune, as positive law to be applied, was first or last in the hierarchies of sources of law. What mattered were simply the concepts and doctrines that were the stuff of the ius commune, the principles that inspired it, and the values that it expressed.

Furthermore, as we shall see, reference to concepts and rules and knowledge of them was accompanied by a faith that they were eternal and unchanging, because they gave concrete form to a system of val­ues and of superior and absolute principles.

If we look at the question in these terms we cannot (and we should not) be surprised that practice reflected just the opposite of what is thought by those who restrict their vision to the norms of the ius pro­prium and who establish a fixed hierarchy of laws and assign the last place to the ius commune. It should not seem astonishing that in every important practical act the ius commune vns the basis of every deci­sion, thanks to a rational mechanism broadly attested in the extant records of court cases, official and ancillary, and in allegationes and consilia. Not only did the ius commune serve to provide concepts and technical language; its norms also served a purpose, even if they were not applied and even if they differed from or even contradicted those of the ius proprium. It was the grafting of Aristotelian dialectic onto jurisprudence that made it feasible to utilize the ius commune in court cases or arbitration. When the “practical” jurist found an adequate modus arguendi in the available logical paraphernalia, he used a dispo­sition included in the Corpus iuris civilis or in the universal laws of the church as the linchpin of his argument. Then, reasoning by similarity, a contrario, ex silentio, or ab auctoritate (according to the modus ar­guendi that he chose from among the many available), he used that base to construct an argumentum that led to a juridical resolution of a problem not present in the civil or canon laws, but adequate to re­solve a problem arising from interpreting a provision of the ius pro­prium or even a contractual clause that lay behind an actual or even­tual law suit or extrajudicial quarrel.

One can see at a glance that when the jurists of this middle period were involved in a practical activity (writing consilia, for example), they always argued from the norms of the ius commune. It occasionally happened that they chose to (or were obliged to) argue only ex iustitia rather than ex lege, but they never argued from texts other than those of the ius commune, and certainly never on the basis of norms from the ius proprium. It is thus misleading to think that the consilia can be understood historically only as an excellent mirror of practice; the consilia provide just as good a reflection of the theoretical potential, used in a concrete situation, of the ius commune. Moreover, the jurists of the thirteenth and fourteenth centuries had behind them a long apprenticeship. As we have seen, they learned their craft in the schools when a quaestio ex facto emergens or a quaestio statutorum was being debated, and they knew perfectly well that arguments on the basis of any text from ius proprium or of any sort other than the ius commune were inadmissible.^[142]

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