THE MEDIEVAL IUS COMMUNE

Nevertheless, even in medieval times, some unifying forces were at work. The Church, as we have seen, comprehended all of western Christendom in one centralized organization, but its law had only a limited impact ratione materiae and ratione personae.

The other half of the ius commune, Roman law, was initially cultiВvated only by a small elite of scholars, but eventually their teachВing entered the practice of the courts and influenced the royal legislators and even the drafters of the homologated customs. In this sense medieval Roman law as a pan-European science was a unifying force.¹ The learned commentators of customary law, who had been trained as Roman lawyers, tended to apply the scholarly methods they had acquired at the university. This was the case, for example, when Charles Dumoulin wrote his comВmentaries on the Custom of Paris.^{^[16]} ^{^[17]} Moreover, kings who caused customary laws to be recorded and made them binding tended to give Roman law a supplementary role, in order to remedy the deficiencies and gaps in recorded customs.^{^[18]} Here again Roman law was a unifying force.

It would, however, be wrong to accept this traditional - and basically correct вЂ” interpretation without qualification. Indeed, in some quirky way Roman law also exerted a divisive influence

(in the sense of leading to diversity and not of causing conflict). It was divisive because its impact varied greatly from country to country and consequently created differences between them. If they had all вЂ?receivedвЂ™ the ius commune around the same time and with the same intensity, its unifying role would have been total, but this was not the case. Indeed, the impact of Roman law varied from close to nil (in the case of the English comВmon law) to massive (in the case of the German Pandectists of the nineteenth century), with various shades in between: the seventeenth-century Roman Dutch law was built on a pecuВliar symbiosis of customary and learned law, and produced by the creative mind of Hugo Grotius (d. ι 645).

The ambivalent role of Roman law in medieval Europe was highlighted recently in a large and original book by an Italian scholar, Maurizio Lupoi,^{^[19]} who maintains that until the twelfth century Europe lived under a common Germanic-feudal law and that it was the progress of neo-Roman law which caused the great divide between common-law and civil-law countries and between the lands of the Code civil and those of the Burgerliches Gesetzbuch. The common law, in this perspective, continued the un-Roman law of early medieval Europe, whereas the Continent took a different road and diverged (dare we say deviated?) from the common old stock (the Continent cut off from England instead of the other way around!). Certainly in the perspective of universal legal hisВtory, a system built on customs and case law must be judged more вЂ?normalвЂ™ than one produced by a quasi-theological exegesis of an ancient sacred text (more on this in chapter 4). LupoiвЂ™s thesis is reВfreshing and somewhat provocative, but deserves closer scrutiny. The archaic law of early medieval Europe admittedly presented a great similarity in its basic assumptions and attitudes вЂ” in its system of proofs, for example^{^[20]} вЂ” but the fact remains that there was a noticeable difference between allodial and feudal lands, between urban and rural usages and privileges, and between the edicts and customs in various realms, countries and smaller disВtricts. This diversity was being overcome by the new cosmopoliВtan learning. The question therefore arises whether a common European theory of private law вЂ” a new ius commune вЂ” could, in a united Europe, play the same unifying role as the old did between the twelfth and the eighteenth centuries.

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Source: Caenegem R.C. van.. European Law in The Past and The Future: Unity and Diversity over Two Millennia. Cambridge University Press,2004. вЂ” 185 p.. 2004

THE MEDIEVAL IUS COMMUNE

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