TRIBES AND NATION STATES

In present-day Europe the basic nineteenth-century situation still prevails. On the Continent the codes have survived and the nation states are still going strong: вЂ?one nation, one state, one code of lawвЂ™ describes it well enough.

The same can be said of the uncodified English common law, whose hold on the counВtry is still powerful. Law students of my generation, who had never heard of a European Commission, a European Parliament or European courts in Luxemburg and Strasbourg, took these monolithic national systems for granted. The most striking exВample could be found in the over-centralized France of the nineВteenth century. Private law was based on one civil code and one code of civil procedure, which had formally replaced all previВous norms and were valid for the whole territory. There was one tightly controlled network of Law Faculties where the one Code civil was taught under the supervision of one Ministry of EduВcation. There was one Department of Justice to supervise the workings of the courts and one Court of Cassation, in Paris of course, to ensure the application of the one code and the uniforВmity of its interpretation. There was one body of jurisprudence, with a limited number of eminent professors who wrote authorВitative treatises (sometimes called вЂ?elementaryвЂ™ in spite of their containing numerous volumes) and all belonged to the one Ecole de l^,Exegese (on which more in chapter 4). The system was closed in the sense that no appeal to higher courts outside France was possible: the citizens were imprisoned in their вЂ?sovereignвЂ™ nation state, with their own laws and their own judges.

The contrast with previous centuries could not be greater, for Old Europe had known a legal fragmentation that we can hardly conceive. Europeans had lived under various Germanic tribal laws, attached not to a territory, but to men and women of comВmon descent.

When more settled conditions prevailed, people lived according to local customs, applied in numerous regions of various sizes. As kingdoms and principalities developed their poВlitical institutions, legislation gained some importance, either at a national, a regional or a local level (for certain towns or groups of villages). From the twelfth century onwards urban autonomy was an important factor and so were urban privileges and legВislation. Long before that date feudal law had taken shape, with a set of norms of its own and valid for limited social groups and particular plots of land. The innumerable medieval corporaВtions - universities, guilds and crafts - had their own laws and rules, and above it all the Church applied its canons and decretals and the neo-Roman law of the glossators and the commentaВtors. All these laws were applied in different courts, which were sometimes competent for tiny plots of land or small quarters of a town. The fragmentation was so extreme that within a single agglomeration, neighbouring areas, districts and even buildings could fall under different legal systems and belong to different courts of aldermen, guilds, feudatories, lords, rural deans or hunВdreds. The amazing thing is that society coped so well with this miraculous multiplication of laws and courts. Demarcation disВputes were frequent, but were usually solved peacefully: it took a Thomas Becket to turn a conflict on jurisdiction into a great and bloody political drama. Also, the multitude of urban laws led in fourteenth-century Italy to the rise, under the aegis of Bartolus, of a doctrine of the conflict of laws, i.e. international private law.

In the last analysis this legal - and political - state of affairs was the consequence of the all-pervading medieval diffusion of power, which had radically replaced the fundamental Roman notion of its absolute concentration. In Antiquity all legitimate authority derived from the emperor, even in the most remote

24 Ius commune: Thefirst unification of European law provinces. The Middle Ages knew and accepted a multitude of autonomous sources of legitimate power, dispersed over a wide variety of persons and bodies.

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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

TRIBES AND NATION STATES

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