7.7.3 The Ius Commune in Italy, the Iberian Peninsula and the Netherlands
By the close of the fifteenth century, the medieval world of the Italian city-states had evolved into the Kingdom of Naples in the south, the Papal States and Tuscany in central Italy, Piedmont, Lombardy under Milan, the Republic of Venice and a number of lesser states.[755] The Kingdom of Naples was a centralized state with a hierarchy of courts, more akin to France or Spain than the rest of Italy.
The continued political fragmentation of Italy did not affect the application of civil law and the working of the courts, which maintained the traditional blending of the Roman law of the Glossators and Commentators, canonical procedure and general and particular custom. The great medieval treatises of Bartolus and Baldus, in particular, continued to enjoy high esteem. The legal literature that emerged in university towns, such as Bologna, Padua, Pavia and Naples, although frequently concerned with local needs, became part of the pan-European ius commune—a process facilitated by the invention of the printing press in the late fifteenth century.[756] Italian scholars of the late fifteenth and early sixteenth centuries, such as Giasone del Maino (1435-1519) and Filippo Decio (1454—c. 1535), sought to combine the tradition of the ius commune with the ideals of the new humanist learning. After the integration of Italy into the Napoleonic state, the French Civil Code was introduced in the country (1806). Even though the ius commune continued to exist even after the restoration of the Italian states following the defeat of Napoleon (1815), a growing number of states began to draw up their own law codes (the so-called codici preunitari). The earliest among these, the codes of the Kingdom of Naples (1819) and the Duchy of Parma (1820), were modelled closely on the French Civil Code, while the later ones of Piedmont (1837) and Modena (1851) represent a peculiar blend of French style and traditional local elements. In Lombardy and Venice, which had been returned to the rule of the Austrian emperors, the Austrian Civil Code (ABGB) of 1811 was put into force.[757]Any consideration of the development of law in Spain must take into account the fluid relationships between the different peoples that settled in the Iberian Peninsula and the changing fortunes of the diverse states that evolved in medieval times. As noted earlier, in the second half of the fifth century the Germanic tribe of the Visigoths was successful in establishing a permanent rule on the Peninsula.[758] In the period that followed, Roman personal law, as embodied in the Lex Romana Visigothorum, coexisted with the laws of the Visigoths (who never amounted to more that 5 % of the total population). In the course of time, as the two ethnic groups merged, a territorial law, permeated in both substance and form by Roman law, prevailed. This law was embodied in the corpus iuris promulgated for all citizens by the Visigothic king Recceswinth in c. 654. The new law code, referred to as Liber Iudiciorum or Lex Visigothorum, remained the basis of law in Spain until the fifteenth century, governing the Christian population even during the long Muslim rule (from 711). During the period when Christian forces were pushing back those of Islam, a diversity of states of varying sizes and significance emerged in the territory of present-day Spain: Castile (later reunited with Leon), including Galicia and the Basque region; Aragon; Catalonia; Navarre; and the Balearic Islands.
The legal development of Castile-Leon deserves special mention because of the important role this state played in the unification of Spain. In this realm the king exercised supreme jurisdiction as the natural lord of all his subjects. The growing influence of the court of alcades de corte, or of the royal household, composed of professional judges, diminished the importance of local customs of a largely Germanic origin, called fueros or usus terrae.
In the course of the thirteenth and fourteenth centuries men trained in Roman law at the universities (letrados) became influential and attained high office in the royal service. A large number of students from Spain attended Bologna, and this trend continued even after the first Spanish universities were established (in Palencia, Salamanca, Seville and Lerida) in the thirteenth century.[759] The Spanish jurists spread the knowledge of Roman law and the methods of the Glossators and the Commentators throughout the Iberian Peninsula. The most significant product of this growth of the study of Roman law was the famous Libro de las leyes, commonly called the Las Siete Partidas (The Seven Parts [of the Law]), compiled by order of King Alfonso X the Learned during the period 1256-1265. This work, drafted largely by jurists of the University of Salamanca, contains a large number of legal rules on marriage, contracts, inheritance and procedure, derived from a variety of Roman and canonical sources.[760] The enforcement of Las Siete Partidas as the common law of Spain was delayed due to the opposition of Spanish traditionalists, who remained loyal to their local customs. Only in 1348 was it promulgated as general law (by the Ordenamiento de Alcala, a compilation of laws enacted by the courts of Alfonso XI in Alcala de Henares), even though it remained subordinate to local custom. However, as local customs needed to be proved to a court as actually being observed, whilst there was always a presumption in favour of Las Siete Partidas, the later work gradually came to prevail as the official law of Spain. The accompanying reception of the learned law of the ius commune was so massive that the monarchs decreed that the courts, when faced with gaps in the law, should rely on the authority of the major Glossators and Commentators.[761] Although Las Siete Partidas was rearranged at various times as political conditions evolved, it remained the foundation of law in Spain until it was superseded by the Codigo Civil of 1889.In neighbouring Portugal the law that applied was at first derived from the Liber ludiciorum of the Visigoths, as extended in 1054 by King Alfonso V of Leon, and local customs.
But, in the course of time, the ius commune was received in this country too, with the principal centres of legal learning being the universities of Coimbra and Lisbon. It is thus unsurprising that the first comprehensive collection of Portuguese laws, the Ordenacoes Afonsinas, enacted by King Alfonse V in 1446, in large part consisted of Roman and canon law. This compilation was followed by the Ordenacoes Manuelinas, promulgated by King Manuel in 1521, and finally in 1603, during the reign of King Philip II, by the Ordenacoes Filipilinas, which remained in force until modern times not only in Portugal, but also in its colonies, such as Brazil. These enactments embodied the principle that Roman law and the works of the Glossators and the Commentators constituted the common law of the realm that was applicable whenever local legislation or customs were silent or ambiguous.In the Netherlands, as in most areas of Western Europe, the revival in the study and application of Roman law in the High Middle Ages led to a major reception of Roman legal norms, concepts and principles, so that by the end of the sixteenth century Dutch law bore a heavily Romanised look. This development occurred at a time when the material prosperity of Holland had advanced considerably, owing largely to the growth of trade and commerce, and so a more sophisticated legal system was required to meet the new conditions. Instances of Roman legal influence were particularly evident in the fields of the law of property, contract and delict, as these were the areas where Roman law was considered to be far superior to the indigenous Dutch law. However, in spheres such as the law of persons and intestate succession, local customary laws largely resisted the Roman reception. Moreover, even in the areas of property and contract, Dutch jurists were cautious in their selection of Roman rules, and tended to reject archaic and formalistic concepts. The outcome of this process was thus a hybrid legal system, consisting of Roman and Dutch elements, which came to be known as Roman-Dutch law.[762] The principal centre of Roman legal studies in the Netherlands was the University of Leyden, established in 1575.
In the period that followed more universities were founded at Franeker in Friesland (1585), Groningen (1614), Utrecht (1636) and Harderwijk in Gelderland (1648). Legal development in the seventeenth and eighteenth centuries was based largely on the work of the Dutch professors, especially those of Leyden, who, together with the judges of the High Courts of the provinces, created a highly advanced body of law derived from the synthesis of legal science and legal practice.[763] In 1652 Roman-Dutch law was introduced to South Africa, with the result that the Roman and Dutch texts became authoritative sources of South African law.[764]
More on the topic 7.7.3 The Ius Commune in Italy, the Iberian Peninsula and the Netherlands:
- 1. The older ius commune
- The regime of the ius commune: all or nothing
- Requirements of mora debitoris (ius commune)
- Impossibilium nulla obligatio est under the (earlier) ius commune
- The compromissum of the ius commune
- III. FURTUM IN THE IUS COMMUNE
- Consequences ofmora debitoris (ius commune)
- JUSTINIAN, IUS COMMUNE AND MODERN DEVEEOPMENTS
- Donation under the ius commune and in modern law
- THE ROMAN CONTRACT OF STIPULATION UNDER THE IUS COMMUNE
- Conventio, pactum and contractus under the ius commune
- Post-classical developments, Corpus Juris and ius commune
- Just like the Roman contractual system, the whole range of condictiones supplementing it was received into the ius commune;
- "Solutio propria", "in praecisa forma et specie obligationis"[3885] (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations.
- France and the Netherlands
- Praetor’s Edict, Ius Honorarium, and Ius Novum
- V. IUS jNATURALE, IUS GENTIUM
- The Administration of Italy and the Provinces