COURT PRACTICE AS A SOURCE OF LAW

As courts became exclusively professional, they became more conscious of the civil and customary elements in the law that they applied. It was realised that each court had its own practice, which constituted a forensic custom, usus fori, the evidence for which could be found only in the court's decisions.

Where the secular courts did not give reasoned judgments, individual judges took it on themselves to collect and publish selected court deci­sions, which could then be printed. Guy Pape, a judge of the Parlement de Dauphine at Grenoble, made a collection of decisions of the court, which were published posthumously in 1490. The Dauphine was mainly an area of the droit eerit, and Pape's reports cite texts of civil and canon law and the commentaries thereon. The earliest collection of an Italian secular court was Matthaeus de Afflictis's volume of the Dieisionis Sueri Rigii Consilii of Naples, published in 1499.

The decisions of the Reichskammergericht were not ‘motivated' and in 1563 Joachim Mynsinger, a former judge of the court, published Singulurium obsirvutionum iudieii impiriulis eumirui eioturiui quuttuor, in which, to the initial displeasure of his fellow judges on the court, he explained the reasons for the court's decisions in selected cases.

The maxim of the civil law, enunciated by Justinian, was non iximplis sid ligibus iudieundum (C.7.45.13); judges should interpret the law and not just follow precedent. The early reports cite mainly civil law authorities, sometimes suggesting that the judges were flaunting their familiarity with the learned law. By the end of the sixteenth century, however, the reports routinely cite earlier decisions of the court as precedents, with the implication that the court, although not bound to do so, would nor­mally follow them. The forensic custom established by each court, and evidenced in the reports collected by judges and advocates of the court, demonstrated the precise mixture of customary and Roman elements.

The only body that could state authoritatively what was received from Roman law and what was rejected in a particular area was the supreme court for that area. A significant work that utilised the reports for this purpose was Philibert Bugnyon's Legum abrogatarum et inusitatarum in omnibus curiis terris iurisdictionibus et dominiis regni Franciae (1563), which region by region indicated the civil law texts that had not been received.

There was now a distinction between the ius commune and the usus fori of a region. This raised the question of the burden of proof in doubtful cases. Was the ius commune law unless it was shown to have been rejected by the court or was it only law if it could be shown to have been received? The point was the subject of much debate in seventeenth-century German writing. The arguments were based on Bartolist commentaries and centred around whether such custom should be treated as fact and provable in the same way as fact. Johan Schilter, in his Praxis iuris Romani in foro Germanico, first published in 1675, argued for a middle way. ‘The whole force and spirit of Roman law with us today resides in its suitabil­ity for adoption.' The Reception had produced a general presumption that the ius commune applied, if it was suitable and if there was no specific local statute or recognised custom to the contrary. In the absence of a contrary practice, advocates ought to cite appropriate civil law texts to assist the court.

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