The Reception of Roman Law & Ius Commune

Charlemagne saw himself as the defender of the church (ecclesiae) & he wanted to renovate the Roman Empire (renovatio imperii).

MAIN HISTORIC LEGACY OF CHARLEMAGNE = feudal contracts that were formed between him and his leading men.

The death of the greatest glossator Accursius is seen as the end of the age of the glossators. See Glossa Ordinaria and Glossators for more details.

Edward I was incumbent from 1272-1307. He is known as the English Justinian because just like Justinian he took keen interest in legislation & played a very active role as legislator.

Andreas Alciatus was an important representative of humanism & the founder of the mos gallicus movement
MAIN WORK; Annotationes in Tres Libros Codicis (1513)
SUCCESSOR; Jacques Cujas (1520-1570)

MOS GALLICUS
AIM: use a more humanist method to clear out Justinian's Corpus.
-Aherents of the mos gallicus criticized the Bartolisitc method of mos italicus for a wrong interpretation of the original Corpus;
-Fa, universities;
-Alciatus

MOS ITALICUS
-Mainly used + originated in Italy;
-AIM: deal with Justinian's Corpus in a scholastic manner, thus: NO adjustments. They taught Justianian's law as it was @ University of Bologna.

Cuiacius was the greatest humanist criticist that ever lived > hunt for interpolations started in 1583.

Hugo Donellus was a French Protestant + legal humanist that fleed to NL.

Francious Duaren wanted to arrange to law in a rational order, this idea and several of his other ideas were worked out in practical detail by Francois Connan and Hugo Donellus.

Donellus made a distinction between substantive law + legal procedure (by identifying what the rational structure of Justinian's corpus was).

First, one must recognise the subjective rights extended to a legal subject can exert those rights by means of actions (legal claims > cali 1 notes). The Digest however, begins with a discussion of the actions and judgements, and only then sets out subjective rights. The institutes do this the other way around. Donellus therefore assumed that the Institutional system was the correct starting point for a systematic study of law, and he structured his 28-book commentary to the ius civile accordingly.

Donellus sought to purge Justinian's law of both its original defects of form and its medieval corruptions.

Humanist & naturalist that treated the law of Holland as a system of its own, breaking away from viewing it as an appendix to the civil law and instead as a amalgam of Germanic customary law, Roman law + princely legislation. He structured his work Introduction to the Jurisprudence of Holland (completed in 1621, promulgated in 1631: AFTER de iure belle ac pacis ) according to the triparte division of the Institutes and followed the model of Petrus Ramus (''Ramism'') in providinf his work with diagrammatic outlines. In his most famous work, De iure de belli aci pacis (1625), he lays the theoratical groundwork for modern international law, which he bases on a secular natural law. He deduced the prinicples of natural law by observing the rules of law that were, in practice, common to all civilised peoples. Grotius' treatise bristles with references to the Roman civil texts. He superimposes the principles he formulates in this manner from ius civile to ius gentium.

Publication of Justinian's Corpus in a humanist edition by Denis Godefroi, which was later replaced in the 19th century.

The glossators were active from approximately 1050 until 1263. The death of Accursius in 1263 marked the end of the period of glossators. Glosses are remark about the main text (in the margin). Other literary output during this time were the summa (= summaries with a more free approach to the text. The most famous summa is the Summa codicis of Azo, that was a synthesis of the entire Roman law laid down in the order of the Codex).

LITERARY OUTPUT:
-Apparati;
-Summae;
-Glosses.

The Commentators had a new approach: they wanted to exposes the rationale behind the law & ask questions:
'Why do we do that?', 'How would the Roman have thought about it?'

They also studied an area that had not been studied before, namely : Private International Law.

LITERARY OUTPUT:
-Tractatae;
-Ordines Iudicialis;
-Decisiones;
-Consilae;
-Commentaries
-traetises.

Bartolus and his sucessor Baldus de Ubaldis (1327-1400) can be considered as the greatest commentators of their time. Their opinions were laid down in the communis opinio (generally accepted opinion).

Bartolist jurisprudence

The Renaissance and the humanists renewed the interest in Classical Roman law (antiquity).

The humanists saw the law as a mathematical science. They studied customary law using the scholastic method (= the scholastic method is a method that presumes the absolute authority of a certain text, which is considered to be a general treatise about a certain doctrine. It is assumed that every lacuna and every from of intentional contradiction is only seeming and they can be solved by interpretation. This scholastic method was applied to the rediscovered Digest in the 11th century).

Humanists wanted to reconstruct the old text because the cleansed acces of Justinian law also gave them access to the works of the great Roman jurist of the 2nd & 3rd centuries that had been excerpted into the Digest by Tribonian and his ilk.

They realised that there was a direct relationship between law and society @ the various stages of Roman history.
They were aware of the temporal nature of Roman law ? they had to adbandon the idea of universal applicability of Roman law.

From the 4th century onwards the law of the Church: Canon law was developed and used. Canon law was applied by ecclesiastical courts.

Canon law is largely comprised of Roman law, it interlinks very closely.

Why is Canon law important?
It has expended the jurisdiction of spiritual courts (officialates): criminal law, family law, private law (contract law > breaking a promise is a sin) etc. Besides this, the Romano-canonical procedure was applied/developed in ecclesiastical courts. This was due to the fact hat eventually no-one wanted to use to old, expensive and strict secular courts anymore > Romano-Canonical-procedure became the everyday-procedure.

Romano-canonical procedure:
As said before on of the reasons that the Romano-Canonical procedure gained popularity was because it was less strict and cheaper. HOWEVER, it also provided new methods to prove your case e.g. medieval oath-helpers (that unlike witnesses, only made a statement about the credibility of the party taking the principle oath) & it was WRITTEN, inquisitorial (instead of acquisitorial). Last but not least, it helped the reception of substantive Roman law.

Feudal law was about private individuals exercising imperium & the relationship between lord and vassal. It mixes private and public law.

When the Medieval Corpus was promulgated in 1200 the 'libri feudorum' was a part of 'Roman law'. It was one of the three parts of the so-called smaller part, the volumen parvum (institutes, tres libri, authenticum and libri feudorum).

The feudal period that was used during that time consisted of three layers:
1. Emperor > feudal lord;
2. King, counts & dukes > vassal / lord;
3. Counts, etc. > sub-vassals.

Indigenous customary law:
During the Middle Ages, the indigenous customary law was used. This indigenous customary law originated from Germanic tribal laws of the 4th - 8th centuries. Indigenous customary law was applied by specific courts in towns and rural areas.

'Regular' customary law:
The regular Roman customary law that was used during the Middle Ages had two requirements:
1. Longa consuetudine;
2. Consensus utentium.

-The content of this customary law can be determined by putting it into writing or look at case law.
-Customary law was not taught @ universities.
-Canon law contributed to customary law in the sense that bad customs may and can be set aside (ratio).
-Vulgar Roman law eventually became customary law.
-Roman law continued to exist through customary law that was used in Italy.

Roman law was rediscovered officially in the 11th century. Besides this it was studied by the Glossators between the 11th and 13th centuries AND Commentators between the 14th and 15th century. During the Middle Ages Roman law became a subsidiary body of law for several legal systems, e.g. Canon law: Roman-Canonical procedure.

Why was the Roman-Canonical procedure favoured?
Things had to be put into writing > EVIDENCE.

Why was Roman law so popular?
1. It provided arguments for the Investiture Struggle (1075-1122);
2. It was a law for the Holy Roman Empire;
3. It was full of wisdom, ratio > it's so much more than customary law;
4. It contains something nice for everyone e.g. The Digest contains a passage that states that the Emperor is free from the law, which is obviously an advantage for the Emperor. (HOWEVER passages in the Codex contradict this).

NEVERTHELESS, Roman law was not popular in France.
1219: Teaching Roman law was forbidden in Paris.
1217: Lawyers may not cite Roman law @ Parlement de Paris.

The period between the Gregorian Reform (1049-1122) and the Great Schism (1054) is the high point of canon law: classical canon law.

In 1219 the study of Roman law at he University of Paris was forbidden at the request of Philip II Augustus.

Natural law, also known as ius naturale are the legal principles that everyone should accept no matter what time etc. Ius naturale is binding to everyone, even SLAVES (in contrary to ius gentium).

The Early Middle Ages lasted from ± 500 until 1000. It's also known under the name of correctio.

The Early Middle Ages lasted from ± 1000 until 1453, when the entire Roman Empire fell. It is also known as auctoritas.

The Early Modern Ages lasted from ± 1453 until 1648. It's also known under the name of emulatio.

The Modern Age, which is also known as ratio, lasted from ± 1648 until 1914.

See the Post-Modern Age at the layer 'periods of time' for more details.