or is
Latin
Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...
for "common law" in certain jurisdictions. It is often used by
civil law jurist
A jurist is a person with expert knowledge of law; someone who analyzes and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal education in law (a law degree) and often a Lawyer, legal prac ...
s to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in
English law
English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
. While the was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. ( is distinct from the term "
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
" meaning the Anglo-American family of law as opposed to the civil law family.) The phrase "the common law of the civil law systems" means those underlying laws that create a distinct legal system and are common to all its elements.
Etymology
The ', in its historical meaning, is commonly thought of as a combination of
canon law
Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...
and
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
which formed the basis of a common system of legal thought in Western Europe from the rediscovery and reception of
Justinian's Digest in the 12th and 13th centuries. In addition to this definition, the term also possibly had a narrower meaning depending upon the context in which it was used. Some scholars believe that the term, when used in the context of the
ecclesiastical court
In organized Christianity, an ecclesiastical court, also called court Christian or court spiritual, is any of certain non-adversarial courts conducted by church-approved officials having jurisdiction mainly in spiritual or religious matters. Histo ...
s of England in the fourteenth and fifteenth century, also "meant the law that is common to the universal church, as opposed to the constitutions or special customs or privileges of any provincial church."
Contents and history
The ' had a double basis: the Ancient Roman laws, as collected in
Justinian's ''
Corpus Juris Civilis
The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, enacted from 529 to 534 by order of Byzantine Emperor Justinian I. It is also sometimes referred ...
'', and the
canon law of the Catholic Church
The canon law of the Catholic Church () is "how the Church organizes and governs herself". It is the system of religious laws and canon law, ecclesiastical legal principles made and enforced by the Hierarchy of the Catholic Church, hierarchical ...
, as initially collected in the 12th century in the ''
Decretum Gratiani''.
While Justinian's collection remained unchanged throughout the medieval epoch, the canon law continued to be expanded and revised by various popes, reaching its final form, the ''
Corpus Juris Canonici'', in the 16th century. That "there were two highest laws, the canon and the civil" (Roman) law, remained a source of tension throughout the period in which the was influential.
While Justinian's laws themselves did not change, their understanding and interpretation developed throughout this period. From the 13th century on, the
gloss of
Accursius became especially relevant. Extended commentaries on Gratian's ''Decretum'', known as
summae, were similarly influential in regard to the interpretation of the canon law. The summa of
Hostiensis became especially famous for "its concision, its completeness, and its 'golden' eloquence", which earned it the honorary name ''Summa aurea'' (Golden Summa).
The ' was an actual part of the law in most areas, although in any one jurisdiction local laws (statutes and customs) could take precedence over the '. This was the case up until the
codification movement in the late 18th and 19th centuries, which explicitly removed the direct applicability of Roman and
canon law
Canon law (from , , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (church leadership) for the government of a Christian organization or church and its membe ...
in most countries, although there continued to be argument about whether the ' was banished completely or survived where the national codes were silent.
The latter view prevailed, so it can still be said that there is, in theory at least, a common basis in substantive law throughout Western Europe (except England, which never had a reception as such) although it has of course fragmented greatly from its heyday in the 15th and 16th centuries. More important, however, is the civilian tradition of ways of thinking that the ' encouraged and the procedures it used, which have been more persistent than the actual substance.
Influence in common law legal systems
In England, the law developed its own tradition separate from most of continental Europe based on its own
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
.
Scotland
Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...
has a mixed civil and common law system. Scotland had a reception of Roman law and partial codification through the works of the Institutional Writers, such as
Viscount Stair and
Baron Hume, among others. Influence from England has meant that today Scotland's current system is considered more common law than "civilian", but besides terminological questions there are areas which are still heavily based on medieval Roman law, such as Scots property law.
References
Bibliography
*Manlio Bellomo. ''The Common Legal Past of Europe, 1000-1800''. Washington, DC: The Catholic University of America Press, 1995.
*John W. Cairns & Paul J. du Plessis. ''The creation of the'' ius commune'': from Casus to Regula''. Edinburgh: Edinburgh UP, 2010.
*Orazio Condorelli & Rafael Domingo, eds. ''Law and the Christian tradition in Italy: the legacy of the great jurists''. Abingdon: Routledge, 2021.
*Tamar Hezog. ''A Short History of European Law: The Last Two and a Half Millennia''. Cambridge, Mass.: Harvard University Press, 2018.
*
David John Ibbetson, ''Common Law and Ius Commune''.
Selden Society
The Selden Society is a learned society and registered charity concerned with the study of English legal history. It functions primarily as a text publication society, but also undertakes other activities to promote scholarship within its sphere ...
, 2001
*Randall Lesaffer. ''European Legal History: A Cultural and Political Perspective''. Trans. Jan Arriens. Cambridge: Cambridge University Press, 2009.
*George Mousourakis. “The Survival and Resurgence of Roman Law in Western Europe”, chap. 7 of ''Roman Law and the Origins of the Civil Law Tradition''. Cham: Springer, 2015, pp. 233–86.
*Enrico Pattaro, ed. ''A Treatise of Legal Philosophy and General Jurisprudence''. 12 vols. Dordrecht–London–NY: Springer, 2006–11.
**Andrea Padovani & Peter Stein, eds. ''A Treatise of Legal Philosophy and General Jurisprudence'', vol. 7: ''The Jurists’ Philosophy of Law from Rome to the Seventeenth Century''. Dordrecht–London–NY: Springer, 2016.
**Damiano Canala, Paolo Grossi, & Hasso Hofmann, eds. ''A Treatise of Legal Philosophy and General Jurisprudence'', vol. 9: ''A History of the Philosophy of Law in the Civil Law World, 1600-1900''. Dordrecht–London–NY: Springer, 2009.
*Heikki Pihlajamaki et al., eds. ''The Oxford Handbook of European Legal History''. Oxford: Oxford University Press, 2018.
*O.F. Robinson et al. ''European Legal History: Sources and Institutions'', 3rd edn. Oxford: Oxford University Press, 2005.
*Bart Wauters & Marco De Benito. ''The History of Law in Europe: An Introduction''. Edward Elgar, 2017.
External links
Ken Pennington's lectures and articles on medieval law, including Ius Commune*
Jarkko Tontti
Jarkko Olavi Tontti (born 9 December 1971) is a Finnish novelist, poet, essayist and lawyer. He is former member of PEN International
PEN International (known as International PEN until 2010) is a worldwide professional association, associ ...
European legal pluralism as a rebirth of Ius commune. Retfaerd – Nordisk juridisk tidsskrift 94(2001).
{{Authority control
Civil law (common law)
Common law
Latin legal terminology
Legal history
Civil law legal terminology
Canon law history
Catholic Church legal terminology