The Ius Commune: A Transformation of Medieval Law
The Ius Commune: Shaping Medieval Law
6.3.2. Jurists and the Development of the Ius Commune
The jurists of the medieval world reflected a distinct social landscape. Despite their perceptions, they struggled to adapt to the changing times. Therefore, the most crucial developments in the ius commune were not legal texts themselves, but the constructive work of lawyers upon those texts, creating institutional policies to govern their world. This legal work was unified, but unfolded in two phases:
Phase 1: The Commentators (Late 11th – Second Half of 13th Century)
- Scientific Enthusiasm: Driven by the demands of a complex world, jurists sought modern legal instruments for contemporary realities.
- Justinian Law as Foundation: Justinian law provided a powerful and legitimate basis for building a legal system (Grossi). The texts were viewed as sacred and venerable, lending legitimacy to the lawyers’ interpretations.
- Glosses: These clarifications of legal terms demonstrate the close relationship between teaching and written texts. The commentators’ method was marked by fidelity to the text and an analytical approach to understanding its meaning. Glosses were written between the lines and in the margins of the texts, reflecting the connection between written glosses and classroom lectures. This work was crucial in creating a technical language for law, providing clear meaning to the Justinian compilation and offering interpretations relevant to the medieval context.
- The Magna Gloss (Mid-13th Century): Accursio compiled all the glosses on Justinian’s Digest, creating the Magna Gloss (also known as the ordinary gloss), an essential tool for jurists.
Canon Law: The gloss method was also applied to Canon Law, notably in the Decree of Gratian and the Decretals.
University-Based Legal Scholarship: Within the universities, particularly Bologna, commentators presented their knowledge through:
- Glosses
- Summae: Orderly expositions of titles within the Justinian compilation, found in both Roman and Canon law. Summae also branched into monographs, particularly in procedural law.
- Conciliae: Opinions on specific cases or controversies.
- Quaestiones disputatae: Written discussions of legal issues.
Phase 2: The Post-Commentators (The Commentaries)
A natural progression from the commentators emerged as the possibilities of the gloss method were exhausted. This gradual shift, led by French jurists and notably Cino da Pistoia, saw a more constructive approach, using the texts as a foundation for building legal forms tailored to the times.
Characteristics of the Post-Commentators:
- Jurisprudence Construction: Building upon the glosses, the post-commentators focused on clarifying the meaning of the text, using it as an instrument to construct law.
- Focus on Contemporary Issues: They addressed the problems posed by the social and political realities of their time, seeking legal figures appropriate for daily life.
- Casuistic Approach: The text became a source of principles for building solutions-oriented institutions.
- Tractatus (Treatises): These monographs addressed specific legal institutions, demonstrating a detachment from the original text.
- Conciliae: Resolutions of cases with a practical purpose.
This school reached its peak in the 14th century with prominent figures like Bartolo, Baldo of Ubaldi (civilians), Sassoferrato, and Juan Andres Panormitano (canonist). Followers of this method, known as the mos italicus (Italian way), focused on commentary and practical application.
Characteristics of the Ius Commune
- Dual Nature: The ius commune was both normative and jurisprudential, inextricably combining legal texts with the interpretations of legal scholars. The texts provided legal authority, while the jurists, through interpretatio, brought the texts to life, extracting legal substance and adapting it to social reality. This created a tension between the authority of the texts and the contemporary interpretations, with the jurists gradually moving away from strict adherence to the Justinian compilation.
- Casuistry: The work of the jurists was always oriented towards solving specific cases, facilitated by their complex Scholastic method.
- The Role of Jurists: The ius commune was the law of lawyers, a judge-made law. Individual jurists, through interpretatio, shaped the law. This raised concerns about legal certainty, addressed through the concept of opinio communis (common opinion), which prioritized the authority of legal opinions rather than simple majority views.
- Distinct from Early Medieval Law: The ius commune represented a learned, scholarly law, accessible only to trained legal professionals, contrasting sharply with the more accessible legal systems of the early medieval period.
Diffusion of the Ius Commune
The ius commune spread throughout Europe, coexisting with existing legal systems. This diffusion was driven by both political and cultural factors:
Political Factors:
- Link to the Medieval Empire: The ius commune was initially tied to the revival of the medieval empire in the late 10th century, which invoked old Roman law to establish continuity with the ancient Roman Empire. The commentators constructed a legal framework for the emperor, emphasizing his exclusive legislative power, royal prerogatives (iura maiestatica), and the crime of high treason (infidelity to the prince).
- Conflicts over Power: The imperial idea clashed with other power holders:
- Empire vs. Papacy: The conflict between these two supreme powers led to extensive legal literature on the question of primacy within Christendom.
- Empire vs. Kings: Kings sought to legitimize their own power by distancing themselves from the Empire, claiming the same powers within their own territories as the emperor claimed within the Empire. As the imperial idea waned in the 13th century, Roman Canon law became a framework for the coexistence of different political powers.
Cultural Factors:
- Ratio Scripta: The ius commune was seen as written reason, the embodiment of natural law.
- Influence Beyond Boundaries: Its influence in each region often exceeded that of the local law.
The spread of the ius commune did not eliminate local laws. It served as a guiding doctrine and, in many cases, as supplementary law.