7. Roman Law and Ius Commune
In the broadest outline, this is the history of what is often called the second life of Roman law: its effect on European legal scholarship from the days of the ‘reception’.
Roman law became the foundation of the ius commune. That ius commune was a learned law, sustained by academic scholarship and study; it found its manifestation in a very large and essentially uniform body of literature across Europe; and it was based on a uniform university training in law.106 But it was never on its own. The dualism of Empire and Church, and of Emperor and Pope, was reflected in the dualism of Roman law (that is, civil law) and Canon law, of secular and ecclesiastical courts, and of scholars studying Roman law (the legists) and Canon law (the canonists). At times, the jurisdiction of the ecclesiastical courts extended far into the core areas of private law.107 lang=EN-US>There were jurisdictional shifts and conflicts that reflected the power politics between spiritual and secular rulers. But there were also far-reaching intellectual connections. Canon law was the law of the Roman Church, and it was largely based on Roman law; in turn, it exercised a considerable influence on the secular law.108 The principle of pacta sunt servanda derives from Canon law,109 as does the principle of restitution in kind.11oApart from Roman law and Canon law, there was also feudal law which had, however, been incorporated through the Libri feudorum into the body of Roman law.111 There were the systematic designs and the doctrines of the late scholastics in Spain112 and, later, of the adherents of a rationalistic Natural law that were moulded by Roman law and, in turn, influenced the ius commune. There were customs (consuetudines), confined in their application to specific places and territories, which were recognized within the framework of the ius commune and subjected to scholarly analysis.
There were the rules and customary laws - predominantly unwritten, but also sometimes laid down in writing — that had emerged, from about the twelfth century onwards, in fairs and trading centres across Europe, as well as in the harbour towns on the shores of the Mediterranean, the Atlantic Ocean, and the Baltic Sea.113 Here, too, there was mutual influence with regard to Roman law and the Roman-Canon ius commune.Above all, however, there was an enormous variety of territorial and local legal sources that, in theory, always enjoyed precedence before the courts. The ius commune was applicable only as a subsidiary source of law, yet practically it often gained the upper hand. According to early modern legal literature, there was even an established presumption (fundata intentio)114 in favour of the application of the ius commune. But that presumption does not express the whole truth; for what actually happened in courtrooms across Europe was subject to considerable variation, and it could vary from place to place and from subject area to subject area. Even legal practice in the Holy Roman Empire of the German Nation, the heartland of the reception, can be said by way of summary to have been characterized by ‘a legal pluralism hardly imaginable’ today.115 But it was a diversity within an overarching intellectual unity, and that intellectual unity was established by a legal training focusing everywhere in Europe on the body of the Roman legal sources. The unifying effect of the legal training was to become particularly evident, once again, in nineteenth-century Germany. Only in parts of Germany was the ius commune directly applicable. The remainder was subject to a range of special legal regimes, among them the Prussian code of 1794, the General Civil Code of Austria, the Code civil, the Landrecht of Baden (which, essentially, constituted a translation of the Code civil), and later also the Saxon Code of Private Law. 11 Nonetheless, it was the ius commune that provided the basis for interpreting and truly understanding these legal regimes, 117 and thus it claimed — and was, as a matter of course, granted — centre stage in the curricula of all German faculties of law.118 The pandectist branch of the Historical School thus managed to create (or rather preserve) a distinctive cultural unity on the level of legal scholarship, enabling professors and students to move freely from Königsberg to Strasbourg, from Giessen to Vienna, or from Heidelberg to Leipzig.119
8.