THE IUS COMMUNE

Through the work of scholars of Roman law and through the canon law, together with the development of feudal law, there developed in Europe the phenomenon known as the ius commune.

The ius commune was a common European legal tradition in which lawyers were educated, rather than in their native system. Roman law, above all, was used as a common legal resource. Of course, this is not to say that there was a single system of law applying throughout Europe. Local legislation was important as well. However, in an age when legal education meant Roman legal education, lawyers were bound to see the law through Romanist eyes. Even where a local rule applied, it was interpreted in Romanist terms. A Scottish example of this can be found in the Leases Act 1449, which is still in force today. In Roman law, a lease was a form of hire (see Chapter 7). As a contract, it gave only a personal right, meaning that if the landlord trans­ferred ownership of the property to a third party, the tenant’s only remedy was an action against the landlord for breach of contract. He could not enforce the lease against the new owner, for only real rights were enforce­able against third parties. The position was the same in the Scots common law. However, the Leases Act 1449 provided that a tenant could continue in possession notwithstanding a change in ownership. The Act nowhere uses the term “real right”. But in Romanist terms, a right enforceable against a third party could only be a real right. Thus it is that, in modern Scots law, a lease is seen as a real right, with the full consequences of that designa­tion. Those consequences go beyond those stated in the 1449 Act, and for example include the tenant’s protection against the landlord’s insolvency.

Experiences of the reception of Roman law differed in pace and character in different countries. The remainder of this chapter looks at some of the more significant examples of the process, which culminated in the develop­ment of national legal systems based on Roman law.