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The Creation of the Ius Commune

The Creation of the Ius Commune: From Casus to Regula

John W Cairns
Paul J du Plessis
Copyright Date: 2010
Pages: 320
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  • Book Info
    The Creation of the Ius Commune
    Book Description:

    This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe.

    eISBN: 978-0-7486-4292-2
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    JWC and PJduP
  4. List of Contributors
    (pp. ix-x)
  5. List of Abbreviations
    (pp. xi-xiv)
  6. Introduction
    (pp. 1-6)
    John W Cairns and Paul J du Plessis

    The jurist Paul wrote: “The law may not be derived from a rule, but a rule must arise from the law as it is.”¹ This fragment is found in D 50.17, entitled De diversis regulis iuris antiqui, which consists of 211 such rules or regulae culled from the works of jurists of the classical era. The quotation from Paul emphasises the extent to which the Roman lawyers thought that regulae were extrapolated from cases, casus or causae. When the medieval jurists were confronted by the Roman texts, with their concrete discussion of particular cases, they looked at this title and...

  7. 1 The Sources of Medieval Learned Law
    (pp. 7-56)
    Harry Dondorp and Eltjo J H Schrage

    More than twenty years have passed since we published in Dutch an introduction to the foresta selvatica of the medieval learned law. A German edition followed in 1992,¹ and the book is still in print. During the years that have passed, however, an important number of new developments have taken place, specifically the expansion of the number and quality of the bibliographical tools available. This expansion is due partly to the appearance of a great number of new important books and partly to the growth of the internet. We will discuss these bibliographical tools more fully, but before doing so...

  8. 2 The Infrastructure of the Early Ius Commune: The Formation of Regulae, or its Failure
    (pp. 57-76)
    Kees Bezemer

    All interpretative activity necessarily begins with the explanation of words. This is what the medieval jurists first did when they started to explore the corpora of Roman and canon law. Next to this “literal” approach, they soon applied other exegetic methods, such as indicating texts containing identical (similia) or contrary (contraria) solutions to a legal problem or casus. These similia and contraria, originally listed in the margins of the manuscripts at a fixed distance from the main text, presented a challenge to inventive legal minds: was it possible to explain the discrepancies and reduce these to apparent contradictions? The method...

  9. 3 Ius Quaerens Intellectum: The Method of the Medieval Civilians
    (pp. 77-102)
    James Gordley

    In the West, since the time of the Roman jurists, the task of understanding and interpreting the law has usually belonged to a distinct class which a person can enter only after a long period of specialised study. Its members are united, not so much by agreement as to their conclusions, but by a common understanding of how conclusions are to be reached. They share a method which enables each jurist to arrive at opinions of his own and to explain why he agrees or disagrees with those of other jurists.

    This chapter is about the method of the medieval...

  10. 4 Medieval Family and Marriage Law: From Actions of Status to Legal Doctrine
    (pp. 103-126)
    Laurent L J M Waelkens

    The theme “from casus to regula” is particularly interesting in the law of persons. The sources of classical Roman law contain only case law (casus) about family matters and personal relations between house-mates and relatives. There were no rules (regulae). The way in which, at the end of the twelfth century, this case law was shaped into rules and systematic doctrine is significant for the history of medieval law.

    In classical Latin a persona was a theatre mask, hence a character and a theatre player. In legal texts the word was used for the actors in a law suit. When...

  11. 5 The Roman Concept of Ownership and the Medieval Doctrine of Dominium Utile
    (pp. 127-142)
    Thomas Rüfner

    Commenting on D – a text from the Digest dealing with the difference between possession and ownership (dominium) – the celebrated jurist Bartolus de Saxoferrato gives the following definition of ownership: “What, then, is ownership? Answer: it is the right of complete disposal over a corporeal thing, as long as it is not prohibited by law.”¹ This definition has influenced conceptions of property law for many centuries.² It is, for example, repeated almost verbatim in the French Code civil, article 544:

    Ownership is the right to enjoy and to dispose of things in the most absolute manner provided they...

  12. 6 Succession to Fiefs: A Ius Commune Feudorum?
    (pp. 143-158)
    Magnus Ryan

    Succession was one of the most heavily represented themes in later medieval and early-modern juristic discussion of fiefs. In this, ius commune feudorum merely reflected the wider trends of practical and academic jurisprudence. However, the frequency with which the phrase ius commune feudorum occurs in their surviving works indicates that many of the glossators thought that the law of fiefs constituted a significant category of its own within the broader ius commune, and this was indeed the case. The fief was thought to be sui generis. This is of some significance because the hermeneutic bias of the glossators from the...

  13. 7 Towards the Medieval Law of Hypothec
    (pp. 159-174)
    Paul J du Plessis

    Accounts of the external history of the reception of Roman law and its contribution to the creation of the legal systems of Western Europe usually contain a number of stock narrative elements. Chief among these is the statement that the teaching of Roman law at medieval Italian universities from the twelfth century onwards and the associated scholarly endeavours of medieval jurists contributed significantly to the creation of a pan-European ius commune which, though it did not replace local customary law, in time proved instrumental in the formation of the legal systems of Western Europe.¹ Although this statement continues to have...

  14. 8 The Ignorant Seller’s Liability for Latent Defects: One Regula or Various Sets of Rules?
    (pp. 175-218)
    Jan Hallebeek

    In 1999 a European Directive was issued that required specific protection for the buyer of consumer goods. This was subsequently implemented in the various European jurisdictions. When repair or replacement of these goods, in the case of non-conformity, is impossible or cannot be demanded or when the seller refuses to provide either of these solutions, the buyer has the remedies of reduction in price and rescission.¹ The corresponding liability of the seller does not necessarily depend on explicit warranties, contractual clauses or any kind of malicious intent (mens rea) on his side, but is simply imposed by the law or...

  15. 9 The Glossators’ Monetary Law
    (pp. 219-246)
    Wolfgang Ernst

    This chapter tries to establish what was the learned law’s view of money in the time of the glossators. Before going into the glossators’ texts, it is necessary to consider what Justinian’s law books contained in this respect, and therefore to turn briefly to the views that the Roman lawyers of antiquity held on the law regarding money and currency.

    The Roman economy was fully monetarised.¹ Money for the Romans meant coins, nummi. Roman coins were “commodity money”, but circulated by tale.² The Roman currency was state-controlled; coins were referred to as materia forma publica percussa. The minting of coins...

  16. 10 Citations and the Construction of Procedural Law in the Ius Commune
    (pp. 247-276)
    Richard H Helmholz

    The subject of this volume is the creation of the ius commune. It is a large subject, even an unwieldy one. Where should a student begin? A possible starting point, the one taken in this chapter, is to select a vantage point and use it to examine in detail the ways in which the law was formed. It has long seemed to me that procedural law might provide a profitable view. So I picked it as a topic, finding in subsequent investigation that it does provide a good example of some of the ways by which the mature ius commune...

  17. 11 Doctoribus bona dona danda sunt: Actions to Recover Unpaid Legal Fees
    (pp. 277-294)
    James A Brundage

    The idea that one must pay for legal advice and representation in order to secure one’s rights has never had wide appeal, save to those equipped to provide these services – and even some of them have occasionally voiced reservations about the practice.² “How glad I am that I have always kept clear of any contracts, presents, remunerations, or even small gifts for my conduct of cases”, wrote the younger Pliny (61/62-113). He added: “It is true that one ought to shun dishonesty as a shameful thing, not just because it is illegal; but, even so, it is a pleasure...

  18. Index
    (pp. 295-306)