Jus commune

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Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in English law. While the ius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all. [1] (Ius commune is distinct from the term "common law" 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.

Latin Indo-European language of the Italic family

Latin is a classical language belonging to the Italic branch of the Indo-European languages. The Latin alphabet is derived from the Etruscan and Greek alphabets and ultimately from the Phoenician alphabet.

Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions.

Jurist Legal scholar or academic, a professional who studies, teaches, and develops law

A jurist is someone who researches and studies jurisprudence. Such a person can work as an academic, legal writer, law lecturer and practice law (lawyer), depending on legislation in the respective jurisdiction. In the United Kingdom, Australia, New Zealand, South Africa, and in many other Commonwealth countries, the word jurist sometimes refers to a barrister, whereas in the United States of America and Canada it often refers to a judge.

Etymology

The ius commune, in its historical meaning, is commonly thought of as a combination of canon law and Roman law 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 courts 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." [2]

The canon law of the Catholic Church is the system of laws and legal principles made and enforced by the hierarchical authorities of the Catholic Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church. It was the first modern Western legal system and is the oldest continuously functioning legal system in the West, while the unique traditions of Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.

Roman law Legal system of Ancient Rome (c. 449 BC – AD 529)

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

An ecclesiastical court, also called court Christian or court spiritual, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages these courts had much wider powers in many areas of Europe than before the development of nation states. They were experts in interpreting canon law, a basis of which was the Corpus Juris Civilis of Justinian which is considered the source of the civil law legal tradition.

History

The ius commune 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 ius commune. 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 in most countries, although there continued to be argument about whether the ius commune was banished completely or survived where the national codes were silent.

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

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 ius commune encouraged and the procedures it used, which have been more persistent than the actual substance.

In England, the law developed its own tradition separate from the rest of Europe based on its own common law. Scotland 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 Scotland's current system is more common law than civilian, but there are areas which are still heavily based on Roman law, such as Scots property law.

Scotland Country in Northwest Europe, part of the United Kingdom

Scotland is a country that is part of the United Kingdom. It covers the northern third of the island of Great Britain, with a border with England to the southeast, and is surrounded by the Atlantic Ocean to the north and west, the North Sea to the northeast, the Irish Sea to the south, and more than 790 islands, including the Northern Isles and the Hebrides.

James Dalrymple, 1st Viscount of Stair Scottish viscount

James Dalrymple, 1st Viscount Stair, Scottish lawyer and statesman, was born at Drummurchie, Barr, Ayrshire.

George Home, 1st Earl of Dunbar Scottish diplomat

George Home, 1st Earl of Dunbar, KG, PC was, in the last decade of his life, the most prominent and most influential Scotsman in England. His work lay in the King's Household and in the control of the State Affairs of Scotland and he was the King's chief Scottish advisor. With the full backing and trust of King James he travelled regularly from London to Edinburgh via Berwick-upon-Tweed.

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Common law Law developed by judges

In law, common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Jurisprudence theoretical study of law, by philosophers and social scientists

Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

Law is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also the field which concerns the creation and administration of laws, and includes any and all legal systems.

Philosophy of law Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

The judiciary is the system of courts that interprets and applies the law in a country, state or an international community. The first legal systems of the world were set up to allow citizens to settle conflicts without violence.

Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilisations and is set in the wider context of social history. Among certain jurists and historians of legal process, it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts; some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualised manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyse case histories from the parameters of social science inquiry, using statistical methods, analysing class distinctions among litigants, petitioners and other players in various legal processes. By analysing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil codes can achieve.

The ius gentium or jus gentium is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law or a legal code, but rather customary law thought to be held in common by all gentes in "reasoned compliance with standards of international conduct".

Code of law type or grouping of legislation

A code of law, also called a law code or legal code, is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the code was enacted, by a process of codification. Though the process and motivations for codification are similar in different common law and civil law systems, their usage is different.

Byzantine law

Byzantine law was essentially a continuation of Roman law with increased Christian influence. Most sources define Byzantine law as the Roman legal traditions starting after the reign of Justinian I in the 6th century and ending with the Fall of Constantinople in the 15th century.

Roman-Dutch law is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law was superseded by Napoleonic codal law in the Netherlands proper as early as the beginning of the 19th century, the legal practices and principals of the Roman-Dutch system are still applied actively and passively by the courts of the former British colonies of Guyana, South Africa, and Sri Lanka, the former Dutch colonies of Indonesia and Suriname, and the formerly Indonesia-occupied East Timor. It was largely drawn upon by Scots law. It also had some minor impact on the laws of the American state of New York, especially in introducing the office of Prosecutor (schout-fiscaal).

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

David John Ibbetson, FBA is a British legal scholar. He has been Regius Professor of Civil Law at the University of Cambridge since 2000, and President of Clare Hall, Cambridge since 2013. From 2009 until 2012 he served as the chairman of the Faculty of Law, Cambridge.

Medieval Roman law is the continuation and development of ancient Roman law that developed in the European Late Middle Ages. Based on the ancient text of Roman law, the Corpus iuris civilis, it added many new concepts, and formed the basis of the later civil law systems that prevail in the vast majority of countries. Some exceptions are, for example, common law countries of the English-speaking world

Scots law hybrid legal system of Scotland, containing civil law and common law elements

Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom.

History of Scots law

The history of Scots law traces the development of Scots law from its early beginnings as a number of different custom systems among Scotland's early cultures to its modern role as one of the three legal jurisdictions of the United Kingdom. The various historic sources of Scots law, including custom, feudal law, canon law, Roman law and English law have created a hybrid or mixed legal system, which shares elements with English law and Northern Irish law but also has its own unique legal institutions and sources.

References

  1. David John Ibbetson, Common Law and Ius Commune, p. 20 (2001)
  2. F.W. Maitland, Canon Law in England, The English Historical Review, Vol. 11, No. 43 (Jul. 1896) pp. 446-478.

Bibliography

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 of interest. It is the only learned society wholly devoted to the topic of English legal history.

International Standard Book Number Unique numeric book identifier

The International Standard Book Number (ISBN) is a numeric commercial book identifier which is intended to be unique. Publishers purchase ISBNs from an affiliate of the International ISBN Agency.

Jarkko Tontti Finnish poet, novelist, essayist and lawyer

Jarkko Olavi Tontti is a Finnish novelist, poet, essayist and lawyer. He is member of PEN International Executive Board and former president of Finnish PEN.