The Common Legal Past of Europe: 1000-1800.
The ius commune was the common body of procedures, vocabulary, and principles of judicial reasoning built on two legal corpuses. The first was the ius civile, based on systematic study and application of Justinian's libri legales of the sixth century. The second came to be known as the Corpus iuris canonici, made up of Gratian's Decretum (1140), the Liber extra of Gregory IX (1234), the Liber sextus of Boniface VIII (1298), and the Clementinae of Clement V (1314). Although in some ways in competition with one another, these two bodies of law together gave shape to a public life in Europe where, from the eleventh century forward, justicia rather than the ruler's will served as the regular arbiter of action. University-trained clerics were the architects of this new legal science. Their stage was the University where the texts were collected, interrogated, published and then commented on again, where the techniques of legal reasoning were honed, and where the rules for moving from positive law to new applications were devised, debated, and eventually agreed upon.
Bellomo maps this development with care and a formidable display of learning, but his purpose is not simply to provide novice (and not-so-novice) readers a guidebook. He also intends to correct common misunderstandings about the ius commune's place in Europe's legal history. The ius commune was not, as many historians have assumed, in tension with the vast array of local juridical norms known as ius proprium. It was, moreover, not ranked below the statues, ordinances, charters and customs which made up the various iura propria or unknown to the authors and interpreters of these local laws. Rather, the ius commune provided medieval Europe's legislators, its compilers of custom and its commentators a shared vocabulary, a set of principles for legal reasoning, and a source of law itself. What the Germans called "Juristenrecht" and the French the "droit savant" was thus not an alien body of law but an integral part of medieval Europe's legal edifice - the scaffolding on which workable iura propria were built.
All this, Bellomo concedes, would change at the dawn of the modern age. The shared legal culture which had been so carefully elaborated over the centuries broke down under the force of the intellectual and socio-political changes which marked early modern Europe. Chief among the intellectual developments were humanist scholarship, late scholasticism and natural law theory itself; combined, they rendered the ius commune irrelevant in a sociopolitical world which was simultaneously expanding and fracturing.
Bellomo recounts this history not just to correct the record but to argue for a particular understanding of the medieval legal system. He has another objective as well, one less systematically pursued, which he allows to surface only as a frame for the book. Here his purpose is to suggest that something like a new ius commune is needed in Europe today. As in the Middle Ages, Europe is now divided into multiple local cultures, each with its separate practices and needs; but, like medieval Europe, the Europe of today requires a common legal vocabulary and a shared set of principles and procedures which will allow communication among these disparate groups, unite them as it allows their local particularities to flourish.
The American historian is likely to be less interested in - and less competent to judge - this aspect of Bellomo's argument than in his explanation about the medieval legal system. On these grounds alone, this is a valuable book. It provides an illuminating and nicely detailed account of the history of the ius commune - its textual bases, it institutional setting, its principles and its usefulness. Moreover, it locates the system in a larger legal culture of the day in a way which seems, on the whole, persuasive. Specialists will, of course, query certain of the book's bold claims. Some, for example, may suspect - along with this historian - that the ius commune was less in tension with the ius proprium in Italy, where Bellomo's own scholarship has been centered, than in the North. Other readers may object that the summaries of texts (and the biographies of their authors) which form the bulk of Bellomo's evidence are insufficient illustration of or support for his argument: a bit too cluttered for inexpert readers, they are surely too superficial, too partial, for the specialist. Nonetheless, we must be both grateful for and impressed by this book: grateful for the orderly narrative and clear exposition, and impressed by the skill with which the arsenal of legal scholarship was assembled.
MARTHA C. HOWELL Columbia University
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|Author:||Howell, Martha C.|
|Article Type:||Book Review|
|Date:||Mar 22, 1998|
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