Communis Opinio Doctorum comme ius commune universale? Réflections autour de l’idée de la culture juridique commune dans l’Europe médiévale et moderne

• Authors: Paulina Święcicka
• Languages of publication: FR

Abstracts

PL

The aim of the study is to present and revise critically one of the well known concepts used to explain the march of Roman law through the history, starting from the Justinian’s Compilation, i.e. the idea of common legal culture as an outcome of the Reception, named by some as “the second life of Roman Law” (P. Vinogradoff), and by some as “the resurrection of Roman Law” (J.A.C. Thomas). It must be emphasize that these attitude does not necessarily mean the negation of the concept of continuity of human history as a whole, emphasized, inter alia, by Franz Wieacker, and in particular – a continuity in legal development. It is only an attempt to show some aspects of the history of Europe as a space and a community, shaped by many traditions including the legal one. This legal tradition is “traditionally” bound up with successive interpretation and reinterpretation of one of the most important legal monuments, Corpus Iuris Civilis, the interpretation done in order to adopt this “source‐book” to the new circumstances, to match local needs, to form new blend of law. There is no denying the fact that this tradition exists, although one should understand it properly, what can be achieved only on the way of critical revision of some old schemas, patterns of thought, even clichés. It is than perfectly well known that one can speak about a renaissance of Roman law after 12th century, when in Bologna a period of so‐called “first reception of Roman law” had begun. A direct cause of this process and also its major force was a famous rediscovery of Justinian’s Digest and its scientific transformation and actualization made by Italian and French jurists during the next centu‐ ries. Elaborated in such way, the so‐called “learned law” became a second ius commune of late‐medi‐ eval Europe. Nevertheless, all this does not mean that the whole Western Europe adopted a particular homogenous body of law, as far as many local and regional variations of customary law existed and were continuously applied and evoked in the courts, as well as used in daily practice. What is more, very soon, by way of humanistic and naturalistic negative attitude and criticism, a weakness of the communis opinio doctorum, understood after all as a legal system (sic!), and supposed to grant a cer‐ tainty of law, was exposed and questioned as being unsuitable for the demands of national countries and societies. As it was proved by Douglas J. Osler, one can observe such particular disintegration also in the, so‐called, “common world of teaching,” regarded as universal and homogeneous, which started with the coming of new religious and national trends, as well as with the beginning of the particular history of each country. So than, it seems that a broad examination from different perspective, not only legal, but also political or social one, that is a research taking into account different aspects of human culture, can show a partial inadequacy of the paraphrase of well known dictum: Europa Medioevalis et  Moderna vivit  lege  Romana, because this  Europe saw  meetings, adoption but  also rejection of particular elements fashioned by different social groups.

• Publisher: Uniwersytet Jagielloński
• Journal: Krakowskie Studia z Historii Państwa i Prawa
• Year: 2010
• Volume: 3

Dates

published

2010

online

2010-04-23

Contributors

author

Paulina Święcicka