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''Jus commune'' or ''ius commune'' is
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Republic, it became ...

Latin
for "common law" in certain jurisdictions. It is often used by
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessarily with a formal qualification in law or a lawyer, legal practitioner, although in the U ...
s to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" in
English law English law is the common law List of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
. 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. (''Ius commune'' is distinct from the term "
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
" 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.


Etymology

The ', in its historical meaning, is commonly thought of as a combination of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler A ruler, sometimes called a rule or line gauge, is a device used in geometry and technical drawing, as well as the engineering and construction industries, to measure dis ...
and
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
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 court An ecclesiastical court, also called court Christian or court spiritual, is any of certain court A court is any person or institution, often as a government A government is the system or group of people governing an organized commu ...
s 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."F.W. Maitland, ''Canon Law in England'', The English Historical Review, Vol. 11, No. 43 (Jul. 1896) pp. 446-478.


History

The ' 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 '. This was the case up until the
codification Codification may refer to: *Codification (law), the process of preparing and enacting a legal code *Codification (linguistics), the process of selecting, developing and prescribing a model for standard language usage *Accounting Standards Codificati ...
movement in the late 18th and 19th centuries, which explicitly removed the direct applicability of Roman and
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler A ruler, sometimes called a rule or line gauge, is a device used in geometry and technical drawing, as well as the engineering and construction industries, to measure dis ...
in most countries, although there continued to be argument about whether the ' was banished completely or survived where the national codes were silent. 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 ' encouraged and the procedures it used, which have been more persistent than the actual substance.


Influence in common law legal systems

In England, the law developed its own tradition separate from the rest of Europe based on its own
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
.
Scotland Scotland ( sco, Scotland, gd, Alba Alba (Scottish Gaelic Scottish Gaelic ( gd, Gàidhlig or Scots Gaelic, sometimes referred to simply as Gaelic) is a Goidelic language (in the Celtic languages, Celtic branch of the Indo-European ...

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.


References


Bibliography

*Manlio Bellomo. ''The Common Legal Past of Europe, 1000-1800''. Washington, DC: The Catholic University of America Press, 1995. *Tamar Hezog. ''A Short History of European Law: The Last Two and a Half Millennia''. Cambridge, Mass.: Harvard University Press, 2018. * David John Ibbetson, ''Common Law and Ius Commune''.
Selden Society The Selden Society is a learned society A learned society (; also known as a learned academy, scholarly society, or academic association) is an organization that exists to promote an discipline (academia), academic discipline, profession, or a ...
, 2001 *Randall Lesaffer. ''European Legal History: A Cultural and Political Perspective''. Trans. Jan Arriens. Cambridge: Cambridge University Press, 2009. *George Mousourakis. “The Survival and Resurgence of Roman Law in Western Europe”, chap. 7 of ''Roman Law and the Origins of the Civil Law Tradition''. Cham: Springer, 2015, pp. 233–86. *Enrico Pattaro, ed. ''A Treatise of Legal Philosophy and General Jurisprudence''. 12 vols. Dordrecht–London–NY: Springer, 2006–11. **Andrea Padovani & Peter Stein, eds. ''A Treatise of Legal Philosophy and General Jurisprudence'', vol. 7: ''The Jurists’ Philosophy of Law from Rome to the Seventeenth Century''. Dordrecht–London–NY: Springer, 2016. **Damiano Canala, Paolo Grossi, & Hasso Hofmann, eds. ''A Treatise of Legal Philosophy and General Jurisprudence'', vol. 9: ''A History of the Philosophy of Law in the Civil Law World, 1600-1900''. Dordrecht–London–NY: Springer, 2009. *Heikki Pihlajamaki et al., eds. ''The Oxford Handbook of European Legal History''. Oxford: Oxford University Press, 2018. *O.F. Robinson et al. ''European Legal History: Sources and Institutions'', 3rd edn. Oxford: Oxford University Press, 2005. *Bart Wauters & Marco De Benito. ''The History of Law in Europe: An Introduction''. Edward Elgar, 2017.


External links


Ken Pennington's lectures and articles on medieval law, including Ius Commune
*
Jarkko Tontti
Jarkko Tontti

European legal pluralism as a rebirth of Ius commune. Retfaerd – Nordisk juridisk tidsskrift 94(2001).
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