Although already in the sixteenth century there had begun to perceive the need for radical reform of the system the sources of law, the eighteenth-century structure of these modeled, essentially, albeit with differences. Once substantially from country to country, the medieval model, represented by the stratification of very hetero-normative sources namely local customs, corporate and municipal statutes, court decisions, edicts of kings, feudal law, opinions, doctrinal, and judicial interpretations. In such a situation, where the fragmentation of policy, institutional and administrative particularism of society is based on the autonomy of the legal and the distinction in classes were a source of extreme disorder, perennial legal uncertainty and serious malfunction justice, was a common law, in its derivation Roman law and canon law, to form the basis of European legal system.
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Roman law, in particular, in most the countries of Europe, was formally regarded as a fundamental subsidiary which occurs in cases of gaps in special rules, a set of legal rules considered common to more systems because of its significance and rational universal in reality, however, it had acquired a role because it appeared prominent features principles – general principles and abstract categories capable of understanding all the facts of human experience, even when it was perceived only partially, or even refused by the authorities and the population as an element alien to the tradition local however and “wherever it constituted the basis teaching of jurisprudence and a reference point chin and a comparison of which eliminated the lawyers should take into account‘
The most valid question for the lawyers was that of reconciliation of regulatory that promotes the autonomy of the municipalities with that of the sovereignty of the Empire primarily considered as the only source of law . Beginning with ius commune, it has its origin derived typically from the medieval sense purpose to conceptually grasp the legal science, to build and reconcile, mainly in a logical and rational understanding, Roman law of universal order and the various rights which refers to special orders. It means, then, the imperial Roman law conceived as part of an organized system of legal sources in which it co-exists, general and universal as the law is coordinating with local laws according to certain rules and details. It is now very important to understand the intensity, let’s say, the conceptual idea of ius commune, because on it rests the whole system of law of the twelfth century and thus makes it essential to use as a tool to understand a given historical d’ immense importance, almost to the breach in the affairs of nations annexed to the empire. Italian lawyers have been industrious to legitimize the old law as the applicable law of the empire and then coordinate it with local sources, with an amazing level of modern interpretation.
Taking a step back and returning to its origins, the relationship between Roman law ius unum empire and the multitude of special rights within the empire itself was the source of the ius commune. The unknown author of the Quaestiones de iuris subtilitatibus provides some very convincing comments. It actually states that in the bosom of the picture is clear and the sharp contrast that strikes out with that of ius proprium that circumscribes special orders and is opposed to ‘unum ius empire which was already been existing at that time. The galaxy in this regard notes that in medieval legal concept, the ‘unum jus stands opposed to all the jura proper to each people and represents the ius commune, that is to say that unity from which the multiplicity of these rights benefit. According to the principle-based on thomistic philosophy of “omnis ab moltitudo derivatur one”, and through fragments of Gaius, there had been no indication in the expression of ius commune. It was the law of nations, based on the “naturalis ratio or the collective patrimony of the whole human community, from which one could distinguish the individual iura porpria civitates heritage even of the same law in Rome:” In essence, the empire and its right (ius commune) form a whole that is linked together in perfect subordination to the rights and legal systems of each unit of the empire itself (jus proprium).
Conceptually, one could define this situation in this way: it assumes the need for a unified regulatory system that encompassed both the common rules and those details that are a deviation of the first. Thus, the dogmatic concept of common law derives its justification from another law that is not common. The idea of common law thus arises from a need universal fundamental: the Christian Roman Empire and Roman-Germanic. The common law is thus presented as superior to any other right, all-embracing and universal, valid for every purpose and every purpose. Undoubtedly this is a presentation of the law as surely hierarchy, which posits a system of legislative sources belonging to the ratio iuris communis, in which the common law is the source from whence come all the special rights.
All relations between common and jus jus proprium had been built in the twelfth and thirteenth centuries by science in an orderly and legal, since s’istituiscono constraints that coordinate both the sources of Justinian, is related to the particular rights they obey the criteria set hierarchical operation. Despite all this, there has been more abstract and artificial as well as the original derivations made by those who studied law, was not limited through nell’estrinsecare constraints of coordination that actually covers them, as in a subordination of jus proprium to jus common. The inclusion in a larger operation might be called as the cultural context of ethical and political upheavals of the time. One may recognize the driving forces behind this approach to that of culture in the church, empire, fine monarchical systems in the municipalities, in the estates and corporations: all drew strength and advanced the legal architecture medieval in its various forms.
Thus, the right always reflects the value system of society and the concept that it has justice. The idea of the common law is to express the supreme unity of universal law that served as a liaison and accommodating the complex multiplicity of particular laws and then arise as a natural legal status of the highest ideals of justice and harmony politics of the Middle Ages. Therefore an understanding of both ius commune and ius commune, is actually speaking of both universalistic and particularistic and how it is precisely the same fragmentation particularistic idea to create universal.
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The medieval jurists while addressing the issue of the emergence of the foundation that could have been later legitimized in the set of powers clearly states that in fact each order is meant to enable the full expression of its autonomy being exercised to govern themselves. These processes could enact legal rules which would also guide most of the important functions of municipals. In other words, the problem was to legitimize full powers to local cities, as owner of a ius proprium, and here we could talk theoretical and political problem at the same time. In the Quaestiones de iuris subtilitatibus one could find many source on this subject and precisely the ius proprium could be realized as the prominent among the powers of a populus: “ut legem Condat, conditam interpretatur”.
As mentioned earlier, and quoted the words of Van Caenegem, “to the 1100 West rediscovered Corpus Juris Civilis of Justinian. It is not simply to find the entire text of Justinian, it means that from now on, the text was studied, analyzed and taught in universities. Scholars of law did glosses and comment these ancient and authoritative compilations, and gradually built a neo-Roman law, i.e. the medieval Roman law, which became the common basis of education, university and legal framework across Europe. Medieval or Roman law ‘Civil’, together with canon law, which was strongly influenced by the law Roman Empire, constituted the common law throughout the West, hence the name of ius commune. The main component of this common law was written the Roman, as were the principles, terminology and doctrine of the law of Justinian to be the basis of the study of canon law, rather than the reverse.
The ius commune should be put in contrast with the ius proprium, entitled “special” which was in force in countless variations across countries, regions and cities of Europe, under the form of customs, ordinances and charters granted. The study of Roman law in middle Ages could perhaps be limited to a purely academic research, as our current approach, for example, the right of ancient Egypt. But it did not. Through centuries, the legal doctrine permeated the Roman legal practice in various ways, which examine later, and the right product so medieval influenced the development of entitled to a greater or lesser degree in all parts of Western Europe. This reception of a foreign law can be called legal or acculturation ‘legal transplant. For the West in the middle Ages, Roman law was a new right and foreigners so it was decisive in the northern regions, but also in the Mediterranean regions where, under the influence of Germanic and feudal law became somewhat detached from the old one. There is nothing exceptional in the reception of a foreign legal system that is considered technically superior. Sometimes this process is a sudden, deliberate; sometimes happens with a slow infiltration, a gradual, imperceptible osmosis. A well-known example of assimilation of the first type, apart from the reception in Germany earlier modern era, is the decision of the Japanese authorities, in the nineteenth century, to introduce the Western civil law in a conscious policy of westernization aimed at freeing the country from the feudal constraints. In contrast, the assimilation of the ius commune in the Middle Ages depended on the right of an empire and a civilization that vanished centuries ago, and which the Corpus Juris was simply, so to speak, a relic embalmed. In this way the thread of a millennial trend, which was temporarily broken in the sixth century Byzantium, was recovered in Italy in the twelfth century. The enthusiasm that characterized the study of the Corpus iuris, spread from Italy in the various Western societies, it was only part of a renaissance in culture, an aspect which was the foundation of universities. In addition to the ancient law, Greek philosophy (Aristotle) and the greek-Arab science (medicine, physics, mathematics) were discovered, translated and commented. The prestige of the ancient knowledge was absolute: what the Scripture was for theology, philosophy was for Aristotle, Galen on the anatomy and the Corpus Juris for the right.
But motives and needs further stimulate interest in the ancient Roman law: cities and principalities that were expanding they needed a legal right new administrative structures, and during the struggle for investiture, each party sought arguments to support their cause in the texts of the Corpus iuris “. The work of the jurists of the twelfth century was continued by the commentators of the fourteenth century and four who “built on the foundations laid by their predecessors, but they one step further: they expanded their horizons to take into account everything which was the world of their times, with its needs. Were realists and knew that the medieval customary law and the law would survive, and that science legal based on Roman law had to take account of this fact. Why they always kept their attention focused on real life, and wrote comments and treaties going beyond the narrow confines of the old Corpus. Their work related problems fundamental, and goes beyond the words of the corpus, so as to be understandable and ready to be immediately used in the courts. Often gave advice to the parties and the courts on specific issues or cases that were referred to them (consilia), which placed them at direct contact with the realities and concerns of ordinary citizens. But they were and were always civil practitioners that the ‘advice’ they expressed was based on law Roman and was full of references to the Corpus and its commentators. This school is occupied also the issue of the rightful place of Roman law into a European society that had, was far away from the classical world: it developed the doctrine of the relationship between the ius commune and the ius proprium “.
In the sixteenth century claimed the school of humanity: “These lawyers were part of general intellectual movement of the time, and they shared an enthusiasm for a return to sources, aversion to the medieval barbarism (especially the bad Latin) love the philological and historical method seeks to discover the true meaning of classical antiquity and of his works. Lawyer’s humanists wanted to rebuild the Roman law and the role it played in ancient times, when it was necessary to free from sediment and misrepresentations medieval, and develop a true historical approach. This was what they pledged to achieve, and there is no doubt that they reached a deeper and more precise understanding law of Rome and the society in which it operated. They produced excellent editions Critical Corpus, which were surpassed only by the German standard century. But while this was a great service to the culture, was of little use to the practice of law. Law was applicable only pure antiquity ancient Rome; courts of modern Europe could achieve little and preferred to Roman law as commentators had adapted to Europe where they lived “. However, the study produced by commentators matched to that of humans, he served the next century, created a legal culture that “penetrated daily use of Courts and modified in various ways the lives of the entire continent.
In essence, must be the same Roman law to codify jus effectively ruling of the Italian and create a new legal situation in the empire itself. Gaius, with his Omnes Populi, will be an unexpected help in dealing with this new legal situation, no matter the Code of Justinian. Around this booklet will be challenged the most important interpreters of the law over three centuries, from Irnerio Bartolo of Sassoferrato, lighting disputes masterful use of statutory rules and the rights acquired by the Italian communists or not. And ‘from this fragment, the story moved so powerfully even in its brevity, since we want to analyze issues related to the aforementioned right of sovereignty of the emperor on the Lombard communes, or rather the northern and disputes occurring in the Empire Frederick I Barbarossa said.
It is quite obvious and immediately apparent as Gaius clearly expresses the common law to all nations (in this case the people of the empire) and another proper law of the civitas, hence, to take that each city could adopt its own lawmaking step was short. It was clearly more evident that this principle was in direct contradiction to that expressed in the Code of Justinian and saying: “leges condere only emperors concessum east. Thus it was only the emperor only to interpret the laws and he has the last word on the laws to be created, to him and only him we had to turn and no one else had the power to do so. Here it is clearly expressed that the imperial sovereignty which seemed to exclude, without much discussion and an absolute ban on any other sources of production that was not that of the emperor himself. We had thus overcome this difficulty and certainly not without its pitfalls and hidden values in all circumstances, came to light after studies difficult and laborious.
The assertion of political autonomy of cities compared to municipal imperial sovereignty between the twelfth and thirteenth century was among its most obvious manifestations documentary intense proliferation of written rules. It consisted in its etymological sense of power that a body has in place rules to himself, and took the body at different times, from city to city, depending on the ripeness of the city government.
The editorial writing legislative measures – in the form of oaths (short) of the first municipal magistrates (consuls, mayor), the deliberations of the first councils of the municipality, and local customs – it was early in certain cities. News of rules and policy frameworks that the consuls elect pledged to abide by an oath you have, for example, to the towns of Genoa as early as 1143 and 1157, in Pisa in 1162 and 1164 and Piacenza in 1167, 1170 and 1181 The shape is usually subjective ( “I swear or vow to adopt this measure, to pay that debt, to perform this measurement, etc…”). Collections of oaths and current measures adopted by the councils began to be compiled, for example, in Pistoia, where they have maintained a status of consuls and constitutum mayor’s dated around 1180, showing how the text had adopted the objective form ( “ordered that the mayor should adopt this measure, imposes this penalty, etc…”) and we hear of constituta and were collected even in Lucca in 1178, in Florence in 1182, in Arezzo in 1196 and Brescia in 1198. In Pisa the decision to write the laws was early, probably to the influence on the preservation of the Code of Justinian in the city, which perhaps served as a model: in 1155 he was initiated the drafting of Constitutum de legibus, a collection of laws Regnum Italiae and fragments of Roman law, and Constitutum usus, a collection of mostly local customs on commercial law. Local customary law (consuetudines, mores, etc.., which related mostly feneratizie materials, contract and trial procedures and successor) was the subject of a written down in other cities: we have news, and often the texts, for example to Alexandria in 1179, Siena in 1179-1180, Venice in 1195, Como in 1215, Milan in 1216.
All relations between ius common and ius proprium are built in the twelfth and thirteenth centuries by science in an orderly and legal, since s’istituiscono constraints that coordinate both the sources of Justinian, is related to the particular rights they obey the criteria set hierarchical operation. Despite all this, there is more abstract and artificial, the original construction, made by those who studied law, was not nell’estrinsecare constraints of coordination that have covered them, as in a subordination of jus proprium to jus common, but the inclusion in a larger operation that might be called cultural context of ethical and political upheavals of the time. The idea of the common law is to express the supreme unity of universal law that served as a liaison and accommodating the complex multiplicity of particular laws: then arose as a natural legal status of the highest ideals of justice and harmony politics of the middle Ages. Therefore understand why we can speak of both universalistic and particularistic and how it is precisely the same fragmentation particularistic idea to create universal. Across the European continent, and especially in Italy, was emerging an impressive variety of sovereign states and city-states that, although linked to the empire, and had wanted to be legally independent. Thus the concept expressed so far, common law binds and connects to the problem or better to the problems of the plurality of legal systems that derived by the emperor himself, which in turn, as we have seen, was supported by a strong connotation universalist ideology linked to the idea.
In other words, the problem was to legitimize full powers to local cities, as owner of a ius proprium, and here we could talk theoretical and political problem at the same time. In the Quaestiones de iuris subtilitatibus you could find some source on this subject, namely when the ius proprium recognized as preeminent among the powers of a populus: “ut legem Condat, conditam interpretatur. From here, to understand why the Italian communes claimed with such greed and jealousy of unleashing the power of its own statutes, the step is short, even if those statutes that would go against the ius policy (applied to the letter) or had not followed the jus common. Indeed, reversing the situation created, they defend the rule of common law on that particular, or rather on those particular rules of law which conflict with the law.
The spirit of the system suggests a vision of their empire in which the right is really what ‘unum supreme and universal does not mean the disappearance of any law competitor, but to which all other rights are to coordinate and subordinate. In truth, all these clarifications on how the common use of the expression ius not be exhausted in a certain way so simple. What interests us now see how, however, does not end in time the historic significance of the medieval concept of just law. Medieval jurisprudence sought to systematically organize and coordinate all sources, juxtaposing a universal common to jus jus novum, in other words, the assembly of special rights. All of these coordinates, by the lawyer, brought a measure of jus vetus and novum ius. In essence, from a strict interpretation of dogmas giustiniani activities, through not easy to design, we reach a new spirit in the legal sources dictated by a different version of socio-cultural view.
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