Chapter 11 Revision sheet

Roman law and the European ius commune

Instructions:

This chapter should be read in conjunction with chapter 1. Together, they form a complete history of the Roman Empire and its impact on the legal cultures of Western Europe and beyond.

Aims:

The purpose of this chapter is to provide an overview of the processes that shaped the formation of modern civil law. In doing so, it focuses on the contribution of Roman law to the creation of modern civil law and the various legal-philosophical currents that have contributed to these processes. There are many facts in this chapter and there is a danger that one may get bogged down in detail. To that end, we advise you to attempt a bird’s-eye view of these developments.

Focus on the following elements when revising this chapter:

  • The entire narrative of this chapter relies on the idea of ‘reception’. The idea is that there is a ‘golden thread’ running from the compiling of the Justinianic project to modern law. In recent years, such a narrative has been called into question. Nevertheless, much of the traditional account remains generally accepted and, until better information becomes available, has to be accepted.
  • The early medieval period (formerly the ‘dark ages’)
    • An appreciation of the different fates of the two halves of the Roman Empire after the formal division.
    • The development of Byzantine law in the East.
    • The collapse of Roman legal authority in the West.
    • The replacement of Roman provinces with ‘Barbarian’ kingdoms
    • The relationship between ‘Barbarian’ law and Roman law with specific reference to the ‘Barbarian’ written law codes of the early medieval period.
    • The division between secular and spiritual authority in these kingdoms.
  • The late medieval period
    • Factors that contributed to the scientific rediscovery of Roman law.
    • The methodology and importance of the Glossators.
    • The relationship between Roman and canon law at university and in practice.
    • The methodology and importance of the Ultramontani.
    • The methodology and importance of the Commentators.
  • The early modern period and beyond
    • Much will depend here on the focus of the specific course.
    • In France, the contribution of Humanism and the homologation of customary law are important.
    • In Germany, the usus modernus pandectarum and its impact on the codification movement are important.
    • In the Netherlands, the rise of the Dutch Elegant School and its impacts on various jurisdictions is important.
    • In Scotland, the idea of Institutional Writing and its continued use in modern law is important.
    • In England, the engagement with Roman law, both historically and current, is important.
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