Ius Commune and the Birth of European Legal Systems

The Formation of Ius Commune and the Rise of Universities: The Mos Italicus

Common Law Training and Doctrinal Practice

The legal doctrine of the 15th, 16th, and 17th centuries is more accurately described as common law because it highlights its main characteristics:

• It unifies the various sources of law (Justinian law, canon law, and local rights) into a single, common object of all European legal discourse.
• Its unique methods and styles are based on common reasoning.
• These methods and styles were fostered by uniform legal education throughout Europe.
• They were disseminated through literature written in a universal language (Latin).

The unification of legal systems, enabling a common legal discourse and promoting unifying trends in legislative and judicial practices, gave rise to common law (ius commune).

* From the late Middle Ages onward, common law became a phenomenon more doctrinal than legislative. This fact becomes obvious when a kind of doctrinal practice emerged, becoming crucial in guiding jurisprudence. As Roman law was the basis for the training of lawyers and judges, and was the right conveyed by current doctrine and accepted by the courts, it formed a doctrinal and judicial practice, distinct from statutory law, but endowed with real opiniones iuris (felt as binding).

Factors Unifying European Law

The Roman Tradition

Classical, Byzantine, and Vulgar Roman Law

Between the 3rd centuries BC and AD, the Roman Empire spread throughout Southern Europe, including parts of Northern and Southern Gaul, the Balkans, England, Greece, and Asia Minor.

Roman law experienced a golden age, based on:

• A few foundational laws (e.g., the Law of the Twelve Tables and election laws passed in the last period of the Roman Republic).
• Actions granted to secure certain legal claims. The Praetor, a magistrate in charge of administering justice in civil cases, developed more comprehensive and manageable actions based on inquiry into the circumstances of each case and the imaginative approach characteristic of a system that allowed for appropriate legal treatment.

From the work dedicated to expanding and refining the archaic "right of citizens," magistrates created their own right, known as the "right of the magistrates":

• Initially, they exercised their judicial powers by issuing orders to the parties that modified the facts in order to exclude the application of a standard rule or enable a more appropriate application of justice to the case.
• Subsequently, the magistrate had the ability to create actions not envisaged by law. Each action is a formula