Ius Commune: Origins, Features, and Evolution

The Ius Commune diffused across various European territories without displacing existing laws. This diffusion was influenced by political factors, initially linked to the idea of a medieval empire reborn from the 11th century. Commentators reconstructed the figure of the emperor. The Ius Commune, essentially Roman and Canon law of the late medieval and modern Europe, primarily consists of 12th-century legal thought.

Key Features of the Ius Commune

1. It encompasses both legislation and case law, emphasizing interpretation.
2. It is casuistic, oriented towards practical solutions.
3. It is a law of lawyers, a legal jurisprudence that solves issues for judges through legal interpretation. It is a law of jurists, not controlled by political power. It differs from the High Medieval law, which was religious, wise, and knowledgeable.
4. It is elaborated based on Roman and Canonical texts.
5. It is policy-driven, composed of canon law and Roman law.

The rediscovery of the Digest is a clear sign of a progressive legal revival during the cultural renaissance of the 11th and 12th centuries. This revival included legal scholars dedicated to recovering and studying the texts of Justinian.

Differences Between Legal Models

The legal models of the old regime were confusing (composed of overlapping layers of rules), profuse (often incorrect provisions), incomplete (casuistic), and plural (territorially and in terms of subjects). In contrast, the "liberal" or "new" legal model aimed for:

• Clarity (concise, simple through reason)
• Accuracy (by default)
• Completeness (without gaps)
• Uniformity (same law for everyone)

Origins of Text Consolidation

The origins of text consolidation are located in Bologna, with Irnerio as the initiator. The fundamental change was that students began studying original texts instead of rhetoric. In Canon Law, several important events occurred:

• The 11th-century Gregorian reform aimed to unify church law, which was then dispersed.
• Graciano's Decree (12th century) became the basic legal text of the Roman Church, though it was not officially promulgated.
• Raymond Isidore de Peñafort compiled the Liber Extra (13th century).
• Later, Pope Boniface VIII created the Liber Sextus.
• Finally, the Clementinae Constitutiones of Pope Clement V formed a third official compilation of decrees.

Jurists and the Ius Commune

The critical elaboration of the Ius Commune is a unitary construction. We can distinguish two phases:

School of Commentators (11th-12th Centuries)

This phase was characterized by scientific enthusiasm, with Justinian's law serving as the basis of legitimacy for interpretations and glosses. The most important was the Magna Gloss of Accursius. In canon law, glosses were also applied to decrees, such as Graciano's Decree and Decretals.

School of Post-Glossators

This school emphasized a more constructive reading of the text, employing a casuistic method (focused on solutions). Followers of this commentary and method were called Mos Italicus.