Jus commune

Jus commune

"Jus commune" or "ius commune" is Latin for "common law". It is often used by civil law jurists to refer to those aspects of the civil law system's invariate legal principles, sometimes called "the law of the land" in English law. ("Ius commune" is distinct from the term common law meaning the Anglo-American family of law in contradistinction 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.

The " _la. ius commune", in its historical meaning, is commonly thought of as a combination of canon law and Roman law 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 courts 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. ]

The " _la. ius commune" 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 " _la. ius commune". This was the case up until the codification movement in the late 18th and 19th centuries, which explicitly removed the direct applicability of Roman and canon law in most countries, although there continued to be argument about whether the " _la. ius commune" 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 " _la. ius commune" encouraged and the procedures it used, which have been more persistent than the actual substance.

In England, the law developed its own tradition separate from the rest of Europe based on its own common law. 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.

Bibliography

* [http://faculty.cua.edu/Pennington/ Ken Pennington's lectures and articles on medieval law, including Ius Commune]
* Cite book
publisher = Catholic University of America Press
isbn = 0813208149
pages = 276
last = Bellomo
first = Manlio
title = The Common Legal Past of Europe: 1000-1800
date = 1995-04

References


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  • jus commune — Common law. Short Dictionary of (mostly American) Legal Terms and Abbreviations …   Law dictionary

  • jus commune — /jas kamyuwniy/ In the Civil law, common right; the common and natural rule of right, as opposed to jus singular (q.v.). In English law, the common law, answering to the Saxon folcright …   Black's law dictionary

  • jus commune — /jas kamyuwniy/ In the Civil law, common right; the common and natural rule of right, as opposed to jus singular (q.v.). In English law, the common law, answering to the Saxon folcright …   Black's law dictionary

  • jus commune — kəˈmyü(ˌ)nē noun Etymology: Latin 1. : the common law of England 2. : the common or public law or right as opposed to the jus singulare established for special cases …   Useful english dictionary

  • jus commune — The common or public law. The common law of England, of the United States, and other countries who have derived it from England …   Ballentine's law dictionary

  • jus commune, et quasi gentium — The common law, and as it were the law of nations …   Ballentine's law dictionary

  • Jus — Cette page d’homonymie répertorie les différents sujets et articles partageant un même nom. Extraction du liquide d un corps, le plus souvent pour en faire une boisson. Jus de fruit Jus de légumes Jus de sapho (boisson fictive de l univers de… …   Wikipédia en Français

  • jus singulars — /jas siijgyaleriy/ In the civil law, a peculiar or individual rule, differing from the jus commune, or common rule of right, and established for some special reason …   Black's law dictionary

  • jus singulars — /jas siijgyaleriy/ In the civil law, a peculiar or individual rule, differing from the jus commune, or common rule of right, and established for some special reason …   Black's law dictionary

  • jus singulare — ˌsiŋgyəˈla(a)rē noun Etymology: Latin, individual law, particular law Roman & civil law : a law or right established for special cases as opposed to the jus commune …   Useful english dictionary

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