Legal Pluralism in the Late Middle Ages: Common and Private Law
Significance of the Relationship Between Common and Private Law
The statutory law (statute = customs, local legal life) should not be understood in isolation but in constant dialectic with the Ius Commune or common law. Private law is the same as own law, based on custom.
- Common Law: These are universal principles based on reason.
- In the 13th century, there was no legal system considered more valid than another. The so-called law was as legitimate as the common law. They were not exclusive.
- It was a stateless law.
- Common law = universal = sound = expansive power.
Chapter IX: The Drawings of Experience
Praxis and Science in Their Ordering Function: Real Law in the Early Middle Ages
The practice was limited to intuiting real situations. Commentators felt the need to treat these situations.
- Roman law solved real rights under dominium (on property). There were three criteria for classification: membership, authority, and absolutism.
- Below appears the doctrine of divided domain (direct or indirect, or inner core and bark), as it holds the essence or usefulness of the thing. With the invention of this doctrine, science and practice are aligned.
- Scientific praxis: Management is now recognized as an effective tool, that is, generating praxis.
The Completion of the Lease of Things in Particular
This was the most extreme case in the construction of real rights because, under the civil law tradition, property value and not by nature was unthinkable. But on the other side were those of Germanic roots, who believed the opposite.
1. Praxis and Science in Their Orderly Functioning: From Some Inter Vivos Businesses
- Obligation is an intersubjective relationship, the time of friction between two or more subjective entities.
- Behind the juris vinculum are moral and economic forces that are pressing.
- The trend towards atypical structures lasts until the mid-20th century.
- Two types of covenants: pacta nuda (see Chapter VII, Section 4) and pacta vestita (social recognition).
- Contracts are recognized and differ according to substantia (substance) or nature (properties).
- Nature: The thing is innate but is flexible—an upturn of the validity of the growing number of atypical covenant structures.
3. At the End of Aequitas: Tolerance, Dissimulation, and Canon Law
- Dissimulatio is the non-rigorous application of a rule to avoid a major sin (e.g., allowing a priest to marry to prevent him from falling into fornication).
- No one avoids the norm; it circumvents the rigorous application of the rule if relevant.
4. Canonical Influences: Canonical Equity and Simplicity, and the Theory of Contract
- Aequitas (equity) and the mutability of human law overflow, and canon law influences civil society.
- Equity determined contract theory, and the theological roots of law will contribute to the theory of legal persons.
- Bare Covenant: It is declared as the doctrine that, according to Justinian, covenants that do not meet formal requirements are matters not defined in the legal order. They are invalid.
- Equity overlaps the innate rigidity of the laws. For canon law, natural equity among the parties is a sufficient reason for the validity of the covenant. Canon law = simple and substantial vision, not formal.
5. Canonical Influences: Ideology and Theological Concept of Legal Person
- The result of a constructive process and abstract legal science.
- There is no sensible reality; the idea of the body of the Church is a metaphysical reality… the mystical body.
- There is also a personal metaphysical reality: the persona ficta.
Chapter VIII: Legal Pluralism in the Late Middle Ages: Common and Private Law
Unity in Diversity
- 13th century = overlap and coexistence between common and private law.
- Disclaimer: The private (customary) and the universal (scientific, rough).
- Individual (or particular) law = customary written rule. Three types: territorial (own law of the territory), commercial, and feudal.
- Special laws: No totalitarian pretensions but are complemented by common law.
- Late medieval particularism = range, a plurality of coexisting systems.
Significance of Common Law
Interpretatio
- Proceeds of science born from common law. It creates law (conjugates or reconciles events and texts).
- The fourth joint law is two times “of validity” (valid-studied texts and the corpus canonici civilis).
- Effectiveness (doctrinal construction stage).
- Common law had only one fund, one substantial law (divine law).