The Formation of Common Law in Medieval Europe
The Formation of Common Law
Historical Introduction: The 11th-Century Renaissance
The Renaissance wasn’t a sudden rupture, but a maturing of prior developments across Europe. Population growth, linked to increased agricultural production, and a shift in collective psychology from inward-focused centers to outward coexistence marked this era. The city, as Grossi notes, became a symbol of collective faith. Trade growth intertwined with urban life, while theology and law flourished with increased dialogue between different schools of thought. A static world became dynamic, yet the essential continuity of fundamental ideas remained.
Political Powers
Across Europe, the circle of life revolved around large domains where key social relationships formed. Real power struggled to assert itself. From the late 11th and early 12th centuries, two elements emerged:
- The City: Cities escaped manorial dependence, becoming spaces of freedom with autonomous legal and political organization.
- Royal Power: While initially symbolic, royal power began a slow, confrontational development. The king’s role remained, but its execution strengthened gradually.
Neither manors nor emerging civic powers were eliminated. Royal power overlaid existing structures. Above these political units, the Papacy and the Empire vied for universal authority. Between the 11th and 12th centuries, the Empire’s importance grew, but later declined in favor of the Papacy and kingdoms. Ius commune jurists, using Justinian Roman sources, provided legitimacy to the relationships between these powers.
Knowledge and Written Culture
Ius commune, the common law of late medieval and modern Europe, formed primarily from the 12th century, spreading across Europe and remaining dominant until the bourgeois revolutions. It was a legal, not legislative, right, uncontrolled by political power, derived from Roman and canonical texts. Understanding its development requires distinguishing between the consolidation of texts and the legal profession.
1. Consolidation of Texts
The Justinian compilation, combining iura (classical) and post-classical (novels) traditions, was largely unknown in the Western Empire. Early medieval legal teachings were rhetorical, lacking autonomy. The rediscovery of the Digest signaled a legal renaissance within the broader cultural revival of the 11th and 12th centuries, giving rise to scientia iuris, or legal science.
From the late 11th century, legal practitioners, particularly in Bologna, Italy, began retrieving and studying Justinian texts. Irnerio, founder of the School of Commentators, pioneered independent study of Roman law from original texts, shifting focus from rhetoric to original sources. Irnerio and his disciples focused on reconstructing the Justinian compilation, a philological endeavor.
This recovered law differed from the original Justinian compilation. Its arrangement reflected the order of recovery, and it was incomplete, initially excluding Greek texts. Canon law developed differently. Lacking a single text, it was scattered and empirical. The Gregorian Reform, initiated by Pope Gregory VII (1073-1085), aimed to centralize church governance, standardize liturgy, and unify canon law. Gratian, a monk in 12th-century Bologna, compiled the Concordantia Discordantium Canonum (Decretum), harmonizing disparate traditions. Although a private work, it became the central legal text of the Roman Church.
Subsequent papal decrees and decisions, considered extravagant (outside the main text), became crucial. Gregory IX commissioned Raymond of Peñafort to compile papal decretals into the Liber Extra (1234). Boniface VIII’s Liber Sextus (1298) and Clement V’s Clementinae Constitutions (1317) followed. Two further unofficial collections, the Extravagantes of John XXII and the Extravagantes Communes, were added. The term Corpus Iuris Canonici, coined by a French publisher in 1500, consolidated these texts. Roman law texts were considered existing law by commentators, advocating their observance as the law of the empire and Christendom.