Jus commune orius commune isLatin for "common law" in certain jurisdictions. It is often used bycivil lawjurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" inEnglish law. While theius commune was a secure point of reference in continental European legal systems, in England it was not a point of reference at all.[1] (Ius commune is distinct from the term "common law" meaning the Anglo-American family of law as opposed 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.
Theius commune, in its historical meaning, is commonly thought of as a combination ofcanon law andRoman law which formed the basis of a common system of legal thought in Western Europe from the rediscovery and reception ofJustinian'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 theecclesiastical 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."[2]
Theius commune had a double basis: the Ancient Roman laws, as collected inJustinian'sCorpus Juris Civilis, and thecanon law of the Catholic Church, as initially collected in the 12th century in theDecretum Gratiani.[3] While Justinian's collection remained unchanged throughout the medieval epoch, the canon law continued to be expanded and revised by various popes, reaching its final form, theCorpus Juris Canonici, in the 16th century.[4] That "there were two highest laws, the canon and the civil" (Roman) law, remained a source of tension throughout the period in which theius commune was influential.[5]
While Justinian's laws themselves did not change, their understanding and interpretation developed throughout this period. From the 13th century on, thegloss ofAccursius became especially relevant.[6] Extended commentaries on Gratian'sDecretum, known assummae, were similarly influential in regard to the interpretation of the canon law. The summa ofHostiensis became especially famous for "its concision, its completeness, and its 'golden' eloquence", which earned it the honorary nameSumma aurea (Golden Summa).[7]
Theius 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 theius commune. This was the case up until thecodification movement in the late 18th and 19th centuries, which explicitly removed the direct applicability of Roman andcanon law in most countries, although there continued to be argument about whether theius 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 theius commune encouraged and the procedures it used, which have been more persistent than the actual substance.[citation needed]
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In England, the law developed its own tradition separate from most of continental Europe based on its owncommon 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 asViscount Stair andBaron Hume, among others. Influence from England has meant that today Scotland's current system is considered more common law than "civilian", but besides terminological questions there are areas which are still heavily based on medieval Roman law, such as Scots property law.
