Jus commune
Encyclopedia
Jus commune or ius commune is Latin
for "common law" in certain jurisdictions. It is often used by civil law
jurist
s 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 , 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."
The 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 . 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 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 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.
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "common law" in certain jurisdictions. It is often used by civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
s to refer to those aspects of the civil law system's invariate legal principles, sometimes called "the law of the land" in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. (Ius commune is distinct from the term "common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
" 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 , in its historical meaning, is commonly thought of as a combination of canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
and Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
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."
The 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 . 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 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 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
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
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
James Dalrymple, 1st Viscount of Stair
James Dalrymple, 1st Viscount of Stair , Scottish lawyer and statesman, was born at Drummurchie, Barr, South Ayrshire.-Biography:...
and Baron Hume
George Home, 1st Earl of Dunbar
George Home, 1st Earl of Dunbar, KG, PC was, in the last decade of his life, the most prominent and most influential Scotsman in England. His work lay in the King's Household and in the control of the State Affairs of Scotland and he was the King's chief Scottish advisor...
, 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.