Introduction

Jus commune or ius commune is Latin for "common law" in certain jurisdictions. It is often used
by civil law jurists to refer to those aspects of the civil law system's invariant legal principles,
sometimes called "the law of the land" in English law. While the ius commune was a secure
point of reference in continental European legal systems, in England it was not a point of
reference at all1. (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.

The 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 church2."

The 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 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 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.

1
DAVID JOHN IBBOTSON, COMMON LAW AND IUS COMMUNE, 20 ( 6th ed., 2001).
2
11 F.W. MAITLAND, CANON LAW IN ENGLAND, 446-478 ( 1st ed. 1990).
More important, however, is the civilian tradition of ways of thinking that the 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 law3.

A historical analogy has sometimes been used in recent discussions to characterize and promote
the process of European legal integration, especially harmonization of private law. Professor of
comparative law B. S. Markesan’s, for example, claims that when we examine the history of
European law, we discover that the nation-state centered contemporary situation is rather a
historical anomaly:

After all, not so long ago lawyers in Europe operated a fairly advanced ius commune before the
modern sovereign state interrupted legal and academic as well as political co-operation. So why
should not lawyers move again in that general direction, as greater economic co-operation and a
growing similarity in the social environment make the world they all inhabit both smaller and its
various parts more interdependent4?

Some comparative lawyers join Markesinis and historians like Reinhard Zimmermann in hoping
that a new ius commune will replace the contemporary situation, in which the European legal
universe is divided into multiple national legal orders. These scholars anticipate that these
modern national legal orders will be superseded by something analogically similar to the
common law of pre-modern Europe, when from the legal point of view Europe was united, it is
claimed, by the inherited tradition of Roman and canon law. Lawyers from Spain to Sweden
were part of the same tradition and used the same legal corpora and concepts and thus

3
W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 128 (4th ed. 1994).
4
BAKER, THE NEW PROCEDURE OF THE CIVIL COURTS OF BRITISH INDIA 21- 22 (4th ed. 1860).
understood each other. This harmonious situation was then disintegrated by the modern nation
state with its codified and purely national law5.

This historical analogy or historical comparison gets support, at least in part, if one looks at the
standard textbooks in legal history. Even if professional legal historians know very well that the
picture of Europe as once legally united by an ius commune is a simplification that does not
grasp adequately the heterogeneity of the legal past of Europe, this view still appears in some
textbooks. Ditlev Tamm e.g. writes:

Moreover, when legal historians have taken part in discussions outside their professional sphere
of legal history, they again seem to sometimes forget that the prevailing opinion in legal history
does not support the view that Europe was once united by a ius commune. Distinguished legal
historian Reinhard Zimmermann, for example, seems to echo this view in an article entitled Das
römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit:

Among Nordic scholars Pia Letto-Vanamo presented the same argument in her recent
monograph Eurooppa oikeusyhteisönä. She claims that we should see without doubt that a ius
commune, which was studied and applied in Europe as a common law, was one important
uniting element in the otherwise fragmented Europe of the Middle Ages and in the beginning of
the modern period6. Also Helmut Coing – another well-known legal historian – has taken part in
discussions outside the sphere of legal history strictly speaking. Similar to Markesinis and
Zimmermann, Coing has defended the idea of the usefulness of a common tradition of ius
commune – originating from the medieval academic tradition which started at the University of
Bologna – in the contemporary building of European law in an article with the suggestive name:
Von Bologna bis Brüssel7.

Besides the medieval tradition of ius commune, a later version of scholarly unity of the legal
world is presented through the common influence of an usus modernus pandectarum in Europe.

5
PLUCKNETT, A CONCISE HISTORY 381(1st ed. 2015).
6
Stephen N. Subrin, David Dudley Field: A Historical Analysis of an Earlier Procedural Vision, 311-373(1988).
7
RENÉ DAVID, JOHN E. C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY: AN INTRODUCTION TO THE
COMPARATIVE STUDY OF LAW 67-68 (2ND ED 2010).
In the above-mentioned article, Zimmermann, when discussing the possibility of a common
European private law, characterises the contemporary processes of integration as being”..Auf
dem Weg zu einem erneuerten usus modernus pandectarum”8 .

These arguments have met with some opposition. Tomasz Giaro claims that the scientific study
of legal history has been compromised by these attempts, as they are selective constructions of
the past. They aim to justify the present developments with a simplified picture of the past.
Similarly, Dag Michalsen has not accepted the notion that legal history should act as a servant
for contemporary endeavours, that is, provide sources, ideas and arguments for integration. This
is not its task.9

In this article I attempt to infuse these discussions with a fresh approach. In recent literature in
sociology of law, legal theory and philosophy of law, the theme of legal pluralism is much
debated. It is argued that we should not think of law simply in terms of the state-centred
positivistic model – as a set of rules enacted by the state and systematised by legal doctrine – but
should instead consider the actual heterogeneity and polycentricity of the life of law. Besides the
law in force strictly speaking, there is a significant amount of soft law or infra-law, which
fundamentally affects the functioning of (positive) law. In this article I try to find out what
happens if we consider the discussions of past and present European ius commune from this
perspective10.

I try to show two things. First, from a theoretical point of view and in the vocabulary of legal
pluralism, the so-called ”unity” of medieval ius commune is a fallacy: the old ius commune was
inherently fragmented and pluralistic. In medieval Europe the various local customary laws and
the common Roman and canon law existed side by side, and the legal world as a whole was
inherently pluralistic in nature.

Second, a historical analogy between the old ius commune (and perhaps also the later usus
modernus pandectarum) and contemporary legal integration might be drawn, but it would reveal

8
CLARK, THE CIVIL LAW INFLUENCE 82-83 (2d. 1990).
9
GEOFFREY SAMUEL, AN INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD 22-23 (1ST ED. 2014)
10
PETER DE CRUZ, COMPARATIVE LAW IN A CHANGING WORLD 45-46 ( 1st ed 1995).
that rather than being completely united, the new European law after the eclipse of the nation
state will (or should) also be pluralistic and fragmented. The new European ius commune is also
result of a dialectical interplay between local law and the now-emerging global law, between
legal integration and legal fragmentation. Polycentricity and legal pluralism are appropriate
terms with which to characterise both the contemporary changes of law and the functioning of
medieval legal Europe

The emphasis of this article is, then, on the contemporary discussions on legal pluralism and on a
legal theoretical analysis of the contemporary changes in the deep structures of legal thinking.
My point of view is that of a legal philosopher and a legal theorist. I will analyse the current
global tendencies and changes in legal thinking from the point of view of legal pluralism and
legal post-modernity. I will, however, claim that we can receive, at least by analogy, support
from legal history and from the term ius commune, when we attempt to understand the most
recent developments of law and of legal thinking in general.

PRE-MODERN LEGAL PLURALISM

As we know, the medieval tradition of ius commune was divided into ius Romanum (or ius
civile) and ius canonicum – Roman law and canon law of the church. The tradition of ius
commune dates back to the University of Bologna at the end of 11th century, when Irnerius –
called lucerna iuris – and his school of glossators started to interpret and systematize old Roman
legal materials. This work was continued by the so-called commentators (conciliators or post-
glossators), who in their turn re-interpreted the Roman tradition.[10] The epistemological and
ontological status of the medieval Roman law was therefore first and foremost interpretative. It
was a tradition of interpretation that functioned through dialectical and reciprocal interplay of
sedimentation and innovation. Old material was constantly restructured, reinterpreted and
renewed in a chain of commentaries interpreting both the original texts and the commentaries
added to them, so that the old legal material was usable in new and changed social conditions.11

11
CATHERINE VALCKE, COMPARING LAW: COMPARATIVE LAW AS RECONSTRUCTION OF COLLECTIVE COMMITMENTS
100-101 (1st ed 2018)..
The learned writings of the medieval scholars were highly influential. They were used in
teaching at the universities and also as a source of law in courts throughout Europe. In addition,
the model for educating lawyers at universities spread from Bologna to other universities of
Europe. This diffusion of the influence of the newly interpreted Roman law is often called the
reception of Roman law in Europe. It was partly a direct adoption of the material rules of the ius
commune and partly a more indirect reception of conceptual frameworks and ways of
systematisation. Comparative lawyers, such as Markesinis, who use this reception history to
justify and promote the present-day European legal integration, seem to argue or implicitly
assume that the reception of Roman law extended to all of Europe, and that it still unites
European legal systems as a common cultural heritage.12

It should, however, be asked to what extent the medieval and early modern Roman-canonic ius
commune really was a united and common legal order, or even a common legal culture that rose
above the local, culturally differentiated legal orders and practices? Is the old ius commune at
least a common cultural ground upon which a new European legal order can be built? Is it, in
spite of the modern national differences, something that still unites all European legal systems?

It is important to note that the old ius commune was primarily learned law, droit savant, and its
effect on legal practice remained often rather insignificant. On some occasions it had a powerful
influence on practical legal work and it was used as a source of law; but at other times it was not
and it had only academic influence. In some regions of Europe it had a strong effect on legal
practice, in some others it had almost no role at all. Some fields of law were more under Roman
and canon influence than others.

In addition, in all the regions of Europe influenced by ius commune there was also effective local
law, ius proprium. Or rather, there were iura propria, numerous local legal practices and
unwritten customary laws, town laws, provincial and regional laws, state laws and so forth.The
relationship between the common law, ius commune, and the local law, ius proprium was
anything but clear. They existed side by side, in a dialectical and reciprocal relationship of a

12
JOHN R. SCHMIDHAUSER, COMPARATIVE JUDICIAL SYSTEMS: CHALLENGING FRONTIERS IN CONCEPTUAL AND
EMPIRICAL ANALYSIS 110-112 ( 2nd ed 2013).
more or less peaceful coexistence. A good historical example of this dialectical relationship
between local law and common law can be found in medieval Nordic regulation of marriage.
Canon law and local law existed side by side in an uneasy harmony, as a recent study has
shown13.

In theoretical vocabulary the functional relationship between medieval local law and global law
can be characterised as a dialectical process without synthesis. It was an on-going interpretative
undertaking where neither pole was completely superseded by the other or by any third, uniting
element. Both ius commune and ius proprium were changed in this on-going interpretative and
dialectical process. What was originally a rather coherent theoretical systematization of ancient
Roman law was gradually fragmented when it came into contact and existed with the local legal
practices and legal orders. Ius commune, therefore, was soon pluralistic in nature, different in
different parts of Europe, and ius proprium in its various forms also changed because of the
influence of the ius commune. This fragmentation and differentiation increased by time.

The dialectical coexistence of ius commune and ius proprium took different forms in different
parts of medieval Europe, and even the term ’common law’ had different meanings. In England
the feudal Common Law of the Country was law of the Norman conquerors who invaded the
country in 1066 and which gradually replaced the local Anglo-Saxon law. Later, there was a
conscious opposition against Continental ius commune in England, but English law was never
purely national. It always contained and constantly received foreign influences. And it is to be
remembered that most?national? English law had Norman and other continental roots. In the
17th century the so-called equity system was developed by the Chancery under the influence of
the learned law of the continent. Hence, English law was clearly part of the cultural heritage of
the ius commune, but it took its own and specific course within it.

In the German-Roman Empire gemeines Recht was the common law of the Empire above the
laws of the various local states and provinces, and ius commune also had a widespread influence
on legal practice. According to the internal order of the highest court of the Empire,

13
HERBERT M. KRITZER, LEGAL SYSTEMS OF THE WORLD: A POLITICAL, SOCIAL, AND CULTURAL ENCYCLOPAEDIA,
150-151(3rd ed .2003)
Reichskammergericht, local law was the primary source of law, but in practice the learned ius
commune was more often used. But the local ius proprium also continued to exist in the German-
Roman Empire, especially in the legal relationships between private persons. Therefore, local
and global law in medieval Germany also continued to operate in a dialectical and reciprocal
relationship. Through interpretative sedimentation and innovation, gemeines Recht was
gradually changed in practice, and lost its identity as ius commune, if one means by ius
commune a materially unified legal order or a homogenous legal culture.

In southern France the study of ancient Roman law started approximately at the same time than
in Bologna. On the other hand in northern France there was a strong opposition to ius commune.
In addition, the learned ius commune was often linked in France to the attempts of the central
government to unite the kingdom legally. Nevertheless on account of the legal practice, the effect
of the law of one particular region, Paris, spread through the whole country. Compared to
Germany, the French development was more nationally inclined; ius commune usually had only
a secondary role as a source of law. The kings of the l’ancien régime never succeeded
completely in their attempts to unify the law, and the practice of law was far from being in
effective control of the central government. The unsystematic and unpredictable nature of court
practice was a constant problem and later became a target of criticism by the revolutionaries14.

In Northern Europe ius commune had even less importance than in England. Some scholars
claim that its influence was completely marginal and that the legal tradition was strongly national
in character. Others argue that later, from the 17th century onwards, the effect of the ius
commune was considerable at least in the highest courts and in the university.

All in all, regional comparisons reveal that the medieval and early modern world of ius commune
was more pluralistic and fragmented than its name indicates. There was no one common and
united legal order (or even a more broad common legal culture) in Europe in the Middle Ages,
contrary to what seems to be more or less tacitly assumed in some contemporary discussions
concerning the common cultural basis for what may become a new European private law.

14
ALAN S. ZUCKERMAN, COMPARATIVE POLITICAL SCIENCE, 32-33 (1st ed 2008).
In the discussions of comparative law one often hears that the new emerging European (private)
law should be based more on broad legal principles than on mere legal rules. And those
integrationists, who want to use legal history as an argument on their side, claim that the
common heritage of Roman law or ius commune contains the already existing common
principles of European private law. This view, as I have attempted to show, neglects the
thoroughly heterogeneous and pluralistic nature of European legal history. Furthermore, even if a
set of common legal texts – showing the existence of e.g. common principles of the academic ius
commune – could be found, it is a different thing altogether to claim that these texts were
interpreted and applied similarly all over Europe15.

In all parts of Europe where ius commune spread, it came into contact with the local ius
proprium. Before the era of the modern nation state and the advent of purely national legal
systems these continued to exist side by side, in a condition of dialectical reciprocity and
constant change. Similar or identical legal texts, originating from Roman law or from the efforts
of medieval scholars, were interpreted differently in different parts of Europe because of the
different cultural surroundings, which were shaped, among other things, by local legal customs.
The geographical differentiation increased over time, and both ius commune and ius proprium
ultimately disappeared when the modern (usually codified) laws of the sovereign nation states
superseded them. The medieval academic tradition of ius commune – originating from Bologna –
was more real, lasting and effective, but also it did not reach the whole of Europe and did not
affect the practical life of law as much as some academicians might have thought. Within the
original six member states of the EEC the ius commune argument is more plausible than outside
its Central and Western European core. But also there the ’hidden dimension of ius proprium’
has often been neglected, and the debates have mainly concentrated on the learned law and its
traditions.

It is important to stress, however, that even if there is no material unity behind all the
contemporary legal systems of Europe, there is still something that enables us to see them as
having common Roman and canon origins. If one compares the different European legal

15
PATRICK H. O'NEIL, ESSENTIALS OF COMPARATIVE POLITICS 65 ( 1st 2003).
traditions with e.g. non-European legal history, it becomes evident that European legal orders do
have common roots. These uniting elements, though, exist only at a high level of generality and
abstraction. A shared legal way of seeing the world through legal ”glasses”, that is, a common
legal fashion of narrating the social reality from the legal point of view and a common legal style
of argumentation and thinking in general are perhaps the aspects of the common European legal
heritage that will make the new integration possible16.

MODERN LAW – A STATE MONOPOLY

It has often been noted that after the French Revolution the old ius commune was replaced by
various national legal orders all over Europe. Usually national law took the form of codification,
except in England where the demands of such reformers as Jeremy Bentham were rebutted.
These national codifications did not, however, originate ex nihilo, only as expressions of the will
of the legislator. They were strongly tied to the academic traditions of legal thinking.
Consequently the old ius commune also had an indirect effect on their content and structure.
Thanks to scholarly efforts the Roman tradition continued to exist indirectly. The academic work
of systematisation was still strongly Roman-oriented, especially in Germany, which gave a
model that influenced the rest of Europe. Even in England German legal scholarship was known
in the 19th century. Usus modernus pandectarum sustained the existence of the Roman heritage,
and even if codifications were national they contained many similar traits. But something
important still happened with the codifications: the ties to ancient and medieval traditions of
legal thinking were now clearly indirect17.

In philosophical terms the development leading to modernity where codification became a

standard model can be understood as the appearance of the dialectics of synthesis as the deep
structure of legal thinking. The earlier dialectics without synthesis, the on-going interpretative
process and co-existence of the ius commune and ius proprium in its many forms, was
superseded by purely national legal systems that did not acknowledge any competitors. The idea
of unlimited state sovereignty did not allow for the pluralistic and fragmented interplay of
various legal orders within the borders of a state. Even if ius commune continued to exist

16
C.H. van Rhee, ‘Civil Procedure: A European Ius Commune?’, European Review of Private Law, 2000, p. 589-611.
17
PAVOL DRLIČKA, RELATIONSHIP OF EUROPEAN IUS COMMUNE AND NATIONAL LEGAL SYSTEMS IN FORESEEABLE
FUTURE
indirectly thanks to the academic work, ius proprium in its many forms was suppressed in most
European nation states. All law was now state law, even if the role of legal scholarship remained
important in analysing and systematising the material handed down by the sovereign state. As we
know, this was the heyday of legal positivism, in which formal rationality became the ideal
model for legal reasoning. As a result of the academic work of systematisation, a logically
coherent assemblage of norms was envisioned with whose help legal disputes could be
adjudicated through formal, calculable and logical operations. The primary legal value to be
attained was legal certainty, i.e. predictability of legal practice. This was seen as a remarkable
improvement compared to the earlier unsystematic and unpredictable nature of legal world. From
a theoretical perspective this development, leading to modern law and legal thinking with formal
rationalism and universalism as its ideals, has been characterised as a breakage between thought
and action. It was a rupture between theory and practice; the world of the legal Sollen was
separated from the world of the social Sein.

In the field of legal theory the most monumental work of legal positivism was, of course, Hans
Kelsen’s Reine Rechtslehre. But Kelsen?s pure theory of law was also in many respects the swan
song of state-centred legal thinking. As we remember from Hegel’s Rechtsphilosophie, the Owl
of Minerva, symbol of theoretical thinking, takes off and starts its flight only when the night has
already started to fall. Theory is always late; it is only afterthought and it usually perceives the
aspects of its object only when their importance has already started to diminish. The 20th
century, when Kelsen’s many important works appeared, was also the time when the global and
local developments started to weaken the central role of the nation state, especially in Europe.

THE NEW EUROPEAN IUS COMMUNE – A PLURALISTIC USUS

POSTMODERNUS?

After the Second World War the global and local forces working against state-centred legal
thinking advanced strongly in Europe. The old nation-states of the Western Europe had lost their
leading roles in world politics and this forced them – finally – to forget old rivalries and to start
co-operation. In 1957 EEC was founded to promote the economic integration of Western Europe.
In less than fifty years it has developed to a European Union with fifteen member states. The
member states, even if theoretically still sovereign, have transferred the most important parts of
their legislative power to a supranational organisation. In geographical terms even larger
integration is being promoted by The Council of Europe, which concentrates on human rights
through The European Convention on Human Rights and The European Court of Human Rights.

Simultaneously with the process of European legal integration, however, there is a tendency
towards legal fragmentation in different spheres of society. For example, some parts of Europe
that only some decades ago were more or less directly suppressed by the nation states have now
become important actors. In part, this has taken place through The Committee of the Regions of
The European Union, partly also by the creation of autonomous regions with internal legislative
autonomy, e.g. in Scotland and Corsica. Powerful economic organisations, such as multinational
companies and trade unions, are today comparatively more influential than in the 19th century,
and they have assumed indirect powers of legal regulation that were formerly in the hands of the
sovereign state. Important developments have also taken place at the grass-root level of society.
In the field of criminal law, for example, the state-centred court system is now often bypassed by
various conciliation procedures between the parties, organised by local communal authorities or
non-governmental organisations.

An interesting development is also taking place in the role and influence of the academic world.
The making of the European Civil Code has been mostly left to the academics, instead of to
legislatures. The Commission on European Contract Law (the so-called Lando Commission),
consisting mainly of academics, has published the Principles of European Contract Law, and
other similar projects are currently underway. It seems that this is not an accidental but a
necessary development in the construction of new a European ius commune. Law cannot
function only through enactment of norms. To operate effectively a collection of norms also
requires the support of a legal culture behind it. And a common legal culture cannot be formed
only by means of legislation; it is constituted of more general frameworks, methods of
systematisation and structures of legal thinking in general. Legal scholarship is one important
way of developing and advancing the European legal culture.[18]

Therefore, like the medieval ius commene, the new emerging common law of Europe is also
definitely a scholarly enterprise. The content of the emerging new European legal culture is
constituted in the dialectical interplay of influences from different national legal cultures. Legal
professionals from different parts of Europe with different backgrounds form it through a process
of slow interpretative sedimentation and innovation. From this plurality something shared in
common is emerging, but without the nation-state as the centre of the development. It is to be
noted, however, that the scope of common legal thinking and emerging common European legal
culture is limited. A common law of Europe is needed and beneficial only in some fields of law,
e.g. in the field of human rights and commercial transactions.

From a philosophical perspective these intertwined processes can be characterised as a return to

the dialectics without synthesis as the primary deep-level structure of legal thinking. As in the
Middle Ages, the new European ius commune is also living its life in a dialectical and reciprocal
relationship with the various forms of the ius proprium, such as state laws, regional laws and the
multiple unwritten normative practices that regulate and structure society. None of these has a
clear and undisputed role over others; their relationships take shape in the ever-evolving
interpretative processes of dialectical interplay where clashes of normative orders are settled case
by case.

It can be argued that these developments are marks of a more general cultural shift that has
sometimes been labelled the emergence of post-modern era.[19] In legal thinking e.g. André-
Jean Arnaud has proposed that this might introduce changes in some important traits of the deep
structures of legal thinking. It is claimed that from such modern ideals as abstraction,
universalism, unity of reason and simplicity we are moving towards post-modern themes of
pragmatism, relativism, plurality of rationalities and complexity.[20] In a similar tone Mireille
Delmas-Marty is not alone in stressing that we should not speak of one common legal order of
Europe but of several European legal orders whose future success is based on co-existence, not
on hierarchy and hegemony.[21]

It seems that many of the traits that Arnaud characterises as post-modern also characterised
medieval Europe; pragmatism, plurality of rationalities and complexity of the legal world are
adequate generalizations of the dialectical interplay of the medieval ius commune and ius
proprium as well. It appears that the contemporary European legal integration can be called a
rebirth of the medieval ius commune because they both share similar traits of pluralism,
heterogeneity and polycentricity.
The interesting similarities between the new emerging European ius commune and the medieval
ius commune are not substantive but abstract and theoretical; a direct re-birth of Roman law is
not taking place. Instead, certain deep-level structures of legal thinking have returned (or are
cautiously returning) after the period of modern law and legal positivism. In both pre-modern
and post-modern European legal universe ius commune is the unifying element. However its
sphere is limited (now as well as in the Middle Ages) and the practice of law is a pluralistic
mosaic of heterogeneous legal practices.

Thomas Wilhelmsson has presented what he calls the Jack-in-the-box theory of European
law.[22] He argues that at the national level the introduction of European law has radically
increased the level of legal uncertainty. As a Jack-in-the-box EU law can pop up in unexpected
situations. The harmonious national hierarchy of norms can be disturbed by supranational and
global elements, which cannot be anticipated. It is not only the huge amount of Union legislation
that often makes EU law pop up unexpectedly at the national level. There is also a qualitative
difference that originates from a change in the more general structures of legal thinking. One of
the most important legislative measures of the EU, the directive, also bears hallmarks of
pluralistic tendencies. Directives, as we know, have to be implemented by national measures,
which may vary from country to country. Directives have a Janus face; they operate dialectically
between European and national dimensions, as Michalsen has remarked.[23] A directive, then, is
a good example of how integration does not rule out the simultaneous process of fragmentation.

Also Gunther Teubner has recently argued that the usage of legal transplants, one form of legal
globalisation, does not operate as it is usually assumed, and that they should rather be called
legal irritants.[24] As an example Teubner uses the introduction of the continental civil law
principle bona fides, good faith, to the British contract law by a EU directive. When a
historically and culturally alien element is introduced into a different context, it triggers series of
consequences which do not lead to the convergence of the British and continental legal systems
but rather to new cleavages. Legal transplants do not work in the autonomous sphere of law but
are in interaction with other domains of society. In the case of the principle of good faith, the
fundamental differences between Continental and Anglo-Saxon business cultures causes the
principle to operate differently than it was intended; it irritates the system into which it is
introduced. It seems that also in the context of legal transplants (as a typical form of
globalisation of law) we can find out that the dialectical interplay of ius commune and ius
proprium causes increased pluralism instead of simple homogenisation.

What is common in all these new theoretical developments is that they challenge the model of
classical legal positivism according which legal order is structured as a pyramid with the
constitution at the top and lower level norms below it.[25] This pyramid structure and hierarchy
of norms, as developed by Kelsen, was supposed to rule out the possibility of internal
contradictions of the legal order. Kelsen’s pyramid model is not unproblematic, even if one
accepts his positivistic starting points, as several scholars have showed.[26] Recently, both the
realities of the practical legal world and many scholarly enterprises have distanced themselves
from Kelsenian and positivistic approaches. In a recent article by François Ost and Michel van de
Kerchove, for example, it is argued that a more adequate way to conceive a legal order is too see
it as a net or a web (réseau), instead of a norm pyramid.[27] What was once seen as a hierarchy
has fragmented into a polycentric mosaic without the sovereign state as the central point in legal
thinking.

It can be claimed, then, that the European Union is by definition a fragmented, polycentric
”state” (or non-state); and its law cannot be understood with the theoretical tools borrowed from
the old state-centred positivism. It is true that the primacy of European law is a fundamental
principle of Union legislation that is constantly reaffirmed in the practice of The Court of Justice
of the European Union. This primacy, however, is still not accepted without hesitations by the
constitutional courts of the member states in fundamentally important matters, and in practice, at
the grass-root level, the primacy is often inefficient. The primacy of European law is an
interpretative question par excellence that is often resolved according to the legal culture and
tradition of each particular country; only a tiny minority of the questions related to European law
are resolved at the Union level.[28] The ius proprium of each particular country therefore affects
the interpretation and application of European law. Ius commune of the EU is interpreted in a
different cultural context in each different country (or even in other smaller regions with legal
autonomy), and there are no guarantees that these interpretations will be the same everywhere,
even if some degree of harmonisation is of course achieved. The practical functioning of the new
European ius commune, then, is not totally but partially harmonised.
In connection with his hope that European lawyers should again move in the general direction of
a ius commune, Markesinis argued that the contemporary harmonisation proceeds through five
techniques. These are – in ascending order of importance – the academic work in the
universities, practical work of the judges and practitioners, international conventions, directives,
and the case law of the Luxembourg court.[29] But all these, I would like to stress, introduce
elements of particularisation into the legal world. Directives are implemented nationally and
national courts decide most of the cases related to EU law. In addition, academic teaching is far
from being similar all over Europe, not to speak of the practical work of judges and advocates.

All in all, the European Union is not a new sovereign. It has acquired some traits of sovereignty
but not all. It is not a state, but a new form of co-operation, which carries the hallmarks of
pluralism. Kaarlo Tuori has presented an opposing view. He argues that we are not witnessing
the emergence of post-modern law but the final phase of the stabilisation of modern law.[30] He
claims that there is no necessary connection between the centralised state and the unity of legal
order and that the evolution of EU law is still in an embryonic stage and in the future the
fragmentary tendencies will disappear.

Now, Tuori’s assertion is partly an empirical claim that tries to anticipate what is going to
happen in the future, and for this reason it cannot be verified or falsified yet. His interpretation is
perhaps correct, but the opposite view is also possible. On the contrary to my mind it seems
highly likely that we are facing, in the terminology of Michel Foucault used by Tuori, a rupture
of episteme; a fundamental change in the conceptual deep-level structure of thinking, prevailing
in each epoch of history that determines what can be said, thought and even done. The new
dialectical interplay of EU law, national law and other forms of regulation is simply something
that cannot be theoretically grasped with the tools of the preceding period of modern law and
legal positivism.

What Is Common Law

Common law is the legal system used in Great Britain and the United States (except the state of
Louisiana). According to common law, judges must consider the decisions of earlier courts
(precedents) about similar cases when making their own decisions. People sometimes call
common law "customary law" because judges consider the customs (common practices) of the
country when making decisions. In many countries the justice system combines elements of civil
law (private cases), which was handed down from Roman law, and common law, which
developed in England. In a combination system, private cases are judged in civil courts;
however, cases involving crimes against society (criminal law) are tried in criminal courts, where
decisions are based on precedents.

History of common law.

Customs

These are rules of behavior which develop in a community without being deliberately invented.
There are two main types of customs: General customs and local customs.

General Customs

Historically these are believed to have been very important in that they were, effectively, the
basis of our common law. It is thought that following the Norman conquest (as the country was
gradually brought under centralised government) the judges appointed by the kings to travel
around the land making decisions in the kings name based at least some of thier decisions on the
common customs. This idea caused Lord Justice Coke in the 17th century to describe these
customs as being ’one of the main triangles of the laws of England’. However, other
commentators dispute this theory.

Today, Michael Zander writes that probably a high proportion of the so-called customs were
almost certainly invented by the judges. In any event, it is accepted that general customs have
long since been absorbed into legislation or case law and are no longer a creative source of law.

Local Customs

This is the term used where a person claims that he is entitled to some local right, such as a right
of way or a right to use land in a particular way, because this what has always happened locally.
Such customs are in exception to the general law of the land, and will only operate in that
particular area.

Since there were (or still are) exceptions to the general common law, the judges, from the earliest
times, established a series of rigorous tests or hurdles that had to be passed before they
recognized any local customs. These tests still exist today and are used on the rear occasions that
a claim to right comes before the courts because of a local custom. That tests are as follows:

The customs must have existed since ‘time immemorial’

The customs must have been exercised peaceably, openly and as of right

The custom must be definite as to locality, nature and scope

The customs must be reasonable.

It is very unusual for a new custom to be considered by the courts today and even rarer for the
courts to decide that it will be recognised as a valid custom, but there have been some such cases.
For example in Egerton v Harding (1974) the court decided that there was a customary duty to
fence land againts cattle straying from the common. Another case was New Windsor Corporation
v Mellor (1974) where a local authority was prevented from building on land because the local
people proved that was a custom that they had the right to use the land for lawful sports.

Although customs may develop, they are not part of the law until recognised by the courts; it is
the judges who decide which customs will be recognised as enforceable at law.

Common law

Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo-
Saxon times there were local courts which decided disputes, but it was not until after the Norman
conquest in 1066 that a more organised system of courts emerged. This was because the Norman
kings realised that control of the country would be easier if they controlled, among other things,
the legal system. The first Norman king, William the conqueror, set up the Curia Regis (the
king’s Court) and appointed his own judges. The nobles who had a dispute were encouraged to
apply to have the king (or his judges) decide the matter.

Development of common law

As well as this central court, the judges were sent to major towns to decide any important cases.
This meant that judges travelled from london all round the country that was under the control of
the king. In the time of Henry II (1154-89) these tours became more regular and Henry divided
up the country into ‘circuits’ or area’s for the judges to visit. Initially the judges would use the
local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is
believed that the judges on their return to Westminster in London would discuss the laws or
customs they had used, and the decision they had made, with each other. Gradually, the judges
selected the best customs and these were then used by all the judges throughout the country. This
had the effect that the law became uniform or ‘common’ through the whole country, and it is
from here that the phrase ’common law’ seems to have developed.

Advantages & Disadvantages of common law

The term "common law" has it's origins in England in the 11th century. Even today in the US,
some common law principles from the original English law are applicable while alongside it is
the growing body of common law which is being set as a part of stare decisis i.e. the judicial
systems decisions and interpretation of statutory law provisions by judges, are becoming a part
of the common law. Other judges look to these decisions as a guideline or as a necessary
precedent to follow, while making their own decisions.

There are both advantages and disadvantages to a legal system based on common law or
precedent-based.

Advantages:

i) Equity:

Equity is to correct common law defects and mitigate its harshness. It can be used for all classes
of people unlike the common law. The law was very technical in common law and if there was
error in the formalities the person making the claim would lose the case. In this case, equity
rewards the claimants better. The only remedy that common law could give was ‘damages’ – that
is an order that the defendant pay a sum of money to the claimant by way of compensation. The
chancellor also developed new remedies which were able to compensate the appelantives more
fully than the common law remedy of damages. The main equitable remedies were injunctions,
specific performance, rescission, rectification. Equity is not a complete system of law, it merely
fills the gaps of common law and soften the strict rules of common law.

ii) Precedents:

As these decisions are based on previous judgements, it's more convenient to follow this process
through. People know what to expect; there is an element of predictability. The process is easier
and more practical as there are no fixed, lengthy rules but real situations that have already been
resolved.

iii) Efficient:

As there is already a basis on which the judgment will be passed, a basic framework so to say,
the judicial process becomes so much faster. There is certain efficiency in the process as
compared to what the procedure would be like in comparison with a system that did not follow
the precedent based system. Plus these decisions are based on a precedent and so have a stronger
basis.

Disadvantages:

i) Perpetuation of bad decisions:

The downside of a jugdment that has been made, its that it will be superseded again by other
judges even if the decision is defective. And in the common law its about following precedents.
This will take a long time to happen. So this directly uphelds a bad decision.

ii) In the absence of precedent:

People will not know what to predict when they come to a situation that needs to be taken to
court. When there is no precedents judges make decisions based on the evidence given and as far
as possible come to a fair judgement, sometimes a view of the evidence by the judge may bring
about a wrong judgment.

iii) Need for records:

Because these precedents are to be followed by all other courts or in many cases, lengthy,
detailed records have to be maintained. And to make easy the accessing of these cases and
previous decisions, uniform indexing methods have to be created and followed diligently.

Advantages of Common Law:

THERE is a certainty of outcome for similar cases. It is highly probable that every future case
that is similar in nature will be judged in the same way.

Common Law is dynamic and not closed by statute or precedent. New rules of law will from
time to time be authoritatively laid down to meet new circumstance and the changing needs of
society.

Common Law accumulates a great wealth of detailed rules for reference. It is much richer in
detail than the code of law.

COMMON LAW is practical in nature. The rules laid down are the product, not of academic
speculation but of difficulties that have actually risen. Thus, it is in touch with everyday life.

Disadvantages of Common Law:

Common Law is rigid once a rule is established. This causes inflexibility, which can be a
problem especially when the decision is outdated or used out of context.

Common Law can be illogical since the rule is dependent on the context, situation, judge or
society in which it is judged.
The collection of rules that comprise common law are both vast in size and enormously complex.
It may be difficult and quite time consuming to search through the relevant cases for a just
verdict.

Judges may shy away from creating new precedences in areas of new technology for fear of
upsetting a burgeoning industry. Rather than creating ripples, judges tend to be conservative in
their rulings and may not provide adequate justice to the actual case.

Characteristic Features of Common Law

The distinctive feature of common law is that it represents the law of the courts as expressed in
judicial decisions. Judges decide cases cases found in precedents provided by past decisions, in
contrast to the civil law system, which is based on statutes and prescribed texts. Other than the
system of judicial precedents, other characteristics of common law are trial by jury and the
doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the
king was above the law but today it means that acts of governmental agencies are subject to
scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis. For example, that the
previous decisions of the highest court in the jurisdiction are binding on all the subordinate
courts. However, different conditions soon make most decisions inapplicable except as a basis
for analogy, and a court must therefore often look to the judicial experience of the rest of the
English-speaking world. This provides a more flexible system, while general acceptance of
certain authoritative materials provides a degree of stability. Nevertheless, there are times, the
courts have failed to keep pace with social developments and it has become necessary to legislate
to bring about the changes needed. Indeed, in recent years statutes have superseded much of
common law, notably in the fields of commercial, administrative, and criminal law. Typically,
however, in statutory interpretation the courts have recourse to the doctrines of common law.
Thus increased legislation has limited but has not ended judicial supremacy.