THE CREATION OF THE IUS COMMUNE. FROM CASUS TO REGULA. Ed by John W Cairns and Paul J du Plessis Edinburgh: Edinburgh University Press (www.euppublishing.com), Edinburgh Studies in Law vol 7, 2010. xiv + 304 pp. ISBN 9780748638970. £60.

Document Cited in Related
AuthorTammo Wallinga
DOI10.3366/elr.2012.0085
Published date01 January 2012
Date01 January 2012
Pages117-119

The sub-title, “From casus to regula”, refers to the beginning and end of a long development. It is nothing new to say that many modern systems of private law have their origin in Roman law. At the same time, there is an important difference between the two. Roman law is essentially case-law; by far the greater part of Justinian's codification – Digest and Codex – consists of decisions by Roman jurists or emperors in actual cases. It is not immediately evident how texts on case-law would lead to modern codifications, which lay down rules at a higher level of abstraction. The link between the two is formed by the ius commune, the whole body of law (civil, canon and feudal law) developed in the Middle Ages between 1100 and 1400, after Justinian's codification had become the basic text for the training of professional lawyers at university.

In the Introduction, the editors point out that thus far there has not been much detailed literature in English available on this phenomenon of the reception of Roman law and the development of a different approach to law as a whole in the Middle Ages. There are several works that describe the story in a general way, but few have attempted to give a more precise description of what the medieval jurists did to develop rules from texts on case law. In recent years, there has been a change to the extent that much work in the English language has been done on medieval canon law, but the mechanism of the reception of Roman or Civil Law has remained relatively uncharted territory.

This book was conceived to fill that gap. At the same time, the editors have realised that once one goes into more detail, the studies become increasingly technical and difficult to understand for the uninitiated. This problem has been solved by providing a long and important introductory contribution by Harry Dondorp and Eltjo J H Schrage, “The Sources of Medieval Learned Law” (7-56). It is an abridged and updated version of their handy manual, Utrumque Ius, an introduction to the sources of medieval law and at the same time a description of the method to be followed in handling them. Issued first in Dutch in 1987 and then in an updated German version in 1992, it now becomes available to the English-speaking market in an even more updated version. One thing which is particularly striking is the amount of relevant material already available on the internet.

This technical introduction is followed by two contributions that focus on the method applied...

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