Abstract
The historical approach enables us to perceive the specific legal phenomenon as continuous and to study the antecedents of current (or even future) legal challenges. This article discusses the possibilities of invoking the historical notion of ius commune (and various new concepts based on it) in a contemporary legal discourse on the future of the European Union (EU) law. Since issues of integrity and homogeneity remain central to the consideration of further legal developments of the EU legal framework it is especially relevant to look back at one of the most prominent phenomena in the Western legal tradition – ius commune, which to some extent united legal thought throughout pre-modern Europe. By analysing inherent characteristics related to its sources, methods and interaction with other (local) legal systems, we attempt to define the limits of such historical analogy. This may allow answering the questions as to whether and to what extent the model of medieval-originated ius commune could inspire further development of the EU legal framework (as a new ius commune).
Highlights
It is often said, both seriously or with humour, that history tends to repeat itself
In the research analysis we present our views that the historical referral to ius commune must take into account the peculiarities of this legal phenomenon and simultaneously should not be loosely applied to substantiate any harmonisation or unification efforts within the European Union (EU) legal framework
The common ground of the Western legal tradition provides the justification for the historical analogy between the two legal phenomena of different eras – ius commune and current EU legal system
Summary
Both seriously or with humour, that history tends to repeat itself. One of the most prominent examples in this field is a historical concept of ius commune – a Latin term that refers to the common European legal culture and ideas that once existed In recent decades this historical notion has been extensively applied in a variety of legal contexts. Ius Commune Research School has been established in Maastricht where researchers combine their efforts in a search for a common ground of various national legal systems in Europe2 Legal scholars employ this historical concept when talking about the initiatives of harmonising Europe’s private law (Caenegem, 2004, 28-30), discussing the future of legal education Concept of historical ius commune could be used in discussions on the future development of the EU legal framework (as a new ius commune) For this aim the study is divided in four parts. In the research analysis we present our views that the historical referral to ius commune (or any usage of new legal concepts based thereon) must take into account the peculiarities of this legal phenomenon and simultaneously should not be loosely applied to substantiate any harmonisation or unification efforts within the EU legal framework
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