'We the Judges...': Discovering Constitutional Ius Commune Europaeum

Abstract

This article grew from a desire to look deeper into the relationship between legal history and comparative public law and, also, from a will to deploy legal history while trying to conceive contemporary European constitutional culture. The ideas and approach entertained in this article are somewhat dissident in their relation with the mainstream debates regarding this subject. Yet, the purpose of this article is not to criticise the novum ius commune Europaeum movement as such. Nor is it to defend or attack the idea of a Common European Civil Code. Rather, the point is to try to inquire if there is something in today's European public law sphere that could be conceived somewhat equivalent to the past ius commune. The quintessential methodological idea here is to use historical legal material as a conceptual tool for modern day discussion. Instead of trying to embark deeper into a private law oriented debate the focus here is shifted towards constitutional law i.e. an area of law that originally was not connected with the ius commune tradition. By means of a close-reading-approach this article tries to conceive if there really is something of ius commune in Europe. Further, could there be, perhaps, a kind of transnational epistemic judicial grammar, taking shape in dialogue between judges, to be found? And, if there is such a thing how it should be regarded: positively as healthy form of non-national constitutionalism or negatively as a popular sovereignty hostile form of international judicial elitism?