Jus Commune Research Articles

Доктрина jus commune и формирование институтов публичного права

This article considers the role of the jus commune doctrine in the process of formation of institutions of public law in the period 11th-17th century as a functionally organised construction of legal reality. The research is based on the communicative methodology of law and, on the grounds of the historical and legal facts, shows how the functions of the doctrine were manifested when jus commune influenced the medieval legal reality. It concludes that the jus commune doctrine, based on the axiomatic method, by interpreting the texts of Roman and canon law, filling legal gaps and eliminating contradictions in customary, canonical and positive law, made a significant contribution to the construction of the public law segment of legal reality — the institutions of public law.

The transformative forces of international law? Questioning equality regimes from a multi-level perspective

AbstractThis article approaches current constitutional conservatism in Europe, focusing on the limits of equality rights regimes. These frameworks, it is argued, provide little leverage for positive discrimination to become articulated, let alone for them to be implemented by public policies. Equality regimes are further disentangled by means of a multidimensional reading of legal orders: particular attention is devoted to international human rights law (IHRL) and European Jus Commune that may inspire shifts in constitutional thinking at domestic levels. In that sense, equality frameworks steadily open up towards an inclusive understanding of human rights based on the transformative forces of international law. A pluralistic idea of those subjected to such regimes will be embraced, hence developing a clearer conception of rights holder categories and ultimately peoples affected in daily practice, particularly minorities. A dedicated focus is placed on ethnic, cultural, religious and linguistic grounds. This may similarly concern intersectionalities and the complexities of overlapping grounds of discrimination. It is stressed that equality is best addressed by means of a multivariate approach to legal orders, their dynamics and ultimately virtuous effects of application.

“A Conviction about What is Moral or Lawful” Carl Schmitt on humanitarianism, the humanum, and the possibility of a “universal jus commune”

Carl Schmitt (1888-1985) spent much of his life arguing against human rights. While this may not come as a surprise, a closer examination of The Concept of the Political reveals that Schmitt’s critique of Liberal humanitarianism is itself rooted in a concept of the humanum as a sphere of substantive moral and political conflict. As an analysis of Schmitt’s concept of the enemy shows, this humanum serves as an argument for the necessity of a juristic distinction between enemy and foe. For, only by distinguishing between the relativized enemy and the absolute foe, Schmitt argues, will we be able to distinguish create a space for particularly political action. Having revealed the framework of mediated moral conflict, in which Schmitt conceives of political action, I then turn to consider Schmitt’s minimalist proposal for a positive definition of a “universal jus commune” and assess its significance for a discussion of human rights.

Jus Commune and Common Languauge: Insights on the Judicial Construction of Linguistic Law in Quebec Through the Prism of Jus Commune

Abstract The jus commune (droit commun) is the intellectual canvas upon which any rule of law is built upon within a given society, that must be integrated in any interpretation or construction process in any field of law, even constitutional law. As the jus commune bears a series of structural values, one ponders as to the correct construction of linguistic law to be held in that regard within a minority society entrenched inside a greater federal superstructure, where linguistic preservation is a collective existential matter. The author submits that the Supreme Court of Canada may have neglected to consider this important factor in Quebec when striking down large sections of the Charter of the French Language pertaining to the official language of law and judicial decisions in the 1979 Blaikie case, in which it imposed official constitutional bilingualism in matters of legislation and judicial decisions to the enclaved French-speaking province. Perhaps the appropriateness of this decision should be revisited.

On Implementation and Effects: The Recent Case-law on the Territorial (or Extraterritorial?) Application of EU Competition Rules

To which conduct may (or should) a State apply its laws? Whom may a State compel to do or not to do something? Which laws should, if any, prevail—and under what conditions—when rules from different legal systems all seem applicable to the same situation, generating conflicts or overlaps? These questions—which concern the reach and scope of a State’s laws1—are as old as legal thought itself. Throughout Western Europe’s history, depending on the historical, social, and political context, different principles have governed jurisdictional issues. For example, the ancient world was composed of communities rather than territories and, therefore, the principle of personality prevailed.2 During the Roman Empire, laws were mainly regarded as territorial in scope, inasmuch as various cities conquered by Rome were permitted to retain (at least in part) the laws that they enjoyed before.3 In the Middle Ages, on the other hand, the principle of personality prevailed again as a result of the barbarian invasions: different ethnic groups or tribes lived in the same territory, each governed by its own laws. In the period of feudalism, the principle of territoriality reasserted itself but several legal systems sprung into life. Indeed, within a city, fiefdom, or land, different bodies of rules might have been applicable at the same time, leading to possible conflicts: religious rules versus secular rules, city or corporations’ rules versus jus commune (originating from Roman law) or lex mercatoria. Legal scholars, such as glossators, thus engaged, at least from the XII century, in a discussion on the territoriality or extraterritoriality of laws.4 Only with the rise of modern nation-States in the XVII century has the pre-eminence of the principle of territoriality become gradually entrenched in Europe.5 Paraphrasing Ford, it may be said that history appears to call into doubt the common intuition that territorial jurisdiction is a timeless, natural and inevitable feature of legal system.6

Pirates, Planting, and the Rights of Mankind in Seventeenth-Century Tortuga

Pirates, Planting, and the Rights of Mankind in Seventeenth-Century Tortuga Casey Schmitt In the aftermath of the Spanish invasion of Tortuga in 1653, a recently widowed Frenchwoman attempted to piece her life back together.1 For the crime of piracy, Spanish forces had executed her husband and many of the other former inhabitants from the small island located off of the northwest coast of Hispaniola. Now destitute, she petitioned the Spanish governor of Hispaniola, Juan Francisco de Montemayor y Córdoba de Cuenca, for the restitution of her deceased husband's goods. For his part, Montemayor y Cuenca argued that since the Frenchwoman's husband was executed as a pirate, she had no claim to the goods seized by Spanish officials upon his death. In the years prior to the Spanish invasion of Tortuga, however, the Frenchwoman and her husband understood themselves as settlers on an island that had more than two hundred permanent inhabitants, nearly twenty plantations scattered along the coast, and one sugar mill worked by enslaved Africans, Indians, and indentured Europeans.2 Unfortunately for the Spanish governor, this "wife of one of those pirates," exploited political tensions on Hispaniola and appealed to Montemayor y Cuenca's political rivals, who used the petition in an attempt to slander the governor. As a result of political pressure, Montemayor y Cuenca eventually decided in favor of the Frenchwoman and ordered the return of her husband's goods, but not before he argued in writing that the former inhabitants of Tortuga were pirates and suggested the legality of their permanent enslavement as individuals outside of the jus commune, or common law of mankind.3 The case of the French widow and Spanish governor illuminates broader issues surrounding settlement, imperialism, and unfree labor in Caribbean spaces on the edges of European control. Early Tortugans did, in fact, engage in the widespread raiding of Spanish ships and coastal plantations. However, often the men who took to sea used piracy in order to acquire the tools and coerced laborers that they needed to establish their own plantations on Tortuga. This practice of raiding in order to plant blurs the historiographic boundaries normally drawn between colonists and pirates, since many of these men moved between both professions as their circumstances dictated.4 Nor did early Tortugans eschew metropolitan oversight. Leaders on Tortuga repeatedly sought official recognition, first from the Providence Island Company and, when a Spanish attack threw Company control of the island into disarray, from the French crown. Early Tortuga represents an alternative mode of [End Page 584] colonial development in the West Indies, one in which individuals without state support established plantations and created systems of coerced labor and trade before being folded into larger imperial projects. And, although the colony failed to develop on the model of Barbados or Martinique, early Tortuga recasts historical understandings of the relationship between piracy and planting in the Caribbean. While early Tortugans blended plantation production and piracy in order to develop a colony, Spanish officials in the region used accusations of piracy in order to lay claim to the labor of prisoners captured during periodic raids on the island. As European legal theorists grappled with the legal contours of transatlantic slavery, some argued that individuals who engaged in piracy fell outside the bonds of natural law and could, therefore, be enslaved. By the 1650s, Montemayor y Cuenca deployed these very arguments to defend his seizure of property on Tortuga and the treatment of prisoners taken off the island. For their part, some of the English and French settlers on the island viewed acts of piracy against the Spanish as reprisals for the violent treatment of non-Hispanic mariners caught by Spanish patrols. The legal arguments presented by both sides illuminate the entangled nature of piracy, planting, labor coercion, and sovereignty in the early seventeenth-century Caribbean. ________ Some of the individuals accused of piracy by Montemayor y Cuenca understood maritime raiding as a stage in the development of plantations or an ancillary activity to planting staple crops. Such was the case for Paul Aubert, who left Normandy for the Caribbean in the early 1630s. As a young man, Aubert likely signed a labor contract obliging...

Human Rights Treaty Bodies, Proceduralization and the Development of Human Rights Jus Commune

The obligations set out in UN human rights treaties are open-textured and evolutionary, therefore they present a particular challenge in articulating the basis of a substantive breach that is universally applicable. Universal applicability, however, is a primary goal of international human rights and fundamental to the recognition of a jus commune of human rights. As the specialist supervisory mechanisms of the core UN human rights treaties, the human rights treaty bodies must balance the progressive realisation of rights against the historic state sensitivity to interference in domestic affairs, an exercise that has often put the treaty bodies at odds with states. Review of treaty body jurisprudence suggests that migration toward a procedural approach to human rights violations may resonate more naturally with states due to the simplicity of establishing procedural infractions. This observation stems from examining how treaty body jurisprudence is utilised in national judicial decisions. It is argued that proceduralized decisions aid in the establishment of human rights jus commune by slowly moving away from value-based determinations, a practice that sits more easily with States. This migration is reflected in two identifiable practices. The first sees states in breach of obligations based on the failure to adhere to rules of procedure or procedural obligations under a treaty. The second bases a breach determination on the procedural dimension of a substantive right. The lingering question is whether this is a positive development in the overall protection of human rights and how this impacts the growing common law of human rights. An examination of treaty body jurisprudence across the UN treaty bodies will allow the proceduralization of human rights at the international level to be evaluated in terms of individual human rights protection. The tedious balance that must be maintained in order to advance the human rights jus commune should be evaluated from a universal perspective to assess whether proceduralization of rights adds to or detracts from the overall human rights project.

Revisiting Qúebec's <I>Jus Commune</I> in the Era of the Human Rights Charters

Québec is a distinct society because of its history, its legal system, and its values. Our analysis examines the delicate issue of the relationship between the Canadian Charter of Rights and Freedoms, the Québec Charter of Human Rights and Freedoms, and the Civil Code of Québec, the primary expression of Québec's jus commune, as noted in its Preliminary Provision. As of the nineteenth century, a doctrinal trend born of the desire to protect the integrity of the civil law system grew worried about the "disruptive" influence of the common law on the civil law and, more specifically, on the Civil Code of Lower Canada. The doctrine later expressed reluctance as to the entry of fundamental rights into Québec private law. The charters of rights were, and are sometimes still, perceived as disruptive elements, capable of distorting the Civil Code. We want to show that the influence of human rights philosophy on Québec's jus commune is not only inevitable but desirable. The Civil Code and, more broadly, Québec's jus commune, can only be enriched by respect for fundamental rights.

The War of the Booksellers: Natural Law, Equity, and Literary Property in Eighteenth-Century Scotland

This article analyses the case of Hinton v Donaldson (1773) in which the judges of the Scottish Court of Session refused to follow their English brethren in recognizing an author's right of property outside the Statute of Anne (1710). The decision must be understood against the background of distinct notions of common law and equity in Scots law, drawn from the Natural law tradition of the European jus commune. At the same time the decision reveals developing strands of Enlightenment thought and concepts of the judicial role in relation to legislation.

European Legal Integration as Phantasmagoria: On Jus Commune and Political Theology

This paper tries to explore the place of phantasmatic structures in the production of discourses on the past and the instrumentalization of historiography in the framework of the construction of a European identity. During the last decades, in strong connection with European institutional framing, a heterogeneous discourse tries to impose by means of symbolic violence and authoritative arguments its own truth about Europe's ‘Common Legal Past’ in order to legitimize European politics in the field of legal integration. In doing so, it conjures both a shared legal tradition and a paradigm for understanding the status of the legal, the jus commune, a kind of Roman Law, a patchwork of Canon Law and scholar interpretation techniques, that emerged in the twelfth century and might have been at work throughout Europe as late as the beginning of nineteenth century. What this discourse also brings to the fore is the idea of a common legal culture that has been largely informed by the religious milieu where most of modern legal concepts have been forged. From this point of view this arguments reveal themselves as variations on Carl Schmitt's problematic stand of a political theology. This paper tries to unravel the internal tensions that undermine the discourse and questions its relation to historical truth and the phantasmatic dimension of meaning construction in historical enterprise. On the other hand, it tries to give an account by means of genealogy of the uncanny relation between this contemporary emergence of the jus commune and other legal ontologies of European modernity that presuppose a strong relation between the legal and the religious. In respect to this, I try to sketch the image of the contemporary discourse on the European ‘Common Legal Past’ as a discursive strategy that hasn't dealt with its own idiosyncrasies and proffers a doubtful legal ontology with dubious intellectual links that places it in an history of exclusionist and essentialist conservative thought.

Law and Justice in Korea: South and North (review)

Reviewed by: Law and Justice in Korea: South and North Tom Ginsburg (bio) Law and Justice in Korea: South and North, by Chongko Choi. Seoul: Seoul National University Press, 2005. x, 533 pp. Illustrations, bibliography, index. $30.00 cloth. Korea's legal tradition, like others in East Asia, remains poorly understood by modern comparative lawyers outside the region. In taxonomies of legal systems, Korea is usually treated as a variant of the Chinese or Japanese tradition, or alternatively as a pure transplant from Western law, with little original to offer in terms of doctrine or theory. In this volume, Chongko Choi, a prolific and wide-ranging legal scholar at Seoul National University, provides an important corrective by drawing attention to Korea's distinctive legal history. The volume consists of Choi's collected English-language papers on legal history and jurisprudence. While it is not designed to be a comprehensive overview of the topic, Choi's wide interests cover significant ground, including such diverse topics as an examination of the imagery of the Japanese and Korean supreme court buildings, a comparison of North and South Korean constitutions, and an account of the treatment of Korea by leading comparative lawyers in the West. The heart of the book is a temporally organized series of essays on traditional Korean law, modernization, and the contemporary legal system. Choi makes a number of interesting and effective moves, such as tracing Korean constitutional history since independence through the lens of Church-state relations, which illuminate Korean law in a new way. Choi's major contribution is to situate Korean law in the broader context of an East Asian legal tradition, which he describes using the medieval European concept of the jus commune or common law. He sees the various East Asian legal systems as sharing certain institutional features and Confucian ideas about law, as well as a shared legal history. Choi traces the influences of Chinese Confucianism on Korea, the distinctive Korean adaptation of those influences, and the longstanding transfer of legal ideas from Korea to Japan, a flow whose direction [End Page 126] was reversed only in the waning years of the Yi dynasty. At the same time, he does not ignore Western influence, for example, the impact of the work of German scholar Johann Bluntschli on the Daehanguk Gukje promulgated by King Kojong in 1879, or the distinctive contributions of American scholar Owen Denny in developing Korea's claim for statehood in the international legal sphere in the late nineteenth century. Placing Korea in the context of the broader regional developments actually serves to highlight its distinctive history and traditions. For example, in comparison with Meiji Japan, Choi emphasizes Korea's relatively greater debt to Anglo-American cultural and legal influences. He also notes the dominant influence of the German legal tradition that was sealed by the Japanese colonization. Korea's experience of legal modernization is intimately bound up with Japan's experience, and yet Korea's distinctive position as colonized, without its own independent access to continental sources, led to a different reception of Western law than occurred in Japan. It is also refreshing to see Choi's comparative treatment of North Korea and South Korea in the last part of the book. The only quibble with the regional focus is that it would have been of further interest had Choi included Taiwan in the comparison, since it alone among Northeast Asian jurisdictions shares Korea's colonial experience. As a historian, Choi's focus is on intellectual and cultural influences rather than mere adoption of positive legislation. He emphasizes the distinction between formal legal institutions and the living legal culture, suggesting that traditional attitudes and ideas about law may well lag behind legislative developments. This broad approach also helps to emphasize Korea's distinct adaptation of Western legal institutions. Even if formal rules are the same across jurisdictions, the use of law is inevitably shaped by the local cultural environment. Like some volumes of collected papers, the text is at times repetitive, and though the essays flow sequentially quite well, some of them probably could have been left out or left to an appendix. Foremost in this regard is the bibliography of Korean...

L'approche historique et la problématique du jus commune

In Italy and in Germany, the concept of jus commune has got in recent legal history an importance broadly underestimated in France. The study of the common jurisprudence in Europe between 1100 and 1800 has been associated with critics about codification and projects of a new European Law. However the meaning of this jus commune is very controversial : did a unified complex of norms really exist in Europe during the Middle Ages and the Ancien Regime that national codes have broken ? This article tries to present the historiography of this debate and to suggest that the research of common features in the European legal past is more relevant thon the nostalgia of a lost and imaginary unity.

中東欧諸国のEU加盟準備過程

Observing the latest trends which are developping concerning the accession to the EU in Central and Eastern Europe, “voluntary harmonisation”, which is defined at the European Agreements, is considered as a characteristic approach of the EU from legal and political aspects.Although tight collaboration between the EU Commission and the countries concerned is developped seriously through the Commission's consultation, the political and legal character of it is principally voluntary, and no legal enforcement is expected.There are obviously different stages of preparation for “Acquis Communautaire” among the countries of the association agreement in Central Eastern European Countries. Some countries like Poland, Hungary have started their economic and political reforms earlier, even before 1989, but other countries such as Bulgaria, for example, are still involved in the prematured stages of reform problems. It is, therefore, emphasized that legal culture, which is often proposed by “jus commune” school of legal history as a common core of European civilization should be taken into consideration for that purpose.The countries such as Poland, Czech, Hungary, Estonia, and Slovenia selected as the first hand candidates of the membership on basis of adequate reasons, are going to negociate it with the Commission soon.It is worthy to know that legal and political harmonisation processes to Western law in general are differently shaped in these former socialist countries, depending their relations with the EU and its harmonisation process.

Abuse of rights in civil law tradition

Abstract. The doctrine of abuse of rights has a long history but little future. The jurists who developed the jus commune could draw on Roman sources to support the principle that the exercise of one’s rights could not be relied on to justify intentional harm to another. In mediaeval times this principle was mainly used to prevent unsuitable use of building rights and assist in town planning. The requirement of intention was diluted by reference to numerous presumptions. The Napoleonic code avoided the need to rely on the doctrine by including certain zoning and town criteria within the code, but it was called upon later in the nineteenth century as a way of dealing with conflicting interests in the way land was used and the activities allowed on the land. This use of the doctrine was in turn rendered otiose when the tort provisions of the civil code began to be interpreted in an extensive manner which allowed conflicting interests to be weighed in determining the existence of fault liability. The doctrine of abuse of rights has thereafter played only a restricted role in the French legal system. It has been codified in relation to abuse of procedural rights within the justice system. The experience of other legal systems is similar. Although the principle prohibiting the abuse of rights was codified in Switzerland, Germany and Italy, these provisions have only rarely been relied on in practice. The need to prove intention is too onerous. Other provisions of the codes, such as the requirement of good faith in §242 BGB have enabled an equitable result to be achieved without resort to the doctrine of abuse of rights. It has also been subsumed within traditional principles such as venire contra factum proprium and unconscionability. Indeed the abuse of right theory is too rigid to provide an adequate resolution of the underlying problem: the balancing of conflicting interests. More flexible approaches have rendered the doctrine largely superfluous.

Entre les mots et les choses : les raisonnements et les méthodes en tant que sources du droit

The idea that to have knowledge of law is to have knowledge of legal rules has been put into question not only by researchers interested in Artificial Intelligence (AI) but also indirectly by comparative lawyers. AI has still not been able to define and model what exactly is legal reasoning and comparative law, while recognising that there is a gap between the mentality of the common law and that of the civil law, offers few epistemological explanations for this difference. If legal knowledge is to be found in rules, why has it proved impossible to date to formulate out of the two traditions a model of rules that will serve the whole of Europe ? How can one think in terms of a future jus commune if one scarcely understands exactly what is legal knowledge ? This paper will examine these two generai questions in investigating the nature of legal reasoning in English law. For it is in English law that one finds the rather explicit contradictions between the rule model — which functions at the level ofwords — and the actual techniques of legal reasoning where things themselves seem to be the ontological starting point. In short, there is a need for a new epistemological thesis of law which, in turn, will have to ability to rethink the traditional sources of law, something perhaps that will encourage Western jurists to emphasise legal technique as a formal source of law.

Le droit peut-il favoriser l'intégration européenne ?

This article presents the current conceptions of European integration through law. It describes the contributions and the weaknesses of the three ways in which law can facilitate european integration and shows that none appears able to reach the desired result. The first conception, legislative unification, is the official doctrine supported by the European Communities and has been for the past century the favoured unification device in most of the world. An examination of the numerous hindrances to its efficiency helps explain the difficulties it encounters. The second, quite recent, conception consists in the application and teaching of a technique to understand the law. It offers a new approach based on sociological analysis ; however it is still immature since the operating tools are not yet fully designed and it emphasizes the technical aspects to the detriment of ideological choices. The third conception, developed in the current half of the century, searches in the jus commune from before rationalism for the model of unification. Among the three conceptions, it offers the most promise. It is however linked too closely to a jus commune which seems unlikely to reappear in the contemporary environment. The hope that law can foster European intégration should not be given up. A begining is proposed in conclusion : to know and exchange arguments and reasoning between national Systems can lead to progress in légal harmoni-zation. But this is a différent conception of law, requiring in particular a learned community conscious of its role.