Jus commune

As common law, Latin ius commune, is understood today in the German speaking especially the Roman canon law in the Middle Ages, the early modern and modern times, as it was first taught in Europe from the 11th century. By modernizing the reception of Roman law in glossators and post glossators this became the basis for the continental European civil law. It was only replaced by the Zivilrechtskodifikationen the 18th and 19th century, in some parts of Germany it was up to the entry into force of the Civil Code on 1 January 1900.

Roman law

For common law belongs Roman law. The Roman Empire had originated in ancient times a very sophisticated law that had been passed on to the body of law Corpus Juris Civilis.

In the time of the migration substantial parts of Roman law were forgotten. From the 11th century much of it was rediscovered and scientifically processed (see: Irnerius, Glossator ). For centuries studied prospective lawyers throughout Europe almost exclusively Roman law. So therefore the Roman law was generally ( = common ) taught.

The so- on Roman law trained lawyers were professionally active after the completion of their training in a variety of offices. There they began the Roman law, which they had learned to apply. Thus began a process in which the learned Roman law penetrated into the living law practice and the pre-existing customary law there repressed (so-called reception). This process also took place in the whole of continental Europe, so again generally.

Canon Law

For common law will continue to canon law counted ( = right of the Catholic Church ). The Catholic Church had in the Middle Ages and the early modern period, a far-reaching jurisdiction. To this end, she created an extensive own canon law, the Corpus Iuris Canonici, which was derived in manifold ways from Roman law. This canon law was taught in all the universities of Europe in parallel with the Roman law with a law school. Budding lawyers could study either canon law or Roman law, or both rights. The lessons in both jurisdictions was Europe, thus generally.

Even today, the Catholic Church still has an independent judiciary, but their skills are significantly limited and restricted to internal church affairs, and on the ratio of church members to the church (for example, when canceling a failed marriage, to allow after the divorce a church remarriage ).

Local customary law

The contrast to common law, so the law was comprehensively for most people in Europe, was the local custom. This was - unlike the Roman law, and unlike the canonical right - not recorded in writing. It was created by a living legal conviction ( longa consuetudo; opinio necessitatis ). Accordingly, the different regions had a wide variety of customary rights in Europe. The customary rights were so so just not general. They went to the common Roman right in principle. The common law was thus only subsidiary. In practice, however, it returned to; because the application of the German law customary law had to be by the person who referred to the fact proved. Thus, in practice, acquired the vulgar Roman law takes precedence, as it had not been proven.

As already explained, the common law was first taught science at the universities. The Church has always appealed to the canon law. In the secular realm, however, was for centuries the common law applied ( and not taught in the universities of common law ). Only in a centuries -lasting process succeeded the qualified lawyers to wear the common law in the legal practice. An important milestone here was created in 1495 as the Imperial Chamber Court, the then highest court of the Holy Roman Empire of the German Nation. The Imperial Court of Justice should, in principle common law ( the Roman canon law ) render its judgments and only in exceptional cases, by legal habit that was put forward by the litigants in each case. This process of penetration of common law in the legal practice called front desk. In some areas of Europe this earlier ( Italy, Southern France ), in others later ( Germany ) happened. England, however, locked himself very strongly against the application of common law. From the 16th century can be said about that the common law applied by the courts of all Europe was (apart from the English Common Law ).

Suppression of common law

However, from the 16th century also counter-tendencies emerged. From this time they began to take the local legal customs regained their views and more to put this in terms of the common law. In the epoch of usus modernus for example, there was common law the French style, common law Dutch stamping, etc. The most important thing in common - law national legal system was jus Romano - Germanicum, the Roman- German law. However, the basic elements of common law continued to be very influential.

However, the legal development step further away towards a fragmentation of the common law: In the Age of Enlightenment (. Especially 18th/19th century) the rules of the common law were subjected in accordance with the principles of the Enlightenment an examination. The rules had to follow the laws of reason. In addition, some countries began to adopt national laws and thus just not recognize the common law as the basis of their legal practice; at the universities was then more or less reluctantly taught by national law. For example, emerged as important laws: the French Civil Code, the Prussian General Land Law (ALR ), the Austrian Civil Code. A late birth this time is also the German Civil Code ( BGB). However, these laws are all based largely on the common law, because the rules in these law books are all written in a scientific discussion of the common law and go back on this. Even after the adoption of all these laws the common law continued to be taught at universities.

Today there are only a few areas where the common law remains in force. As one of the last areas can perhaps (but with major reservations ) call South Africa. The common law came by Dutch explorers and colonizers to South Africa. Later Great Britain replaced the Dutch and sat partly their Common Law into force, the common law (Roman Dutch Law ) superimposed and altered. Today in South Africa is a mixed legal system of common law and common law, the common law superimposed on the common law.

Demarcation to the Common Law

The Common Law, the law of the Anglo-Saxon or Anglo -American legal system, can also be translated as " common law ", since both English common and the German public to go back to the Latin communis / commune. However, the common law is a separate legal system, which largely independently developed from the Roman- canonical embossed common law of continental Europe and is not to be confused with this. The term " common law " for common law is therefore also uncommon; instead, this legal system in Germany also mostly referred to as " common law ".