Jarkko Tontti: European legal pluralism as a rebirth of Ius commune

Retfaerd – Nordisk juridisk tidsskrift 94(2001), p. 40-54.

A historical analogy has sometimes been used in recent discussions to characterise and promote the process of European legal integration, especially harmonisation of private law. Professor of comparative law B. S. Markesinis, for example, claims that when we examine the history of European law, we discover that the nation-state centred contemporary situation is rather a historical anomaly:

After all, not so long ago lawyers in Europe operated a fairly advanced ius commune before the modern sovereign state interrupted legal and academic as well as political co-operation. So why should not lawyers move again in that general direction, as greater economic co-operation and a growing similarity in the social environment make the world they all inhabit both smaller and its various parts more interdependent?[1]

Some comparative lawyers join Markesinis and historians like Reinhard Zimmermann[2] in hoping that a new ius commune will replace the contemporary situation, in which the European legal universe is divided into multiple national legal orders. These scholars anticipate that these modern national legal orders will be superseded by something analogically similar to the common law of pre-modern Europe, when from the legal point of view Europe was united, it is claimed, by the inherited tradition of Roman and canon law. Lawyers from Spain to Sweden were part of the same tradition and used the same legal corpora and concepts and thus understood each other. This harmonious situation was then disintegrated by the modern nation state with its codified and purely national law.

This historical analogy or historical comparison gets support, at least in part, if one looks at the standard textbooks in legal history. Even if professional legal historians know very well that the picture of Europe as once legally united by a ius commune is a simplification that does not grasp adequately the heterogeneity of the legal past of Europe, this view still appears in some textbooks. Ditlev Tamm e.g. writes:

Ius commune – den allmänna eller generella rätten – används som beteckning för den bearbetning av den justinianska rätten som utfördes i Bologna. Denna bearbetning blev under medeltiden grundvalen för rättsvetenskapen inte blott i Italien utan i stora delar av Europa, där den förblev gällande till dess att de stora kodifikationerna trädde i kraft omkring 1800.[3]

Moreover, when legal historians have taken part in discussions outside their professional sphere of legal history, they again seem to sometimes forget that the prevailing opinion in legal history does not support the view that Europe was once united by a ius commune. Distinguished legal historian Reinhard Zimmermann, for example, seems to echo this view in an article entitled Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit:

Man muss demgegenüber immer wieder ins Bewusstsein rufen, dass die gegenwärtige nationalistische Vereinzelung der Rechtswissenschaft erst das Produkt des 18. und 19. Jahrhunderts und damit für unsere wissenschaftliche Tradition keineswegs charakteristisch ist.

Vom Ausgang des Mittelalters bis hin zur Französischen Revolution einte und umspannte  alle Länder West- und Zentraleuropas ein gemeinsames common law und eine gemeineuropäische Rechtswissenschaft. Beide basierten vor allem auf römischen und kanonischen Recht und waren Teil einer spezifisch europäischen Kultur.[4]

Among Nordic scholars Pia Letto-Vanamo presented the same argument in her recent monograph Eurooppa oikeusyhteisönä. She claims that we should see without doubt that a ius commune, which was studied and applied in Europe as a common law, was one important uniting element in the otherwise fragmented Europe of the Middle Ages and in the beginning of the modern period.[5] Also Helmut Coing – another well-known legal historian – has taken part in discussions outside the sphere of legal history strictly speaking. Similar to Markesinis and Zimmermann, Coing has defended the idea of the usefulness of a common tradition of ius commune – originating form the medieval academic tradition which started at the University of Bologna – in the contemporary building of European law in an article with the suggestive name: Von Bologna bis Brüssel.[6]

Besides the medieval tradition of ius commune, a later version of scholarly unity of the legal world is presented through the common influence of an usus modernus pandectarum in Europe. In the above-mentioned article, Zimmermann, when discussing the possibility of a common European private law, characterises the contemporary processes of integration as being ”..auf dem Weg zu einem erneuerten usus modernus pandectarum”[7].

These arguments have met with some opposition.  Tomasz Giaro claims that the scientific study of legal history has been compromised by these attempts, as they are selective constructions of the past. They aim to justify the present developments with a simplified picture of the past. Similarly, Dag Michalsen has not accepted the notion that legal history should act as a servant for contemporary endeavours, that is, provide sources, ideas and arguments for integration. This is not its task.[8]

In this article I attempt to infuse these discussions with a fresh approach. In recent literature in sociology of law, legal theory and philosophy of law, the theme of legal pluralism is much debated.[9] It is argued that we should not think of law simply in terms of the state-centred positivistic model – as a set of rules enacted by the state and systematised by legal doctrine – but should instead consider the actual heterogeneity and polycentricity of the life of law. Besides the law in force strictly speaking, there is a significant amount of soft law or infra-law, which fundamentally affects the functioning of (positive) law. In this article I try to find out what happens if we consider the discussions of past and present European ius commune from this perspective.

I try to show two things. First, from a theoretical point of view and in the vocabulary of legal pluralism, the so-called ”unity” of medieval ius commune is a fallacy: the old ius commune was inherently fragmented and pluralistic. In medieval Europe the various local customary laws and the common Roman and canon law existed side by side, and the legal world as a whole was inherently pluralistic in nature.

Second, a historical analogy between the old ius commune (and perhaps also the later usus modernus pandectarum) and contemporary legal integration might be drawn, but it would reveal that rather than being completely united, the new European law after the eclipse of the nation state will (or should) also be pluralistic and fragmented. The new European ius commune is also result of a dialectical interplay between local law and the now-emerging global law, between legal integration and legal fragmentation. Polycentricity and legal pluralism are appropriate terms with which to characterise both the contemporary changes of law and the functioning of medieval legal Europe

The emphasis of this article is, then, on the contemporary discussions on legal pluralism and on a legal theoretical analysis of the contemporary changes in the deep structures of legal thinking. My point of view is that of a legal philosopher and a legal theorist. I will analyse the current global tendencies and changes in legal thinking from the point of view of legal pluralism and legal post-modernity. I will, however, claim that we can receive, at least by analogy, support from legal history and from the term ius commune, when we attempt to understand the most recent developments of law and of legal thinking in general.

PRE-MODERN LEGAL PLURALISM

As we know, the medieval tradition of ius commune was divided into ius Romanum (or ius civile) and ius canonicum – Roman law and canon law of the church. The tradition of ius commune dates back to the University of Bologna at the end of 11th century, when Irnerius – called lucerna iuris – and his school of glossators started to interpret and systematize old Roman legal materials. This work was continued by the so-called commentators (conciliators or post-glossators), who in their turn re-interpreted the Roman tradition.[10] The epistemological and ontological status of the medieval Roman law was therefore first and foremost interpretative. It was a tradition of interpretation that functioned through dialectical and reciprocal interplay of sedimentation and innovation. Old material was constantly restructured, reinterpreted and renewed in a chain of commentaries interpreting both the original texts and the commentaries added to them, so that the old legal material was usable in new and changed social conditions.

The learned writings of the medieval scholars were highly influential. They were used in teaching at the universities and also as a source of law in courts throughout Europe. In addition, the model for educating lawyers at universities spread from Bologna to other universities of Europe. This diffusion of the influence of the newly interpreted Roman law is often called the reception of Roman law in Europe.[11] It was partly a direct adoption of the material rules of the ius commune and partly a more indirect reception of conceptual frameworks and ways of systematisation. Comparative lawyers, such as Markesinis, who use this reception history to justify and promote the present-day European legal integration, seem to argue or implicitly assume that the reception of Roman law extended to all of Europe, and that it still unites European legal systems as a common cultural heritage.

It should, however, be asked to what extent the medieval and early modern Roman-canonic ius commune really was a united and common legal order, or even a common legal culture that rose above the local, culturally differentiated legal orders and practices? Is the old ius commune at least a common cultural ground upon which a new European legal order can be built? Is it, in spite of the modern national differences, something that still unites all European legal systems?

It is important to note that the old ius commune was primarily learned law, droit savant, and its effect on legal practice remained often rather insignificant. On some occasions it had a powerful influence on practical legal work and it was used as a source of law; but at other times it was not and it had only academic influence. In some regions of Europe it had a strong effect on legal practice, in some others it had almost no role at all. Some fields of law were more under Roman and canon influence than others.

In addition, in all the regions of Europe influenced by ius commune there was also effective local law, ius proprium. Or rather, there were iura propria, numerous local legal practices and unwritten customary laws, town laws, provincial and regional laws, state laws and so forth.[12] The relationship between the common law, ius commune, and the local law, ius proprium was anything but clear. They existed side by side, in a dialectical and reciprocal relationship of a more or less peaceful coexistence. A good historical example of this dialectical relationship between local law and common law can be found in medieval Nordic regulation of marriage. Canon law and local law existed side by side in an uneasy harmony, as a recent study has shown.[13]

In theoretical vocabulary the functional relationship between medieval local law and global law can be characterised as a dialectical process without synthesis. It was an on-going interpretative undertaking where neither pole was completely superseded by the other or by any third, uniting element. Both ius commune and ius proprium were changed in this on-going interpretative and dialectical process. What was originally a rather coherent theoretical systematisation of ancient Roman law was gradually fragmented when it came into contact and existed with the local legal practices and legal orders. Ius commune, therefore, was soon pluralistic in nature, different in different parts of Europe, and ius proprium in its various forms also changed because of the influence of the ius commune. This fragmentation and differentiation increased by time.

The dialectical coexistence of ius commune and ius proprium took different forms in different parts of medieval Europe, and even the term ’common law’ had different meanings. In England the feudal Common Law of the Country was law of the Norman conquerors who invaded the country in 1066 and which gradually replaced the local Anglo-Saxon law. Later, there was a conscious opposition against Continental ius commune in England, but English law was never purely national. It always contained and constantly received foreign influences. And it is to be remembered that most ?national? English law had Norman and other continental roots. In the 17th century the so-called equity system was developed by the Chancery under the influence of the learned law of the continent. Hence, English law was clearly part of the cultural heritage of the ius commune, but it took its own and specific course within it.

In the German-Roman Empire gemeines Recht was the common law of the Empire above the laws of the various local states and provinces, and ius commune also had a widespread influence on legal practice. According to the internal order of the highest court of the Empire, Reichskammergericht, local law was the primary source of law, but in practice the learned ius commune was more often used. But the local ius proprium also continued to exist in the German-Roman Empire, especially in the legal relationships between private persons. Therefore, local and global law in medieval Germany also continued to operate in a dialectical and reciprocal relationship. Through interpretative sedimentation and innovation, gemeines Recht was gradually changed in practice, and lost its identity as ius commune, if one means by ius commune a materially unified legal order or a homogenous legal culture.

In southern France the study of ancient Roman law started approximately at the same time than in Bologna. On the other hand in northern France there was a strong opposition to ius commune. In addition, the learned ius commune was often linked in France to the attempts of the central government to unite the kingdom legally. Nevertheless on account of the legal practice, the effect of the law of one particular region, Paris, spread through the whole country. Compared to Germany, the French development was more nationally inclined; ius commune usually had only a secondary role as a source of law. The kings of the l’ancien régime never succeeded completely in their attempts to unify the law, and the practice of law was far from being in effective control of the central government. The unsystematic and unpredictable nature of court practice was a constant problem and later became a target of criticism by the revolutionaries.[14]

In Northern Europe ius commune had even less importance than in England. Some scholars claim that its influence was completely marginal and that the legal tradition was strongly national in character. Others argue that later, from the 17th century onwards, the effect of the ius commune was considerable at least in the highest courts and in the university.

All in all, regional comparisons reveal that the medieval and early modern world of ius commune was more pluralistic and fragmented than its name indicates. There was no one common and united legal order (or even a more broad common legal culture) in Europe in the Middle Ages, contrary to what seems to be more or less tacitly assumed in some contemporary discussions concerning the common cultural basis for what may become a new European private law.

In the discussions of comparative law one often hears that the new emerging European (private) law should be based more on broad legal principles than on mere legal rules. And those integrationists, who want to use legal history as an argument on their side, claim that the common heritage of Roman law or ius commune contains the already existing common principles of European private law. This view, as I have attempted to show, neglects the thoroughly heterogeneous and pluralistic nature of European legal history.[15] Furthermore, even if a set of common legal texts – showing the existence of e.g. common principles of the academic ius commune – could be found, it is a different thing altogether to claim that these texts were interpreted and applied similarly all over Europe.

In all parts of Europe where ius commune spread, it came into contact with the local ius proprium. Before the era of the modern nation state and the advent of purely national legal systems these continued to exist side by side, in a condition of dialectical reciprocity and constant change. Similar or identical legal texts, originating from Roman law or from the efforts of medieval scholars, were interpreted differently in different parts of Europe because of the different cultural surroundings, which were shaped, among other things, by local legal customs. The geographical differentiation increased over time, and both ius commune and ius proprium ultimately disappeared when the modern (usually codified) laws of the sovereign nation states superseded them. The medieval academic tradition of ius commune – originating from Bologna – was more real, lasting and effective, but also it did not reach the whole of Europe and did not affect the practical life of law as much as some academicians might have thought. Within the original six member states of the EEC the ius commune argument is more plausible than outside its Central and Western European core. But also there the ’hidden dimension of ius proprium’ has often been neglected, and the debates have mainly concentrated on the learned law and its traditions.

It is important to stress, however, that even if there is no material unity behind all the contemporary legal systems of Europe, there is still something that enables us to see them as having common Roman and canon origins. If one compares the different European legal traditions with e.g. non-European legal history, it becomes evident that European legal orders do have common roots. These uniting elements, though, exist only at a high level of generality and abstraction. A shared legal way of seeing the world through legal ”glasses”, that is, a common legal fashion of narrating the social reality from the legal point of view and a common legal style of argumentation and thinking in general are perhaps the aspects of the common European legal heritage that will make the new integration possible.

MODERN LAW – A STATE MONOPOLY

It has often been noted that after the French Revolution the old ius commune was replaced by various national legal orders all over Europe. Usually national law took the form of codification, except in England where the demands of such reformers as Jeremy Bentham were rebutted. These national codifications did not, however, originate ex nihilo, only as expressions of the will of the legislator. They were strongly tied to the academic traditions of legal thinking. Consequently the old ius commune also had an indirect effect on their content and structure. Thanks to scholarly efforts the Roman tradition continued to exist indirectly. The academic work of systematisation was still strongly Roman-oriented, especially in Germany, which gave a model that influenced the rest of Europe. Even in England German legal scholarship was known in the 19th century. Usus modernus pandectarum sustained the existence of the Roman heritage, and even if codifications were national they contained many similar traits. But something important still happened with the codifications: the ties to ancient and medieval traditions of legal thinking were now clearly indirect.

In philosophical terms the development leading to modernity where codification became a standard model can be understood as the appearance of the dialectics of synthesis as the deep structure of legal thinking. The earlier dialectics without synthesis, the on-going interpretative process and co-existence of the ius commune and ius proprium in its many forms, was superseded by purely national legal systems that did not acknowledge any competitors. The idea of unlimited state sovereignty did not allow for the pluralistic and fragmented interplay of various legal orders within the borders of a state. Even if ius commune continued to exist indirectly thanks to the academic work, ius proprium in its many forms was suppressed in most European nation states. All law was now state law, even if the role of legal scholarship remained important in analysing and systematising the material handed down by the sovereign state. As we know, this was the heyday of legal positivism, in which formal rationality became the ideal model for legal reasoning. As a result of the academic work of systematisation, a logically coherent assemblage of norms was envisioned with whose help legal disputes could be adjudicated through formal, calculable and logical operations. The primary legal value to be attained was legal certainty, i.e. predictability of legal practice. This was seen as a remarkable improvement compared to the earlier unsystematic and unpredictable nature of legal world.[16] From a theoretical perspective this development, leading to modern law and legal thinking with formal rationalism and universalism as its ideals, has been characterised as a breakage between thought and action.[17] It was a rupture between theory and practice; the world of the legal Sollen was separated form the world of the social Sein.

In the field of legal theory the most monumental work of legal positivism was, of course, Hans Kelsen’s Reine Rechtslehre. But Kelsen?s pure theory of law was also in many respects the swan song of state-centred legal thinking. As we remember from Hegel’s Rechtsphilosophie, the Owl of Minerva, symbol of theoretical thinking, takes off and starts its flight only when the night has already started to fall. Theory is always late; it is only afterthought and it usually perceives the aspects of its object only when their importance has already started to diminish. The 20th century, when Kelsen’s many important works appeared, was also the time when the global and local developments started to weaken the central role of the nation state, especially in Europe.

THE NEW EUROPEAN IUS COMMUNE – A PLURALISTIC USUS POSTMODERNUS?

After the Second World War the global and local forces working against state-centred legal thinking advanced strongly in Europe. The old nation-states of the Western Europe had lost their leading roles in world politics and this forced them – finally – to forget old rivalries and to start co-operation. In 1957 EEC was founded to promote the economic integration of Western Europe. In less than fifty years it has developed to a European Union with fifteen member states. The member states, even if theoretically still sovereign, have transferred the most important parts of their legislative power to a supranational organisation. In geographical terms even larger integration is being promoted by The Council of Europe, which concentrates on human rights through The European Convention on Human Rights and The European Court of Human Rights.

Simultaneously with the process of European legal integration, however, there is a tendency towards legal fragmentation in different spheres of society. For example, some parts of Europe that only some decades ago were more or less directly suppressed by the nation states have now become important actors. In part, this has taken place through The Committee of the Regions of The European Union, partly also by the creation of autonomous regions with internal legislative autonomy, e.g. in Scotland and Corsica. Powerful economic organisations, such as multinational companies and trade unions, are today comparatively more influential than in the 19th century, and they have assumed indirect powers of legal regulation that were formerly in the hands of the sovereign state. Important developments have also taken place at the grass-root level of society. In the field of criminal law, for example, the state-centred court system is now often bypassed by various conciliation procedures between the parties, organised by local communal authorities or non-governmental organisations.

An interesting development is also taking place in the role and influence of the academic world. The making of the European Civil Code has been mostly left to the academics, instead of to legislatures. The Commission on European Contract Law (the so-called Lando Commission), consisting mainly of academics, has published the Principles of European Contract Law, and other similar projects are currently underway. It seems that this is not an accidental but a necessary development in the construction of new a European ius commune. Law cannot function only through enactment of norms. To operate effectively a collection of norms also requires the support of a legal culture behind it. And a common legal culture cannot be formed only by means of legislation; it is constituted of more general frameworks, methods of systematisation and structures of legal thinking in general. Legal scholarship is one important way of developing and advancing the European legal culture.[18]

Therefore, like the medieval ius commene, the new emerging common law of Europe is also definitely a scholarly enterprise. The content of the emerging new European legal culture is constituted in the dialectical interplay of influences from different national legal cultures. Legal professionals from different parts of Europe with different backgrounds form it through a process of slow interpretative sedimentation and innovation. From this plurality something shared in common is emerging, but without the nation-state as the centre of the development. It is to be noted, however, that the scope of common legal thinking and emerging common European legal culture is limited. A common law of Europe is needed and beneficial only in some fields of law, e.g. in the field of human rights and commercial transactions.

From a philosophical perspective these intertwined processes can be characterised as a return to the dialectics without synthesis as the primary deep-level structure of legal thinking. As in the Middle Ages, the new European ius commune is also living its life in a dialectical and reciprocal relationship with the various forms of the ius proprium, such as state laws, regional laws and the multiple unwritten normative practices that regulate and structure society. None of these has a clear and undisputed role over others; their relationships take shape in the ever-evolving interpretative processes of dialectical interplay where clashes of normative orders are settled case by case.

It can be argued that these developments are marks of a more general cultural shift that has sometimes been labelled the emergence of post-modern era.[19] In legal thinking e.g. André-Jean Arnaud has proposed that this might introduce changes in some important traits of the deep structures of legal thinking. It is claimed that from such modern ideals as abstraction, universalism, unity of reason and simplicity we are moving towards post-modern themes of pragmatism, relativism, plurality of rationalities and complexity.[20] In a similar tone Mireille Delmas-Marty is not alone in stressing that we should not speak of one common legal order of Europe but of several European legal orders whose future success is based on co-existence, not on hierarchy and hegemony.[21]

It seems that many of the traits that Arnaud characterises as post-modern also characterised medieval Europe; pragmatism, plurality of rationalities and complexity of the legal world are adequate generalizations of the dialectical interplay of the medieval ius commune and ius proprium as well. It appears that the contemporary European legal integration can be called a rebirth of the medieval ius commune because they both share similar traits of pluralism, heterogeneity and polycentricity.

The interesting similarities between the new emerging European ius commune and the medieval ius commune are not substantive but abstract and theoretical; a direct re-birth of Roman law is not taking place. Instead, certain deep-level structures of legal thinking have returned (or are cautiously returning) after the period of modern law and legal positivism. In both pre-modern and post-modern European legal universe ius commune is the unifying element. However its sphere is limited (now as well as in the Middle Ages) and the practice of law is a pluralistic mosaic of heterogeneous legal practices.

Thomas Wilhelmsson has presented what he calls the Jack-in-the-box theory of European law.[22] He argues that at the national level the introduction of European law has radically increased the level of legal uncertainty. As a Jack-in-the-box EU law can pop up in unexpected situations. The harmonious national hierarchy of norms can be disturbed by supranational and global elements, which cannot be anticipated. It is not only the huge amount of Union legislation that often makes EU law pop up unexpectedly at the national level. There is also a qualitative difference that originates from a change in the more general structures of legal thinking. One of the most important legislative measures of the EU, the directive, also bears hallmarks of pluralistic tendencies. Directives, as we know, have to be implemented by national measures, which may vary from country to country. Directives have a Janus face; they operate dialectically between European and national dimensions, as Michalsen has remarked.[23] A directive, then, is a good example of how integration does not rule out the simultaneous process of fragmentation.

Also Gunther Teubner has recently argued that the usage of legal transplants, one form of legal globalisation, does not operate as it is usually assumed, and that they should rather be called legal irritants.[24] As an example Teubner uses the introduction of the continental civil law principle bona fides, good faith, to the British contract law by a EU directive. When a historically and culturally alien element is introduced into a different context, it triggers series of consequences which do not lead to the convergence of the British and continental legal systems but rather to new cleavages. Legal transplants do not work in the autonomous sphere of law but are in interaction with other domains of society. In the case of the principle of good faith, the fundamental differences between Continental and Anglo-Saxon business cultures causes the principle to operate differently than it was intended; it irritates the system into which it is introduced. It seems that also in the context of legal transplants (as a typical form of globalisation of law) we can find out that the dialectical interplay of ius commune and ius proprium causes increased pluralism instead of simple homogenisation.

What is common in all these new theoretical developments is that they challenge the model of classical legal positivism according which legal order is structured as a pyramid with the constitution at the top and lower level norms below it.[25] This pyramid structure and hierarchy of norms, as developed by Kelsen, was supposed to rule out the possibility of internal contradictions of the legal order. Kelsen’s pyramid model is not unproblematic, even if one accepts his positivistic starting points, as several scholars have showed.[26] Recently, both the realities of the practical legal world and many scholarly enterprises have distanced themselves from Kelsenian and positivistic approaches. In a recent article by François Ost and Michel van de Kerchove, for example, it is argued that a more adequate way to conceive a legal order is too see it as a net or a web (réseau), instead of a norm pyramid.[27] What was once seen as a hierarchy has fragmented into a polycentric mosaic without the sovereign state as the central point in legal thinking.

It can be claimed, then, that the European Union is by definition a fragmented, polycentric ”state” (or non-state); and its law cannot be understood with the theoretical tools borrowed from the old state-centred positivism. It is true that the primacy of European law is a fundamental principle of Union legislation that is constantly reaffirmed in the practice of The Court of Justice of the European Union. This primacy, however, is still not accepted without hesitations by the constitutional courts of the member states in fundamentally important matters, and in practice, at the grass-root level, the primacy is often inefficient. The primacy of European law is an interpretative question par excellence that is often resolved according to the legal culture and tradition of each particular country; only a tiny minority of the questions related to European law are resolved at the Union level.[28] The ius proprium of each particular country therefore affects the interpretation and application of European law. Ius commune of the EU is interpreted in a different cultural context in each different country (or even in other smaller regions with legal autonomy), and there are no guarantees that these interpretations will be the same everywhere, even if some degree of harmonisation is of course achieved. The practical functioning of the new European ius commune, then, is not totally but partially harmonised.

In connection with his hope that European lawyers should again move in the general direction of a ius commune, Markesinis argued that the contemporary harmonisation proceeds through five techniques. These are – in ascending order of importance – the academic work in the universities, practical work of the judges and practitioners, international conventions, directives, and the case law of the Luxembourg court.[29] But all these, I would like to stress, introduce elements of particularisation into the legal world. Directives are implemented nationally and national courts decide most of the cases related to EU law. In addition, academic teaching is far from being similar all over Europe, not to speak of the practical work of judges and advocates.

All in all, the European Union is not a new sovereign. It has acquired some traits of sovereignty but not all. It is not a state, but a new form of co-operation, which carries the hallmarks of pluralism. Kaarlo Tuori has presented an opposing view. He argues that we are not witnessing the emergence of post-modern law but the final phase of the stabilisation of modern law.[30] He claims that there is no necessary connection between the centralised state and the unity of legal order and that the evolution of EU law is still in an embryonic stage and in the future the fragmentary tendencies will disappear.

Now, Tuori’s assertion is partly an empirical claim that tries to anticipate what is going to happen in the future, and for this reason it cannot be verified or falsified yet. His interpretation is perhaps correct, but the opposite view is also possible. On the contrary to my mind it seems highly likely that we are facing, in the terminology of Michel Foucault used by Tuori, a rupture of episteme; a fundamental change in the conceptual deep-level structure of thinking, prevailing in each epoch of history that determines what can be said, thought and even done. The new dialectical interplay of EU law, national law and other forms of regulation is simply something that cannot be theoretically grasped with the tools of the preceding period of modern law and legal positivism.

CONCLUSION

It is certainly true that much legal discourse still functions through the vocabulary of modernity. The pluralistic tendencies are fragile and can easily be repressed if, for example, the nationalistic political right gains more popularity in Europe and the nation states get back their central role. The fragmentation of modernity is only an opportunity, a project, a justice to come, forever only to come, as it could be formulated echoing the language of Jacques Derrida. And it is important to note that the tendencies I have tried to describe above are actually tendencies of modernity taken to their extreme, inasmuch as modernity was first and foremost a project of liberation of the individual that has now perhaps advanced one further step. The most modern ends up being post-modern.

In the scheme presented above there is still, it is to be noted, something that can be called a centre and something, which can be called a periphery. It is through their dialectical relationship that the era after legal modernity is unfolding. We need ius commune as much as we need ius proprium. As Michalsen has noted, the arguments of the particularists, who oppose all legal integration, are not justified; they are based on a fallacious assumption that the particular characteristics of various legal cultures were somehow truly original and as such worth preserving.[31] Instead, as I have tried to show, legal cultures develop through dialectical processes of sedimentation and innovation. New influences are constantly received and incorporated into each particular legal culture.

In such areas as human rights and international commercial transactions harmonisation is clearly needed. I have tried to argue that the harmful potential of state-centred legal modernity is the total hegemony of ius commune, or hegemony of any normative order over others. A dialectical situation where no voice is suppressed guarantees best the road towards justice, even if this road is never-ending. Even after modernity, justice remains to come.

In order to have practical impact, the universal conventions on human rights – as one form of ius commune – also need to be interpreted, they need to be applied to particular and unique situations. Any form of ius commune has to be interpreted if it is to be effective in the singular instances of the particularised forms of life at the grass-root level of society. And in this interpretative process the content of ius commune is necessarily fragmented if it aims to have any relevance in the various cultural contexts of its application. To meet the demands of each particular society and time, human rights conventions also take the form of a chain of interpretations through which new meanings are attached to them in practical legal life. It took several decades before the words of the human rights declarations (such as the declaration of the rights of man of the French Revolution) were extended to affect also the legal position of women. The letters of the legal documents may remain the same but they are given new meanings over time.

All in all, in the short passus from B. S. Markesinis cited in the beginning of this article, there is actually a germ of truth. Markesinis hoped for the emergence of new ius commune in Europe. But contrary to his expectation, I do not think that the new ius commune should or will lead to ”growing similarity in the social environment” or will ”make the world they all inhabit both smaller and its various parts more interdependent”. Instead, the new ius commune of Europe, if the tendencies now visible continue, will lead to a situation where the processes of globalisation and integration are accompanied by their dialectical counterparts of fragmentation and differentiation. It will be a pluralistic ius commune where multiple visions of social life can be tolerated with an increasing sense of belonging together, despite escalating differentiation and fragmentation. And this was, as I have argued above, also the situation during the heyday of the old ius commune.

Jarkko Tontti

BIBLIOGRAPHY

Arnaud, André-Jean: Pour une pensée juridique européenne. Presses Universitaires de France Paris, 1991.

Coing, Helmut: Von Bologna bis Brüssel. Europäische Gemeinsamkeiten in Vergangenheit, Gegenwart und Zukunft. Kölner Juristische Gesellschaft. Schriftenreihe. Band 9. Verlag Josef Eul, Bergisch Gladbach Köln, 1989.

Delmas-Marty, Mireille: Pour un droit commun. Éditions du Seuil Paris, 1994.

Giaro, Tomasz: Europäische Privatrechtsgeschichte: Werkzeug der Rechtsvereinheitlichung und Produkt der Kategorienvermengung. Ius commune XXI. Vittorio Klostermann,  Frankfurt am Main 1994, 1-43.

Korpiola, Mia: ”An Uneasy Harmony: Consummation and Parental Consent in Secular and Canon Law in Medieval Scandinavia”, in Korpiola, Mia (ed.): Nordic Perspectives on Medieval Canon Law. Publications of Matthias Calonius Society II Saarijärvi, 1999.

Koschaker, Paul: Europa und das römische Recht. Biederstein Verlag  München/Berlin, 1947.

Letto-Vanamo, Pia: Eurooppa oikeusyhteisönä. Helsingin yliopiston Kansainvälisen talousoikeuden instituutin julkaisuja 36, Helsinki 1998.

Markesinis, B. S.: The Gradual Convergence. Clarendon Press Oxford, 1994.

Michalsen, Dag: ”Europeisk privatrettshistorie – noen kommentarer til en europeisk fagdisiplin” Jussens Venner 6 (1997), 357-365.

Michalsen, Dag: ”Ett privatrettslig Europa? Integrasjonisme og partikularisme i en pågående debatt” Lov og Rett 6 (1999), 323-342.

Nousiainen, Kevät: Prosessin herruus. Länsimaisen oikeudenkäytön modernille ominaisten piirteiden tarkastelua ja alueellista vertailua. Suomalainen lakimiesyhdistys Helsinki, 1993.

Ost, François & van de Kerchove, Michel: ”De la pyramide au réseau? Vers un nouveau mode de production du droit?” Revue interdisciplinaire d’études juridiques 44 (2000), 1-82.

Tamm, Ditlev: Romersk rätt och europeisk rättsutveckling. Nerenius & Santérus Förlag Stockholm, 1998.

Teubner, Gunther: ”Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences” The Modern Law Review Vol. 61, No.1, (1998), 11-32.

Tontti, Jarkko: ”Law, Tradition and Interpretation” International Journal for the Semiotics of Law Vol. XI, No.31, (1998), 25-38.

Troper, Michel: ”Kelsen, la théorie de l’interpretation et la structure de l’ordre juridique” Revue internationale de philosophie 138 (1981), 518-529.

Tuori, Kaarlo: ”EC Law: An Independent Legal Order or a Post-Modern Jack-in-the-Box?”, in Eriksson, Lars, D. (ed.): Dialectic of Law and Reality. Forum Iuris, Publications of the Faculty of Law, University of Helsinki, 1999, 397-415.

Wilhelmsson, Thomas: ”Jack-in-the-Box Theory of European Community Law”, in Krämer, L. & Micklitz, H.-W. & Tonner, K. (eds.) Law and Diffuse Interests in the European Legal Order. Nomos Verlagsgesellschaft, Baden-Baden 1997, 177-194.

Zahle, Henrik: ”The Polycentricity of the Law or the Importance of Legal Pluralism for Legal Dogmatics”, in Petersen, Hanne & Zahle, Henrik (eds.): Legal Polycentricity: Consequences of Pluralism in Law. Darthmout Aldershot, 1995, 185-199.

Zimmermann, Reinhard: ”Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit” Juristenzeitung (1992), 8-20.

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[1] Markesinis, B. S.: The Gradual Convergence. Clarendon Press Oxford, 1994, 2.

[2] Zimmermann, Reinhard: ”Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit” Juristenzeitung (1992), 8-20.

[3] Tamm, Ditlev: Romersk rätt och europeisk rättsutveckling. Nerenius & Santérus förlag, Stockholm, 1998, 256. Similar accents can also be found in textbooks by other authors.

[4] Zimmermann 1992, 10.

[5] Letto-Vanamo, Pia: Eurooppa oikeusyhteisönä. Helsingin yliopiston Kansainvälisen talousoikeuden instituutin julkaisuja 36, Helsinki 1998, 4-9.

[6] Coing, Helmut: Von Bologna bis Brüssel. Europäische Gemeinsamkeiten in Vergangenheit, Gegenwart und Zukunft. Kölner Juristische Gesellschaft. Schriftenreihe. Band 9. Verlag Josef Eul, Bergisch Gladbach Köln, 1989.

[7] Zimmermann 1992, 20.

[8] Giaro, Tomasz: ”Europäische Privatrechtsgeschichte: Werkzeug der Rechtsvereinheitlichung und Produkt der Kategorienvermengung.” Ius commune XXI. Vittorio Klostermann,  Frankfurt am Main 1994, 3-6, 10-26 (1-43). Michalsen, Dag: ”Europeisk privatrettshistorie – noen kommentarer til en europeisk fagdisiplin” Jussens Venner 6 (1997), 364-365 (357-365).

[9] From a Nordic perspective, see e.g. Petersen, Hanne & Zahle, Henrik (eds.): Legal Polycentricity: Consequences of Pluralism in Law. Darthmout Aldershot, 1995.

[10] Cf. Arnaud, André-Jean: Pour une pensée juridique européenne. Presses Universitaires de France Paris, 1991, 76-77.

[11] Cf. Coing 1989, 8 and Koschaker, Paul: Europa und das römische Recht. Biederstein Verlag München/Berlin, 1947, 55-141.

[12] Similarly Michalsen has stressed the simultaneous existence of ius commune and local legal customs and traditions. Cf. Michalsen 1997, 364-365.

[13] Korpiola, Mia: ”An Uneasy Harmony: Consummation and Parental Consent in Secular and Canon Law in Medieval Scandinavia”, in Korpiola, Mia (ed.): Nordic Perspectives on Medieval Canon Law. Publications of Matthias Calonius Society II Saarijärvi, 1999.

[14] Cf. Arnaud 1991, 90-92 and Tamm 1998, 267-270, 287-290.

[15] Cf. Michalsen 1997, 359-360.

[16] Cf. Nousiainen, Kevät: Prosessin herruus. Länsimaisen oikeudenkäytön modernille ominaisten piirteiden tarkastelua ja alueellista vertailua. Suomalainen lakimiesyhdistys Helsinki, 1993, 26-38.

[17] Arnaud 1991, 294.

[18] Cf. Michalsen 1999, 333-335 and Tuori, Kaarlo: ”EC Law: An Independent Legal Order or a Post-Modern Jack-in-the-Box?”, in Eriksson, Lars, D. (ed.): Dialectic of Law and Reality. Forum Iuris, Publications of the Faculty of Law, University of Helsinki, 1999, 397-415.

[19] The term post-modern itself is a fragmented (and also very disputable) concept. It has different meanings in different discussions. I attempt to use it here it in resonance with discussions in social sciences.

[20] Arnaud 1991, 293-297.

[21] Delmas-Marty, Mireille: Pour un droit commun. Éditions du Seuil Paris, 1994, 223-228.

[22] Wilhelmsson, Thomas: ”Jack-in-the-Box Theory of European Community Law”, in Krämer, L. & Micklitz, H.-W. & Tonner, K. (eds.) Law and Diffuse Interests in the European Legal Order. Nomos Verlagsgesellschaft Baden-Baden, 1997, 177-194.

[23] Michalsen, Dag: ”Ett privatrettslig Europa? Integrasjonisme og partikularisme i en pågående debatt” Lov og Rett 6 (1999), 332 (323-342).

[24] Teubner, Gunther: ”Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences” The Modern Law Review Vol.61, No.1, (1998), 11-32.

[25] Cf. Zahle, Henrik: ”The Polycentricity of the Law or the Importance of Legal Pluralism for Legal Dogmatics”, in Petersen, Hanne & Zahle, Henrik, 1995, 185-199.

[26] See e.g. Troper, Michel: ”Kelsen, la théorie de l’interpretation et la structure de l’ordre juridique” Revue internationale de philosophie 138 (1981), 518-529.

[27] Ost, François & van de Kerchove, Michel: ”De la pyramide au réseau? Vers un nouveau mode de production du droit?” Revue interdisciplinaire d’études juridiques 44 (2000), 1-82.

[28] For a more detailed analysis of the theoretical questions relating to the relationship between legal interpretation and tradition see Tontti, Jarkko: ”Law, Tradition and Interpretation” International Journal for the Semiotics of Law Vol. XI, No. 31, (1998), 25-38.

[29] Markesinis 1994, 21.

[30] Tuori 1999, 412-415.

[31] Michalsen 1999, 342.