Comparative Legal History
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Comparative Legal History

Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer

The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.
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Chapter 8: The ius commune as the ‘ratio scripta’ in the civil law tradition: a comparative approach to the Spanish case

Aniceto Masferrer and Juan A. Obarrio

Abstract

The chapter explains how in the Spanish territories, the ius commune, due to its imperium rationis, turned into the most appropriate means to supply the gaps and contradictions of the iura propia. Both scholarly works and legal practice shows the relevant role of the ius commune throughout Western history. Iura propria fell short in providing legal rules to be used by judges in adjudicating legal disputes, and judges resorted to the communis opinio doctorum, looking for the rules which both filled in the gaps of the ius proprium and conferred legal certainty to the system. However, the reception of the ius commune in civil law jurisdictions did not occur without resistance and obstacles. The chapter addresses these obstacles (the ambiguous attitude of the kings, reluctance to adopt the Roman-canonic procedure, the principle of literal interpretation of legal dispositions, etc), and describes how the status of the ius commune in various Spanish systems varied. Whereas some Spanish kingdoms never acknowledged explicitly the validity of ius commune as subsidiary (Castile, Aragon), in the other kingdoms (Catalonia, Valencia, Majorca, Navarre) the ius commune met similar resistance (as in Castile or Aragón), but eventually it was explicitly admitted either as subsidiary law (Valencia, Majorca, Navarre) or as an integrative part of the legal system (Catalonia). The chapter maintains that the resort to ius commune as subsidiary law sought to prevent the compulsory use of Royal legislation in the context of political absolutism and explains why Castile, a territory governed by absolutist monarchs, never took this step.

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