The Decennial Jubilee of Ius Commune in the Making

Exordium

This is the tenth occasion in which we offer a workshop on Ius Commune in the Making. It is a festive occasion, and we are happy. This is our decennial jubilee, and it attests for the value and space of comparative legal history within the Ius Commune Research School. Our workshop series offers a forum mainly for comparative legal historians. However, everyone is welcome, since we embrace otherness, and we can only grow by interacting with others, avoiding inbreeding.

My presentation today is divided into four parts. First, we will conceptualise comparative legal history. Second, we will reflect on the idea of a Ius Commune in the making. Third, we will visualise how we have explored this Ius Commune in the making. Fourth, we will reflect on the future, on what is still to be done. This presentation aims to offer us a chance to take stock and to look ahead.

Conceptualisations

Let us move to the first part of this presentation. Let us conceptualise comparative legal history. This discipline is currently growing, being reflected in the classrooms, in the literature, and in academic circles. As early as 1903, Édouard Lambert mentioned that “the comparatist is obliged to constantly work as an historian.” Rodolfo Sacco, who we always mention in our workshops, due to his notion on legal formants, highlighted that comparative law can assist in identifying the connection, diversification, and transplantation of legal institutions.

I believe comparative legal history is an autonomous discipline. Yet, the understanding of our discipline is not carved in stone. I am sure that some of you have a different understanding than the one I have, and that is good. Different definitions have been offered for comparative legal history. For example, Heikki Pihlajamäki, from Finland, provided an explanation that understands that the “comparative legal historian would always position the research object in an international context.” The US legal discourse also participated of the disciplinary discussions. For example, Charles Donahue proposed a challenging characterisation for comparative legal history that “involves laying two legal systems side by side in all of their aspects.” I hereby propose a conceptualisation that understands the discipline as the study of external and/or internal aspects of law necessarily undertaken across different time periods and jurisdictions. These studies require research across the vertical and horizontal axes. Other conceptualisations have been proposed, and will be proposed, and I believe we should not impose. Our understandings are not carved in stone. Comparative legal history examines the development of law in time and space. These studies provide an empirical approach to law when addressing the circulation of legal ideas. 

Paradigms

Let us now move to the second part of this presentation. Let us reflect on a Ius Commune in the making. Comparative legal history helps us examine the circulation of legal ideas. The Ius Commune period was characterised by a circulation of legal ideas. The codification of the law somehow slowed down the diversity of the circulation. Currently, our times are once more characterised by a diverse circulation of legal ideas, even when some governments try to push the policy agendas in a different direction. That explains why scholars, such as Reinhard Zimmermann, referred to a new Ius Commune, or in the trendy way when our workshop series started: to a Ius Commune 2.0.

Comparative legal historians do not assume that law consists of watertight compartments. They acknowledge that current systems result from a blend of previous solutions. This calls for a question: Why Ius Commune in the making? Sir Carleton Allen pointed to the fluidity of law in his 1927 seminal book entitled Law in the Making. His look into sources makes evident that law is never dormant. Law is not shaped after one single occurrence, since multiple actors and events can trigger mutations. Cross pollination occurred, occurs, and will continue occurring. Comparative legal history can help visualise that fluidity that points to the idea of paradigms. Thomas Kuhn offered groundbreaking ideas on scientific paradigms in his 1962 work The Structure of Scientific Revolutions. According to Kuhn, a scientific paradigm is an achievement that is “sufficiently unprecedented to attract an enduring group of adherents away from competing modes of scientific activity and sufficiently open-ended to leave all sorts of problems for the redefined group of practitioners to resolve.” Paradigms, in the legal realm, can deal with an overarching legal doctrine, as combined with the prevailing ideologies in a certain society. They can consist of, amongst others, laws, customs, court decisions, and doctrinal writings. We need to understand our paradigmatic shifts, and thus our law. Law that is in the making!

Exploration

Let us now move to the third part of this presentation. Let us visualise how we explored this Ius Commune in the making. I will walk you through the workshop series, and benefit from our calls for papers. The drafts of many of those calls were led by the exquisite pen of Michael Milo, I need to mention.

Our first workshop took place during the 2014 Ius Commune conference in Edinburgh, in the beautiful St Leonard’s Hall. The theme of that first workshop was the Role of Legal Actors in the History of Private Law. On that occasion, we stressed that law is a social science subject to changes, while main actors of those changes can be often identified. Nils Jansen indicated that “the applicability and thus the validity and authority of legal texts have always been determined from within a legal system, by the participants to the legal discourses.” That day, John Cairns offered a keynote on the creativity of legal actors. The programme indicates that we had two sessions. One session was on Scholars and Popes, with presentations by Harry Dondorp, Jan Hallebeek, and Guus van Nifterik; another session was on Citizens, Judges and Legislators, with presentations by Bram van Hofstraeten, Pim Oosterhuis, and Agustín Parise.

Our second workshop took place in Maastricht in 2016, and dealt with the Place of Legal Sources in the History of Private Law. Legal sources indeed play an important role in the shaping of the law, offering the necessary building blocks. We explored how legal sources promote or hinder changes in the law. Medieval glosses, early modern handbooks, collections of judicial decisions, codifications, all relate differently to legal and societal changes. The question was whether these sources promoted law to be in harmony with society. Once more the programme indicates that we had two sessions. The first session dealt with External Explorations, with presentations by Paolo Astorri, Tymoteusz Mikołajczak, and David Magalhães. The second session dealt with Internal Explorations, with presentations by Chathuni Jayathilaka, Emanuel van Dongen & Martijn van Kogelenberg, Hannah Roggendorf, and Mariken Lenaerts.

The journey continued with the third workshop, that took place in 2017 in Utrecht, and dealt with the Role of Local Laws in the History of Private Law. Indeed, forces of legal formants are too often lost or hidden beneath a superficies of commonalities. We aimed to bring forward the force of local laws. This topic is of specific relevance in our contemporary resurgence of local, regional, and national particularities, it should be noted. Invariably this issue is linked to the acceptance of diversity in law as well as in society. The programme indicates presentations by Tim van Polanen, David Magalhães, Stephan Dusil, Harry Dondorp, Agustín Parise, and Dmitry Poldnykov. 

Our peregrinatio academica continued in 2018 in Amsterdam, in our fourth workshop, where we dealt with the Changing Methods and the Dynamics of Law in the History of Private Law. We explored how we deal with law in the making. We looked at the shifts in methodologies and in the dynamics of law. Like Michael Milo put it in our call, history is a living laboratory – a society and its legal formants in vitro. The questions were whether, and to what extent, and in which way the different methodologies contributed in the statics and dynamics of law. The programme indicates that we had presentations by Tammo Wallinga, David Magalhães, Paulina Święcicka, Sinem Ogis, and Silvia Kristin Karmann. 

Leuven welcomed our community in 2019, when we met in our fifth workshop to explore Networks in the History of Private Law. We explored our emerging concept of ‘networks’ in a comparative-historical perspective. Networks are a form of social arrangement, and grow and nurture in that sfumato human environment. History shows that at all times these social arrangements have taken shape; actors tend to group themselves in clusters to survive, attain synergy, to strengthen their positions to serve common interests. The programme indicates that we had three sessions. The first session dealt with Academics, with presentations by David Magalhães, Jan Biemans, and Agustín Parise. The second session dealt with Judges and Merchants, with presentations by Willem Theus, and Harry Dondorp. The third session dealt with Change, with presentations by Pim Oosterhuis, Anna Klimaszewska, and Laura Macgregor.

The Covid-19 pandemic arrived in 2020, and our sixth workshop took place online. Our topical theme that year was Paradigmatic Shifts in the History of Private Law. Legal paradigms are present in the legal narrative throughout history. Examples of paradigm-changes are omnipresent. The rediscovery of the Digest of Justinian, or the enlightened shift towards codifications around 1800. We sought to identify the nature of paradigms and their changes. The programme indicates presentations by Nikitas Hatzimihail, Antonia Waltermann and Jaap Hage, David Magalhães, Paolo Astorri, Merel van de Poel, Joaquín Reyes, João de Oliveira Geraldes, and María Ithurria. 

The seventh workshop, in 2021, also took place online, and for the first time we dropped the “Private Law” component from the title of our workshop series. We dealt, in a broad way, with Great Debates in the History of Law. We explored the way in which debates–be these academic, judicial, social, or political–had an impact on law and society. Some legendary debates confirm this statement. For example, von Savigny and Thibaut, or at a more local level, Kemper and Nicolaï. We needed to understand and be aware of the different clashes that took place in the past, and hence understand an important way in which law was shaped. The programme indicates presentations by Reef Alfahad, Geert Sluijs, Jonathan Ainslie, Emanuel van Dongen and Gabriël van Rosmalen, Arantxa Gutiérrez Raymondova, Joyman Lee, Peter Čuroš, Adolfo Giuliani, and Pieter-Schalk Bothma.

We returned to meeting in person in 2023, and we gathered for our eighth workshop in the outskirts of Maastricht, to explore Innovation in the History of Law. We aimed to explore how the concept of innovation ties in with conceptualisations of law. Innovation is a buzzword. It is a term that ultimately signifies making something new, to improve the existing. We aimed to highlight the particular moments in time in which needs for change were heard and addressed in law. History is a necessity, as it offers us the opportunity to identify and analyse change. The programme that year indicates presentations by Piotr Alexandrowicz, Raffaella Bianchi Riva, Elisabetta Fusar Poli, Pieter-Schalk Bothma, Gabriel Faustino Santos, Mark Lunney, Céline Joisten, Colm Peter McGrath, and Laura Kadile. 

We met in Utrecht last year, and in our ninth workshop we delved into Manifestations of Nature in Law. Nature rises prominently in law. It manifests itself in the shape of climate, environment, and much more, in legislation and case law. Nature and its manifestations are positioned as an object of normative arrangement of humans. History offers images of nature and its manifestations in law, a landscape of so many formants. Natural law coexists with consensual law (both religious and secular), offering sound principles, based on rational capabilities. The programme last year indicates presentations by Morad El Kadmiri, Jo Badisco, Michael Milo, Edo Schoone, Sarah Papa, David Schorr, Agustín Parise, Niels de Bruijn, and Pim Oosterhuis. 

We have been caring for this Ius Commune in the making, during nine years, from nine different perspectives, and the programmes mention 69 presentations. We embraced a diversity of colleagues, backgrounds, and areas of the law. Academic curiosity led us to continue our journey today, looking at meaning in law.

Action Points

Let us move to the fourth part of this presentation. Let us reflect on the future, on what is still to be done. Curiosity–in all its forms–deals with exploring, discovering, and learning towards acquiring new knowledge. Its etymology relates to an interest in care (cura). Academic curiosity can take people to different places (in mind and body), exposing them to other cultures and ideas. We do care for comparative legal history! That care is an important drive in the evolution of legal science, opening paths of exploration and igniting awareness on the needs of society.

Let me share three action points that relate to the future of our workshops: A first action point relates to the need to generate synergy amongst actors. Let comparative legal history bring us together, within and beyond Ius commune. We need to listen to old, current, and new voices. We need to engage with others, and to embrace dialogue. An upward spiral of knowledge can be attained by building teams. Isolation would be detrimental to the development, producing intellectual inbreeding and thus threatening the survival of our space. Scholars must provide the information that nurtures critical thinking, hence facilitating dialogue.

A second action point relates to the need to continue being curious and global actors. Legal science evolves in many ways. Academic curiosity opens paths of exploration and ignites awareness on the needs of society. We must be open-minded and engage with otherness. Expanding the scope of studies through comparative legal history would be beneficial, offering a forum to test results in light of broader understandings, reaching a better contextualisation of occurrences, and therefore identifying differences and drawing parallels.

A third action point relates to continue building and nurturing our community. We need to preserve what we have and expand to new spaces. We need to disseminate our efforts. I can think of the publication of a volume, for example. Also, I can think of an application for research funds, enabling the exploration of this notion of Ius Commune in the making. We have explored the field in the past years, and we have a solid structure to build upon. We are standing on fertile ground.

Summation 

A word of gratitude is needed. Harry Dondrop was the person behind the original idea of hosting this workshop series back in 2013, and Pim Oosterhuis and Agustín Parise immediately subscribed to the idea. Michael Milo joined one year later when the “train” stopped in Utrecht, and Wouter Druwé joined when we reached Leuven in 2019. We thank the speakers; we thank Marjo Mullers and Marina Jodogne for all their years caring for the workshop series; and we thank all the attendees that participated in the workshop series throughout the years, without whom this community would be missing a fundamental pillar.

Please allow me to share a final reflection. The inclusion of comparative and historical studies in the analysis of law helps to turn potential lawyers into jurists. Jurists do not limit their studies to the current law as it is, naked of a scientific and social context. Jurists know the meaning and value of the law. The scientific requirement of knowing the causes and explanations of the law can be reached by revealing historical and comparative evolutions. Thank you very much.