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Download Full-Text 229 recht sowie deren Einbeziehung vor Kaufmanns- verschiedenen möglichen Rechtsgänge zu den bis hin zu Schiedsgerichten. Aufschlussreich hät- unterschiedlichen Gerichten aktiv bedienten, te auch eine verfassungsrechtliche Akzentuie- müssen daher offenbleiben. rung des ersten Grundrechts, des ius emigra- Trotz aller weiteren Wünsche und Anregun- tionis,seinkönnen, durch das der Konflikt von gen ist dem Historiker Prodi das Beste gelungen, Gesetz und Gewissen zugunsten der individuel- was eine Synthese leisten kann: unsere Sicht zu len Gewissensentscheidung und zu Lasten des erweitern, wodurch die westliche Rechtskultur disziplinierenden Zugriffs von staatlichem Ge- bestimmt ist, und zugleich weitere Forschungen, setz und Gerichtsbarkeit aufgelöst wurde. Loh- besonders im Zusammenhang mit der Entste- nend hätte auch ein Blick in das 20. Jahrhundert hung eines öffentlichen Strafrechts, herauszufor- sein können, das mit Verfassungsgerichtsbarkeit dern. Es ist daher zu begrüßen, dass eine Über- und -beschwerde das eindimensionale Gesetz setzung des Werkes in Vorbereitung ist und durchaus anhand ethischer, überpositiver As- voraussichtlichnochindiesemJahrvorliegen pekte überprüft. Auf der anderen Seite vernach- wird, in der auch die zahlreichen ärgerlichen lässigt Prodis herrschaftsorientierter Blick auf Druckfehler bei deutschen Literaturangaben die Gerichtsbarkeit die Befriedungsfunktion und Zitaten korrigiert werden können. von Recht wie Gericht. Auch die Fragen nach einer Justiznutzung und Justizakzeptanz durch die Rechtsunterworfenen, ob sich diese also der Susanne Lepsius Ecclesia anglicana vivit iure commune* The ius commune is a currently fashionable – there is scarcely a major historian of English topic. It is clear that much of the interest in it law who has not explored it in one way or derives from its potential to provide examples another, often following in the footsteps of Mait- that can be used by those who are primarily land and writing on the topic of English law and interested in the future of private law in Europe, the Renaissance. No communis opinio has yet some of whom see in an interpretation of the been established. One suspects it never will be. idea of the ius commune lessons either in favour Helmholz is dissatisfied with these traditional of – or against – unification or harmonisation of approaches to the issue of England and the law in Europe. No such anachronistic or a-his- learned laws; instead, he has examined areas torical concerns affect or disfigure Professor where there was a significant overlap between Helmholz’s meticulous study. He is interested the English law and the ius commune.This in the historical interaction of the ius commune allows examination in detail of the rules of the and English law. ius commune and equivalent English rules. In The “ influence” of Roman law on the com- particular, as one of the foremost historians of mon law of England has long been a staple topic English ecclesiastical law, he has chosen to * Richard H. Helmholz,TheIus Commune in England. Four Stu- dies, New York: Oxford Univer- sity Press 2001, XV and 270 pp. (incl. index), ISBN 0-19-514190-3 Kritik Cairns, Ecclesia anglicana vivit iure commune 230 explore topics involving the law of the church – ecclesiastical law makes that doubtful (73–74). most certainly a transnational ius commune – Thus, in 1516, the canon law was used to and its jurisdictions as well as the common law. exclude individuals from sanctuary, thereby re- There can be no doubt about the potential stricting the scope of the English law (77). There applicability of canon law in England. This are other examples. Furthermore, Tudor restric- means that areas where overlap and divergence tions on sanctuary, rather than being an attack occur can hold important lessons for scholars. on ecclesiastical jurisdiction, were if anything, The areas he has chosen are sanctuary, compur- “ aslightlytardy‘catching up’ with develop- gation, mortuaries (customary offerings made on ments on the Continent” (80). death to the deceased’s parish church), and Helmholz has a detailed discussion of com- jurisdiction over the clergy. purgation in the canon law and its writers and its Helmholz explores these areas in ways ap- careful application in the English ecclesiastical propriate for each. Thus, he provides a detailed courts. In the royal courts, there is even evidence and interesting account of the canon law on that common lawyers knew quite a lot about the sanctuary, which he follows with a discussion compurgation of the ius commune and could of the English law. Here the merits of his ap- draw on it provisions in discussing wager of law proach to the relationship between English law (127). Nonetheless, comparison shows that the and the learned laws start to appear. Helmholz two institutions were quite distinct. Thus, in points out that most writers on sanctuary in English law, compurgation was used almost ex- England have assumed that “ the canon law on clusively in civil matters; it was the opposite in the subject played little or no role” (56). Study of the ecclesiastical jurisdiction. Helmholz shows the actions of English bishops shows that they that the decline of wager of law in the English generally ignored the dictates of canon law; common law is paralleled by the decline of English practice, for example, gave broader compurgationintheius commune;bythesix- scope to sanctuary and the bishops did not seek teenth century, the great Italian writer on proce- to enforce the rules on casus excepti and other dure, Julius Clarus, had noted its obsolescence, law of the Decretals. This went perhaps beyond with a few exceptions. The disappearance of this the simple recognition of local variation that the institution in England was part of a general ius commune presumed; there was evident dis- European experience. This is important. harmony. The account of the English law of Mortuaries – or their equivalent – were a sanctuary shows practice where there was strik- venerable and common custom in Europe. In ing divergence from the canonical rules. This England they can be traced back to Anglo-Saxon said, Helmholz shows that the ius commune times. They were always a potential and under- was “ the source of some of the ideas expressed standable source of friction between laity and by common lawyers in describing their own law clergy.InEngland,thisfrictionresultedinthe of sanctuary or arguing for its restriction” (73). famous and tragic case of Hunne (146–147). For Moreover, while the attack on sanctuary that canon law, mortuaries were a potential problem. developed from the reign of Henry VII has tradi- Although custom was a recognised source of law, tionally been viewed as deriving from the attack not all such customs could be accepted and the on ecclesiastical jurisdiction, examination of the ius commune developed sophisticated rules on Rg1/2002 Cairns, Ecclesia anglicana vivit iure commune 231 recognition of custom. Mortuaries, if construed in the classical canon law and the commentaries as a compulsory payment for the burial service, on it. What is interesting is the way in which the were potentially simony. Faced with this pro- English church faced opposition to assertion of blem, English diocesan legislation eventually the privilegium fori, not even the episode of justified mortuaries as payments for forgotten Henry II and Becket led to its recognition. Bish- tithes. The statute was further glossed and ex- ops disapproved of this: Robert Grosseteste, for plained by the English canonist, William Lynd- example, wrote eloquently and at great length wood, who tried to reconcile it with the canon about the iniquity of English practice. Yet, the law (167–170). Despite the tensions raised by bishops did not gain their wishes, even though, the collection of mortuaries, and their perhaps in 1370, the Rota explicitly rejected the English ambiguous legal status, it is interesting that, so king’s exercise of jurisdiction over clerics in what far as we know, no one attempted to challenge was probably a test case. While in sanctuary law their validity under the canon law. Their custom- one can say that English practice was congruous ary nature was accepted. It is also interesting to with the ius commune,asregardsprivilegium note that, in 1529, royal legislation validated fori it was at direct variance. It amounted to a them, by commuting their payment from a chat- rejection of canon law. Helmholz admits that it is tel payment to a money payment, although the impossible to provide a definitive explanation of statute noted that they could only be exacted this; all that can be done is speculate. Helmholz’s where they had customarily been exacted in the speculation is of course erudite and informed. past. The ecclesiastical courts and the royal Failure of privilegium fori was ancient in Eng- courts both operated together to preserve this land. Helmholz examines the attitude of a num- traditional income-stream for the clergy. berofbishopstothereceiptofaroyalwritthat Discussion about jurisdiction over the clergy required them to take action rather in the man- in England has focused almost exclusively on ner of a sheriff. If these were writs which re- criminal jurisdiction, where “ benefit of clergy” quired bishops to make a levy on ecclesiastical could be claimed; the issue of civil jurisdiction property, they were, at best, grudgingly reluctant over the clergy has been largely ignored. In to comply; on the other hand, they were happy England, in civil matters, the clergy were simply to serve writs requiring clerics to appear in front subjected to the jurisdiction of the royal courts of royal courts. They saw an advantage. enforced by writs. This is in many ways some- This is an elegantly written and subtle study what singular. For example, in Scotland in the by one of the foremost historians of English law. 1540s, it is clear that the clergy were generally He demonstrates the possibilities of treating Eng- able to claim exemption ratione personae from lish law as an aspect of the law of Europe more the (civil) jurisdiction of the College of Justice.
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