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Published as  "The Ius commune, Suretyship, and Magna carta," Rivista internazionale di diritto comune 11 (2000) 255-274


Kenneth Pennington

The Ius commune, Suretyship, and Magna carta


Magna carta

Roman Law


Orléans and Anjou

Two Decretals of Pope Lucius III

Canon Law

            Several years ago I wrote an essay in this journal in which I tried to emphasize the practical importance of the Ius commune for historians who cultivate medieval fields.Footnote My bête noir at the time was the term ‘learned law’ that has been often applied by historians to the Ius commune. I argued that ‘learned law’ not only misleads but obfuscates our understanding medieval law in general and in particular hides the unique relationship of the Ius commune to all European legal systems. Historians, I argued, might have written better history if they had not conceived of the Ius commune as academic law that had little influence on society and secular institutions. The Ius commune and its norms were not sterile and academic intellectual exercises that were confined to the classrooms of medieval and early modern Europe. These ‘norms’ that formed the basis of medieval jurisprudence are the jurisprudential equivalents to the Christian ethical and moral precepts that medieval theologians and philosophers developed during the Middle Ages. Because the membrane separating law and theology was very permeable in the age of the Ius commune, both religious and legal norms coexisted easily. Jurists used theological and philosophical concepts. Theologians turned to law when they wrote about many problems.

            There are many examples that might be used to illustrate this, but one that I find particularly illuminating can be found in Gratian’s Decretum. Because Gratian worked at the dawn of the Ius commune, he did not have a firm grasp of any discipline. If Anders Winroth is right about his knowledge of Roman law, Gratian could not navigate the Corpus iuris civilis very well. Footnote He was also not a first rate theologian. We have no evidence about his educational background except from the evidence of his text. But his text is revealing. Ecclesiastical privileges presented Gratian with a problem. They were private laws that benefited only the few. Gratian included sixteen early papal letters in the Decretum that stated the pope could not grant exceptions to the ancient canons of the church. To counter the force of these letters, Gratian used six biblical examples to demonstrate that exceptions to the law were not unlawful. Even Jesus, for example, had cleansed a leper against ‘the letter of the law’ [Matt. 8:1-4] and by doing so proved that ‘he who bestows his authority on the law is not subject to it.’ Footnote If Gratian had known more Roman law, he might have written, Jesus was ‘legibus solutus.’ But after a string of biblical justifications through which he argued that the pope could grant an exception (a privilege) from the rules contained in an ancient canon, finally Gratian turned to legal sources. He cited a text of Roman law taken from the Theodosian Code (438 C.E.) that introduced an idea that would remain a cornerstone of canonistic jurisprudence of privileges: ‘We command that rescripts contrary to law be rejected . . . unless they do not harm another.’ Footnote Gratian used the Bible to establish the pope’s authority and power to change law; he used Roman law to establish that an ecclesiastical privilege should not injure the rights of another. Footnote There is a certain delicious irony that he cited a secular text to establish an ethical norm and turned to a religious text to confirm a jurisprudential principle. This remains characteristic of medieval theology and law until well into the seventeenth and eighteenth centuries.

            If what I have just said is true, it raises an interesting question. Why have modern historians been reluctant to recognize this pervasive permeability of the medieval and early modern intellectual worlds? In my essay I gave examples from the works of historians writing on French law, the law of the Italian city states, and English law that illustrated their neglect of the Ius commune — to the detriment of good history. English legal historians have been especially reluctant to recognize the influence of the Ius commune on medieval English law. Although American historians Richard Helmholz and Charles Donahue have demonstrated that doctrines of marriage, procedural, and family law were, for the most part, followed in English courts, their findings have been not taken as seriously as they should be. It is interesting and illuminating that the historian who has argued vigorously for 30 years that English law was influenced by the Ius commune is Raoul van Caenegem. Not surprisingly, he is Belgian. Footnote

            The primary reason that modern English legal historians have shunned the Ius commune has been, I think, because they are prisoners of the assumptions and preconceptions of our legal universe. Our world is quite different from that of the Ius commune. The modern territorial state does not recognize the importance or the relevance of alien legal systems. Not only does the modern state bar any other legal system from exercising any jurisdiction within its boundaries; the modern national territorial state does not even permit the case law and jurisprudence of outside legal systems to have much, if any, place in its courts. Recent developments in Europe have begun to change these assumptions about the relationship of the state and its law to foreign law and courts, but the general pattern still holds true.

            The world of the Ius commune was quite different. The emerging nation states shared civil and criminal jurisdiction with canon law. To use modern terminology, they ‘shared sovereignty.’ The law schools of Europe taught only Roman, canon, and feudal law, not the local, customary law of local geographical areas in which a particular school was located. Consequently, every jurist who had been trained in the university practiced the art of using the intellectual tools of the Ius commune to solve everyday legal problems in local courts. Even though most lawyers who practiced customary law did not study in the law schools, some did. Consequently even customary law was tinged to some degree by the use and the knowledge of the Ius commune.

            Historians have always had agendas and perspectives that influence and color their conclusions. The perspectives of English legal historians remind me of the Maitland-Stubbs controversy which we still worried about when I was in graduate school 35 years ago. The dispute is now primarily of historiographical interest. Stubbs had argued that the church in medieval England could accept or reject papal legislation and that unless the English church accepted Roman decisions, they were not binding in English ecclesiastical courts. Maitland dissented. From our vantage we may easily see that Stubbs and his supporters were holding this position because they wished to argue that the medieval English church was Anglican in spirit before the fact. Footnote And we may also clearly understand that this historical argument had significant political implications during the 1880's. My point, however, is this: just as Stubbs saw the past through Anglican spectacles, legal historians today sometimes see the past through the spectacles of the modern territorial state. I do not think that they consciously decide to defend their ancestral legal system from insidious foreign influences; rather I think it reflects generally held assumptions about the way in which legal systems should evolve.

            Let me give another parallel example that I think is instructive. This one is between legal studies and literary studies of the medieval and early modern periods. Shortly after World War II some literary critics began to look for the influence of medieval philosophical and theological thought on their texts. D.W. Robertson, Jr began a school of literary criticism that practiced exegetical techniques on literary works in order to understand the mind and purpose of medieval authors. Robertson believed that all medieval literature reflected in some way the theological beliefs of the age. The battles between the Robertson school and his opponents were fought in many alleys and revolved around many different issues. But none of his opponents — as far as I know — ever challenged him on the grounds that the medieval authors would not have known the philosophical and theological norms and presuppositions that were being taught in the medieval universities all over Europe. Footnote

            I would propose that the reason why they did not attack Robertson on that fundamental issue was that they recognized the universality of the Latin educational world of the Middle Ages. Robertson’s critics did not imagine that poetry had national boundaries or that poets would not wish to have their poems soiled by foreign ideas. Rather they conceded that medieval poets would have known something of this world and consciously or unconsciously might have put some of it in their poems.

            Keeping these two points in mind, the universality of education in all disciplines during the twelfth to the seventeenth centuries and how preconceptions and agendas can distort our understanding of the past, let me focus the rest of this essay on one of the most interesting recent examples of the Ius commune’s influence on a ius proprium: the pervasive use of the Ius commune by the drafters of Magna carta. For the past five years or so Richard Helmholz has been giving papers on the Ius commune and Magna carta. Recently he published a major essay on the subject. Footnote             Magna carta is a particularly interesting test case for the assumption that any legal text written after ca. 1150 was probably subject to the influence of the Ius commune. Raoul van Caenegem formulated the methodological problem a little over a decade ago. Footnote If we wish, he said, to trace the Ius commune in the sources of the iura propria it is relatively easy if the drafters are accommodating enough to give specific clues in their texts. This rule, they might write, depends on ratio scripta. Footnote With such a clear clue we can be sure that, if we find a similar norm in the Ius commune, we can assume a connection between the two. However, continued van Caenegem, if a legal norm is found in the text but does not use the terminology of the Ius commune, then the task of attribution is much more difficult. Magna carta, concluded van Caenegem, is an example of this problem because it contains no terminology of the Ius commune. The whole problem, he noted, is ‘a difficult question, which has hardly been studied.’ English historians have not even studied the question. They prefer to think of Magna carta as reeking with the smell of sweat on the flanks of horses that carried men whose pores were laden with the odor of fear, anger, and triumph — not with the antiseptic pusillanimity of the classroom.

            This is no longer quite true. Richard Helmholz has taken the plunge into these murky and turbid waters. The waters are turbid in x-large part because English legal historians have been reluctant to admit that the palladium of English liberties could be tainted even slightly by Roman and canonical jurisprudence. In this essay dedicated to the fundamental work of Manlio Bellomo who has brought the Ius commune to the attention of scholars residing far outside the boundaries of legal history, I would like to take one small section of Helmholz’ article and expand upon it to reinforce his contention that the Ius commune influenced Magna carta significantly.

            Chapter nine of Magna carta dictated that neither the king nor his bailiffs would seize any land or rent for any debt as long as the debtor possessed enough property to repay the creditor. And any persons who have guaranteed to repay the debt if the debtor failed in his obligations — to use the technical language of the law the sureties of the debtor — could not be forced to repay the debt as long as the debtor was solvent. Only if the debtor was insolvent could the sureties be forced to repay the debt. If the sureties paid the debt they could be indemnified with the lands and rents of the principal debtor. Footnote The chapter was incorporated into the reissue of Magna carta in 1225 and seems to be recognized by Bracton as a norm of English common law. Footnote

            In classical Roman law, the ‘fideiussor’, the surety, could be sued by the creditor if the principal debtor did not fulfill his obligations. One may surmise that English custom had the same norm before Magna carta. The Roman law of surety changed in the sixth century when Justinian promulgated legislation that anticipated, more or less, the norm later incorporated into Magna carta. Footnote Only if the principal debtor was insolvent could creditors demand payment from sureties. In a later Roman law development (beneficium cedendarum actionum) a surety who had paid the creditor was given recourse against the debtor. Footnote In chapter 9, the barons forced the king to recognize a small but significant limitation on the obligations of sureties, which, we may presume, had not existed before in English law.

            The customary law governing surety in Northern Europe was fairly uniform. Beaumanoir gives us much information about the rules of suretyship in his treatise on the customs of the Beauvaisis. It is clear from his discussion that every man who became surety for a creditor was honor bound to fulfill his promise no matter what the financial situation of the debtor. Footnote Beaumanoir makes that point very clearly when he writes that a surety who has been forced to meet his obligation by a creditor should sue the principal debtor immediately. If the surety did not, the principal could refuse to pay any extra expenses if he were present and able to satisfy the creditor himself. Footnote At another point in his treatise, Beaumanoir observes that a person whom a creditor had asked about a merchant’s ability to pay for a purchase at the fairs of Champagne automatically became a surety for the sale if he answered yes. Many people, Beaumanoir noted, had been injured by this custom. Footnote The main conclusion that we may draw from Beaumanoir’s remarks is that a creditor could sue the principal debtor and surety equally easily. A surety’s obligation was not limited.

            Chapter nine is a perfect illustration of van Caenegem’s point about the difficulty of tracing the influence of the Ius commune when the drafters of documents do not use technical language. All further arguments based solely on the English evidence and on Magna carta itself seem to be circular at best. However, if we can cross the channel to the old Angevin heartland, Anjou, we gain a new perspective. The customs of Anjou and Tours were compiled during the thirteenth century and incorporated into a book called the Etablissements de Saint Louis. The book is roughly contemporary with Bracton, that is mid-thirteenth century, and the compiler shares some of Bracton’s intellectual makeup. He knows the Ius commune and uses it to explain why customary law sometimes departs from its norms. The author of the rubric of chapter 122 of the customary informs us exactly what a creditor can do when confronted with a difficult debtor with sureties:

How you should discharge your surety and on suing your principal debtor before having recourse to the surety.

The compiler notes that if the creditor were in Orléans he could have the choice of seizing the property of the surety or the principal debtor in the baron’s court. But in Anjou, he should sue the principal rather than the surety when the principal is present, solvent, and easy to summon. Helmholz had conjectured that the drafters of Magna carta had used a Novella of Justinian to justify chapter 9. Footnote It was a very good hypothesis. The jurists of the Ius commune had inserted an edited version of that Novella into the medieval Codex as an additional autentica immediately adjacent to the older pre-Justinianic norm. Footnote The compiler of the customs of Anjou knew of the text in the Codex and cited it to vindicate Angevin customary norms. Footnote He knew exactly where to turn in order to justify this departure from the common customary law of Northern Europe: the Ius commune. From the evidence of the Etablissements we may conclude that Angevin customary lawyers and the drafters of Magna carta (two groups who may or may not have had overlapping members) might well have known Justinian’s legislation from the medieval Codex.

            But to understand the context of Magna carta and the world in which its drafters lived and thought, we must look at suretyship in a muchx-large r geographical area. In Southern Europe suretyship was also an obligation that could be without significant limitations. In the city state of Perugia the statutes of 1279 do not protect sureties from being sued by a creditor. Footnote The main reason seems to be that the city government was strong enough to enforce the claims of creditors against the principal debtor and his sureties. The podestà, captain of the people, and their judges were directed first to put the property of the debtor and then that of the sureties in the possession of the creditor if payment had not been made. Footnote The creditor could then auction their property to recover his debt. Footnote Alternatively, the creditor could ask the magistrates to empty the “home and principal tower” of the creditor or of the sureties. Footnote Lastly, the creditor could ask the magistrates to force the debtor and his sureties to reside in the Palazzo comunale until they had paid their debt. Footnote With these legal measures available to them and with the authority of the city to enforce their contracts, creditors in Perugia probably had little interest in establishing the norm of the Ius commune adopted in England where the courts and the royal magistrates could not provide creditors with those stringent remedies.

            Another source of influence on suretyship in Magna carta could have been canonical jurisprudence. Helmholz has demonstrated that canon law norms are found pervasively in its provisions. At first glance the relationship is tenuous. In the early church, suretyship had a history quite different from the Roman law tradition. A chapter from the Canones Apostolorum that was included in a x-large number of early medieval canonical collections forbade clerics from becoming sureties without any exceptions. Footnote Nevertheless, at the end of the twelfth century Pope Lucius issued two decretals that changed the early norm and adapted the canon law of suretyship to contemporary economic conditions. Both decretals involved English litigants. In the first a cleric named Robert of Saint Albans had stood surety for two London clerics, Helia and Philip. Robert had promised the clerics and swore an oath to Bolognese creditors that he would repay the debt if the two clerics defaulted. When the clerics did not make payment, the Bolognese merchants turned to Robert. Footnote Robert paid the merchants and petitioned Lucius that the bishop of London force the two clerics under his jurisdiction to repay the debt to Robert. Lucius mandated that if the facts were as Robert alleged, that the bishop should arrange that Robert should be reimbursed for his loss with the income of the clerics’ ecclesiastical benefices. Footnote The last part of Magna carta’s chapter nine contains more than an echo of Lucius’ thought. Footnote

            Although the facts of the case are not absolutely clear, Robert did not appeal to Lucius on the grounds that, according to the Ius commune and Roman law, the Bolognese merchants should have taken the two still-solvent London clerics to court before Robert. Footnote Pope Lucius and Robert accepted the norm that a surety was responsible if a debtor had not paid. His decision was based on ethical grounds. A cleric had a moral obligation to repay a defaulted debt when another cleric assumed responsibility for it. Footnote

            The second decretal dealt with two famous people of the twelfth century, Stephan of Tournai and Peter of Blois. Stephan had stood surety for Peter for a loan of 15 marks sterling, but Peter had not paid his Bolognese creditor. Interest had accrued. The Italians were pressing Stephan to pay the loan. Peter was solvent. He had an ecclesiastical benefice. As in the previous case, if Stephan’s facts were correct, Lucius ordered the judges-delegate to force Peter to repay his loan. Footnote Again the fundamental principle that Lucius used to decide this case was not a legal norm but fairness and equity. Here, however, Lucius seems to have relied on Justinian’s rule that a surety did not have to pay if the principal debtor was still able to satisfy the debt.

            Bernardus Papiensis included both of these decretals in Compilatio prima, the first canonical decretal collection that gained a place in the canon law curriculum all over Europe. In his Summa he discussed Lucius’ decretals and the legal rights and obligations of a surety. Footnote

Illud notandum etiam quod olim erat in potestate creditoris convenire quem vellet, scilicet vel reum vel fideiussorem, ut Cod. eodem l. Iure (Cod. 8.40[41].5); hodie vero presente et solvendo principali debitore fideiussor conveniri non debet, ut Cod. eodem aut. Presente (8.40[41], auth. post l.3). Ille vero pro quo fideiussit tenetur fideiussori ut eum liberet vel si fideiussor solvit, tenetur ei in sortem et eius accessiones, ut infra eodem c. penult. et ult. (It should be noted that at one time a creditor could ask either the principal debtor or the surety for payment. Today, if the debtor is present and solvent, the surety cannot be summoned. The debtor is obligated to the surety to free him from his obligation. Or if the surety pays the debt, the debtor is obligated to reimburse the surety for the principal and interest, as in Lucius’ decretals).

Bernardus wrote at the end of the twelfth century (ca. 1191-1198). On the authority of Lucius’ decretals, he established rather broad rights for sureties in canonical jurisprudence that corresponded broadly to practice and theory of late Roman law. He incorporated the privilege for the surety granted by Justinian and did not quibble about Lucius’ expansion of a surety’s rights. Footnote

            The canonists continued to expand the protection offered to sureties in canonical jurisprudence. By the time of Magna carta Johannes Teutonicus wrote that a cleric should become a surety when necessary because he had a duty to offer aid to others. Footnote At the same time Tancred of Bologna wrote that a surety could bring a principal debtor to court in order to free him from his obligations in four cases: when the debt lasted too long, when the debtor squandered his possessions, if the surety has a judgment rendered against him, and if there were a clause in the original contract. Footnote As part of his justification, he cited a text from the Digest in which Marcellus had argued that a surety may bring an action of mandate if the debtor had long delayed payment or had begun to squander his assets. Footnote Tancred then asked the question if the creditor and debtor agreed to extend the debt past the deadline originally agreed upon by the debtor and the surety, whether the surety were still obligated? He cited a string of texts in Roman law that might seem to argue that the surety would not be bound. He concluded, however, by citing Bandinus’ opinion that the surety’s obligation to the debtor continued. Footnote

            Pope Gregory IX confirmed the rights of sureties in canon law that previous papal decretals and canonical jurisprudence had established. In 1234 Raymond of Peñafort inserted a short, aphoristic statement on suretyship in canon law when he edited the pope’s new collection of decretals. Footnote It reads:

Eum, pro quo te fideiussorem obligasti, si diu in debiti solutione cessavit, aut dissipare bona cepit, seu super hoc condemnatus fuisti, iure poteris convenire, ut te a fideiussione debeat liberare (If you have obligated yourself to someone as a surety, if he has not paid the debt for a long time or if he begins to squander his fortune, or a judgment on the debt has been rendered against you, you could rightly summon the principal debtor to court. He ought to liberate you from your surety).

Canonical jurisprudence went far beyond the limitations placed on sureties in the civilian tradition or in the iura propria. Suretyship was not an open-ended obligation; its validity depended, in part, on the behavior of the principal debtor, and a surety could seek relief when a debtor began to behave unreasonably (at least fiscally). Gregory’s ruling created a delicate balance of power among creditors, sureties, and debtors. If a surety could seek relief because the principal debtor began, in the words of Bernardus Parmensis, to fall into indigence many creditors might conclude that a surety was a frail reed upon which to place an obligation. Footnote Some jurists, however, suggested even more liberal rules. Vincentius Hispanus (ca. 1234) wondered whether a surety who wished to attend school might have cause to be freed from his obligation. Footnote

            In any case, these new rules, which were more liberal and flexible than those in civil law, would certainly encourage sureties to underwrite contractual obligations. We may, perhaps, see the profound difference between civil law, the iura propria, and secular customary law in a decretal of Pope Innocent III that he wrote in January, 1213. A cleric of Dijon was being pressed by Jews from Autun, Langres, and Châlonnais to fulfill his obligations as a surety. The cleric refused. He was willing to have his case heard in an ecclesiastical court but not in a secular court. Innocent supported his refusal. Footnote The cleric was supported by the clerical privilege of forum. Superficially the cleric and Innocent might be seen as wishing to injure the rights of the Jews because they were Jews or simply standing on the clerical privilege of having cases involving clerics heard in ecclesiastical courts. Considering, however, the very different rules governing sureties in the ecclesiastical sphere, one might suppose that the far more favorable position of a surety in canon law was the primary issue for the cleric. Further, Innocent implies that if the cleric had not been willing to have his case heard in ecclesiastical court, he would not have been exempt from secular jurisdiction. Footnote

            We must stop here in our examination of suretyship in Roman and canon law, the Ius commune. Its later history is unexplored but might provide important evidence about how Christian jurisprudence adapted to a society that was increasingly based on commercial contracts. Bolognese merchants extending credit to Englishmen was still a rare event in the twelfth century. It soon became commonplace as contractual obligations spread like spider webs over Northern Europe, the Eastern Mediterranean and beyond. What we do know is that later jurists in the Ius commune adopted the ideas developed by the canonists in the late twelfth and early thirteenth centuries. They concluded that debtors had duties to sureties, not just rights. Significant traces of suretyship in the Ius commune can be found in modern legal systems. Footnote

            To return to Magna Carta and its sources. It is important to note that relieving the obligations of persons who had pledged for the debtor is not necessarily a more equitable solution than the one found in classical Roman and in more general European customary practice. If we imagine the social context of the theory, we can imagine iniquitous consequences of the new norm. The reform imposed on King John by the barons may have been equitable and just. John may have been arbitrarily despoiling barons who had made pledges guaranteeing the debts of their lords. The despoiled barons would have had, of course, little recourse against the power of the king.

            The context might have been, however, very different if a creditor had loaned a powerful lord a substantial amount of money that had been secured by other lesser nobles or merchants. In a society without a very strong court system and without strong magistrates who could bring litigants to court, if a rich and powerful lord refused to recognize the debt, the creditor might not have been able to confront the lord in court but might have been able to recover his loss from other less powerful men who had pledged sureties for the debt. In this social context, a creditor might agree to the debt only after securing sureties whom he could bring to court and from whom he could have some hope of recovering his loss in the case when the principal debtor defaulted. Beaumanoir’s discussion of suretyship is informed by this perspective. Or, yet again, as Reinhard Zimmermann has argued, if society were permeated with a high sense of personal honor that compelled debtors to do everything possible to protect their sureties, creditors might have used the court system to enforce debts much less frequently. Debtors would exhaust all measures to protect their sureties and themselves from the embarrassment of litigation. In such a society, the court system would play a small or inconsequential role in the settling of debts. Social pressures and norms would be a powerful means of enforcing contractual obligations. Footnote In other words, the new norm of Magna carta might look very different depending upon the status of the creditor and his place in the medieval social, economic, and political hierarchies. It would also depend on the institutional structures of the society in which the debt was contracted — especially the effectiveness of the court system and of magistrates. Historians must be sensitive not only to the dictates and rules of law but to the social context within which law operates.

            What I think can be concluded from the previous pages is that the classical Roman norm is not necessarily more equitable or just than the Justinianic norm adopted by the Ius commune or vice-versa. Consequently, the adoption of the rule in chapter 9 of Magna carta cannot be seen as an inevitable development that is characteristic of every legal system. Footnote Thus we might assume, as Helmholz has, the influence of the Ius commune on Magna carta. As we have seen, canon law adopted the basic norms of Roman law that Justinian had established and laid down a fairly broad set of rights protecting sureties from unreliable debtors. Helmholz has convincingly demonstrated that many chapters of Magna carta must have been influenced by canon law. Footnote When we add up the evidence presented in this paper: the Customs of Tours and Anjou, and the general expansion of the rights of suretyship in canonical jurisprudence, and the importance of the autentica in Justinian’s Code in Northern French customary law, it seems to me Helmholz’ argument that the drafters of Magna carta based chapter 9 of Magna carta the Ius commune becomes almost conclusive. If one accepts the argument that chapter 9 was not an inevitable development in English customary law, then there had to be political, social, and intellectual reasons for adopting the new norm. There were reasons in England and in Anjou; there were not in Orléans, in the world of law that Beaumanoir knew, or in Perugia.

            Lawyers always need justifications. There always has to be an authoritative source that justified the change. We know from looking at other customary codes of the iura propria that customs were not changed simply because another norm existed in the Ius commune; there had to be societal pressure for a custom to be changed. If the Ius commune contained a norm that gave legal support for the change, it became the authoritative source justifying the change. We can see this process most clearly when we have a set of laws that are given the same treatment as the texts of the Ius commune. The Constitutions of Melfi, or Liber Augustalis, is one such text on which the Italian jurists wrote commentaries. These jurists always point out when the Constitutions depart from the Ius commune. When they find a departure from the Ius commune unwarranted, the jurists often use its norms to alter a customary practice. Footnote

            Can we imagine that the drafters of Magna carta simply changed customary law by whim with no authoritative source with which to defend the change? I think not. Such an assumption assumes that no lawyer ever looked at Magna carta before or after it was drafted. We do not know whether King John’s men of law went over the document with a fine tooth comb before he signed it, but we do know that the document has been scrutinized ever since. Can we think that such an important change would have been serendipitous? I think not. The evidence is, therefore, almost conclusive that the drafters of Magna carta changed the customary rules of suretyship by adopting norms from the Ius commune. The legislation of Justinian and its reception into canonical jurisprudence would have protected sureties from solvent but recalcitrant debtors, and canonical jurisprudence would have given the English barons the remedies they needed to recover their payments made to the principal debtor’s creditor.

            Manlio Bellomo has pointed out that the doctrines of the Ius commune guided the practice of Italian courts and penetrated the doctrine and language of the ius proprium. He used a striking metaphor to make his point: the Ius commune was `the sun, the iura propria are the planets.’ Footnote The metaphor of the sun and the planets graphically explains the relationship of the Ius commune and iura propria. Footnote To repeat what I wrote six years ago in the pages of this journal, the metaphor is perceptive and accurate. The sun is not an inert mass, without energy or gravity that does not exercise any influence on the planets. To describe the sun as a great theoretical star that has no real life or influence of its own would be silly. On the other hand, the planets have their own conditions, forces, and norms that regulate their worlds. Each planet has a different set of rules, but each is also affected in different ways and from a different distance by the energy of the sun.

            In the universe of the Ius commune there are few planets farther from the sun than Magna carta. You might think of it as the Pluto of the iura propria. But here too we find the gravitational pull and warmth of the Ius commune’s sun on frozen tundra deep in the outer fringes of the universe.