法律的主要形成传统

根据维克多-莫尼埃的课程改编

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法律入门

法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建

法律的演变和现代国家的形成是一个复杂、多层次的过程，与社会的历史和文化密切相关。我们所熟知的现代国家大约在三个世纪前开始形成，标志着政治权力管理的一个重要转折点。这一时期的特点是权力集中、国界清晰划分以及结构化政府机构的建立。与此同时，公法作为一个独特的法律领域出现了，它规范国家与公民之间的关系以及国家本身的职能，包括宪法、行政法、财政法和刑法。

与公法相比，私法的历史要悠久得多，可以追溯到 2000 多年前。私法涉及个人之间的关系，涵盖合同法、财产法、家庭法和继承法等领域。现代私法的许多原则都源自罗马法，罗马法建立的法律基础和概念至今仍然适用。例如，私法的核心概念--合同的概念就起源于罗马的法律实践和理论。

国际法虽然源远流长，但在近几个世纪中得到了显著发展。它是随着国际关系和世界贸易的日益复杂而发展起来的。这一法律领域规范国家与国际组织之间的关系，面对气候变化和人权等全球性挑战，它仍在不断发展。国际法演变的一个重要例子是第二次世界大战后联合国的成立，为和平、安全与合作制定了国际标准。

十九世纪末二十世纪初瑞士法律的统一为如何协调法律体系提供了一个具体实例。瑞士法学家尤金-胡贝尔（Eugène Huber）在这一过程中发挥了至关重要的作用。根据瑞士几千年来形成的法典和传统，胡贝尔成功地统一了瑞士各州的法律体系。他的工作促成了《瑞士民法典》的制定，该法典已成为影响其他国家的法律编纂典范。

因此，法律的发展和现代国家的形成反映了各个时代的历史、文化和社会影响。公法、私法和国际法是这一演变的成果，展示了法律体系如何适应和发展，以应对不断变化的社会需求。

伟大法律传统的影响

瑞士私法是近两千年历史法律传统的奇妙组合。1912年起草的《民法典》和《义务法典》是这一综合体的典型代表。这些立法文件标志着瑞士法律史上的一个转折点，象征着瑞士法律体系统一和现代化的一个重要阶段。

罗马法对瑞士立法的影响是毋庸置疑的。从罗马帝国继承下来的这一法律体系引入了合同、财产和义务等基本概念，这些概念是现代私法的支柱。这些最初在罗马法中提出的理念经过调整以适应当代需要，但其本质仍深深植根于罗马原则。除罗马法外，日耳曼法也对瑞士法律体系的形成起到了至关重要的作用。日耳曼法起源于日耳曼部落，强调当地的习俗和惯例，尤其是在财产和家庭关系方面。日耳曼法以社区为中心，强调当地习俗，与罗马法的形式主义形成了鲜明对比。从基督教传统中发展而来的教会法也对瑞士立法产生了影响。尽管教会法的作用主要是宗教性的，但它也管理着婚姻等民事生活的重要方面。它的影响提醒人们宗教在欧洲法律形成过程中的历史重要性。最后，瑞士的现代法学派代表了古代法律传统在当代现实中的演变。该学派是对罗马法、日耳曼法和教会法的原则进行调整和整合的产物，经过重新塑造以应对现代世界的社会、经济和政治挑战。这一传统见证了瑞士法律体系不断发展并和谐融合各种历史影响的能力。

简而言之，瑞士私法是不同法律传统独特融合的结果，这种融合创造了一个历史悠久并适应当代世界需求的法律体系。1912年制定的《民法典》和《义务法典》体现了这种融合，说明了瑞士是如何通过整合这些不同的传统，成功地创建了一个连贯而有效的法律框架。

罗马法

罗马从公元前 5 世纪到公元 5 世纪，历时 1000 年。罗马帝国建立了一套适用于帝国所有罗马公民和自由人的统一制度。这一时期概括了古罗马的兴起、鼎盛和衰落。在这个时代，罗马从一个小城邦发展成为横跨三大洲的庞大帝国。在这一千年中，罗马最重要的成就之一是发展了自己的法律体系。这一逐渐形成的体系最终构成了一套适用于所有罗马公民以及生活在帝国的自由人的统一规则和标准。这一法律框架对于管理这样一个庞大而多样化的帝国至关重要。罗马法律体系的特点是创新，如民法概念（规范公民之间的关系）和万民法（涉及国家和民族之间的关系）。这些概念极大地影响了现代法律体系，尤其是在遵循民法传统的国家。罗马法最引人注目的一点是它在帝国内的普遍适用。无论被征服民族的种族和文化如何多样，罗马法都提供了一个共同的框架，有助于整合和有效管理这些不同的领土。这种普遍性也有助于罗马的影响力扩展到其政治边界之外，并为后来欧洲和地中海世界许多地区法律体系的发展奠定了基础。罗马帝国还出现了重要的法律人物，如法学家，他们解释、发展和教授法律。他们的著作和学说为后来公元六世纪查士丁尼皇帝的《民法大全》奠定了基础，这部法律汇编对西方法律的发展产生了重大影响。罗马在这一千年间的历史不仅是领土扩张和军事强盛的历史，也是对法律领域做出卓越贡献的历史。罗马法律体系的普遍性和公平性原则为西方世界的法律实践奠定了基础，其遗产在当代法律体系中依然存在。

罗马法是当代许多法律体系的基础，它有两个主要特点，每个特点都对这一古老法律体系的发展和完善起到了至关重要的作用。

一方面，罗马法具有很强的理论和习惯成分，这些成分被小心翼翼地转化为书面形式，即所谓的 "ius"。这种书面传统从根本上说是以罗马法学家的解释和分析为基础的，他们的工作随着时间的推移塑造并完善了法律。这些法学家，如盖乌斯、乌尔比安和查士丁尼，不仅解释了现有的法律，还制定了影响法律实践的法律原则，其影响远远超出了罗马时代。他们的影响在 6 世纪查士丁尼皇帝编纂的《民法大全》中尤为明显。除学说外，由罗马公民的习俗和惯例组成的罗马习惯法也逐渐被编纂成法典，使法律能够在整个帝国统一、系统地适用。另一方面，皇帝的决定和共和国机关的行动在罗马法的演变过程中发挥了至关重要的作用。在帝国时期，皇帝有权发布具有法律效力的诏书和法令。这些帝国宣言或 "宪法 "可以修改或建立新的法律规范，在应对帝国不断变化的需求方面发挥着至关重要的作用。在帝国时代之前的共和国时期，参议院和人民议会等机构也对法律的制定产生了重要影响。这些机构通过的法律被称为 "leges"，是法律框架的另一个基本组成部分。

成文法和教义传统与帝国和共和国的决定之间的互动创造了一个丰富而充满活力的法律体系。这一体系不仅管理着罗马帝国的日常生活，也为西方法律的发展奠定了基础。罗马法中发展起来的原则和结构，如契约概念、财产权和刑法基础，继续对现代法律体系，尤其是遵循大陆法系传统的法律体系产生着深远的影响。罗马法的这一遗产证明了法律具有适应和发展的能力，同时又保持了跨世纪的连续性和一致性。

5 世纪前后罗马法的形成是西方法律史上的一个关键时刻。在这一时期，罗马法律和法律原则被正式编纂成法典，这是保存和传承罗马法律遗产的关键过程。这一时期最重要的事件之一是狄奥多西二世皇帝于 438 年编纂法律。狄奥多西法典》或《狄奥多西法典》是一项重大成就。它汇集并整理了自君士坦丁一世统治以来罗马皇帝颁布的诏书、法令和法律。这种编纂对于统一和澄清罗马法律至关重要，因为罗马法律在过去几个世纪中得到了长足的发展，有时甚至是杂乱无章的。狄奥多西法典》不仅在狄奥多西统治的东罗马帝国，而且在西罗马帝国都产生了持久的影响。它为皇帝和法院提供了法律参考，影响了拜占庭帝国以及继承西方罗马帝国的蛮族王国后来的法律发展。

狄奥多西二世时期的法律编纂是罗马法律从主要基于传统和习俗的体系向结构更为正式的法典化体系过渡的关键一步。这一转变使人们对罗马法有了更好的理解和应用，并为进一步的编纂工作奠定了基础，特别是查士丁尼皇帝在六世纪委托编纂的《民法大全》。5 世纪罗马法的编纂，尤其是狄奥多西二世时期的编纂，标志着法律史上的一个重要阶段。它使罗马法律遗产得以保存并传承给后代，对当代西方法律体系产生了重大影响。

西罗马帝国于 476 年灭亡，不仅在政治和社会方面，而且在法律发展方面都标志着一个重大的历史转折点。在西罗马帝国崩溃的同时，东罗马帝国，即后来的拜占庭帝国，继续繁荣发展。正是在这种背景下，拜占庭帝国最有影响力的皇帝之一查士丁尼一世采取了历史上最雄心勃勃的法律举措之一：制定《查士丁尼法典》。查士丁尼在位时是 6 世纪，他看到了改革和系统化罗马法的重要性，当时的罗马法散见于众多文本、诏书和法令中，往往相互矛盾或已经过时。529 至 534 年间，他和他的法学家团队在特里波尼安的指导下，着手编纂、修订和整理这些法律。这项不朽的工作最终促成了《民法典》（Corpus Juris Civilis）或 "民法体系 "的诞生，该体系由《法典》（Codex）、《摘要》（Digesta 或 Pandectae）、《制度》（Institutiones）和《新宪法》（Novellae Constitutiones）组成。

查士丁尼法典》汇集了现有的帝国宪法。文摘》汇集了罗马著名法学家的观点和裁决。宪法》是学生的法律入门教科书，《新宪法》则收录了 534 年后颁布的新法律。查士丁尼法典》的重要性在于其对罗马法的系统化及其对欧洲法律发展的持久影响。它是许多欧洲国家民法的基础，并影响了全世界的法律体系。即使在 1453 年君士坦丁堡陷落之后，《民法大全》在西欧仍被作为法律参考资料加以研究和使用，在法律文艺复兴和现代法律制度的形成过程中发挥了关键作用。因此，在西罗马帝国崩溃的同时，罗马法的遗产却在拜占庭帝国得到了保存和复兴。查士丁尼法典》证明了罗马法律遗产的坚忍不拔和顽强不屈，至今仍是世界历史上对法律理论和实践最重要的贡献之一。

西罗马帝国灭亡后，东罗马帝国（即后来的拜占庭帝国）对罗马法进行了重大改革。在六世纪查士丁尼皇帝的领导下，这一改革导致了《民法大全》（或称《查士丁尼法典》）的诞生，它代表了罗马法在保存和系统化方面的不朽努力。民法大全》以《查士丁尼法典》为开端，汇集了帝国宪法--主要是皇帝的决定和法令。该法典取代了早期的《狄奥多西法典》，集中了哈德良皇帝时期的所有帝国法律。法典旨在提供清晰、有条理的帝国法律，使其更易于理解和应用。其次，《文摘》（或称《法典》）是《法典》的重要组成部分。它是从古典罗马的法学家们撰写的 1,500 多本书中摘录的大量内容。这部分内容构成了法律学说，代表了罗马法学家积累的智慧和解释。文摘》是法官和律师的指南，为他们提供了解释和适用法律的详细资源。对于法律专业的学生来说，《制度汇编》是一本基础教科书，以通俗易懂的方式介绍了罗马法的基本原则和结构。学院》在法律教育中发挥了重要作用，确保法律知识代代相传。最后，《新法》（Novelles）收录了查士丁尼在《法典》成书后颁布的法律，从而完善了《法典》。这些文本反映了为满足拜占庭帝国当代需要而对法律进行的修改和调整。民法典》对西方世界的法律发展产生了深远而持久的影响。它的编纂不仅保存了古罗马的法律遗产，还为许多欧洲国家的民法奠定了基础。法典》的影响远远超出了拜占庭帝国，其原则和方法几个世纪以来被各种法律体系所采用和调整。因此，查士丁尼的著作确保了罗马法律智慧的延续，使后代人能够理解并使用这些智慧。

第二个千年伊始，查士丁尼的著作开始对西方中世纪法律世界产生重大影响。西罗马帝国灭亡后，在随后的中世纪（包括中世纪晚期），西欧大部分地区失去了与古罗马法律遗产的直接联系。然而，这种情况在 11 世纪和 12 世纪左右开始发生变化。12 世纪的文艺复兴是西欧知识和文化复兴的时期，它对查士丁尼文本的重新发现起到了至关重要的作用。意大利博洛尼亚等城市开始出现大学，它们是罗马法的研究和教学中心。博洛尼亚大学尤其成为法律研究的参考中心。伊尔内留斯（Irnerius）等学者及其后继者（被称为 "Glossators"）对《民法大全》进行了分析、评论和讲授，帮助其在整个中世纪欧洲传播。在此期间，查士丁尼的法典被翻译、解释和改编，以满足当时的法律和社会需求。中世纪的法学家们将罗马法的元素融入当地的法律体系，这一过程极大地影响了欧洲民法的发展。这种融合促进了欧洲第一批国家法律体系的形成，如天主教教会法和各种地区习惯法。第二个千年的开始标志着罗马法在西欧的重新发现和整合时期，查士丁尼的文本在这一过程中发挥了核心作用。这种影响为欧洲现代法律体系奠定了基础，并对西方法律史做出了重大贡献。

日耳曼法

5 世纪日耳曼部落的征服是前罗马帝国领土发生重大转变的时期。这些部落，如法兰克人、勃艮第人等，在罗马领土上渗透并建立了自己的势力，同时也带来了他们自己的法律制度和习俗。这一时期出现了独特的法律传统： 日耳曼法律。

与集中化和法典化的罗马法律不同，日耳曼部落主要依靠口头习俗和部落规则。当他们入侵罗马帝国各地并成为殖民地时，他们保留了自己的法律。例如，法兰克人的法律（称为《萨利卡法》）和勃艮第人的法律（《勃艮第法》）就是这些民族特有的法律。这些法律规定了日常生活的方方面面以及社区内冲突的解决方式。与此同时，日耳曼统治下的罗马人继续按照罗马法律生活。这种不同法律体系的共存导致许多地区出现了法律上的双重性： 日耳曼法律适用于征服者，而罗马法律适用于当地居民。

随着时间的推移，随着与罗马文明的交流，日耳曼人开始将他们的习俗写成文字，通常使用当时的学术和行政语言拉丁语。日耳曼习俗的书面化是其法律体系演变的重要一步。它不仅为后代保留了这些习俗，还促进了这些习俗与罗马法元素的融合。因此，这一时期欧洲历史的特点是复杂的文化和法律互动，罗马和日耳曼传统相互影响。采用拉丁字母记录日耳曼法律就是这种融合的一个例子。随着时间的推移，这种法律传统的融合促进了现代欧洲法律体系的形成，其中融合了罗马法和日耳曼法的元素。

在罗马帝国，尤其是在地中海盆地，罗马法的范围和适用性非常广泛，遍及整个帝国。罗马法的这种普遍性与日耳曼部落所采用的方法形成了鲜明对比，后者的法律更具个人特色。罗马法具有成文法体系和普遍原则，旨在统一适用于帝国的所有公民，无论其种族出身或社会地位如何。这种做法的目的是建立一个共同的法律基础，便于管理这样一个庞大而多样化的帝国。罗马法涉及生活的方方面面，从私法（如家庭法和合同法）到公法（包括行政法和刑法）。其范围涵盖整个地中海盆地，反映了罗马帝国的地理范围和文化影响。日耳曼部落则实行属人法。每个部落，无论是法兰克人、勃艮第人、西哥特人还是其他部落，都有自己的一套法律和习俗来管理其成员的生活。这些法律一般都是口口相传，反映了每个部落的特定传统和价值观。与罗马法不同的是，日耳曼法律并不是为了普遍适用而设计的，而是为了适应每个部落的特殊性。

当这些日耳曼部落定居在前罗马帝国的领土上时，他们保留了各自的法律体系。这样，他们就造成了同一领土内的不同族群受不同法律体系管辖的局面。例如，日耳曼部落的成员要遵守本部落的法律，而土生土长的罗马人则要继续遵守罗马法律。这种法律上的双重性对罗马帝国之后欧洲的社会组织和法律制度的发展有着重要影响。因此，罗马普遍法和日耳曼属人法的共存和互动在欧洲法律传统的形成过程中发挥了至关重要的作用，将普遍法和基于种族或部落身份的法律概念融为一体。这种历史性的综合奠定了欧洲现代法律体系的基础，在欧洲，普遍性规范和个性化权利之间的紧张关系继续影响着法律实践和理论。

教会法

教会法是一种独特的法律体系，在天主教会的组织和管理中发挥着核心作用。这一法律体系有别于民事法律体系，专门关注教会的内部事务，以及教会与信徒和整个社会的互动方式。教会法涵盖的范围很广，包括教会的章程和组织、教会职能、教会成员的地位以及教会财产的管理。它还对礼仪程序、圣礼以及神职人员和教友的纪律规范等方面做出了规定。这一法律体系基于一套源自基督教的义务论原则，反映了基督教的价值观和教义。

教会法的一个显著特点是它希望扩展到所有人，因为它不仅要指导教会内部的行为，还要影响更广泛社会中的道德和伦理。尽管教会法的直接适用范围仅限于天主教会成员，但其原则往往对许多社会的法律和社会规范产生重大影响，尤其是在具有基督教传统的国家。

几个世纪以来，教会法不断演变，以适应社会和教会本身的变化。大公会议、教皇法令和教会法庭的裁决在教会法的发展和更新中发挥了重要作用。现代教会法演变过程中最重要的时刻之一是 1917 年颁布的《教会法典》（1983 年修订），该法典对天主教会的法律规范进行了系统化和更新。

教会法是天主教会结构和运作的重要组成部分。它代表了一种法律传统，虽然有别于民事法律制度，但对全世界许多社会的道德和伦理发展产生了相当大的影响。

第一个千年

罗马帝国从一个以异教为主的实体向基督教帝国的过渡是西方历史上的一个关键时刻，其标志是四世纪的两项重要法令。

第一个关键转折点是君士坦丁一世和利西尼乌斯皇帝于 313 年颁布的《米兰敕令》。该诏书不是基督教的合法化，而是一项宗教宽容法令。它结束了对基督徒的迫害，给予罗马帝国所有人信奉宗教的自由。这一法令标志着罗马帝国宗教政策的彻底改变，给予基督教合法地位和自由发展与传播的机会。第二个决定性时刻是皇帝狄奥多西一世于 380 年颁布的《帖撒罗尼迦敕令》，又称《民众敕令》。该法令宣布，所有罗马公民都必须遵循罗马和亚历山大的主教们所解释的基督教信仰，他们遵循的是 325 年尼西亚大公会议所确立的教义。这意味着帝国官方宗教多样性的终结，基督教成为国家认可的主导宗教。

这些发展对罗马帝国乃至整个欧洲的宗教、文化和政治历史产生了深远的影响。罗马帝国皈依基督教不仅改变了帝国的宗教动态，还为教会在世俗事务中权力的崛起奠定了基础，影响了未来几个世纪欧洲法律、政治和社会制度的形成。向基督教帝国的转变也促进了教会法的出现和巩固，使其成为天主教会和欧洲社会中具有影响力的法律体系。

罗马帝国皈依基督教标志着当时社会和政治结构的彻底转变，深刻影响了教会与国家之间的互动。380 年《帖撒罗尼迦敕令》颁布后，基督教成为帝国的官方宗教，这不仅加强了教会在罗马社会中的地位，也为罗马法律和教会实践的相互影响创造了肥沃的土壤。教会以前一直在官方政治结构的边缘活动，现在却成为了罗马社会的核心。这种融合产生了几个重要的影响。首先，教会开始采用和调整罗马法的元素来管理自己的内部事务，特别是在管理其财产和规范其内部程序方面。例如，罗马法中有关财产和合同的原则被纳入教会资产的管理中。

同时，受罗马法律原则的影响，教会法的发展标志着教会的演变迈出了重要的一步。这一独特的法律体系虽然以基督教教义和经文为基础，但在其结构和应用方面反映了罗马法的许多方面。教会法成为规范教会内部事务（包括教士纪律和圣事实践）的重要框架。此外，教会与国家之间的关系也有了新的发展。罗马皇帝虽然主要行使世俗权力，但往往对教会事务有重大影响。相反，教会开始在世俗事务中发挥影响，不仅指导精神事务，还影响社会和法律规范。因此，这段历史时期的特点是罗马法律和行政结构与教会之间的动态互动。这种协同作用为中世纪欧洲的未来发展奠定了基础，塑造了当时的政治、社会和法律结构。帝国皈依基督教不仅是宗教信仰的改变，也带来了社会和法律组织的深刻变革，其影响在当代的法律和政治制度中仍可感受到。

罗马帝国皈依基督教后，基督教和罗马法的影响远远超出了帝国疆界，也影响到了日耳曼各族人民，他们向罗马帝国汇聚，并生活在罗马帝国内部。在这一时期的欧洲历史上，罗马文化与日耳曼文化和法律制度之间的互动十分复杂，基督教的影响也日益加深。随着日耳曼部落在罗马帝国境内定居，他们与罗马文明及其法律和行政结构发生了密切接触。同时，基督教作为帝国的官方宗教，其传播开始对这些民族产生重大影响。日耳曼酋长往往为了寻求合法性和政治支持，逐渐信奉基督教，这导致他们的社会和法律结构发生了变化。

日耳曼人接受基督教不仅仅是宗教上的转变，还涉及对罗马法律及其原则的某些方面进行调整。例如，日耳曼传统上以部落习俗为基础的口传法律开始受到罗马法律概念的影响，尤其是在财产组织和民事事务管理方面。此外，基督教教士与日耳曼精英之间的互动也促进了罗马法律和行政知识的传播。教士们通常接受罗马传统教育，在日耳曼王国的行政管理和法律起草中发挥了关键作用。这种影响促成了日耳曼王国混合法律体系的出现，将日耳曼传统法律的元素与罗马法和教会法的元素结合在一起。这样，罗马法和基督教的影响远远超出了罗马帝国的边界，塑造了罗马帝国周边和内部日耳曼民族的文化和法律体系。这种互动对中世纪欧洲的发展起到了至关重要的作用，为现代法律和政治结构的出现奠定了基础。

教会法作为天主教会的法律体系，其发展源于多种来源，每种来源都带来了自己的影响和观点。这一体系的核心是《圣经》，尤其是《旧约》和《新约》，它们提供了基本原则和道德准则。除精神作用外，这些圣典还为基督教团体内部的行为和组织提供指导，从而影响教会法规范。教会法的另一个支柱是大公会议做出的决定，大公会议是主教和神学家的集会。这些大公会议在形成教会教义和教规方面发挥了决定性作用。例如，16 世纪召开的特伦特大公会议带来了重大改革，并颁布了许多塑造了现代教会法的教规。教皇法令也是教会法的重要来源。这些由教皇发布的文件涉及从教会纪律到圣礼管理等各种问题。由于其权威性，教令经常成为解释和应用教会法的重要参考。

除了这些教会渊源，教会法还受到地区习惯法的影响。教会的地方习俗和传统如果得到教会权威的承认，就可以获得法律地位。这些地方习俗反映了基督教习俗的多样性，并为教会法的丰富多彩做出了贡献。最后，罗马法，尤其是义务法对教会法的影响是毋庸置疑的。教会借鉴并改编了许多罗马法律原则来管理自己的事务。例如，罗马的合同和财产概念已被纳入教会财产管理和争端解决中。简而言之，教会法是各种来源和影响融合与调整的结果。从神圣经文的智慧到大公会议的决定、教皇法令、习惯法和罗马法原则，每一个元素都有助于形成一个法律体系，该体系在天主教会的管理中发挥了至关重要的作用，并对整个欧洲社会产生了深远的影响。

罗马法和教会法有一个共同的基本特征：它们都是成文法体系。这一特点对这两种法律体系的发展、传承和应用起着至关重要的作用。罗马法作为罗马帝国的法律体系，被正式编纂成各种书面文件。这些文件包括由皇帝和议会等罗马当局颁布的法律、诏书、法令和决议。这种编纂的著名例子包括汇集了帝国法律的《查士丁尼法典》、汇编了罗马法学家的意见和决定的《文摘》以及法律教学手册《制度》。这种书面的正式化使法律能够在广袤的罗马帝国得到一致和统一的应用。同样，天主教会的《教会法》也是一个成文法体系。它由教会当局，特别是大公会议和教皇制定的法律法规组成。教会法已被系统化地编入各种书面文本中，如《教会法典》，该法典组织并介绍了管理教会的规范。将这些法律法规写成文字，确保了世界各地教会在解释和应用这些法律法规时的统一性和明确性。罗马法和教会法的成文性质与习惯法体系形成了鲜明对比，后者通常以口头传统和未经编纂的惯例为基础。这些法律体系中书面文本的存在有利于法律知识的保存和传播，使人们能够对法律进行更深入的研究和更系统的应用。这一特点也促进了这些法律体系的演变和调整，以应对几个世纪以来的社会、经济和文化变化。

第一个千年结束

第一个千年末期，欧洲的社会和法律结构发生了重大变化。这一时期最引人注目的方面之一是旧法律的过时，尤其是罗马帝国和日耳曼各民族（如勃艮第人、西哥特人和法兰克人）遗留下来的法律。在这一时期，罗马帝国和日耳曼民族所理解和应用的成文法概念开始消退。曾经是法律和社会秩序基石的成文法典失去了其优越性。这部分是由于西罗马帝国的衰落和随之而来的政治分裂，以及日耳曼王国的崛起，而日耳曼王国并没有同样的法律编纂传统。

在这种情况下，基于种族或帝国归属的身份认同开始衰落，例如将自己定义为罗马人、勃艮第人、西哥特人或法兰克人。取而代之的是，身份和社会组织越来越多地由居住地来定义。人们更多地认同自己的居住地或地区，而不是民族或国籍。这一转变标志着人们对社会和法律秩序的认识发生了重大变化。因此，习惯法变得越来越重要。习惯法以当地世代口耳相传的传统和习俗为基础。每个地区，甚至每个地方都有自己的习俗来管理日常生活。这些习俗往往具有灵活性和适应性，反映了当地社区的需求和现实。

在这一时期，封建制度在欧洲兴起并得到巩固，在这种制度下，社会和政治关系主要建立在土地保有权和附庸关系的基础上。封建制度及其复杂的领主和附庸等级制度也有助于形成这一时期的法律和社会组织。第一个千年末期是欧洲深刻转型的时期，其特点是法律和社会秩序发生了变化。罗马和日耳曼成文法的过时以及习惯法和封建主义的兴起重新定义了欧洲社会的组织和治理方式。

第一个千年末期，习惯法在欧洲得到巩固，其原因在于日耳曼人和罗马人在大举入侵并逐渐融合之后，发生了一系列重大的社会和文化变革。这些移民运动和由此产生的互动导致欧洲许多地区对身份进行了深刻的重新定义。在大入侵（又称移民时期）期间，哥特人、汪达尔人、法兰克人和伦巴第人等日耳曼部落越过罗马帝国的边界，在欧洲各地定居下来。这些运动标志着西罗马帝国的终结，并导致新王国和新社会的形成，其中罗马文化和日耳曼文化相互融合。这种文化和社会的融合导致了身份的重新定义。人们不再严格地将自己视为罗马人、勃艮第人、西哥特人或法兰克人，而是开始根据自己生活的地方或地区来确定自己的身份。伴随着这一转变的是罗马和日耳曼成文法向以口头习俗和传统为基础的、更加面向地方的法律体系的转变。

这些地方习俗融合了罗马和日耳曼的传统，并根据社区的需求和现实情况进行了调整。法律不再以中央集权的成文法典为基础，而是成为一套口口相传的惯例和规范，通常由地方当局（如领主或社区大会）监督。这一时期还出现了封建制度，它加强了身份和法律的地方化。在这种制度下，忠诚和附庸关系是最重要的，规则和义务通常由封地或seigneury的习俗来定义。在第一个千年末期，习惯法在欧洲得到巩固，这是日耳曼人和罗马人大举入侵和融合之后身份融合和重新定义过程的结果。这一转变不可磨灭地塑造了中世纪欧洲的社会、文化和法律结构。

在第一个千年末期，欧洲经历了一个从罗马和日耳曼传统中继承下来的成文法观念显著衰落的时期。这一时期往往与学术文化，尤其是法律知识的丧失联系在一起。这对司法系统的运作和法律的适用产生了重大影响。随着成文法的使用逐渐消失，欧洲大部分地区进入了一个既有法律传统不易获取、不易理解，有时甚至被遗忘的时期。在司法中发挥关键作用的法官和地方当局往往缺乏正规的法律培训，对罗马法和日耳曼法知之甚少或一无所知。这种对成文法的无知导致人们越来越依赖于当地的习俗，尽管这些习俗实用且适应日常生活，但并不总能从正式法律体系的连贯性和严谨性中受益。

然而，教会法却摆脱了这一趋势。作为天主教会的法律体系，教会法在这一时期继续得到传授、发展和应用。教会神职人员和学者通常有机会接受更正规的教育，他们保持并传承着教会法的知识。中世纪开始兴起的大学在教会法的保存和教学以及欧洲法律研究的复兴中发挥了至关重要的作用。在其他形式的成文法衰落之时，教会法仍然是成文和结构化法律思想的堡垒。此外，天主教会作为一个影响广泛的机构，利用其教会法不仅影响宗教事务，还影响欧洲许多地区的社会甚至政治方面。因此，教会法不仅经受住了这一文化失落时期的考验，而且在随后的欧洲法律发展中发挥了关键作用，为罗马法的复兴和现代法律体系的形成奠定了基础。

在欧洲法律转型的这一时期，罗马法和日耳曼成文法退隐，我们看到了地方法律的出现，它更好地适应了特定社区的现实和需要。这一发展反映了对不断变化的环境的务实适应，以及对失去学术性法律文化所带来的挑战的回应。在许多地区，适用的法律是当地大多数居民的法律。这意味着法律规范和规则在很大程度上是由当地居民的风俗习惯决定的。因此，这种地方法律具有内在的灵活性和多样性，反映了欧洲各地传统和生活方式的多样性。

这种新的地方法律往往融合了古罗马和日耳曼法律的元素。尽管对这些法律体系的详细了解已经减少，但它们的影响仍以融入当地习俗的片段形式存在。例如，罗马法的某些原则，如与财产或合同有关的原则，可以与日耳曼法律实践交织在一起，特别是在家庭法和解决冲突方面。此外，这些地方法律体系还具有创新和适应能力的特点。解决具体法律问题的办法往往是根据具体情况制定的，不一定要参照成文法典或既定先例。这使得司法具有极大的灵活性，但也导致法律适用缺乏统一性和可预见性。这一时期虽然代表着罗马帝国法律正规化的某种退缩，但对于适应欧洲中世纪现实的法律体系的形成至关重要。这种地方法律的出现为后来欧洲国家和地区法律体系的发展奠定了基础，将历史影响与适应当地情况的创新融为一体。

中世纪时期，特别是西罗马帝国灭亡后，欧洲法律经历了重大变革，出现了主要在地方一级发展的新法律体系。与早期的罗马和日耳曼法律体系不同，这种法律不再采用正式成文法的形式，而是采用地方习惯法的形式。这种地方习惯法以口口相传的传统和惯例为基础，由社区实施。它反映了每个地区或地方特定的社会、经济和文化现实。因此，欧洲各地的习惯法差异极大，每个社区都有自己的习俗来规范日常生活的方方面面，如财产所有权、婚姻、继承和冲突解决等。这种缺乏统一性和不成文性质的习惯法有利有弊。一方面，它具有极大的灵活性，可以适应当地的具体情况。另一方面，它也可能导致法律的不确定性以及不同地区在适用司法方面的明显差异。

在这一时期，地方习惯法成为欧洲许多地区的主要法律体系。正式的成文法体系，如罗马法，主要保存在修道院或教会机构中，学术界以外的人基本上无法接触或遗忘。因此，对于大多数人来说，当地的习惯法是主要的，甚至是唯一的相关法律体系。这种习惯法的主导地位一直持续到中世纪大学的法学研究和罗马法的复兴，尤其是 11 世纪和 12 世纪以后。罗马法的重新崛起和大学的兴起对欧洲现代法律体系的奠基起到了至关重要的作用。然而，地方习惯法的影响依然重要，并继续影响着许多地区的法律体系。

中世纪时期，在西罗马帝国崩溃后以及日耳曼民族迁徙和定居期间，罗马和日耳曼法律体系并未完全消失，但其可获取性和对日常生活的直接影响却大大减弱。这些法律，尤其是罗马法，主要以书面文件的形式存在，保存在图书馆，尤其是修道院和教会机构的图书馆中。

在这一时期，欧洲对罗马法的了解和积极使用出现了某种程度的衰退。罗马法律文本，如查士丁尼的《民法大全》（Corpus Juris Civilis）中编纂的法律文本，大多数人，包括许多地方法官和行政人员，往往无法获得。这些文本主要保存在修道院图书馆中，供少数教士和学者精英研究。然而，这种保存方式对于罗马法律知识的世代相传至关重要。同样，日耳曼法律虽然在某些情况下已经编纂成法典（如勃艮第人的法律或法兰克人的萨利卡法），但并不像当地习惯法那样普及或容易获得。这些日耳曼文本通常保存在修道院或皇家法庭中，与当地习惯法相比，它们的适用范围有限，因为当地习惯法更贴近人们的日常生活。

这种情况随着十二和十三世纪的文艺复兴而开始改变，当时欧洲的大学，如意大利的博洛尼亚，开始重新发现并教授罗马法。这一法律复兴导致了罗马法研究的复兴，并为随后欧洲法律体系的发展奠定了基础。因此，尽管日耳曼法和罗马法在一定程度上在这一时期被归入图书馆，但它们在这些学习中心的保存对它们的重新发现和对后来欧洲法律体系的影响至关重要。

第二个千年开始

语言学家：12 世纪 - 13 世纪

随着博洛尼亚大学对查士丁尼法律的重新发现和研究，12 世纪和 13 世纪标志着欧洲法律史上的一个关键时期。这一时期尤其值得注意的是，出现了在罗马法复兴过程中发挥核心作用的词汇学家、法学家和学者。博洛尼亚大学是中世纪最早和最有影响力的大学之一，在这所大学里，词汇学家们开始深入研究《民法大全》（Corpus Juris Civilis），这是六世纪查士丁尼皇帝在君士坦丁堡制定的法律文本集。这些文本包括《法典》、《文摘》、《制度》和《小说》，是一部详尽的罗马法汇编。虽然这些文本已经保存了几个世纪，但直到这一时期才重新开始对它们进行系统的研究。注释者不仅重新发现了这些古籍，还着手对其进行注释和解释。他们的工作包括撰写 "注释 "或旁注，对原文进行澄清、解释和扩展。这种研究方法使查士丁尼法律更易于理解和适用于当代情况。

他们的研究方法标志着解决法律纠纷的方式发生了重大变化。传统习俗有时可能是武断的或违背理性的，而词汇编纂者并不完全依赖传统习俗，而是提倡一种更加理性和系统的方法。他们分析每个具体案件，寻求既符合法律条文，又合乎逻辑和公平的解决方案。纂修者的影响及其对《民法大全》的工作对欧洲法律的发展产生了深远的影响。他们为更深入地理解和更系统地应用罗马法奠定了基础，最终导致了欧洲民法传统的出现。在现代法律体系中，理性分析和参考基本法律文本仍然是法律实践的核心内容。

12 世纪和 13 世纪，纂修者对民法典进行了细致而创新的纂修，他们通常被视为欧洲法理学之父。他们对欧洲法律和法律方法论的影响深远而持久，标志着西方法律史上一个决定性的转折点。通过对罗马法文本的重新发现和评论，词汇家们不仅保存了珍贵的法律遗产，还彻底改变了欧洲的法律思想和实践方式。他们有条不紊的分析方法使人们对法律有了更深刻的理解和更系统的解释。通过对复杂的法律条文进行详细的注释和澄清，他们使罗马法变得通俗易懂并适用于当代情况。他们的工作促进了欧洲法律传统的形成，这一传统重视理性分析、参考成文法以及系统地应用法律原则。这一传统对现在的大陆法系的发展至关重要，大陆法系在欧洲大部分地区占主导地位，并影响了世界上的其他法律体系。词汇家们还奠定了法理学的基础，确立了解释法律和解决争端的方法。他们的影响不仅体现在大学教授和研究法律的方式上，也体现在日常的法律实践中。因此，通过复兴和丰富罗马法，词汇家们不仅保存了法律遗产，还帮助塑造了现代欧洲的法律思想和实践框架。他们的遗产仍然是欧洲法学的基石。

12 世纪和 13 世纪，博洛尼亚大学的词汇学家们的工作产生了相当大的影响，吸引了来自欧洲各地希望学习罗马法的学生。由于这些学者的努力，博洛尼亚成为了一个重要的法律学习中心，并在向欧洲大陆传播法律知识方面发挥了至关重要的作用。词汇学家的教学方法基于对罗马法文本的深入分析和严谨解读，在当时具有革命性意义。学生们不仅被丰富的教学内容所吸引，而且也被这种教学方法所吸引，因为这种方法可以培养学生对法律原则的深入和批判性理解。语法学家们教授如何将罗马法的原则应用到具体案例中，这在当时地方习惯法占主导地位的时代是非常抢手的技能。

来博洛尼亚向术语汇编者学习的学生来自欧洲各地，这有助于形成一个以罗马法传统为培训对象的法学家国际网络。回国后，这些学生传播他们所学到的知识，并经常在当地法律制度的发展和改革中发挥重要作用。他们还为新法学院的创建和法律教育在欧洲的传播做出了贡献。因此，博洛尼亚大学和词汇学家们的影响远远超出了意大利。他们的影响是罗马法在欧洲复兴的决定性因素，并为随后大陆法系的发展奠定了基础。得益于这些教诲，博洛尼亚大学数百年来一直是法律教育机构的典范，如今仍被公认为现代法律教育的摇篮之一。

调解员 14 世纪 - 15 世纪

在 14 世纪和 15 世纪，"词汇编纂者 "学说的影响以及罗马法逐渐融入欧洲法律实践的过程不断发展，其中调解人的作用尤为突出。这些调解人通常是教授和法学家，他们在罗马法与当地法律体系的融合中发挥了至关重要的作用，尤其是在意大利等地区。

调解人延续了词汇编纂者的工作，努力将罗马法的原则应用于解决具体的法律案件。当地法律通常以日耳曼习俗或传统为基础，面对这些情况，调解员们转而求助于罗马法，以找到更合适、更合理的解决方案。这种做法导致了当地法律的 "罗马化"，尤其是在意大利。通过将罗马法的元素融入法律实践，调解人帮助丰富和完善了当地的法律体系。罗马法以其合理的结构、详尽的概念和系统的方法，为处理各种法律问题提供了一个更加完整的法律框架。

这一过程标志着欧洲法律演变的一个重要阶段。通过将罗马法的原则与当地习俗相结合，调解人帮助建立了更加统一和连贯的法律体系。这种综合也有助于形成欧洲现代法律体系的基础，这些体系往往将罗马法的元素与当地法律传统相结合。14 和 15 世纪调解人的作用对于罗马法在欧洲的传播和实际应用至关重要。他们的工作不仅有助于填补当地法律体系的空白，还在欧洲法律的协调和现代化方面发挥了至关重要的作用。

法律人文主义：16 世纪 - 17 世纪

十六和十七世纪，欧洲经历了一场被称为法律人文主义的重大思想运动。这场运动标志着人们对待和理解罗马法的方式出现了转折点，使其有别于前几个世纪的术语解释者和调解者的方法。

法律人文主义的特点是回归罗马法的原始渊源，尤其注重查士丁尼皇帝的《民法大全》中规定的法律的含义和精神。法律人文主义者试图以最纯粹的形式理解罗马法，剥离几个世纪以来由术语解释者和调解者积累起来的层层解释和评注。这种方法涉及对罗马法原文的直接、深入研究，从中世纪的解释转向对法律更真实、更历史性的理解。法律人文主义者强调语言学，即对文本的批判性研究，以重新发现查士丁尼和其他罗马来源制定的法律和原则背后的原始含义和意图。

法律人文主义还鼓励以更广阔的视角研究法律，将历史、哲学和文化知识融为一体。这种全面的研究方法使人们有可能将罗马法置于更广阔的文化和历史背景中，从而丰富对法律的理解，并促进对法律文本进行更细致和更开明的解释。法律人文主义运动对欧洲的法律发展产生了重大影响。它不仅有助于更好地理解罗马法，还影响了法律实践、法律教学和现代法律制度的形成。通过回归罗马法的渊源，法律人文主义者帮助为法律研究和实践奠定了坚实的基础，并继续影响着当代法律思想。

罗马法在西欧的融合

第二个千年期间，罗马法在西欧的融合经历了几个不同的阶段，每个阶段都对欧洲法学的复兴和演变做出了重要贡献。十二和十三世纪，随着词汇学家的出现，博洛尼亚大学成为了一场引人注目的知识运动的中心。这些学者着手恢复和研究《民法大全》（Corpus Juris Civilis），这是查士丁尼皇帝时期编纂的一部详尽的罗马法汇编。他们一丝不苟的工作不仅振兴了罗马法研究，还为现代欧洲法学奠定了基础。例如，最早的训诂学家之一伊尔内留斯（Irnerius）在分析和解释罗马法律条文方面发挥了重要作用，为人们理解条文提供了重要依据。14 世纪和 15 世纪出现了调解人，他们在将罗马法融入日常法律实践方面发挥了至关重要的作用。调解人利用罗马法的原则和解决方案来填补地方法律体系的空白，而地方法律体系往往是建立在不太正式的习俗和传统之上的。这导致了当地法律的 "罗马化"，尤其是在意大利，调解人帮助丰富和完善了当地的法律实践。在 16 世纪和 17 世纪，法律人文主义标志着罗马法起源的回归，它试图不依赖于早期术语解释者和调解人的注释和解释来理解这些法律文本。Andrea Alciato 等法律人文主义者采用了一种语言学和历史学的方法，旨在把握罗马法律背后的原意和意图。这一时期的特点是对罗马法进行更具批判性和语境化的研究，对法律的教学和实践方式产生了深远影响。这些不同阶段共同塑造了罗马法在西欧的复兴和发展，对欧洲法理学的发展轨迹产生了不可磨灭的影响。它们不仅保存了珍贵的法律遗产，还为将罗马法原则与当代现实相结合的现代法律体系奠定了基础。

在中世纪和近代早期的欧洲，罗马法与当地习俗之间的动态关系复杂而迷人。虽然罗马法在西罗马帝国灭亡后似乎消失了，或者至少是大幅衰退了，但它通过吸收了其部分原则的地方习俗继续发挥着微妙的影响。随着罗马法的复兴（由博洛尼亚大学的词汇学家发起，并由调解人和法律人文主义者继续），这一古老的法律逐渐在欧洲，尤其是在具有深厚罗马传统的南部地区重新获得了地位。在这些地区，罗马法开始重新进入法律实践，往往取代或修改了前几个世纪发展起来的地方法律体系。

这种影响在意大利、西班牙和葡萄牙等罗马传统根深蒂固的国家尤为明显。在这些地区，随着罗马法原则被重新发现和整合，当地法律体系的 "罗马化 "进程也在加速。这些原则提供了一个更加连贯和系统的法律框架，而不是往往支离破碎和各不相同的地方习俗。例如，在意大利，罗马法的回归导致了当地法律实践的重大转变。在博洛尼亚和其他大学中心接受培训的律师开始将罗马法的教义应用于解决争端和制定新法律。同样，在西班牙，罗马法也影响了 13 世纪一部重要法典 "Siete Partidas "的编纂。虽然罗马法在西罗马帝国灭亡后似乎消失了，但它通过当地习俗得以保存下来。随着中世纪开始并持续到文艺复兴时期的法律复兴，它重新获得了卓越的地位，尤其是在南欧国家，它取代或改变了当地现有的法律体系。这一过程是欧洲现代法律体系形成的关键因素。

在《民法典》于 1804 年颁布之前，法国的法律体系分化严重，反映了该国历史和文化的复杂性。这种分化在法国南部和北部尤为明显，每个地区都有自己独特的法律方法和法律传统。在法国南部，罗马法的影响尤为强烈。罗马法的复兴始于中世纪，导致植根于罗马传统的地方习俗逐渐衰落。该地区保留了罗马帝国的直接遗产，罗马法被重新整合并在大学中教授。例如，奥尔良大学就是法国研究罗马法的重要中心。这种罗马法律传统及其复杂的原则和方法受到了南部地区的青睐，并逐渐取代了当地的习俗。然而，法国北部的情况有所不同。罗马法的到来和发展往往被视为对当地法律传统的威胁，因为当地法律传统更多地受到日耳曼法的影响。面对罗马法日益增长的影响力，出现了将日耳曼习俗写入法律的运动。中世纪习惯法运动的目的是通过编纂习惯法来保护当地的法律传统。

中世纪的习惯法编纂者，如 "诺曼底习惯法编纂者 "或 "巴黎习惯法编纂者"，在记录和正式确定当地法律惯例方面发挥了至关重要的作用。这些文本不仅是风俗习惯的汇编，也是将传统法律实践系统化和合理化的努力。虽然这些法典在某些方面受到罗马法的影响，但它们主要是为了记录和保存日耳曼习俗。在 1804 年《法国民法典》颁布之前，法国的法律二元结构一直存在，即罗马法在南部占主导地位，日耳曼习俗在北部占主导地位。民法典》被称为《拿破仑法典》，旨在通过整合两种法律传统的要素并使之合理化，从而统一法国的法律体系。这部法典的编纂标志着法国法律史上的一个关键时刻，为整个国家创建了一个统一的法律框架。

15 世纪 - 16 世纪

In the 15th and 16th centuries, a significant development in the field of law took place in France: the drafting of local customs under the aegis of the sovereign power. This process was part of a wider effort to systematise and formalise legal laws and practices, which varied widely from region to region.

During the reign of Louis XI, and later under François I, the royal power undertook an initiative to compile and codify local customs. This move was motivated by the desire to bring a degree of coherence and uniformity to France's fragmented legal landscape. Each locality or province was invited to draw up its custom, i.e. to formalise in writing the laws and practices that had traditionally been handed down orally and applied informally. The process of drafting customs often involved collecting, examining and standardising local legal practices. This meant that, for the first time, whole regions of France had written documents describing their laws and legal procedures. However, although this initiative contributed to a degree of organisation and clarification of the law, it also maintained legal diversity across the country, with each region retaining its own specific customs.

It was not until Napoleon Bonaparte promulgated the Civil Code in 1804 that a single, uniform law was applied to all French citizens. The Civil Code, also known as the Napoleonic Code, rationalised and unified French law, replacing the multiple local customs with a single coherent body of law. The Code was a major achievement in legal history, not only for France but also for many other countries, as it influenced the development of law throughout the world. The fifteenth and sixteenth centuries in France were marked by a major stage in the codification of customs under royal authority, paving the way for the subsequent unification and standardisation of French law with the Civil Code of 1804.

The emergence of universities in Europe in the Middle Ages marked a turning point in the development and dissemination of canon law and Roman law, transforming them into veritable 'learned laws'. These educational institutions played a crucial role in the preservation, study and propagation of these legal systems, contributing to their refinement and sophistication. The University of Bologna, founded in the eleventh century, became a major centre for the study of law and gained particular renown for its teaching of canon law and Roman law. In many ways, Bologna was at the heart of the heyday of canon law and the revival of Roman law in Europe. As far as canon law is concerned, the University of Bologna was an important centre of study and development. Canon law, which governs the internal affairs of the Catholic Church, was systematised and taught in depth at this university. Bologna's jurists and theologians have contributed to the interpretation, development and application of canon law, influencing the practice and administration of the Church throughout Europe.

At the same time, the University of Bologna was also the birthplace of the glossator movement, which rediscovered and commented on the Corpus Juris Civilis. This movement marked the renaissance of Roman law in Western Europe. Through their meticulous analysis and detailed commentaries, the glossators revitalised and clarified Roman law, making it accessible and applicable to contemporary realities. Universities were therefore essential in transforming canon law and Roman law into academic disciplines, elevating their study to the rank of legal science. These 'learned laws' not only enriched legal knowledge in Europe, but also laid the foundations for modern legal systems. The apogee of these legal disciplines at the University of Bologna influenced legal thought and practice far beyond Italy, shaping the development of law in Europe for centuries to come.

In the mid-twelfth century, a major event in the history of canon law occurred with the compilation of the "Decree of Gratian", also known as the Edict of Gratian. Gratian, a monk and jurist, undertook the ambitious task of collecting and organising all existing canon law into a single compendium. Gratian's Decree marked a fundamental step in the development of canon law by consolidating a multitude of disparate canonical sources, such as papal decrees, the canons of councils, and the writings of the Fathers of the Church. Prior to Gratian's work, canon law was scattered across many different documents, making it complicated to study and apply. By bringing all these sources together in a single systematic work, Gratian created an invaluable pedagogical and legal tool.

Gratien's Decree quickly established itself as a reference in universities and ecclesiastical courts throughout Europe. It was widely adopted as a teaching manual and a guide to legal practice within the Church. Gratian's organisation and method of reconciling conflicting texts greatly facilitated the understanding of canon law and helped to standardise its application. The influence of Gratian's Decree was such that it became the foundation of the Catholic Church's legal system until the subsequent codification of canon law in the twentieth century. His work played a crucial role in shaping the canonical legal tradition and had a significant impact on the development of law in general. The Gratian Decree remains a fundamental work in the historical study of canon law.

In 1582, a major development in the history of canon law occurred with the publication of the "Corpus Juris Canonici". This collection represented an exhaustive compilation of canon law, encompassing texts and decrees from the "Decree of Gratian" up to that period. The "Corpus Juris Canonici" was not simply a reprint of the "Decree of Gratian", but rather a complete collection that included the Decree itself as well as many other canonical legal sources that had been established since then. This compilation included papal decrees subsequent to Gratian, as well as other important documents and decisions of the Church. The importance of the Corpus Juris Canonici lies in its ability to provide a coherent and organised overview of the legislation of the Catholic Church. By bringing together all these sources into a single whole, the Corpus Juris Canonici has facilitated the study, teaching and application of canon law. This was particularly important as the Church sought to assert its authority and clarify its laws during the Counter-Reformation period.

The publication of the Corpus Juris Canonici also had a significant impact on the subsequent development of canon law. By providing a stable and comprehensive legal reference, it helped to standardise legal practice within the Catholic Church and served as the basis for subsequent reforms and adaptations of canon law. The "Corpus Juris Canonici" remained the standard canonical authority of the Catholic Church until the twentieth century, when the 1917 Code of Canon Law was promulgated, representing a further codification of canon law.

The school of modern natural law

In the modern era, a significant evolution in legal thought emerged with the development of a new conception of natural law. This approach to law differs from previous conceptions in that it sees law as being founded on a set of universal fundamental principles inherent in human nature and reason. According to this perspective, positive law, i.e. the law established and applied by societies, should be derived directly from these principles of natural law. This new approach to natural law was influenced by the work of philosophers such as Thomas Hobbes, John Locke and, later, Jean-Jacques Rousseau. These thinkers put forward the idea that certain rights and principles are natural and universal, such as the right to life, liberty and property. These rights are not granted by governments or institutions, but are inherent to the human condition.

According to this view, positive law should be an expression of these natural rights and principles. In other words, the laws created by governments and institutions should be in harmony with, and derived from, fundamental natural rights and the principles of universal justice. When positive law is at odds with these natural principles, it is considered unjust or illegitimate. This new conception of natural law has had a profound impact on the development of law and legal theory. In particular, it influenced the formation of theories of human rights and played a key role in the conceptualisation of modern democratic constitutions, such as those of the United States and France after the Revolution. The French Declaration of the Rights of Man and of the Citizen of 1789, for example, clearly reflects the influence of these ideas of natural law.

The modern school of natural law, which flourished between the seventeenth and eighteenth centuries, represents a philosophical and legal approach that seeks to establish the foundations of law and justice on the basis of principles derived from human nature and reason. The thinkers of this school adopted a rational and critical approach to exploring and understanding the fundamental aspects of human existence and deducing universal legal principles from them. Authors of the modern natural law school, such as Hugo Grotius, Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, sought to identify principles that they believed were self-evident or innate in human nature. These principles are considered to be the foundations on which all other legal rules rest. For example, Locke's concept that individuals have inalienable rights to life, liberty and property is a typical example of this kind of fundamental principle. The approach of these thinkers was to use an analysis of the human condition - its needs, aspirations and ability to reason - as a basis for establishing fundamental rights and duties. These natural rights and duties would then serve as the basis for the creation of positive law, i.e. the law established by societies and governments. The idea was that laws and legal systems should reflect these natural principles if they were to be just and legitimate.

This approach marked a break with previous conceptions of law, which often relied more on tradition, authority or divine revelation. It also helped to shape the philosophical foundations of modern democracies, particularly in terms of human rights and governance. The authors of the modern natural law school played a key role in the transition to a more rational and universal understanding of law. Their efforts to deduce legal principles from a study of human nature have profoundly influenced the development of law and legal thought in the contemporary world.

Hugo Grotius, also known as Hugo de Groot, is a central figure of the modern school of natural law and is often regarded as the father of international law. His most famous contribution to jurisprudence is his work De Jure Belli ac Pacis (On the Law of War and Peace), published in 1625. This treatise became a founding text in the field of international law and had a profound influence on the development of international legislation. In "De Jure Belli ac Pacis", Grotius explores the principles of natural law and their application to war and peace. He addresses issues such as the just causes of war, the rules of conduct in war, and the foundations of a just peace. One of Grotius's major contributions is the idea that certain laws and principles are universal and apply to all peoples, regardless of the specific laws of their country. This idea laid the foundations for the modern concept of international law, which governs relations between nations.

Grotius also defined the concept of sovereign power in his treatise. According to him, sovereignty is characterised by autonomy and independence: a sovereign authority is one whose acts do not depend on any higher power and cannot be annulled by any other human will. This definition had a significant impact on the theory of the state and the notion of national sovereignty, key concepts in the formation of modern nation states. Grotius' work not only laid the foundations of international law, but also influenced political and legal thought in many other areas. His ideas on natural law, sovereignty, and the laws governing war and peace continue to be relevant and are studied in the fields of law, international relations and political philosophy.

The notion that states should be self-limiting in their international relations is a fundamental principle of global governance and international law. This idea, influenced by the work of thinkers such as Hugo Grotius, emphasises that although states are sovereign entities, they are also members of an international community governed by common laws and norms. According to this perspective, states, in their collaboration and interactions, should adhere to a framework of international law that limits their actions for the common good. This implies the recognition of and respect for certain rules and conventions that regulate the behaviour of states on the international scene. These rules may concern various aspects of international relations, including, but not limited to, the rules of war, treaties, human rights and international trade.

Adherence to a system of international law creates a more predictable and stable environment, where states can interact peacefully and constructively. It also helps to prevent conflict and manage disagreements in a more civilised and equitable manner. By agreeing to limit themselves within a shared legal framework, states recognise that their own interests are best served in a context of mutual respect and cooperation. This idea of an international society governed by law plays a crucial role in efforts to maintain international peace and security. It is at the heart of many international institutions, such as the United Nations, and international treaties, which seek to frame and regulate interactions between states to promote collective well-being and the peaceful resolution of conflicts.

Hugo Grotius's conception of natural law is distinguished by its insistence on the intrinsically rational and universal nature of certain legal norms and principles. For Grotius, natural law is intimately linked to man's nature and capacity for reason. He maintains that certain principles are so fundamental that they are recognised by all human societies, independently of the particular laws established by each state or community. According to Grotius, the strength of natural law lies in its ability to transcend different local laws and customs. This right does not depend on divine will or any other external authority; rather, it is inherent in the human condition itself. Grotius argues that even God cannot make good what is intrinsically evil or contrary to human nature and society. In other words, there are fundamental moral and legal principles that are inalienable and immutable, even by divine authority.

This perspective marks a turning point in legal thought, as it establishes natural law as a universal frame of reference for judging the justice and legitimacy of human laws. Natural law, in this view, serves as a yardstick for assessing the morality and validity of positive laws, those created by human societies. Grotius's approach had a profound impact on legal and political theory. It paved the way for the later development of theories of human rights and international law, emphasising the idea that certain rights and principles are universal and must be respected by all societies and governments. This vision influenced the way in which later thinkers conceived of fundamental rights and justice, and continues to be a cornerstone of contemporary legal thought.

The conception of natural law developed by Hugo Grotius and other thinkers of his time is based on the idea that natural law is a set of universal and invariable principles that do not depend on divine will or any other external authority. For Grotius, natural law is a constant, just like the laws of nature, and constitutes a higher ideal of justice that applies to all human beings, regardless of their culture, religion or political system. From this perspective, natural law is immutable and universal. It transcends the positive laws created by human societies and serves as a reference for assessing their fairness and legitimacy. This vision suggests that certain truths and moral principles are inherent to the human condition and must be respected by all forms of governance and legislation.

Grotius and his contemporaries in the modern school of natural law thus established the idea that, although human laws may vary from place to place, there are fundamental principles of justice and morality that are universal. These principles should guide the creation and application of laws, thus ensuring that legal and political systems serve the fundamental interests of humanity and respect the inalienable rights of the individual. This conception of natural law has had a considerable influence on the subsequent development of theories of human rights and international law. It provided a philosophical basis for arguing in favour of universal and inalienable rights, and significantly influenced the drafting of documents such as the Universal Declaration of Human Rights. In short, Grotius's vision of natural law as a set of superior and immutable principles has been essential in shaping the ethical and legal framework of the modern world.

The principle of "Pacta sunt servanda", which literally translates as "agreements must be respected", is one of the essential foundations of natural law and, by extension, of modern international law. This principle stipulates that agreements and treaties concluded in good faith between the parties must be honoured and executed in accordance with their spirit and letter. In the thinking of Grotius and other natural law jurists, "Pacta sunt servanda" is more than just a legal rule; it represents a fundamental moral principle reflecting reliability and integrity in human relations. This notion is based on the idea that the word given and the commitments made must be respected, as they form the basis of trust and cooperation in any society. This principle is crucial in the context of international relations, where it serves as a pillar for the development and maintenance of international treaties and agreements. By recognising and applying "Pacta sunt servanda", states and international actors accept that commitments made must be respected, thus creating a framework of stability and predictability that is essential for international cooperation. The importance of "Pacta sunt servanda" is not limited to the field of international law. It is also applicable in civil law, where it underpins the principles of contractualisation and contract enforcement. This principle ensures that parties to contracts are bound by their agreements and are obliged to respect their contractual commitments.

Hugo Grotius is often celebrated as one of the first to formulate universal principles of natural law, but the elaboration of these principles into a rational and autonomous legal system is attributed to Samuel Pufendorf, another eminent philosopher of natural law. Samuel Pufendorf, who lived in the seventeenth century, made a significant contribution to the theory of modern natural law. He proposed a legal system based on observation and rational deduction, a system that emphasised the importance of human experience and reason in understanding the law. Pufendorf differentiated his approach from that of his predecessors by emphasising a more empirical and less theological analysis of natural law. For Pufendorf, natural law was not simply a set of universal moral principles; it was also a logical and coherent system that could be understood and applied through the use of human reason. His work marked an important step towards a more secular and rationalist view of natural law, moving away from the theological underpinnings that had often characterised earlier discussions on the subject. Pufendorf also emphasised the importance of social relations and sociability in understanding natural law. In his view, human beings are by nature social creatures, and natural law must take account of this social dimension of human existence. His writings emphasised the need for rules and norms to regulate human interaction, recognising that these rules are essential for maintaining order and stability in society. While Grotius laid the foundations for the modern theory of natural law, it was Samuel Pufendorf who developed these ideas into a rational and autonomous legal system. His approach significantly influenced the subsequent development of natural law and contributed to the foundation of modern legal and political philosophy.

Christian Wolff, an eighteenth-century German philosopher and jurist, was a leading disciple of the natural law school and made a significant contribution to the development of this theory. Influenced by the work of Samuel Pufendorf, Wolff deepened the conceptualisation of natural law by approaching it with a rigorous scientific method, characterised by logical and detailed deductions. Wolff's approach to natural law was methodical and systematic. He sought to define the principles of natural law precisely and comprehensively, applying techniques of scientific reasoning to establish a coherent set of legal rules. Wolff saw law not only as a set of norms and rules, but also as a logical and scientific system that could be understood and explained by human reason. His vision of law as a logical system had a significant influence on legal practice in continental Europe. By insisting on logic and order in the development of laws and legal systems, Wolff contributed to the formalisation of legal practice, encouraging a more structured and systematic approach to the application and interpretation of law. Wolff's influence also extended to judicial systems, where his emphasis on logical deduction based on a fundamental order encouraged a more rigorous and methodical approach to the law. This has led to greater predictability and consistency in the resolution of legal disputes, as well as a better structuring of legal systems. Christian Wolff played a crucial role in the development of natural law theory and greatly influenced the way the law was understood and practised, particularly in continental Europe. His rigorous methodology and systematic approach left a lasting imprint on legal philosophy and judicial practice.

Philosophers of the social contract, such as Jean-Jacques Rousseau and John Locke, played a crucial role in the development of modern political and legal thought, following in the footsteps of the natural law school. These thinkers put forward the idea that the legitimacy of governments rests on the voluntary consent of individuals. According to them, political and governmental structures must be based on mutual agreement between the governed and those who govern. John Locke, in particular, was an influential advocate of this approach. For Locke, government is legitimate only if it is the product of the voluntary agreement of individuals. In his view, people consent to government in order to preserve their natural rights, such as the right to life, liberty and property. This consent is not a concession of rights, but rather a strategy to better protect them. Locke argued that governments exist to serve the interests of their citizens, and in particular to protect these natural rights. Jean-Jacques Rousseau also explored similar themes, although his approach differed in some respects. In his work On the Social Contract, Rousseau emphasised the idea of the general will as the basis of political legitimacy. In his view, a legitimate government should reflect the collective will of the community, rather than the particular interests of a few. The theories of Locke and Rousseau had a profound influence on the formation of the concepts of human rights and democracy. Their ideas on the social contract formed the basis of the modern notion of popular sovereignty and representative government. These concepts were incorporated into the fundamental principles of modern democracies and influenced the drafting of important documents such as the American Declaration of Independence and the French Declaration of the Rights of Man and the Citizen.

Before the great codifications of the eighteenth century, continental European law was an amalgam of diverse legal systems and traditions. This complexity reflected the rich and varied history of Europe, where different legal influences intermingled over time. Roman law, the legacy of the Roman Empire, continued to exert a significant influence, particularly in the countries of southern Europe. Reinterpreted by legal glossators and humanists, this ancient law formed the basis of many legal systems, particularly in Italy. Its elaborate principles and systematic methodology played a key role in the formation of continental civil law. At the same time, canon law, which governed the affairs of the Catholic Church, also influenced continental law. Universities, often linked to the Church, were centres for the study and dissemination of canon law. This legal system had a significant influence in areas such as family and inheritance law. In northern and western Europe, customary law, often derived from Germanic traditions, predominated. These local legal systems were based on ancestral practices and were gradually formalised in documents such as customary law. For example, the "Coutumier de Normandie" in France was a notable effort to codify local laws and customs.

In addition, the school of modern natural law, with thinkers such as Grotius, Pufendorf, and Wolff, brought a new dimension to continental law. This school introduced the idea of universal legal principles based on reason and human nature. Their work influenced legal thought by introducing more abstract and universal concepts, which served as a basis for rationalising legal systems. These various elements - Roman law, canon law, customary law and modern natural law - coexisted in a complex and sometimes contradictory relationship, making the European legal landscape particularly diverse. The codifications of the eighteenth century, such as the famous French Civil Code of 1804, sought to unify and systematise these diverse traditions. These codification efforts marked an important stage in the history of continental law, rationalising and modernising legal systems to make them more coherent and accessible.

The influence of the modern natural law school on the development of both private and public law is deeply rooted in the principle of equality between individuals. This principle, which emerged from reflection on the natural and inalienable rights of man, had a considerable impact on the formation of legal systems and government structures, particularly from the eighteenth century onwards. In the field of private law, the principle of equality has influenced the way in which laws treat individuals in terms of civil rights and transactions. It has challenged and often modified legal practices that drew distinctions based on birth, social status or other arbitrary criteria. This approach has led to a broader recognition of the equality of parties in contracts, property rights and other private legal relationships.

In the field of public law, the principle of equality has had an even more profound influence, particularly in the development of modern constitutions. The United States Declaration of Independence of 1776, with its famous assertion that all men are created equal, and the French Declaration of the Rights of Man and of the Citizen of 1789, which proclaims the equality of all citizens before the law, are emblematic examples of the application of this principle in public law. These and similar constitutional documents establish equality as a fundamental principle of the legal and political order. They formed the basis for the abolition of unequal legal and social structures, such as feudalism and serfdom in Europe, and provided a framework for combating discrimination and injustice in modern societies. The principle of equality, as developed by the modern school of natural law, has therefore played a crucial role in the transition to more democratic and egalitarian societies. It has influenced not only legal and political theories, but also concrete practices of governance and legislation, helping to shape the evolution of modern democracies and respect for human rights worldwide.

Over the centuries, Geneva has represented a fascinating microcosm of the evolution and interaction of legal systems in Europe. Prior to the standardisation of the law with the great codifications, the city witnessed the complex coexistence of several legal systems and traditions.

Roman law, with its ancient roots and widespread influence, was applied in Geneva in many areas, particularly those of civil law. Its sophisticated principles and rules concerning property, contracts and inheritance were a fundamental pillar of the legal system. The depth and complexity of Roman law made it particularly well-suited to the regulation of legal affairs in an urban and commercial society such as Geneva. At the same time, for specific aspects such as construction, Geneva referred to the Custom of Paris. This custom, one of the most important in France, provided a set of rules and practices to govern specific areas, showing how local law could complement Roman law by providing solutions tailored to the specific needs of the community. Before the Protestant Reformation, canon law also played an important role in Geneva. This legal system, which governed not only religious affairs but also certain aspects of civil life such as marriage, had a significant influence on the city's legislation and social practices.

With the advent and development of the modern school of natural law, new principles began to permeate Geneva's legal system. The ideas of universal natural rights, popular sovereignty and the social contract, promoted by thinkers such as Grotius, Pufendorf and Wolff, found particular resonance in Geneva, especially after the Reformation. These concepts gradually influenced legal and political practice, introducing notions of inalienable rights and individual autonomy. Geneva's legal history is therefore a fascinating example of how different legal influences - Roman law, the custom of Paris, canon law and the ideas of modern natural law - can coexist and interact. This coexistence has shaped a unique legal landscape, reflecting both the diversity and the dynamics of legal development in Europe.

The development of law in Europe, and in Geneva in particular, is not limited solely to the influences of Roman law, canon law, customary law and the ideas of the school of modern natural law. Another crucial element to consider is national law, which takes different forms depending on the region and political structure. In the Holy Roman Empire, for example, national law consisted of imperial laws. These laws were promulgated by the emperor and the imperial institutions, and their scope extended across the various territories of the Empire. They constituted an additional layer of legislation, often coexisting with local and regional legal systems. For Geneva, national law took the form of statutes adopted by the Genevan sovereign. These statutes were laws specific to the city-state of Geneva, reflecting its particular political, social and economic features. The development of these local statutes was an important aspect of the city's autonomy and governance, especially after its emancipation from the domination of the Duchy of Savoy and its alliance with the Swiss cantons.

In the Swiss cantons, national law was represented by regulations and adopted charters. Each canton had its own laws and regulations governing local affairs. These documents, often the result of long traditions and negotiations between various social and political groups, were crucial to the maintenance of order and social organisation within each canton. These different forms of national law, whether the imperial laws of the Holy Roman Empire, the statutes of Geneva or the regulations of the Swiss cantons, show how the law evolved and adapted to the specific political and social realities of each region. They complemented and interacted with other layers of law - Roman, canonical, customary and natural - to form a complex, multi-layered legal system, characteristic of Europe before the great legal codifications of the nineteenth century.

The late eighteenth and early nineteenth centuries in Europe were marked by an unprecedented legal codification movement, largely influenced by the ideas of the modern natural law school. This movement aimed to simplify, systematise and unify the various existing laws and legal practices through clear and accessible written codes. The first codification efforts were made in Germany, reflecting the trend towards rationalising the law in accordance with the principles of natural law. Austria, for example, was one of the first states to adopt this approach, introducing a Civil Code in 1811 to regulate civil matters, and establishing a Penal Code in 1786 and a Code of Criminal Procedure in 1788. These codes represented a significant modernisation of the legal system, moving away from traditional and heterogeneous norms. Prussia did not remain on the sidelines of this trend and drew up its own code, which was finalised in 1894. The Prussian Code was an ambitious project aimed at unifying and rationalising the law within the state, illustrating a commitment to a more organised and coherent legal system. In France, the codification movement culminated in the promulgation of the Civil Code in 1804, commonly known as the Napoleonic Code. This code profoundly transformed French civil law, establishing clear rules for civil rights, property and the family. The French Civil Code was admired and adopted, in various forms, in many other countries, becoming a model for global legal development. In addition to the Civil Code, France also introduced a Penal Code in 1791 and a Commercial Code in 1807, consolidating its legislation in other key areas.

These codification initiatives marked a significant break with previous legal practice. By replacing the complexity of local and customary laws with unified codes, these reforms made the law more accessible and comprehensible to citizens, while ensuring greater consistency and logic in the application of the law. These codes were not simply compilations of existing laws; they represented a fundamental reorganisation of legislation based on principles of clarity, logic and universality, embodying the ideas of natural law in legal practice and leaving a lasting legacy in the field of law.

The modern notion of codification, as embodied in contemporary legal codes, represents a significant departure from earlier methods of compiling and organising the law. This modern approach to legal codification is based on several fundamental principles that reflect a systematic and rationalised vision of the law. Firstly, modern codes are characterised by the formulation of general and abstract rules. Unlike the simple compilation of existing laws and customs, modern codes aim to establish universal principles that can be applied to a wide variety of situations. This general and abstract approach allows greater flexibility and adaptability of the law, while ensuring uniformity and predictability in its application. Secondly, these rules of law are organised according to a systematic plan, often divided into subjects. This structuring by subject or legal area makes it easier to find and understand the legal provisions. Each article or section of the code deals with a specific aspect of the law, making it easier to navigate and interpret.

In addition, a code, as a whole, constitutes a coherent system. The various rules and articles are designed to fit together harmoniously, forming a coherent and logical whole. This systematic coherence is essential to ensure that the code is not only understandable, but also logically consistent. Finally, codes are the result of official promulgation by the sovereign authority and apply to all inhabitants under its jurisdiction. This official promulgation gives the code legal authority and legitimacy, ensuring that it is recognised and respected as the principal source of law. The universal application of the code to all inhabitants also ensures that the law is applied equally and fairly to the whole of society. Modern legal codes represent a structured and systematised approach to the law, reflecting a desire to organise legal rules in a way that is logical, accessible and universally applicable. This codification methodology has significantly influenced the way the law is conceived and applied in contemporary societies, contributing to the development of more orderly and efficient legal systems.

The evolution of legal codes since the late eighteenth century represents a remarkable integration and synthesis of the four great legal traditions that have shaped law in Europe: Roman law, Germanic law, canon law and the teachings of the modern school of natural law. Roman law, with its long history and detailed elaboration, provided a solid structural and conceptual basis for modern codes, particularly in the areas of civil law. Its principles of contract, property and civil liability have been integrated and adapted in the new codifications. Germanic law, which influenced the legal systems of northern and western Europe, made its contribution in terms of customary law and local practices. These elements enriched the codes by incorporating aspects of law that were better adapted to the specific realities and traditions of different regions. Canon law, for its part, has had a significant influence in the areas of family and inheritance law. Although its role has diminished with the secularisation of legal systems, some of its principles and approaches have been retained and reflected in the new codifications. Finally, the teachings of the modern school of natural law played a crucial role in bringing in concepts of universal rights, equality before the law and popular sovereignty. These ideas had a profound influence on the development of constitutional and public law, as well as the notions of human rights and citizenship. These codes, which emerged at the end of the eighteenth century and the beginning of the nineteenth, therefore represent a remarkable effort to consolidate and unify the law. They succeeded in harmonising and systematising diverse legal traditions, making them accessible and applicable to a modern society. These codifications marked a turning point in the history of law, establishing legal foundations that continue to guide contemporary legal systems.

Swiss civil legislation, with the adoption of the Civil Code in 1912 and the Code of Obligations, represents a remarkable fusion of various historical legal traditions, reflecting the diversity and richness of Europe's legal heritage. These codes are not simply compilations of existing laws, but rather the result of a deliberate and considered synthesis of the most significant legal influences in Europe. The Germanic tradition, known for its emphasis on local and regional customs, has played an important role in the development of Swiss law, particularly in the areas of family law, inheritance law and rights in rem. For example, in family and inheritance law, there are elements that reflect the local values and practices inherited from this tradition. Similarly, canon law, with its history of regulating family and matrimonial matters within the Catholic Church, has influenced these same areas in the Swiss Civil Code. Although Switzerland has adopted a modern, secular approach, the legacy of canon law on family relations is still perceptible. Roman law, with its sophisticated concepts of property rights and obligations, has also left its mark on Swiss law. The Code of Obligations, for example, illustrates the influence of the methodology and principles of Roman law, particularly in the way it deals with contracts and civil liability. The modern school of natural law, promoting principles such as fundamental rights and equality, has also shaped Swiss civil legislation. These universal principles have become essential components of Swiss law, influencing the country's legislation, constitution and overall legal framework. Finally, Christian Wolff's methodological approach, which focused on legal systematisation and logic, had an impact on the way in which Swiss law was codified. This influence can be seen in the organised and systematic structure of the Swiss codes, which reflect a coherent and orderly vision of the law. Swiss civil legislation, with its civil codes and codes of obligations, represents a successful integration of Germanic, canonical and Roman legal traditions, as well as the ideas of modern natural law and the systematic thinking of Christian Wolff. This blend of traditions and influences has led to the creation of a legal system that is not only rooted in history, but also adapted to the requirements and values of contemporary Swiss society.

Common law and the rules of equity

Common law

Common Law is a legal system that has its roots in England and is distinct from the civil law-based legal systems that prevail in continental Europe. Common law is characteristic of Anglo-Saxon countries, including the United Kingdom (with the exception of Scotland, which has a mixed system), the United States (with the exception of Louisiana), Canada (with the exception of Quebec), Australia, New Zealand and other former British colonies. This system is based on case law, i.e. the decisions of courts and tribunals, rather than on written codes or formal legislative statutes. In Common Law, judicial precedents (decisions in previous cases) play a crucial role in determining the outcome of future cases. Judges play an active role in shaping the law by interpreting legislation and establishing precedents to guide future decisions.

By contrast, continental Europe mainly follows the civil law system, which developed from Roman law. This system is characterised by comprehensive legal codes covering broad areas of law, such as civil, commercial and criminal law. Civil law emphasises written statutes and codes, and judges' main role is to apply these statutes consistently, rather than to create law through their decisions. Thus, although Common Law and Civil Law share certain legal principles and concepts, they differ fundamentally in their approach and methodology. Common law is deeply rooted in the legal traditions and practices of Anglo-Saxon countries and has not directly influenced the legal systems of continental Europe, which follow the civil law tradition.

The legal history of England in the first millennium is marked by a series of significant transformations due to its membership of the Roman Empire and the Germanic invasions that followed. After the Romans withdrew in the early fifth century, England was invaded by Germanic peoples, mainly the Saxons, Angles and Jutes. These invasions had a profound impact on the social, cultural and legal structure of what was to become England. The kingdoms that developed in the British Isles after these invasions were characterised by Germanic practices and customs. These Germanic peoples, when they settled in England, brought with them their own legal systems, which were mainly based on oral customs. Over time, and particularly as the kingdoms consolidated, there were efforts to write down these customs. The writing down of Germanic customs in their own languages was an important step in the development of law in England. These written documents were the foundations of what was to become English common law. These early laws, although rudimentary by modern standards, were essential in establishing a legal and social order. These written customs reflected the values and practices of Germanic societies of the time, with an emphasis on concepts such as compensation (payment for wrongs or damages) and the importance of community and family relationships in resolving disputes. England in the first millennium, influenced by its Roman past and the Germanic traditions of the invading peoples, saw the emergence of legal systems that would shape the later development of English law. The writing down of Germanic customs was a crucial milestone in this process, laying the foundations for what was to become the Common Law legal system.

L'armée anglaise encaisse la charge de la cavalerie normande lors de la bataille de Hastings.

The invasion of England in 1066 by William the Conqueror, Duke of Normandy, and his victory at the Battle of Hastings marked a turning point in English history, including in the legal sphere. After his conquest, William took several important steps to consolidate his power, while striving to maintain a certain continuity in existing social and legal structures. One of these measures was the proclamation of the maintenance of the Germanic law that had been in force prior to his conquest. This law, which had evolved from the customs of Germanic peoples such as the Saxons, Angles and Jutes, formed the basis of the legal system in the Anglo-Saxon kingdoms. By choosing to maintain this legal system, William ensured a certain continuity and stability, which was essential for the efficient administration of the kingdom and for maintaining social peace. William also maintained the existing courts of justice. These courts, which were responsible for administering justice according to local customs, continued to function under Norman rule. This decision made it possible to preserve the existing legal order while gradually integrating Norman influences. However, although William maintained the existing legal framework, he also made significant changes that shaped the future development of the English legal system. For example, the introduction of feudal tenure altered the structure of land ownership and had far-reaching legal implications. In addition, Norman influence gradually manifested itself in the centralisation of royal power and in the development of English law. The Norman conquest of England in 1066 by William the Conqueror was a key moment in English legal history. Although he retained the existing Germanic legal system and courts, the period that followed saw a gradual integration of Norman influences and a process of centralisation and evolution that would eventually lead to the development of the Common Law system.

William the Conqueror's conquest of England in 1066 led to significant changes in the judicial organisation of the kingdom, while preserving certain aspects of the existing legal system. William adopted a two-pronged approach, combining the maintenance of Germanic legal traditions with the introduction of new judicial structures. On the one hand, William respected existing Germanic law and retained the local courts of justice, which contributed to the continuity and stability of the legal system after the conquest. These local courts continued to apply customary law, which was rooted in the traditions and practices of the Germanic peoples who had settled in England before the Norman Conquest. On the other hand, William created new courts in different parts of England and placed Norman lords at their head. These new jurisdictions, often called seigniorial courts, were intended to strengthen Norman control over the country and to integrate the conquered territories into the royal domain. These seigniorial courts gradually began to replace the old judicial structures, although they continued to apply customary law.

From the twelfth century onwards, the influence of royal power over the judicial system increased. The kings of England began to regularly send representatives, often called itinerant judges, to attend trials in different parts of the kingdom. The role of these royal representatives was to ensure that justice was done in accordance with the laws and customs of the kingdom. Their presence also served to assert royal authority and centralise control over the administration of justice. This development had important implications for the evolution of the English legal system. The presence of itinerant judges contributed to the standardisation of legal practice across the kingdom and paved the way for the emergence of the Common Law system. This system, based on case law and judicial decisions, became a distinctive feature of English law, in contrast to the codified civil law that prevailed in continental Europe.

The introduction of itinerant judges in England after the Norman Conquest represented a major step in the development of the English legal system and was welcomed by many. These judges were sent by the king to travel around the kingdom and sit in the various local courts. Their presence was intended to ensure that justice was dispensed fairly and in accordance with the laws and customs of the realm. One of the main perceived advantages of itinerant judges was their impartiality. Unlike the seigneurial courts, where decisions could be influenced by local interests or pressure from the local nobility, itinerant judges were perceived as being above local quarrels and influences. By being directly linked to the crown, they were seen as more neutral and independent, enabling them to deliver fairer and more balanced judgements.

This perception of impartiality and fairness helped to strengthen confidence in the judicial system and increased respect for the royal authority in the administration of justice. Circuit judges played a key role in creating a sense of legal unity and standardising legal practice across England. Their work also contributed to the formation of the Common Law, as their decisions and the precedents they established formed the basis of the case law on which that system rests. Circuit judges were a major judicial innovation in medieval England. Not only did they help to consolidate royal authority in the field of justice, but they also laid the foundations for the development of a more uniform and equitable legal system, characteristics that became cornerstones of the Common Law system.

The transformation of justice in England after the Norman Conquest gradually led to the establishment of a more centralised and unified judicial system, in particular with the creation of a permanent Court of Justice at Westminster. This development marked a key stage in the formation of the Common Law legal system. Initially linked to the King's court, the judiciary gradually began to detach itself from this direct influence. Itinerant judges, initially delegates of the King who travelled the length and breadth of the realm to dispense justice, eventually took up permanent residence at Westminster. This centralisation enabled a more systematic discussion and analysis of local customs and of the decisions taken in the various trials throughout the kingdom. By meeting at Westminster, these judges were able to compare and evaluate the different practices and penalties applied in the various regions of England. This process made it possible to identify the best solutions and to reject those that were deemed unfounded or inappropriate. As a result, the judges played a crucial role in unifying and standardising English common law.

The work of these judges at Westminster also contributed to the formation of a coherent body of case law. The precedents established by their decisions became benchmarks for future cases, creating the foundations of the Common Law system. This system is based on the principle that previous judicial decisions should guide judgements in similar cases, thus ensuring a certain consistency and predictability in the application of the law. This move towards a centralised judicial system and the formation of a coherent body of case law at Westminster marked a turning point in English legal history. It led to a legal system in which the law is based primarily on judges' decisions and judicial precedents, in contrast to the civil law systems based on written codes that prevailed in continental Europe.

The development of jurisprudence in England, particularly at Westminster, was marked by the gradual adoption of the principle of "stare decisis", a Latin concept meaning "to stand by what has been judged". This principle became a fundamental pillar of the Common Law system, emphasising the importance of respecting previous judicial decisions. The principle of "stare decisis" implies that judges must respect the precedents established by past judicial decisions when dealing with similar cases. In other words, once a question of law has been decided in a particular case, that decision serves as a point of reference for future cases involving similar facts or legal issues. This respect for previous decisions ensures a certain consistency and predictability in the application of the law, as the parties involved in a dispute and society as a whole can expect similar cases to be resolved in a similar way. The adoption of this attitude to matters previously decided has had several important effects on the English legal system. First, it reinforced the authority of judicial decisions, establishing court judgments as major sources of law. Secondly, it has encouraged the formation of a coherent body of case law, allowing judges and lawyers to rely on well-established precedents to guide their arguments and decisions. Finally, it has contributed to the stability and uniformity of English law. Rather than relying solely on written statutes or codes, the Common Law system in England has evolved primarily through judicial decisions and interpretations. This system, centred on precedent and case law, contrasts with the civil law systems of continental Europe, where the law is based primarily on written codes.

The thirteenth century was a crucial period in the establishment of the Common Law in England. It was during this century that the legal system began to take its definitive shape, thanks in particular to the gradual and careful action of the royal judges. This period saw the development of a coherent body of legal principles and practices that became the basis of English law. A key aspect of the development of the Common Law was the way in which the Royal Judges extended the jurisdiction of the Royal Courts. This was done carefully and gradually, partly to accommodate existing territorial courts. The royal authorities were aware of the potential tensions with local and seigniorial legal systems, and too rapid an expansion of the royal courts could have provoked resistance or even revolt. The royal courts developed in parallel with the seigneurial and local courts, offering an alternative for litigants. Over time, these royal courts gained in prestige and authority, mainly due to their perceived impartiality and their more uniform and consistent application of the law. The gradual extension of the jurisdiction of the Royal Courts has also helped to develop and consolidate the principles of the Common Law. Royal judges, in their decisions, developed a body of legal rules and principles based on precedent. These precedents became the cornerstones of Common Law, forming a body of case law that guides judicial decisions to this day.

As part of the consolidation of his power and authority over the whole kingdom, the royal judicial system in England was organised around three key areas, each managed by a specific court. This structure reflected the King's need to exercise effective and direct control over vital aspects of the realm. Firstly, the Court of Exchequer played a central role in the management of the royal finances. This court was responsible for collecting and administering the king's revenues, such as taxes. At a time when financial resources were essential for maintaining order and defending the kingdom, the role of the Court of Exchequer was crucial in ensuring the financial stability of the state. It thus served as a pillar for the economic management of the kingdom and the projection of royal authority. Secondly, the Court of Common Pleas dealt with issues of land ownership. In a feudal society where land was the main source of wealth and status, the control and regulation of land rights was essential. This court dealt with land disputes, inheritance issues and property rights. It played a decisive role in the social and economic structuring of the kingdom, regulating relations between lords, vassals and peasants. Thirdly, the Court of King's Bench specialised in major criminal cases, particularly those affecting the security of the state. This court dealt with major crimes and cases that jeopardised the stability and security of the kingdom. Its role was to maintain public order and protect royal authority, ensuring that crimes against the state were duly tried and punished. By managing finance, land ownership and state security respectively, these three specialised courts enabled the King of England to assert his power over essential areas of government and society. They contributed to the centralisation of royal power and played a key role in the evolution of English government and the legal system, demonstrating the importance of an organised and effective justice system for the governance of a kingdom.

During his reign, the King of England sought to extend his jurisdiction beyond the three main areas managed by the specialised royal courts, in order to assert his power and increase his revenues. This expansion of royal jurisdiction often met with the support of the population, who sometimes perceived the royal courts as fairer and less subject to local influence than the lordly or local courts. By extending his jurisdiction, the king was able to intervene in a wider variety of legal matters, which not only strengthened his authority over the whole kingdom, but also helped to increase the crown's income. Judicial fees, fines and other forms of revenue from trials increased the royal finances, which was essential for the maintenance and expansion of the state. To effectively implement the sentences of the royal courts, the royal judiciary had royal officers. These officers were responsible for enforcing judicial decisions, including, if necessary, the use of force. Their presence and activity testified to the scope and effectiveness of royal justice, ensuring that court decisions were respected and enforced throughout the kingdom. This process of extending royal jurisdiction played a crucial role in the centralisation of power in England and in establishing the authority of the king as the supreme source of justice. At the same time, it contributed to the formation of a more unified and coherent legal system, with royal justice acting as a counterweight to local and seigniorial influences and providing a fairer and more uniform framework for the resolution of disputes.

The development and expansion of the areas of jurisdiction of the Westminster Royal Courts in England were greatly facilitated by the establishment of specific procedures for litigants to bring cases before these courts. These procedures played a crucial role in making royal justice accessible and in asserting the King's authority over the judicial system. These procedures, known as writs, were written orders issued in the name of the king. They allowed individuals to bring their cases to the royal courts for a variety of legal matters. Essentially, writs acted as a bridge between litigants and the royal courts, providing them with a formal means of seeking the intervention of royal justice.

The use of writs extended the reach of royal justice beyond the original areas of finance, land ownership and criminal cases against the state. Over time, writs became increasingly sophisticated instruments, enabling the royal courts to deal with a wider range of disputes, including those arising in seigneurial or local jurisdictions. Greater access to the royal courts also reinforced the sense of more uniform and fair justice under the authority of the king. The subjects of the kingdom could appeal to courts perceived as more neutral and less influenced by local or seigniorial interests. This helped to increase confidence in royal justice and strengthen the legitimacy of royal authority in the administration of justice.

The role of the writ in the English legal system, particularly in the context of the Royal Courts at Westminster, was central to the way in which disputes were approached and resolved. The writ was an official document, issued in the name of the King, which authorised a person to bring a case before a royal court. This mechanism was essential to guarantee access to royal justice and to assert the king's authority in settling disputes. In a dispute, it was crucial to find a writ applicable to the case in question if the claimant was to obtain satisfaction. If a suitable writ existed, it meant that the case could be heard by a royal court. Failure to obtain satisfaction in a dispute could be seen as a form of disobedience to a royal order, since writs represented the authority and will of the king. On the other hand, the defendant in a dispute also had the opportunity to appear before a royal court to explain why he felt he should not obey an injunction he had received. This procedure provided an opportunity for both parties to present their case before a neutral and respected judicial authority, far removed from local or seigniorial influences. The use of writs led to the development of a series of royal courts, often to the detriment of seigneurial courts. Indeed, the appeal of the royal courts lay in their perceived impartiality and their ability to offer justice based on uniform and consistent principles. This development gradually reduced the role and influence of the seigneurial and local courts, centralising judicial authority under the direct control of the King.

The system of writs in England, which began as a personalised way of dealing with specific legal cases, evolved into the use of stereotyped formulae. The Chancellor, who was responsible for issuing writs, began to issue them routinely and for a fee, without a thorough examination of each case. This practice made access to royal justice easier and more direct, attracting a large number of disputes to the royal courts. This development had several important consequences. On the one hand, it improved the finances of the crown, as the issuing of writs became a significant source of revenue. On the other hand, this practice provoked opposition from the barons and feudal lords, whose own seigneurial courts of justice began to be abandoned in favour of the royal courts. The barons saw this development not only as a loss of their legal influence, but also as an erosion of their power and income.

Seigniorial justice, which had historically played a key role in the administration of justice at local level, began to oppose the practice of the chancellor. The lords objected to the fact that the chancellor was issuing writs for matters that traditionally fell outside the royal jurisdiction, such as disputes that did not fall within the categories of royal finance, land ownership, and criminal cases against the state. This conflict between the interests of seigneurial justice and those of royal justice was a significant aspect of the evolution of the English legal system. It reflected the tension between the centralisation of power under royal authority and the preservation of local powers and prerogatives. The expansion of the jurisdiction of the Royal Courts, facilitated by the systematic use of writs, was a key element in the formation of the Common Law system, characterised by a more centralised and uniform system of justice.

The period of conflict between the interests of the royal courts and those of the seigniorial courts in England led to a compromise with the Statute of Westminster. Adopted in the 13th century, this statute aimed to balance the interests of the King and the feudal lords, while ensuring the smooth running of the legal system. Under the Statute of Westminster, the Chancellor was limited in his ability to create new writs. This meant that the Chancellor could no longer arbitrarily extend the jurisdiction of the Royal Courts by inventing new writs for every new legal situation. This restriction was intended to protect traditional jurisdictions, particularly those of feudal lords, by preventing excessive expansion of royal judicial power.

However, the Chancellor was authorised to issue writs in cases similar to those already existing. This provision allowed a degree of flexibility in the application of writs, authorising their use in legal situations which were not explicitly covered by the existing formulas, but which were deemed sufficiently similar. In addition, the principle of similarity was used to incorporate many cases into existing writs. This principle allowed judges to apply an existing writ to a case that was not exactly the same, but which was sufficiently similar. This approach allowed a degree of flexibility and adaptation of the writs system without breaching the framework established by the Statute of Westminster. The Statute of Westminster thus played a crucial role in striking a balance between the centralisation of justice under royal authority and the preservation of local and seigneurial judicial powers. It helped to stabilise the English legal system and establish the Common Law as a coherent legal system, while respecting the rights and jurisdictions of feudal lords.

The development of the common law in England was based to a significant extent on the system of writs. This system, with its roots in the Norman period and its evolution during the Middle Ages, played a central role in the assertion and expansion of the jurisdiction of the royal courts. Under the Common Law, the procedure for initiating litigation involved finding a writ applicable to the specific situation. Writs, being written orders issued in the name of the King, gave access to the Royal Courts for a variety of disputes. This approach standardised and formalised judicial requests, thereby facilitating access to royal justice. Over the course of the Middle Ages, the royal courts gradually acquired a wider jurisdiction, eventually becoming the kingdom's principal judicial institutions. They dealt with a wide range of cases, from property and contractual issues to criminal matters. This centralisation of justice under royal authority helped to standardise the law and create a coherent body of case law. At the same time as the development of the royal courts, the ecclesiastical courts continued to exercise their jurisdiction, albeit on a more limited scale. These courts, under the authority of the Church, had jurisdiction primarily over matters relating to marriage, wills (insofar as they concerned spiritual matters), and Church personnel. Although their scope was restricted, the ecclesiastical courts continued to play an important role in the areas within their jurisdiction.

The development of common law in England was strongly influenced by the practice of the judges of the Royal Courts of Westminster, who played a key role in the creation and development of this legal system. This development was accompanied by the gradual decline of the seigneurial courts, largely due to the extension of the jurisdiction of the Royal Courts through the practice of "like cases" or similarity. Unlike judges on the European continent, who were often university-educated and had an academic background in law, judges in England were generally field-trained practitioners. They did not come from a formal legal academic background, but rather were trained through practice as litigators. This practical approach to legal training had a significant impact on the nature and evolution of the common law. The judges of the Westminster Royal Courts, as practitioners, placed great importance on judicial precedent. They relied on decisions in previous cases to guide their judgments in current cases. This practice of precedent was essential to the development of the Common Law, as it created a coherent body of case law. Past decisions formed the basis on which judges resolved new disputes, ensuring predictability and consistency in the application of the law. This method of developing the law, based on precedent and the practical experience of judges, contrasted with the civil law system on the Continent, where the law was based primarily on written codes and formal legal theory. In England, Common Law developed organically through case law, reflecting a more pragmatic and adaptive approach to justice.

As a legal system, Common Law relies heavily on the principle of precedent and the use of judicial precedents. This distinctive feature makes it a system in which past court decisions play a central role in the resolution of current disputes. Under common law, a lawyer's ability to remind the court of a similar previous decision is a powerful tool in advocacy. If a lawyer can demonstrate that a previous case decided by the court bears significant similarities to the current dispute, he or she is in a favourable position to influence the judgment. This practice is based on the principle that courts should follow decisions made in similar cases in the past, thereby ensuring consistency and predictability in the application of the law.

The role of the judge in the Common Law system is therefore to decide cases on the basis of the rules and principles established by judicial precedent. Unlike civil law systems, where judges primarily refer to written legal codes, in Common Law they rely heavily on previous interpretations and applications of the law. This method of judging ensures that the law is not only applied consistently, but also evolves through successive judicial decisions. As a result, Common Law is essentially judge-made law, constructed and developed on the basis of court decisions. This distinguishes it from other legal systems and contributes to its unique dynamic of evolution and adaptation over time.

Equity

During the fourteenth and fifteenth centuries, the Common Law, although having established a solid legal framework in England, began to show its limitations, particularly as a result of the rapid evolution of society and the economy. New types of disputes and complex situations emerged, which the existing Common Law framework struggled to resolve adequately. This situation has led to a search for alternative solutions outside the traditional Common Law system. Faced with these challenges, litigants turned to the King as a "fountain of justice". They appealed to the royal court, stressing the exceptional nature of their case, hoping to obtain more flexible justice adapted to their specific needs. This approach was based on the concept that the king, as sovereign, had the ultimate power to dispense justice and could intervene in cases where ordinary law was insufficient or inappropriate.

This trend led to a strengthening of the role of the Court of Chancery. Initially, the Chancery was responsible for managing the King's administrative affairs, but it gradually evolved into a court of justice. The Chancellor, acting on behalf of the King, began to deal with cases that could not be adequately resolved by the common law courts, applying principles of equity. The Chancellor's Court thus filled the gaps in the Common Law by dealing with cases that required a more nuanced and flexible approach. The concept of equity, as distinct from the strict rules of the Common Law, enabled the Chancellor to provide fairer solutions tailored to particular situations.

The use of equity in the English legal system was a response to the limitations of the Common Law, particularly its procedural rigidity. Whereas the common law was heavily weighted towards established rules and procedures, equity offered a more flexible approach based on case-by-case justice. The Court of Chancellor, acting on behalf of the King, played a central role in the application of equity. In dispensing justice, the Chancellor did not rely strictly on the law as in the Common Law, but rather on his conscience and the principles of equity. This approach made it possible to consider the moral and ethical aspects of a case, thus offering fairer and more balanced solutions, particularly in situations where the strict application of the Common Law could have led to an unjust outcome.

One of the main advantages of equity was its ability to overcome the shortcomings and rigidities of the Common Law, particularly with regard to formal defects. Under the common law system, litigation could often fail for simple procedural errors, even if the plaintiff's claims were substantiated in substance. Equity, on the other hand, made it possible to overcome these formal obstacles and focus on the merits of the case. The distinction between common law and equity thus led to the emergence of two parallel but complementary systems in English law. Whereas the common law emphasised tradition, consistency and precedent, equity focused on individual justice and flexibility. This duality enabled the English legal system to respond in a more comprehensive and nuanced way to diverse legal needs and situations, thereby enhancing the overall efficiency of the administration of justice.

The procedure of equity, applied by the Court of Chancellor in England, was not conceived as a remedy for the shortcomings of the Common Law, but rather as a complement offering more flexible tools better suited to certain legal situations. This distinct approach to justice has grown in popularity over time, due to its ability to offer fairer and more personalised solutions than those provided by the Common Law. Equity, by focusing on the specific needs and unique circumstances of each case, made it possible to resolve disputes that might have been mishandled or unresolved by the more rigid Common Law system. For example, equity could offer remedies such as injunctions, trusts and specific decrees, which were not available under the Common Law.

The growing popularity of the Court of Chancery and Equity led to an increase in the amount of litigation brought before it. This was largely due to the perception that equity offered fairer justice that was more attentive to the detail of each case. However, this trend caused some tension with Common Law judges. The Common Law courts, seeing some of their cases transferred to the Court of the Chancellor, suffered a decline in income and influence. This conflict between common law and equity revealed the limitations and challenges of each system, while highlighting the need for a more integrated approach to justice. Over time, the principles of equity were gradually incorporated into the general legal system, leading to greater harmonisation between the two approaches. This integration eventually led to a more comprehensive and nuanced legal system, capable of responding more adequately to the diversity of legal needs.

The relationship between common law and equity in England has been marked by a period of conflict, but also by a search for compromise and harmonisation. This conflict between common law and equity judges has been driven by fundamental differences in their legal approaches and methodologies. At the heart of the conflict was the question of which system should prevail in the event of disagreement between the decisions of the Common Law courts and those of the Chancellor's Court, which applied the principles of equity. In the end, it was decided that, in the event of a conflict between the two, equity should prevail. This decision reflected the recognition of equity as a means of correcting the potential rigidities and injustices of the Common Law.

However, a definitive resolution and unification of the two systems had to wait until the eighteenth century. At that time, the various Royal Courts of Justice, including the Court of Westminster (representing the Common Law) and the Court of the Chancellor (applying equity), were consolidated into a higher court. This consolidation enabled the two sources of law to be used jointly and undifferentiated, thus combining the rigour and predictability of the common law with the flexibility and individualised justice of equity. In this unified system, in the event of conflict between common law and equity, the primacy of equity has been maintained. This prevalence of equity over Common Law in the event of conflict ensured that final decisions were fair and balanced, taking into account the particular aspects of each case.

The distinction between continental and English legal systems is marked by the different approach to the codification of the law. Whereas continental countries, influenced by the Enlightenment and the French Revolution, adopted codification as a means of systematising and rationalising their laws, England maintained its attachment to a common law system based on case law. In continental law systems, codification was seen as a way of modernising the law and making it more accessible and comprehensible to citizens. Codes, such as the famous Code Napoléon in France, sought to bring together the rules of law in an organised and systematic whole, reflecting the Enlightenment ideals of rationality and universality. These codification efforts marked a significant turning point, establishing clear and uniform legal bases in the countries that adopted them.

In England, by contrast, the notion of codification as understood on the Continent was virtually unknown. The English legal system continued to rely heavily on Common Law and the principles of equity. Instead of written codes, English law developed through judicial decisions handed down over time. English lawyers often refer to decisions dating back as far as the eighteenth century, underlining the importance of precedent in legal practice. This divergence between Common Law and Civil Law systems reflects fundamentally different legal philosophies and traditions. Whereas continental countries have sought to establish clear, codified rules, England has favoured a more organic and evolutionary system, where the law is shaped and adapted by judicial decisions. This approach has enabled the English legal system to remain flexible and adaptable, although less codified and systematised than its continental counterparts.

The assertion that Anglo-Saxon law has not been influenced by Roman law because it is judicial law requires qualification. Although the Anglo-Saxon legal system, or Common Law, is distinguished by its approach based on case law and judicial precedents, it has been indirectly influenced by Roman law through various historical and legal channels, notably during the period of the Roman Empire in Great Britain and later through interactions with Canon Law and Romano-Germanic Law on the European continent. However, it is true that Common Law developed relatively independently of the civil law system based on Roman law, which is predominant in continental Europe. In countries applying the Anglo-American Common Law system, case law is regarded as a formal source of law. When faced with a dispute, judges first look to see if a similar case has been decided in the past. If a precedent exists, the judge is generally obliged to follow it in his or her decision. This practice, known as "stare decisis" (keeping to past decisions), ensures the consistency and predictability of the law. Conversely, when a judge is faced with a new case with no clear precedent, his or her decision establishes a new precedent. This new precedent will then be binding on all judges of the same or lower rank, thus guiding future decisions in similar cases. This rule of precedent is fundamental to the Common Law system and leads to the formation of a body of case law. Case law is therefore the law formulated and developed through court cases. It differs from the civil law system in that it evolves primarily through court judgments rather than through codes or statutes. This characteristic gives the Common Law system flexibility and the ability to adapt to social changes and new situations, although it can also lead to a certain complexity and a need for constant legal interpretation.