B8951 - Common Law & Common Law

Learning outcomes

The Ius Commune and Common Law course follows the doctrinal development of the two main models of European non-codified legal systems between the Middle Ages and the modern period, with particular reference to influences, points of contact and shared itineraries, emphasizing how the legacy of these parallel paths is able to offer accurate and effective solutions even in the contemporary age.

Course contents

The course will focus on the analysis of the ius commune as a legal tradition founded on the plurality of legal sources, on scholarly and judicial interpretation, and on the constant interaction between the ius commune and particular laws (iura propria).

The main part of the course, taught by Professor Alessia Legnani Annichini, will first examine the relationship between the ius commune and the iura propria, which characterized the legal order of continental Europe during the medieval and early modern periods, with particular attention to the gradual decline of this legal system.

In the current academic year, the course will focus on the so-called Romano-canonical procedure, in both its ordinary and summary forms, which governed the resolution of disputes from the Late Middle Ages to the Early Modern period. Alongside this, the course will examine the merchants’ procedure, applied by the curiae mercatorum to settle commercial disputes among merchants.

The course also aims to demonstrate how, even today, in several legal systems—including those of San Marino, Scotland, and South Africa—courts continue to resolve disputes by drawing upon a plurality of legal sources, including the ius commune itself. This reflects a model of normative coexistence and concurrent validity that characterized medieval and early modern European legal experience and that, even in contemporary legal systems, can provide sound and effective solutions.

The concluding part of the course, taught by Professor Lorenzo Maniscalco, will build upon the discussion of the survival and application of the ius commune in legal systems beyond continental Europe by examining the use of the ius commune within the common law tradition. Particular attention will be devoted to the role of Roman law as a repository of concepts, solutions, and argumentative tools employed by English legal scholarship and case law. From this perspective, the final part of the course will broaden the comparative analysis of mixed and foreign jurisdictions by showing how the common law tradition has also engaged with Roman law, drawing upon it as a source of legal rationalization, supplementation, and reasoning.

Readings/Bibliography

Exam preparation differs for attending and non-attending students.

Attending students

For attending students, the exam will focus exclusively on the topics covered during the course.

Attendance verification methods will be communicated during the first week of class.

Non-attending students

For non-attending students, the exam programme will be based on the compulsory study of the following texts:

1) A. Cavanna, Storia del diritto moderno in Europa, 1. Le fonti e il pensiero giuridico, Milan, Giuffrè, 1982, only for the following chapters and pages

- parte I, cap. 2, pp. 33-65 e cap. 5, pp. 95-104

- parte II, cap. 1, pp. 193-236; cap. 7, pp. 479-491; cap. 11. pp. 567-583; cap. 12, pp. 584-610.

2) A.Padovani, Il processo romano-canonico classico. Linee di svolgimento e caratteri fondamentali, Venezia, Marcianum, 2024

3) A. Legnani Annichini, La giustizia dei mercanti tra norme statutarie e processo romano-canonico, in History&Law Encounters. Lezioni per pensare da giurista, IV, a cura di E. Fusar Poli e F. Paletti, Torino, Giappichelli, 2024, pp. 45-65.

The essay will be made available to students on the course page under Teaching Resources on Virtuale.

4) A. Legnani Annichini - Gianni Santucci, Lex generalis omnium. Un diritto del passato nel presente, Mucchi, Modena, 2023, only the following essays:

- A. Legnani Annichini, Argomentare secundum ius commune: alcuni esempi sammarinesi, pp. 63-78

- G. Santucci, Il valore normativo del diritto romano nei Mixed Legal Systems, pp. 81-106

- L. Maniscalco, The rule of the civil law was followed: l’uso del diritto romano nelle corti inglesi, pp. 107-132

The essays taken from the volume Lex generalis omnium. Un diritto del passato nel presente, Mucchi, Modena, 2023 are available on the publisher's website (https://mucchieditore.it/prodotto/lex-generalis-omnium-un-diritto-del-passato-nel-presente/)

 

Students enrolled in the four-year degree programme

Students enrolled in the four-yea degree programme should follow the examination syllabus and the texts indicated above.

Syllabuses for foreign students participating in the Erasmus programme

Students are advised to prepare for the examination using M. Bellomo, The Common Legal Past of Europe 1000–1800, Washington, D.C., 1995.

Integrations for transfer students from other Degree programmes

The syllabus for the exam integrations to be taken by transfer students from other Courses is agreed with the individual student from time to time based on the syllabus already studied and the CFU/ECTS to be integrated.

Teaching methods

Teaching will take place in the form of lectures providing a systematic exposition of the topics covered in the Course.

As part of the lectures, students will be able to confront some contemporary case law dealing with ius commune and common law

All lectures will be delivered in person

Assessment methods

Please note that the lectures will be held in the I semester, so those who obtain a certificate of attendance for the current year will be able to take the exam from the first available exam date of the winter session.

The examination will be conducted orally.

The interview will cover the topics indicated in the "Course contents" section and will be aimed at assessing the student's achievement of the learning objectives:

- Know how the ius commune-iura propria dialectic works, including through this year’s thematic insights

- Reconstruct the historical evolution of English law and assimilate its doctrinal foundations

- Understand how unwritten legal systems evolve by integrating institutions and solutions from different sources

- Learn the importance of a historical education to sharpen the skills of future jurists

The evaluation of the test will be carried out taking into consideration

the knowledge of the course contents

the ability to make connections between the different parts of the program

the ability to develop critical arguments

the articulation and accuracy of the exposure

By way of example, the following criteria will be used to assess the final mark (that will be out of 30/30):

- sufficient or barely sufficient knowledge on the programme, limited reasoning ability, some difficulties in using technical and legal language → 18-21/30;

- fairly good knowledge of the programme, adequate critical reasoning ability, sound use of technical and legal language → 22-25/30;

- comprehensive knowledge of the programme, notable reasoning ability, good command of technical and legal language → 26-29/30;

- extensive knowledge of the programme, very good reasoning ability, and ability to fully master technical-legal language → 30-30L/30.

Registration for the final exam must be done using the Almaesami application (https://almaesami.unibo.it/almaesami/welcome.htm ).

Thesis

The thesis will be assigned to students wishing to engage in an in-depth study of institutions, figures, or moments in the legal history of the ius commune or common law.

Please note that requests will not be accepted from those who declare that they are unable/willing to devote the time necessary to prepare their thesis to make it a constructive experience.

Teaching tools

The course is conducted entirely with the aid of computer support by means of a Microsoft Powerpoint presentation.

For better preparation, it is possible - indeed recommended - to download the teaching material that will be made available on the course lecturer's website (https://www.unibo.it/sitoweb/alessia.legnani/didattica/programma/2026/450259).

Students with learning disorders and/or temporary or permanent disabilities: please contact the office responsible (https://site.unibo.it/studenti-con-disabilita-e-dsa/en/for-students) as soon as possible so that they can propose acceptable adjustments. The request for adaptation must be submitted in advance (15 days before the exam date) to the lecturer, who will assess the appropriateness of the adjustments, taking into account the teaching objectives.

 

Office hours

See the website of Alessia Legnani Annichini

See the website of Lorenzo Maniscalco