The period of legal history known as usus modernus, from the 16th to the 18th century, was marked by amalgamation of legal institutions of Roman law and institutions, pertaining to the particular legal tradition (iura propria), thus forming a mixed law system (“ius romano-germanicum”). The thesis discusses the results of eclectic methodical approach in the light of the so-called “servitudes in the ius commune”.
For learned jurists, Roman praedial servitudes represented a dogmatic model for conceptualization and incorporation of heterogeneous feudal phenomena into the categories of the ius commune as well as into the roman-canon legal procedure. In that era rights of local rural communities (or of their members) on the common land, various rights of neighbours (“legal servitudes”), the institution of serfdom, the right of patronage and advocatus, various types of banalités, regalia rights (such as the right of patrimonial jurisdiction) and international servitudes were classified as servitudes.
The efforts to harmonise the institutes of Roman and particular law caused decomposition of fundamental principles of the Roman law of servitudes. They were proclaimed inconvenient and unnecessary Roman »legal subtleties« (subtilitates iuris) which tended to be omitted in legal practice. Consequently, servitude was, in view of the theory of double domain, applied even to one’s own property. Some servitudes could be alienated separately from the dominant property. The dominant property could consist in a community of pieces of land (res universalis). Contrary to the established Roman principle, the rule in ius commune dictated that servitudes existed in a performance of a positive duty of the owner of the burdened property.
There are only few common features of previously listed legal relationships, which differ substantially from Roman and modern praedial servitudes: in a nutshell, they could be described as perpetual property rights with in rem character, which were bound to a piece of land rather than to a person.
The reason for such a peculiar and highly controversial classification of legal relationships into the category of servitudes derived from the Roman-canon legal procedure, still based on legal actions, and from the changed scientific approach to civil law reasoning. The period of usus modernus was marked by convergence of legal theory and practice. Consequently, learned jurists of this period had to overcome overly rigid principles of the established legal doctrine (communis opinio).
|
