The Evolution of Continental Judicial Procedure in the 12th–16th Centuries and the Legal Doctrine of Jus Commune: A Post-Non-Classical Perspective

Russian legal science lacks studies linking the inquisitorial system to legal doctrine. This article attempts to fill this gap, namely, to describe the system’s evolution in the 12th to 16th centuries in connection with the doctrine of Jus Commune. A methodological synthesis of A. V. Polyakov’s communicative theory of law and N. Luhmann’s evolutionary approach yielded a communicative-autopoietic interpretation of judicial procedure as a communicative system comprising three levels. The basic level includes a constant change of system elements, such as new tools of interpretation, legitimization, and legal texts. The structural level provides the selected variations with the communicative structures of legal institutions. The system level stabilizes the reconstructed system. The growing role of value-based and rational legitimation, combined with new scholastic methods used in reasoned and doctrinal texts (Jus Commune), shaped the communicative structures of legal institutions such as standards of proof and jurisdiction. These institutions entered the mass communication system, affected its structural and functional differentiation, and resulted in the emergence of the inquisitorial system of legal proceedings.