Download HISTORY OF STATUTORY PRESUMPTIONS and more Essays (university) Law in PDF only on Docsity!
Excerpts from Arthur T. von Mehren , “ The Civil Law System : AnExcerpts from Arthur T. von Mehren , “ The Civil Law System : AnExcerpts from Arthur T. von Mehren , “ The Civil Law System : AnExcerpts from Arthur T. von Mehren , “ The Civil Law System : An
Historical Introduction in John Honnold ( Ed. )Historical Introduction in John Honnold ( Ed. )Historical Introduction in John Honnold ( Ed. )Historical Introduction in John Honnold ( Ed. ) The Life of the LawThe Life of the LawThe Life of the LawThe Life of the Law ,,,,
CollierCollierCollierCollier –––– Macmillan Ltd., London ( 1964)Macmillan Ltd., London ( 1964)Macmillan Ltd., London ( 1964)Macmillan Ltd., London ( 1964)
The legal systems of the world are, for the purposes of comparison, frequently divided into two groups: the civil law system, seen in French and German law, and the common law system developed in England. Two points of difference are usually emphasized in comparing the civil and the common laws. First, in the civil law, large areas of private law are codified. Codification is not typical of the common law. Second, the civil law was strongly and variously influenced by Roman law. The roman influence on the common law was far less profound and in no way pervasive. These points of difference should not be allowed to obscure the extent to which the civil and the common law laws share a common tradition. Both systems were developments within western European tradition. Both systems were developments within western European culture ; they hold many values in common. Both are products of western civilization.
This section sketches in broad outline the development of the common and civil law systems with particular attention to the question of why the Continent had recourse to codification whereas England never codified its law.
Our sketch must begin with the Romans. Roman law, over its long history, was brought to a high level of juristic development. The Romans, with their genius for institution and their practical common sense, achieved excellent solutions for particular problems and combined these solutions into a remarkable body of law. This law, reflecting the relatively high development of Roman political, economic, and social life, met the requirements of a culturally and economically advanced society. After the fall of Rome, such a society was not to begin to re- emerge in Europe until the later Middle Ages.
Much of what is today Europe, including parts of England had been Romanized for some 400 years before the western Roman Empire was shattered by the German tribes and formally came to an end. ….With the breakup of the Roman Empire in the West, the only political and cultural force capable of creating and maintaining legal and political unity disappeared. Highly effective organs of social control, the Roman courts and administrators, were replaced by relatively weak and imperfect institutions. Large areas of human activity were no longer under law. Western Europe might, however , not have slipped back into a localized, agrarian society if to the fall of Rome had not been added the expansion of Islam.
The Mediterranean was the Roman world’s great artery of commerce. The barbarian kingdoms, “ founded in the fifth century on the soil of Western Europe , still preserved the most striking and essential characteristic of ancient civilization, to wit, its Mediterranean character.” The great landlocked sea made communication and transportation relatively easy. It provided an essential basis for both the unity and commercial life of the Roman Empire. Even after the breakup of the Empire, it fulfilled this function. Trade continued……
The rise of Islam in the course of the seventh century changed this whole picture. By conquest, the Moslems obtained control of Africa and Spain and possession of the Balearic Isles , Corsica , Sardina , and Sicily. Western Europe was cut off from the Byzantine Empire and lost its great avenue of communication and transportation …..The ending of commercial activity, the interruption of commerce, “ brought about the disappearance of the merchants, and urban life, which had been maintained by them, collapsed at the same time.” The Roman cities survived only as centers of diocesan administration, losing both their economic significance and their municipal administration. Some coasting trade remained along the shores of the North Sea until the end of the 9th century when the Norsemen destroyed it. The activities of first the Avars and then the Magyars prevented use of the Danube as an alternative artery of commerce.
and economic changes were already under way in western Europe. “The revival of maritime commerce was accompanied by its rapid penetration inland. Not only was agriculture stimulated by the demand for its produce and transformed by the exchange economy of which it now became part, but a new export industry was born”.
The twelfth century saw a rapid increase in the number of fairs. These fairs provided organized facilities for commercial exchange. Towns developed into commercial centers …..These and other developments led, from the twelfth century onward, to demands for a new law. Custom, “which had been gradually elaborated to regulate the relations of men living by the cultivation or the ownership of the land, was inadequate for a population whose existence was based on commerce and industry”……
The creation of a new law and legal science on the Continent and in England was a long, complex process. Its history is a part of the general history of the economic, political and intellectual development of western Europe. The new law was woven from many strands: existing customs and practices, the customs of merchants, canon law, the revived Roman law and, at a later stage, natural law philosophies. Various agencies contributed to its elaboration: practitioners, judges, administrators, scholars, men of affairs, churchmen, and philosophers. In the period from roughly the end of the eleventh to the beginning of the fourteenth century two differences which were to be of crucial importance for the later history of the civil and the common laws, appear in the general legal situation on the Continent and in England. On the continent the revived Roman law, based on the study of the Corpus juris civilis has much greater impact than in England. During this same period, the English kings, in striking contrast to their French and German counterparts, created an effective, centralized administration of justice.
In the eleventh century, legal studies, especially in Italy and southern France, began to change in remarkable manner. System and science gradually replaced the primitive legal thought characteristic of
earlier periods. Irnerius’ lectures at Bologna on the newly discovered Digest were “an event arising out of the spontaneous growth of ideas and requirements in different localities of the more civilized regions of the Europe.” They came at a most propitious moment. Two areas of life, the political and the commercial, required new legal solutions. Politically, the great problem was to organize a sufficiently strong central power. Economically, it was necessary to develop legal techniques to permit the carrying on and further development of trade.
The local law had not proved adequate to these challenges. The administration of justice was very decentralized and lacked trained, specialsed personnel. The feudal system, with its localizing tendencies, prevented the establishment of central judicial agencies that could develop a law common to the larger political and economic units that were emerging. Lacking trained, specialized personnel working in a tradition, the local, customary law had little growing power.
…………………………….The Corpus juris contained a law
capable of solving satisfactorily many of the problems of a more active economy and a more cultivated society. Roman law offered, if not the only, the best hope for a unified common law. Roman law had also already formed and shaped, at least in part, many of the existing customs
and social institutions of western Europe. The Corpus juris civilis came,
therefore, not as completely strange and foreign but as part of a shared and not entirely forgotten past.
During the period between 1100 and 1500 the Roman Law, the
Corpus juris civilis, became the basis for legal science throughout western
Europe. The Corpus juris also made important contributions to practice at
the level of specific rules and solutions. The degree of Roman law influence, particularly in the latter respect, differed in the various parts of the Continent.
By 1500 France and Germany, along with western Europe as a whole, had thus achieved the basis for a common legal science grounded
Continent, gave an acceptable basis for the development of effective organ of central power. The early English kings, many of whom were unusually capable and energetic, made the most of their opportunities. They early created institutions designed to secure and increase central governmental authority. The Domesday Book ( 1086 ) symbolizes both the administrative skill and diligence of Norman officialdom and William’s determination to use the feudal system , with its confusion of government and property, to strengthen the royal, central power.
Among the most important institutions developed by William and his successors for the maintenance and strengthening of central authority was the King’s Court. At this period, a tripartite division of power between the executive, legislative and judicial branches of government was unknown. The concept of conscious legislation had not developed and would hardly have fitted the needs of a period during which change tended to be gradual. The royal courts held a large share of this undifferentiated governmental power.
In the twelfth century, Henry I ( 1100 – 1135 ) began the practice of sending his ministers around the country to hear cases in the local courts. Before the end of the century, the King’s, with its regular circuits, was the most powerful political institution in the country. These courts were staffed with trained officials, who regularly visited every part of England, but whose permanent headquarters were at the king’s court and whose allegiance was to the central national political authority………………………..
The institutional fact of a unified court system thus resulted in the growth of a law common to the entire realm. The common law, unhampered by a strict rule of stare decisis, was able to develop new rules and techniques adequate for a period in which the rate of change was relatively slow. The centralization of justice called forth an organized class of lawyers. The English bar soon established a tradition of law teaching. The universities never came to occupy the dominant role in legal education that they early achieved on the continent. The existence
of an independently organized bar with a vested interest in the law administered in the English courts may well be the basic reason why roman law was never received in England.
England thus achieved a truly common law through a slow and organic growth. The English courts created, over many centuries, a unified law. The contrast with France and Germany is striking. Neither of these countries achieved until modern times a common law in the sense of a general body of law common to the whole country. The explanation for this difference between the legal situations of England and of France and Germany is fundamentally institutional. France and Germany achieved a centralized administration of justice at a much later period than did England…………………………
