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The Reception, a process in the renaissance of replacement of "barbarian" medieval customary law by classical roman law [1], was occurring during the renaissance over Europe. Nevertheless, according to F.W. Maitland, as he explained in English Law and the Renaissance (1901), such process did not have the same success in England as in the rest of Continental Europe. What are the reasons that Maitland and latter authors give for the survival of common law in England? | | | In the late eleventh century, a complete manuscript of the Digest was found in Pisa, Italy. The Digest was part of the Corpus Juris Civilis, the body of civil law issued under Justinian I. A professor at the University of Bologna, Irnerius, made the interpretation and explanation of the Digest, as well as of the other parts of Justinian’s legislative work, his enterprise. He and his school, comprised of students from all the countries of Europe, attempted to recreate the science of Roman law. Since the Corpus Juris did not expound clear legal principles per se, these scholars, known as “Glossators,” would compare potentially conflicting texts and infer principles that would explain the apparent contradictions. Their work would extend into the early thirteenth century. By then, they had laid the groundwork for a theoretical understanding of the Roman civil law, which would come to serve as the foundation for most of the legal systems in continental Europe. | |
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< | After the Glossators were the Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. And so, lawyers began to be trained in Roman law, but this did not occur only in Italy. The new science of Roman law spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was the Reception. | >
> | After the Glossators were the Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. And so, lawyers began to be trained in Roman law, but this did not occur only in Italy. The new science of Roman law as inaugurated by the Glossators in Bologna spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was the Reception.
In England, the story of the Reception is a bit more complicated. King Stephen (1092/6-1154) took suspicious notice of the spread of the study of civil law, however his opposition was ineffectual. Roman and canon law began to be taught at Oxford by Vacarius, an Italian scholar; Cambridge also issued degrees in the civil law. “Every ambitious youth studied eagerly the Corpus Juris” This enthusiasm did not abate the resistance. Henry II (1154-1189) established a well-ordered system of royal courts, and Henry III (1216-1272) forbade the teaching of Roman law in the schools of London. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law. One of the more effective counterweights to the Roman law education at Oxford were the professors at the Inns of Court, a historical analog to the present day bar association, who taught the Common Law.
Still, although there are few specific examples, there is evidence that the Roman law was recognized as a valid authority by the English courts for some time. In the long run, however, the Common Law obviously prevailed in England. What made a difference in England’s case, as opposed to France or Germany, was that its legal system was too entrenched for a new body of law to usurp it. As one author put it, “the legal fabric of the government and its institutions were not such as to permit the direct reception of Roman law by the King's courts!” The Reception tended to occur in places where there was no such robust legal system. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had its greatest effect. | | | | |
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< | Why was there no Reception in England? Some of the same forces and circumstances which had led to the Reception in Europe actually worked against it occurring in England. First, Henry II (1154-1189) had established a well-ordered system of royal courts before the Commentators had begun to codify the Corpus Juris into a coherent legal system. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law. Second, the universities at Oxford and Cambridge trained the English legal profession in the common law. England had its own lawyers trained in its own system. The Reception tended to occur in places where there was no such robust legal system. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had made its mark. | | | -- JulianAzran - 18 Nov 2014 |
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