CHANGE OR CONTINUITY?
Some European countries, like Germany, have experienced abrupt changes in their legal development, whereas others have known great continuity; the phenomenon deserves some comÂments, under the heading â€?old and new law in the European experience’.
Indeed, some nations have made sharp and abrupt breaks with their past, which was rejected wholesale in order to make room for a radically new course; others witnessed a maÂjestic, unperturbed continuity throughout many centuries with minor piecemeal adaptations, so that their legal experience is like a â€?seamless web’. We shall now briefly discuss three cases: Germany, France and England.Germany, as we have just seen, embarked on an entirely new venture around AD 1500 when it adopted Roman law. Respectable age-old customs, which had produced scholarly analysis and a considerable body of case law, were rejected and replaced by the ius commune of the universities. It is not easy for us to imagine what it meant when the aldermen of Frankfurt, solid and educated burghers but no Latin speakers, were told to forget about their familiar homespun law and to give judgeÂment according to the consilia of Baldus and Bartolus! As they could not take a law degree in the Open University, the best they could do was to follow the advice of the town clerk, who had a law degree and could explain the merits of the case according to Kaiserrecht (they could also gain some elementary instruction from the vocabularia iuris that were being printed around that time). The scene will remind some English readers of the magÂistrates’ court, where the clerk is at hand with technical advice (and has the authoritative reference works at his fingertips) for the magistrates who have never seen the inside of a Law School.[3] We would, however, like to sound a cautionary note, for the break with the past was not as absolute as the official German policy envisaged.
Indeed, the old native tradition survived in various ways and there was resistance to the new-fangled conÂstitutions and rescripts. This was especially the case in Saxony, where the memory of the Sachsenspiegel was never lost: even in the nineteenth century, when Pandektenrecht (the Roman law as develÂoped by German professors on the basis of Justinian’s Digest or Pandects) was at its height, commentaries on the Mirror of the Saxons were still influential[4] and the kingdom of Saxony even had a civil code of its own.[5] In the eighteenth century the study of German history had initiated a renewed interest in the old legal lore and a romantic reappraisal of Germanic Antiquity and the German Middle Ages (we shall later refer to the two nineteenthÂcentury Schools of the Germanists and the Romanists that were the result).France witnessed a similar break with the past at the time of the Revolution. Previously, and right up to the seventeenth century, people had thought that â€?old law was good law’, but the Enlightenment and belief in progress had changed all that, and old law became synonymous with bad law which had to be abolÂished. This the Revolution proceeded to do. Ancient laws and the ancient constitution disappeared and, after a period of unsucÂcessful attempts at codifying new law, Napoleon managed to publish various codes for the whole of France, the most imporÂtant being the Civil Code of ι 804. They had a lasting impact and are fundamental in many ways till this day. The Napoleonic codes not only introduced new law, but expressly abrogated all old laws, customs, ordinances and so on which had formed the multicoloured mosaic of the old legal landscape: a monoÂlithic system was erected in its place. Hence the well-known divide of French law into the pre-revolutionary ancien droit and the Napoleonic droit nouveau (the intervening fifteen years beÂing known as the droit intermediaire). Until this day teaching in the French LawFaculties concerns either â€?the law’, i.e.
the law of the codes, or â€?legal history’, i.e. the study of the ancien droit, the forÂmer being concerned with living law and the latter with museum pieces. One is either a lawyer or a legal historian and contact between the two disciplines is minimal. Yet, here again the situaÂtion is not as clear cut as would seem at first sight. The Civil Code was in reality far from containing only â€?new law’, as it had taken over a considerable mass of customary material, especially from the Coutume de Paris, and incorporated, often verbatim, the writÂings of eighteenth-century jurists, such as Robert-Joseph Pothier (d. 1772), who had taught at the university of Orleans and was familiar with both Roman and customary law. The Civil Code was the product of a post-revolutionary era and was deeply conservative, particularly as far as respect for property and family values and the leading role of the father and husband were concerned. Nevertheless certain revolutionary achieveÂments, such as legal equality, divorce and the abolition of serfÂdom, were maintained. The most conservative of Napoleon’s codes was the Code of Civil Procedure, which repeated verÂbatim large parts of the Ordonnance civile pour la reformation de la justice of Louis XIV. And although Roman law was abolÂished, together with all other sources of the Ancien Regime, nineteenth-century judges had no qualms in referring to it in their judgements and betraying a thorough acquaintance with the law of Justinian, which continued to be taught at the universities.[6]In contrast to the German and French experience, English legal history is the ideal type of traditionalism and uninterrupted continuity. There is no â€?old common law’ or â€?new common law’, just one ageless common law, based on the wisdom of centuries. Its course is marked by adaptation, not by change of what is in any case immutable. Even the reforms of the nineteenth cenÂtury have not basically altered the ancient, uncodified common law, in spite of changes in procedure and judicial organizaÂtion. Cases are quoted that go back to Sir William Blackstone (d.
i780) and that universal treasure house of the common law, Sir Edward Coke (d. i 634), who himself sometimes harked back to precedents in Littleton (d. 1481) and even the great Henry de Bracton (d. i 268), author of a massive, lonely Treatise on the Laws and Customs of the Realm of England. Death sentences were still being pronounced in the twentieth century on the strength of medieval statutes without any reservation about their antiquity. Sir Roger Casement, for example, a British subject and an Irish nationalist, who tried to raise an army in Germany against Britain, was hanged in London in i 9i 6 on the strength of the Statute of Treasons of i352. However, not even English lawyers go back to Queen Boadicea: there are limits, and the official â€?limit of legal memory’ is the date of the coronation of King Richard I on 3 September 1189, beyond which the courts do not go back. That date was fixed by the Statute of Westminster I (ad i 275) on the limitation for writs of right and the Statutes of quo warranto of 1289-90, probably because it was conceivable that a living man had been told by his father what he had seen in 11 89, and in a proprietary action for land the demandant’s champion was allowed to speak of what his father had seen.[7] Most legal textbooks in England start with a List of Cases and a List of Statutes, both going back several centuries and without any visible caesura.The most comprehensive, encyclopaedic history of English law was undertaken by Sir William Searle Holdsworth (d. I 944), an Oxford professor and fellow of All Souls College.[8] [9] He perÂsonifies the belief in and love of the continuity of English law: real change never occurred, only adaptation of ancient princiÂples. He reminds the reader of the medieval horror of novitates, innovations. He also embodied the traditional reverence for the Bench and belief in the pre-eminence of judges as the â€?makers of the law’11 and the concomitant aversion to the legislator as an agent of legal development.
One trait of the conservatism of the Bench is attachment to precedents: â€?what was good in the past must be good in our own time’ is by definition a conserÂvative attitude. Stare decisis is a weighty common-law principle, even though it is not universally held and is not as ancient as is sometimes thought. There were judges in the past who mainÂtained that they had sworn to uphold justice and not to uphold precedent, and therefore felt free to ignore existing case law, and there are famous judges in our own time — such as Lord Denning[10] — who dare to ignore precedent for the sake of jusÂtice; moreover the strict doctrine of stare decisis first emerged in the later nineteenth century.[11] Nor is traditionalism to be found in legal circles only. The English ecclesiastical establishment also prefers continuity to change and some people, being unable â€?to eliminate the Reformation altogether’, liked to see that cataÂclysmic break with the past as â€?a small and predictable shudder in a general march of continuity’.14 But, here again, things are not so absolute as they might seem. We should not be befogged by the laudatores temporis acti, for a critical look at the past will soon show that there was a good deal of real and important change: the majestic flow of English legal history was on several occasions diverted or interrupted. The Puritan Revolution unÂdertook a drastic overhaul of the common law and its courts. It wanted to introduce a register of land-holding — comparable to the later Grundbuch in Germany — and to codify the law, and it installed the Hale Commission for that purpose, so named after its Chairman, the learned Sir Matthew Hale (d. 1676). It reÂplaced the archaic and impenetrable Law French by the English language in the courts and generally attempted modernization and democratization. That the Restoration in ι 660 reversed or stopped these endeavours does not make them less interesting (even though traditional legal histories tend to skate over them as being just a brief interlude). The urge to innovate arose again and in full force in the nineteenth century, when the writ system, created in the twelfth century, was abolished and the fusion of common law and equity was brought about, two ancient bodies of law with their distinct courts and rules of procedure. Also the Judicature Acts of 1873 and ι 875 created a modern system of law courts. Yet, in spite of all this reforming zeal, the substance of the common law was admittedly saved: the impact of the judges on the law remained very strong (about which more in chapter 3) and, above all, English law avoided codification. Also, although common law and equity were, as we have seen, fused and there were no separate common law courts and a court of chancery,conceives a judgement given in another Court to be erroneous, he being sworn to judge according to law, that is, in his conscience, ought not to give the like judgeÂment See Ibid., 44g forthe emergence ofstaredecisis inthe laternineteenth century.
14 G. R. Elton, F. W Maitland (London, ι 985), 72. nevertheless the age-old distinction survives till this day in the Chancery Division and the Queen’s Bench Division of the High Court. And to everyone’s surprise the House of Lords’jurisdicÂtion in appeal survived the Judicature Acts and the creation of a Court of Appeal, so that England has two courts of appeal one above the other, and not one court of appeal capped by one Court of Cassation, as a continental lawyer would expect.