INTRODUCTION
84 There are two kinds of factor in legal history. The main legal traditions and methods of formation of the law are one kind of factor which has affected the development of law in Europe.
This is the sense in which T. F. T. Plucknett used the term in discussing the theme of â€?some factors in legal history’,1 where he dealt with five elements: Roman law, canon law, custom, legislation, and preceÂdent. All these can be called â€?technical’ factors, since they are sources of law in the strict sense, sources of the rules formulated and laid down by lawyers. There are other kinds of factor, however, which may be called â€?social’; they encompass broad political, socioÂeconomic and intellectual developments and disputes. These affect society as a whole, and through it the law. Although it is plain that social factors do have an impact on the evolution of law, their influence is much harder to trace than that of technical factors, which can sometimes be identified in the sources themselves, for instance when a text states expressly th4t a rule is adopted from Roman law or refers to the ratio scripta',2 or where the part played by a particular source is easily identified because - to take the example of Roman law again - the terminology has clearly been lifted from the Corpus iuris.The situation is more complicated if a Roman legal principle is found in a medieval text, but the text does not make use of the Roman terminology. This applies, for instance, to article 9 of Magna Carta of 1215, which provides that the guarantors of a debtor cannot
, In Part 3 of the first book of his fundamental work on the Common Law, A general survey of legal history.
s On this term, which first appeared in the form razons escricha in the custom of Alais of 1216Â22, and the shifts in its meaning in the following centuries, see A.
Guzman, Ratio scripta (Frankfurt, 1981; Ius commune Sonderhefte, Texte und Monographien, 14). be pursued so long as the principal debtor is solvent and in a position to pay his debts. The rule corresponds to the Roman beneficium excussionis, but is it a borrowing from Roman law? The timing makes this possible since, in the time of King John, English legal, and particularly church, circles were acquainted with the new learning of Bologna.5 The example of Archbishop Stephen Langton, who played an important part in Magna Carta, makes this especially clear. But it is also possible that the same measures were taken in different times and places, for equitable or practical reasons, withÂout there necessarily being any direct influence. Thus, the barons in 1215 may well on their own account have eliminated a practice which was not favourable to them, without being aware of JusÂtinian’s law. It is a difficult question, which has hardly been studied; yet it is no doubt significant that Magna Carta, unlike other old English legal texts, contains no Roman terminology.+It is clear that a legal historian has to consider what factors have influenced his area of research, and this means not merely technical factors, but social factors too. After all, the small world of lawyers, courts, faculties and government advisers is only a microcosm of the diverse interests and ideas in the world at large.5
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