7.7.4 The Influence of Roman Law in Britain

size=2 color=black face="Times New Roman">At the end of the eleventh century there was little to distinguish the law in England from that of Germany or northern France.

Although England had been a Roman province for more than 300 years, after the invasion of the Angles and Saxons Roman law was superseded by Anglo-Saxon law—a species of Germanic folk-law. The law codes of Ethelbert of Kent (c. 600),^{^[765]} Ina (c. 700)^{^[766]} and Alfred (c. 890)^{^[767]}were of largely the same character as the Continental leges barbarorum, although, unlike the latter, they were written in Anglo-Saxon and not in Latin. In general, the substance of the law in England, like elsewhere in northern Europe, consisted mainly of unwritten customary law that was supplemented or superseded in some particulars by canon law. The immediate effect of the Norman Conquest of England in the second half of the eleventh century was to intensify the trend towards particularism by increasing the number of franchise and manorial courts, and by the reintroduction of the old principle of personality of law in favour of the Norman element of the population. But, at the same time, it gave to England alone in the West a strong central government that was capable of imposing a uniform legal and administrative system upon the whole country. Under King Henry II (r. 1154-1189) the royal courts began to encroach on the jurisdiction of the feudal courts, and by the close of the thirteenth century the process towards the construction of a national system of law had been carried a long way.

Three principal elements can be traced in the law of England, as it had developed in this period. The foremost place must be attributed to the function of the Curia Regis, or King’s Court, the body that under the Normans transacted all the business of the central government.^{^[768]} There is nothing in the contemporary history of Continental law that can be compared with the creative activity of this court in the fashioning of the writ system.^{^[769]} Second in importance is the Roman and canon law that came to England in the twelfth century.

Thirdly, there is the customary law that survived the Norman Conquest and continued to be applied by the local courts. These latter two sources of law were, as we have seen, those that formed the substance of the private law in much of Continental Europe. The fact that above all others helps to explain why the common law as it evolved in England represents a distinct system from the civil law is the relatively slight influence that these sources had on the content of English law. As commentators have observed, the history of English law has been marked not by the reception of a foreign system of law and its fusion with native customs, but instead by the growth of a body of rules fashioned by the king’s justices and developed by their successors in which neither Roman law nor the customary law was a decisive influence. The rigidity of the legal process, the need to conform to the framework that had been developed and the centralized court system, all helped to mould a diversity of local customs and practices into a common law, i.e. a law that was followed by the entire country.

For a century and a half after the Norman Conquest it was by no means obvious that England was destined to develop a distinct legal system. The effects of the revival of Roman law studies in Italy in the eleventh century were early felt in England. Indeed, it is not unlikely that Lanfrancus, a teacher of law at Pavia and subsequently Archbishop of Canterbury, used his knowledge of Roman law in his administrative and legislative reorganization of his realm. The first known teacher of Roman law in England was the Glossator Vacarius, who arrived in the country in the middle of the twelfth century. Vacarius taught at Oxford, where he composed for the instruction of his pupils his famous Liber pauperum, a nine-volume compendium of Roman law based on the Code and the Digest of Justinian.^{^[770]} Vacarius’ success raised the fear that Roman law would be received as the law of the land and provoked a quick reaction from the monarch, who was disturbed by the implication in Roman law of imperial sovereignty.

The barons, too, opposed the prospect of Roman law reception since in their eyes Roman law provided a foundation for royal absolutism. Thus, King Stephen prohibited Vacarius from teaching at Oxford and in 1234 Henry III forbade the teaching of Roman law in London. Two years later the barons, gathered in Merton, refused a proposal by bishops to adopt the Roman law principle according to which children born before the marriage of their parents should be counted as legitimate, on the grounds that they did not wish to alter the laws of England (Nolumus leges Angliae mutare). The position adopted corresponded to the practice of the courts and encouraged the autonomous development of English law. Nevertheless, Roman law concepts continued to exert an influence on English doctrine. This influence is clearly reflected in the two most important legal treatises of the era: Glanvill’s Tractatus de legibus et consuetudinibus regni Angliae (Treatise on the laws and customs of the Kingdom of England) of 1187, and Bracton’s treatise of the same title, written about 70 years later.

class=a5 style='text-indent:18.0pt'>Glanvill’s work, which records the law of the time of Henry II (1133-1189),^{^[771]} is partly based on the preface and introductory chapters of Justinian’s Institutes, and various Roman legal institutions are referred to or contrasted with English rules. More importantly, the work “shows that Roman law has supplied a method of reasoning upon matters legal, and a power to create a technical language and technical forms, which will enable precise yet general rules to be evolved from a mass of vague customs and particular cases”.^{^[772]} Bracton’s treatise, written in the reign of Henry III (1216-1272),^{^[773]} was also clearly influenced by Roman law, which came to him through the Glossator Azo. The scope of his work was the same as that of the French works on customary law, which were being published at the same period: just as the French writers filled out the customary law with importations from Roman law, so Bracton supplemented the meager and inadequate rules of the common law in fields such as the law of personal property and the law of contract by borrowings from Roman sources.

Furthermore, Bracton used Roman concepts and distinctions to describe, classify and explain the writs and actions through which the King’s Court administered justice.^{^[774]} In this respect, his work shows that the common law had considerably progressed: new writs and forms of action had been introduced, and the common law had gone far towards superseding local customs.

The two centuries following Bracton’s death saw a sharp decline in the influence of Roman law in England. Though it continued to be studied at the Universities of Oxford and Cambridge, it had little effect on the common law itself. Undoubtedly, the causes were manifold and, in part, political. But one of the principal factors was the fact that English judges and lawyers received their professional training at the Inns of Court and not at the universities.^{^[775]} The common law exhibited two characteristics in this period: in the first place, it tended to become more fixed and rigid in substance; and, secondly, the rules governing legal procedure became more complex and technical. The legal works of this period consist almost exclusively in commentaries upon the writ system, and the legal education imparted in the Inns of Court was concerned primarily with giving to students an accurate knowledge of the procedural law in whose interstices substantive law was still firmly embedded. Such Roman law as was introduced came not through the courts of common law, but through the ecclesiastical and admiralty courts, and through the Court of Chancery, which owed its origin to the growing rigidity displayed by the common law. At the same time, the growth of the forms of action around which the law of tort and contract later crystallized meant that the fields of law that on the Continent succumbed most readily to the influence of Roman law were secured to the common law.

The sixteenth century was probably the most crucial period in the history of the common law.

In the early part of that century the common law came under increasing attack. Many influential voices were raised against it, and there were calls for a wholesale reception of Roman law such as was taking place at the same time in Germany and other parts of Continental Europe.^{^[776]} But the common law stood its ground. Four key factors contributed to its survival. First was the character of the Tudor monarchs, who preferred to refashion the medieval institutions of the country and adapt them to the altered conditions of the age rather than to root them out altogether.^{^[777]} Second was the fact that new courts, especially the Court of Chancery^{^[778]} and the Court of Star Chamber,^{^[779]} addressed the deficiencies of the common law.^{^[780]}Thirdly, the continuity of the common law was secured by Coke’s restatement and modernization of its principles in the early seventeenth century. And, finally, there was the vital role played by the Inns of Court, and by what Maitland has described as “the toughness of a taught tradition”.

Since the time of Edward Coke (1552-1634) the common law has never been under serious threat in England. However, the absence of a formal reception did not result in a total absence of impact of Roman law on English law. For instance, Roman law was of some assistance to Lord Mansfield (1705-1793) in the development of English commercial law, and judges have occasionally relied on it, whether in equity or at law, when an analogy was in point. Moreover, to a considerable extent English law had adopted Roman legal terminology. Nevertheless, although Roman legal concepts and doctrines have been woven into the fabric of English law, neither the corpus nor the structure of the latter is Roman.^{^[781]}

In contrast to English law, the law of Scotland was affected by the Roman law-based ius commune to a significant degree.

By the close of the Middle Ages, Scotland had a customary law similar to that of England, although considerably less developed. However, unlike its English counterpart, Scottish law remained open to external influences. The most obvious such influence was that of the Church, and it was through the infusion of canon law that Roman law first influenced Scottish law

and procedure. Furthermore, knowledge of Roman law was brought to Scotland by students attending Continental universities from as early as the thirteenth century.^{^[782]}In 1532 a permanent court of professional judges, the Court of Session, was established, which used aversion of the Continental Romano-canonical procedure. As far as possible, the court relied on native Scots law, but in cases that could not be addressed on that basis, judges had recourse to the Romanist ius commune. By the close of the sixteenth century, Roman law had infiltrated many aspects of Scottish law and had become one of the dominant characteristics of the Scottish legal system. However, from the beginning of the eighteenth century, especially after the Act of Union in 1707, by which Scotland and England were consolidated into one kingdom, English law began to exercise a strong influence on the law of Scotland, while the role of Roman law gradually declined.^{^[783]}

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

7.7.4 The Influence of Roman Law in Britain

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