A Western Legal Tradition

It has, occasionally, been contended that this kind of programme, while it might suit the codified systems of continental Europe, would be unable to accommodate English law. In its most extreme form this view postulates, or presupposes, a summa differentia between the civil law and common law traditions, an 'epistemological chasm' which is irreducible and prevents any genuine understand­ing between lawyers schooled in either the one or the other of these traditions.^[317] I do not share this view.

(i) There are a great number of lawyers who have in fact managed not only to understand both legal worlds but also to be at home in them. Their legal training in the one tradi­tion has often sharpened their faculty of perception and contributed to new insights into the characteristics of the other tradition. I am not merely referring here to the great comparative lawyers of this generation and the last but, particularly, to those who were expelled from their home country, Germany, and had to re-establish themselves in England or in the United States: Fritz Kessler, Stefan Riesenfeld, Ernst Stiefel, Otto Kahn-Freund, Fritz A. Mann, Kurt Lipstein, and many others.^[318] Also, all over Europe today international groups of lawyers, comprising both civil lawyers and common lawyers, are successfully collab­orating on a whole range of projects: they are busy drafting 'restatements' of particular areas of European private law,^[319] searching for the 'common core' of European legal systems,²⁵ compiling casebooks,²⁶ etc.

(ii) The view mentioned above greatly exaggerates the insularity, or isolation, of the common law and its develop­ment. Roman law, Canon law, indigenous customary law, feudal law, the Law Merchant, Natural law theory: these were the most important ingredients in the development of continental law. All of them, in various ways, also shaped the English common law.²⁷ Protagonists of this development, on both sides of the Channel, have been Parliament, courts and academic writers.²⁸ English law, as Harold J. Berman says, was an integral part of 'the Western legal tradition'. This is becoming increasingly clear today. Wherever one chooses to look, one will find 'legal institutions, procedures, values, concepts and rules that English law shares with other West­ern legal systems'.²⁹ Hardly anything is sacred. Even Magna Carta, 'this most basic statement of English customary law and constitutional principle', was at least partly shaped by influences coming from the ins commune.³⁰

2.