English Legal History and its Materials

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TheReceptionInEnglishdRenaissance 10 - 18 Nov 2014 - Main.JulianAzran
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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?
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-- IgnacioMenchaca - 07 Nov 2014


During the Renaissance, Continental Europe underwent a pivotal intellectual transformation; cultural, social and political assumptions and structures, once thought fundamental, were questioned and changed. European legal systems were not immune to these changes. After a revival of Roman law in late medieval Italy, the phenomenon spread to France and Germany, among others. These countries were said to have “received” the Roman law. Some legal scholars have questioned why, during the Renaissance, the English common law remained relatively intact. By the time the Roman laws reached England, the country was far too politically stable and effective for a foreign legal code to usurp its national law.

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 over 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.

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.

Why was there no Reception in England? Some of the same types 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 its greatest effect.

-- JulianAzran - 18 Nov 2014


Revision 10r10 - 18 Nov 2014 - 01:43:47 - JulianAzran
Revision 9r9 - 07 Nov 2014 - 21:47:51 - IgnacioMenchaca
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