English Legal History and its Materials
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?

[1] T.F.T. Plucknett, A Concise History of the Common Law (5th ed. 1956), page 43.

-- IgnacioMenchaca - 15 Oct 2014

Here is some research I have collected.



Here are some notes I have taken.

  • Maitland
    • Suggested that the common law was directly threatened with a reception of Roman law during the second quarter of the sixteenth century.
      • Common law was saved by the legal education which took place at the inns of court.
    • 1519: the second birth of Roman law.
      • Sir Thomas More
        • Erasmus was a close friend of Thomas More
          • A Dutch Renaissance humanist
        • Humanism was renovating Roman law.
    • 1520: Luther burns the papal bull in Wittenberg
        • Maitland cites this as an event in the history of jurisprudence.
    • Reginald Pole “was saying that a wise prince would banish this barbaric stuff(?) and receive in its stead the civil law of the Romans.” (7)
      • At this time, “Roman law was driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners.” (7-8)
      • The age of the Renaissance “was also the age of the ‘Reception’” (of Roman law).
      • So Pole is himself advocating a Reception of Roman law
    • Not long after Pole’s calls, King Henry (whose word was law supreme in church and state, prohibited the academic study of canon law, AND encouraged the study of another (by founding professorships at Oxbridge).
      • Professor Thomas Smith took a chair at Cambridge. He represented the three R’s, Renaissance, Reformation and Reception. (9)
        • He returned from some trip (9-10) extolling Alciatus and Zasius, who interpreted civil law by the history, languages and literature of antiquity, and to substitute original research for the interpretations of the glossators.
        • Zasi had once compared the work he was doing for the Corpus Juris with the work Luther was doing for the Bible.
      • Various figures of the reformation (Calvin, Melanchthon) admired Roman jurisprudence.
  • Baker
    • In 1641, conciliar jurisdiction in the old sense was swept away forever after a decade where the Star Chamber became too closely involved in politics.
      • BUT conciliar justice was a regular feature of the English system for nearly 3 centuries.
    • Maitland was wrong
      • The business of CL courts did not decline in the way Maitland had claimed; a reception of classical Roman law studied by legal humanists on the Continent was impracticable.
      • The conciliar courts and chancery never attempted to apply the rules of the Civil or canon law. The only substantive law of which Chancery took notice was English law regarding land and commerce.
    • Even so, the Renaissance did have an effect on the development of English law.
      • There were/are a variety of tendencies in English legal thought that reflected the attitudes and ideals that are usually associated with humanism.
        • Examples– The historical approach to the law, a concern with the structure form and language of legal sources, a rational approach to law reform, a new confidence in legislation to advance the interests of the commonwealth; a search for equitable remedies in law, and “a new-found judicial positivism which laid emphasis on the reasoned decisions of courts as a primary source of law” (18).
          • Baker argues that these same tendencies can be detected in the legal history of Continental European countries at this time. This claim counters those which had developments in English law being immune to those taking place elsewhere on the Continent.

-- JulianAzran - 15 Oct 2014

Plucknet in Concise History of Common Law (1956) explains that the process of the Reception had a great influence in English Law, mainly over the judges and their sentences. There where many who supported the process since they recognized its simplicity and its compatibility with Christian history. By way of example he describes the creation by Henry VIII of professorships at Oxford and Cambridge dedicated to the subject.

But Plucknet's claims that the Reception could not influence the Common law Courts, as they were impermeable to foreign influence. The common law courts and the common law system was an assurance to the landowner class of the continuity of their wealth. They feared that the intricate process of inheritance could be damaged by any change in the “old law”.

The interest of the landowners and the others interest groups created by the Common Law Courts. Such as the close system of education in the Inn of Courts, meaning a class of educated lawyers, who defended their privileges and practices under common law. This allowed the survival of the Common Law against the Roman Law of the Digest, as opposed to France, Germany and the majority of the European Realms.

-- IgnacioMenchaca - 22 Oct 2014

Plucknet and Baker seem to have had similar theses: landowners worried about the inheritance of their land (and thus resisted change to a system that was favorable to them), and King Henry VIII. What we should investigate further is why King VIII endowed these professorships at Oxford and Cambridge, what was his interest in a legal system alternative to the Common Law?

-- JulianAzran - 23 Oct 2014

Why does Plucknet claim that the Common law courts were impermeable to foreign influence? What mechanism in the courts led him to this belief?

Regarding Henry VIII's motivations, Maitland claims on page 14 that the Byzantine Code provided better justification or authority "for a King who wished to be monarch in church as well as state ... than could be found in our ancient English law-books".

According to the Wikipedia page on Henry VIII, he separated the Church of England from the Pope and the Roman Catholic Church. Henry's first Act of Supremacy granted himself Royal Supremacy, which meant that he was the supreme head of the Church of England. It seems as though these acts were done for political rather than religious reasons, since "he remained a believer in core Catholic theological teachings, even after his excommunication from the Roman Catholic Church".

Perhaps Prof. Moglen was right. The Reception never happened. Whatever embrace of the Roman Law there was in England was merely a small part of Henry’s plan to rid the Catholic church of its influence in England so that he could become leader of both the church and state. This had nothing to do with the merits of a Roman or English legal system.

-- JulianAzran - 24 Oct 2014

In Social History of English Law (1966, repr. ed. 1973), by A. Harding, the author states that certain ideas attributed to Reception, such as the inquisitorial role or the judge (key characteristic of Civil Law), where already present in English Common Law before the Renascence. The carefully inspection of the witnesses by the judge was an aspect of the common law procedure, which was performed locally by the knights of the shire and presented in writing to the court.

Nevertheless, the author describe the direct use by English courts of Roman substantive and procedure law.

-- IgnacioMenchaca - 30 Oct 2014


This wiki article could be subject to review. I think it is possible to complement such idea with our investigation regarding Common and Civil Law.

-- IgnacioMenchaca - 30 Oct 2014

I agree, I think that this wiki article is something we could work with.

-- JulianAzran - 05 Nov 2014

Certain legal scholars have claimed that there exists evidence of the Renaissance’s influence on the English legal system. Maitland claimed that there was a “Reception” of Roman Law during the reign of King Henry VIII. Although certain changes to the English law did occur during the Renaissance period, there is scant evidence to attribute such changes to the any sort of “reception” of Roman law. After Henry VIII enacted the Acts of Supremacy, making his word law supreme in church and state, he prohibited the academic study of canon law, and encouraged the study of the civil law (by founding professorships at Oxbridge). “There was a pleasant reading in the Byzantine Code for a king who wished to be monarch in church as well as state: pleasanter reading than could be found in our ancient English law-books.” Whatever embrace of the Roman Law there was in England was merely a small part of Henry’s plan to rid the Catholic church of its influence in England so that he could become leader of both the church and state.

-- JulianAzran - 05 Nov 2014

The renaissance in Europe, understood as the rebirth of classical culture, is a social construction, rather than an historical truth. The concept was first used in Italy to manifest an artistic break from the previous gothic art style.

In law, this process has been defined as the Reception, which is the adoption of Roman law by the European Kingdoms.

The Reception can also be conceived as a social construction, rather than a historical fact. During the sixteenth century, there is an undoubted academic interest in the Justinian Civil Code,.

This great codification of written laws caught the attention of many kingdoms. However, rather than enacting roman laws as laws of the kingdom, the new absolutism movements took their centralized, written and rational characteristic.

For this reason in Spain and Germany, for example, we can find great codifications and creations of centralized systems of courts and laws.

In the case of England, the new absolutism of the Tudors already had a centuries-old centralized written courts system, which kept written records. Also, the English lawyers did not have a formal academic background, given that their “University” was the courts inn, where they studied common law, as opposed to Justinian Civil law, as was studied by lawyers in other European Kingdoms.

Therefore, it is possible to state that the reception in Europe had a very limited effect, in particular in England, which already had a centralized court system, and a class of lawyers trained in Common Law. Conversely, the Justinian civil law did not present the crown with many advantages. So, it limited influence.

-- 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



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r10 - 18 Nov 2014 - 01:43:47 - JulianAzran
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