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



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r5 - 24 Oct 2014 - 17:45:48 - JulianAzran
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