Ownership and Possession in the Early Common Law (original) (raw)
English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law
This Article looks at a historical problem—the first use of case law by English royal justices in the thirteenth century—and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement—which seek to create a harmonious system out of judicial opinions—into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.
The History of the Common Law of England
The American Journal of Legal History, 1974
Edw. I. none being extant of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of Edw. I. till the 23 Edw. I. But after that year, they are for the most part extant of Record, viz. In Dorso Claius' Rotulorum, in the Backside of the Close Rolls. Secondly, As to the Rolls of Parliament, viz. The Entry of the several Petitions, Answers and Transactions in Parliament. Those are generally and successively extant of Record in the Tower, from 4 Edw. 3. downward till the End of the Reign of Edw. 4. Excepting only those Parliaments that intervened between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3. But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many are lost and few extant; also, of the Time of Henry 3. I have not seen any Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings and Remembrances which are in the Liber placitor' Parliamenti in the Tower, beginning, as I remember, with the 20th year of Edw. I. and ending with the Parliament of Carlisle, 35 Edw. I and not continued between those years with any constant Series; but including some Remembrances of some Parliaments in the Time of Edw. I. and others in the Time of Edw. 2. In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7 & 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw. I. above mentioned, and, as I remember, some short Remembrances of Things done in Parliament in the 19 Edw. 3. Thirdly, As to the Bundles of Petitions in Parliament. They were for the most part Petitions of private Persons, and are commonly endorsed with Remissions to the several Courts where they were properly determinable. There are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2 and more in the Times of Edw. 3. and the Kings that succeeded him. Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as if in the Time of Edw. I. they were drawn up into the Form of a Law in the first Instance, and so assented to by both Houses, and the King, as may appear by the very Observation of the Contexture and Fabrick of the Statutes of those Times. But from near the Beginning of the Reign of Edw. 3. till very near the End of Hen. 6.
Magna Carta, Civil Law, and Canon Law
Magna Carta and the Rule of Law, 2014
With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. The debate has important implications for the identity of the common law. We tend to think of common law as a very English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context. Roman and canon law—collectively called the ius commune in the Middle Ages—certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England—the Becket dispute—and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.
Continental Jurists and English Common Law
Glossae: European Journal of Legal History, 2016
We explore continental jurists’ knowledge of and attitude to English (Common) law from (roughly) the 13th to the middle of the 18th century. During this period, English lawyers were constantly aware of the existence of an alternative legal system, the civil law, on the continent. Continental lawyers were mostly oblivious to English law. Among the few instances, where continental jurists refer to English law, a passage by Jacques de Revigny concerning the rule of primogeniture is prominent. Jacques’s statement of English law is mostly, but not entirely accurate. Its inaccuracy apparently bothered neither Jacques, nor the many jurists who took over his example during the following centuries. In this and other cases, the continental lawyers’ interest in English law was limited. They used English law as a source of examples and illustrations. A similar carelessness is evident from Hotman’s derogatory assessment of Littleton’s treatise on tenure. Hotman’s remark, which caused great indig...
The influence of canon law on ius commune in its formative period
SEEU Review, 2015
In the Medieval period, Roman law and canon law formed ius commune or the common European law. The similarity between Roman and canon law was that they used the same methods and the difference was that they relied on different authoritative texts. In their works canonists and civilists combined the ancient Greek achievements in philosophy with the Roman achievements in the field of law.
Recent studies suggest that Magna Carta could have been published mainly by the Church, which had a specific interest in spreading copies of the charter, and the technical ability to write, distribute and preserve them. These researches confirm the special sway of the Church on the formation of English legal system. First, thanks to the action of the Ecclesiastical Courts, which had a jurisdiction larger than that possessed by any other Ecclesiastical Courts in Europe. Then, in the decisive importance of the cultural background, based on canon law, of the holders of administrative and judicial offices of the kingdom. Finally, for the concrete contents of rules transmitted to the Equity system, and generally to English law. The influence of ecclesiastical jurisdiction was indeed decisive in marriage, in defining rights and interests in estates, in the development of contracts; but it was paramount even in the concrete shaping of rules and institutions nowadays surrounded by «an aura of Englishness», like wills and trusts. The role of the Church in the history of Common law tradition is so evident, that «any account of English legal development that does not take account of ecclesiastical jurisdiction is therefore an incomplete account». Riassunto: Recenti studi dimostrano che la Magna Carta sarebbe stata pubblicata soprattutto dalla Chiesa, che aveva uno specifico interesse nel diffondere copie dello statuto, e le abilità tecniche per scriverle, distribuirle e conservarle. Queste ricerche confermano la speciale influenza della Chiesa sulla formazione dell'ordinamento giuridico inglese. In primo luogo, grazie all'azione delle Corti ecclesiastiche, che ebbero una giurisdizione più ampia rispetto a quella che possedevano tutte le altre Corti ecclesiastiche in Europa. In secondo luogo, per la decisiva importanza del background culturale, basato sul diritto canonico, dei titolari degli uffici amministrativi e giudiziari del regno. Infine, per i contenuti concreti delle regole trasmesse al sistema di Equity, e in generale al diritto inglese.L'influenza della giurisdizione ecclesiastica fu, infatti, decisiva in tema di matrimonio, nella determinazione dei diritti e degli interessi nelle proprietà, nell'evoluzione della disciplina dei contratti; ma è stata fondamentale anche nella concreta elaborazione
Law v. Statute, Ius v. Lex: An Analysis of a Critical Relation in Roman and Civil Law
Global jurist, 2008
The analysis in this writing starts with an investigation on the position of customary law in the system of legal sources, both in the Justinean legal system and in the Argentinean one. The results of this analysis are used as a basis for further, wider considerations on the structure of the legal system in the civil law tradition; and, as well, on the possibility of finding today, in Latin America, an epiphany of the system of ius commune which has been in force in the late Roman Empire, medieval and early modern continental Europe. A survey is made of how legal doctrines attempted, through the centuries, to interpret the presence in the Justinean corpus of the different fragments related to the consuetudo (customary law) and to its relation with the lex (statutory law), mostly D.I,3,32 e C.8,52, in order to make sense of what has seemed for centuries to be an evident antinomy within the Justinean Corpus Iuris. A subsequent similar investigation is then done for the Argentinean legal system of sources of law, which features peculiar elements allowing similar questions. Some conclusions will be drawn from these analyses and used to propose a different reconstruction of the legal system of Latin America (not just Argentina) in an ius commune perspective. This paper is meant to be a contribution to the research on the viability of a modern system of ius commune. Or, at least, to propose a different reading of civil law legal systems, based on the recognition of a legal model-if latent or recessive-based on ius commune, operating in a dialectic confrontation with the prevalent, modern civil law model accepted in the European legal science.
Lex Salica and Common Law from the Historical Perspective
The Salic law (Lex Salica) is intensely treated as the old Germanic law, which has become the most famous of the so-called barbarian leges. It was created during the victorious reign of Clovis, a founder of the Salian Empire in northern Gaul (Kremer & Schwab, 2018 : 241). The Salic law clearly demonstrated the influence of the Visigothic and Burgundian models (McDaniel, 2012 : 132) and became very influential during the Carolingian regime. It is believed that one could find the most aspects of the Carolingian-style in tenth and eleventh-century England (Wormald, 2014 : 249-250). However, there is no direct evidence of the availability of Lex Salica in Britain before the 10 th century. The paper presents an innovative attitude towards the study of the relation between the Salians' legal code Lex Salica and English common law. The greatest attention is paid to the appropriate historical and juridical contexts, cross-national activities, linguistic and juridical contacts, contact-induced changes, etc. The results of the research reveal that Lex Salica could be available in Britain before the 10 th century. Moreover, there was an evident inter-influence of the Frankish and British legal systems.
The Revival of Roman Law and the European Legal Tradition
Emory Legal Studies Research Paper, 2018
From the eleventh century onward, Justinian’s Roman law permeated all European legal systems to different degrees and at different times. The development of Roman law in Europe was not uniform. It followed different courses, had different emphases, and took on different details in each of the major European countries. The fusion of Roman law, canon law, and feudal law produced the ius commune, a common legal system in Europe in force until the era of national codifications. At the end of the sixteenth century, almost all of continental Europe was ruled by ius commune, with significant local variants (ius proprium), and a body of common legal literature. Roman law infused both Catholic Europe and the Protestant culture of Northern Europe. Around 1700, Roman law was used to identify the basic moral principles of natural law and the law of nations. Around 1800, Roman law influenced the French Civil Code and many others in the so-called age of codification. With the German Civil Code (BGB) coming into force in 1900, Roman law lost its direct applicability in European legal practice. Yet the Roman law tradition itself has survived: civil law systems have been so influenced by Roman law that legal interpretation remains incomplete if it does not take into consideration Roman legal sources. In our own day, the study of Roman law has educational purposes and may prove instrumental in the development of a new global law.
Medieval Canon Lawyers and European Legal Tradition
REVIEW OF EUROPEAN AND COMPARATIVE LAW , 2021
Te Roman Church was a leading public institution of the Middle Ages and its law, canon law, belonged to most powerful factors of European legal history. Today’s lawyers have hardly any awareness of the canonist origins of several current legal institutions. Together with Roman law, canon law constituted the system of “both laws” (utrumque ius) which were the only laws acknowledged as “learned” and, consequently, taught at medieval universities. The dualism of secular (imperium) and spiritual power (sacerdotium), symbolized by so-called two swords doctrine, conferred to the Western legal tradition its balance and stability. We analyze the most important institutional achievements of the medieval canon lawyers: acquisitive prescription, the Roman-canonical procedure, the theory of just war, marriage and family law, freedom of contract, the inheritance under will, juristic personality, some institutions of constitutional law, in particular those based on the concept of representation, and fnally commercial law. Last not least, the applicability of canon law defined the territorial extension of medieval and early modern Christian civilization which exceeded by far the borders of the Holy Roman Empire, where Roman law was efective as the law of the ruler. Hence, the first scholar to associate Roman law with (continental) Europe as a relatively homogeneous legal area, Paul Koschaker, committed in his monograph Europa und das römische Recht, published in 1947, the error of taking a part for the whole. In fact, Western legal tradition was based, in its entirety, not on Roman, but rather on canon law; embracing the common law of England, it represented – to cite Harold Joseph Berman – the first great “transnational legal culture”. At the end, some structural features of canon law are discussed, such as the frequent use of soft-law instruments and the respect for tradition, clearly visible in the approach to the problem of codifcation.
Classical Common Law Jurisprudence (Part 2)
Social Science Research Network, 2003
When it is said that law represents the rule of reason, it is appropriate to ask what kind of reason is meant. 1 Custom and reason, we learned in part I of this article, were the organizing concepts of the classical understanding of common law, and because they were central, they were also much contested. We also learned that these notions were regarded as interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. One especially important understanding of the interdependence of these notions emerged at the end of our discussion in part I. The reason of the law, it was said, was the 'artificial reason' of the trained common lawyer. Lon Fuller, one of the most important champions of common law jurisprudence in the 20th century, advised us in the epigraph above to take a close look at any claim to associate law with the rule of reason, however ancient or venerable it is. The task of part II of the article is to explore 17th century views of the nature of this 'artificial reason' and more generally its account of the normative foundations of common law. A ARTIFICIAL REASON [H]is Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law … 2 Coke famously wrote, 'the common law itself is nothing else but reason', but rushed to add that by this he meant 'an artificial perfection of reason gotten by long study, observation, and experience, and not of every man's natural Oxford University Commonwealth Law Journal 1 * Cary C Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill. 1 L Fuller Anatomy of Law (Greenwood Press Westport 1968) 5. 2 Prohibitions del Roy (1607) in E Coke The Reports of Sir Edward Coke, in Thirteen Parts (J Moore Dublin 1793) 12th Report 63, 65. Note, I have altered the spelling and capitalization in quotations from 17th century works to conform to modern standards. In what follows I will continue to do so silently unless there is risk of altering or obscuring the meaning of the quotation. 2 Classical Common Law Jurisprudence (Part II) 3 E Coke First Part of the Institutes of the Lawes of England (Garland New York 1979) 97b (originally published in 1628). See also Coke (n 2).
Medieval Church Law and the Origins of the Western Legal Tradition
In this volume dedicated to medieval canon law expert Kenneth Pennington, leading scholars from around the world discuss the contribution of medieval church law to the origins of the western legal tradition. The stellar cast assembled by editors Wolfgang P. Müller and Mary E. Sommar includes younger scholars as well as long-established specialists in the field. Müller's introduction provides the first comprehensive survey of investigative trends in the field in more than twenty years. Subdivided into four topical categories, the essays cover the entire range of the history of medieval canon law from the sixth to the sixteenth century. The first section concentrates on the canonical tradition before the advent of academic legal studies in the twelfth century. The second addresses the formation of canonistic theory. The third and fourth sections consider the intellectual exchanges between canon law and other fields of study, as well as the practical application of canons in day-to-day court proceedings. Though the twenty-seven essays included in this volume are quite diverse, taken together they provide an outstanding overview of the latest research and cutting-edge scholarship on the topic.