Origins of the Main Legal Traditions

20.01.2017

ANGLAIS JURIDIQUE CM

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ORIGINS OF THE MAIN LEGAL TRADITIONS

Which are the main traditions?

 The common law or “English” tradition (Ireland)

 The “civil law” tradition – also known as the “Roman-law tradition”, or the “Romano-German tradition”

 The “Nordic” legal tradition – sometimes considered a sub-family of the civil-law one.

 The Islamic legal tradition – based upon the shari’a

What was Roman Law?

 The ius civile of the Ancient Roman Republic / Empire (you had it or bought it)

 This ius civile applied only to citizens (for everyone else there was the ius gentium = the law of people)

 It was mostly developed in a “casuistic” way by the courts

 Only constitutional law was originally codified (449BC); the rest was only codified long after (the 530s AD) the collapse of the Western half of the Empire!

Influence of Roman Law

 It mostly ceased to be applied (but never quite disappeared) in western Europe from the 5th century AD

 From the 10th century AD, a new trend of rationality and rationalization in religious and secular contexts included a revived interest in Roman law and procedures in western Europe

 Scholars began trying to adapt Roman law to their era in the form of an ius commune – an updated version of medieval common law (NOT to be confused with English “common law”)

 Various jurisdictions began to allow references to it in their courts

The enlightenment

 The early modern period saw further attempts to reason out a “natural law” of humanity

 Nordic realms took some elements of both Roman and Enlightenment thought and blended it with their “Old German” law

 The period of “enlightened absolutism” saw some attempt by rulers to rationalize their laws and increase state authority (political and legal motivation) – e.g. the Prussian (1794) and Austrian (1811) civil codes

Which were the most significant civil codes?

 French Code Civil (1804) – imitated widely in Europe and Latin America during the 19th century

 German Bürgerliches Gesetzbuch (1900) – considerable influence on Japan, Greece and even the USSR

 Swiss Zivilgesetzbuch (1912) – more or less copied by Brazil and Turkey

What are the origins of the English legal tradition?

 Traditions and practices of the Anglo-Saxons in the post-Roman centuries came to be regarded as the “law of the land”, “the good old law”

 First major attempt at codification in c.893 AD by King Alfred “the great”

 After 1066, Norman feudal principles were grafted onto, but never really replaced, the patchwork of local laws and courts

Where did the common law begin?

 English lawyers were aware of and influenced bu the trend towards rationalization in Europe

 English civil war under King Stephen (1135-1154) convinced his successor Henry II (1154-1189) that there must be a system of courts where royal justice could be ensured throughout the country

 The system relied on royal writs to enforce principles of existing feudal law

How quickly did a national legal system develop?

 The new courts challenged baronial and Church courts, but did not replace them for many centuries

 The very limited remedies available were improved by the system of “equity”, developed btwn the 14th and 18th centuries

 But the deficiencies of the “writ” system were not really reformed before the 19th and 20th centuries

What were the key moments that made England distinctive?

 The 1530s – end of Roman Catholic jurisdiction

 The 1640s – abolition of the crown’s inquisitorial “Court of Star Chamber”

 The 1760s – publication of Sir William Blackstone’s vast compendium of case-law

 The 1870s – creation of a Court of Appeal, which made case-law enforceable

What about Scotland?

 Scots law was always unique blend of tradition, post 11th century feudal law and a local version of the common law

 Renewed political instability in the 14th century led to far greater French influence (the “Auld Alliance), and hence Roman-law influence

 Specific 17th, and 18th century scholarly works became accepted as binding legal sources

 Union with England 1707, but allowed to keep own laws and courts, which no appeal of criminal trials to London

How was the common law exported?

 Retained in the USA after Independence, albeit subject to local constitutional norms and neutral law theories

 Implanted in all British colonies, and made subject to English legislation and case-law 1965-1931

 Often coexisted or blended with local legal traditions – some of these jurisdictions are considered “hybrids” today

What is the shari’a?

 From the Arabic word for “path to the water”

 Believed to be God’s laws for all human activity

 Remarkably little of it actually comes from the Qur’an

 Developed by ulema (scholars) over many centuries