Origins of the Main Legal Traditions
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20.01.2017
ANGLAIS JURIDIQUE CM
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