European Law and the myths of a separate English legal system
Author: Tamar Herzog
Date: 2018-03-01T00:00:00+00:00
Keywords: Local government and services
Description: Tamar Herzog reflects on the stories societies tell about their legal systems - stories of continuity, revolution and exceptionalism - and on the intertwined history of English and European law.
Publisher: History and Policy (historyandpolicy.org)
Rights: Copyright History & Policy, 2018

European Law and the myths of a separate English legal system by Tamar Herzog.

Published in Great Britain in 2018 by History and Policy.

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Policy Papers

European Law and the myths of a separate English legal system

Tamar Herzog

CONTENTS

- TITLE PAGE
- COPYRIGHT
- POLICY PAPER
- FUTHER READING

Policy Papers

European Law and the myths of a separate English legal system

Tamar Herzog

Executive Summary

- English law should not be considered as distinct from European law because of their supposedly separate histories. The Common Law versus Roman Law dichotomy is a simplistic myth and is quite simply untrue. We should treat English and mainland continental law as part of the same tradition. Their similarities are much more important than their differences

- Law has an influence that extends beyond the legal realm and is culturally important. It is within this broader environment that it should be understood.

- When important legal instruments such as Magna Cartasurvive over long periods of time, the way in which they are understood can change radically, to the point that those who drafted them could not have envisaged the nature of the future significance they would acquire.

- The importance of European law world-wide would be difficult to overstate. The influence of English law cannot be meaningfully cast in a separate and distinct role as it is part of European law.

Introduction

Does European law have a single history, or various histories? Can we tell a history of the development of law in Europe that is coherent yet recognizes the wide variety of systems and solutions across the continent?  Does legal history matter?  What can it tell us about our present and our future? And what are the implications for those making law and legal policy in Britain and in Europe today?

This Policy Paper summarises some of the answers to these questions drawing from a new book (A Short History of European Law: The Last Two and a Half Millennia), which began with a conversation I had a few years ago at Harvard, with an undergraduate student. The student told me that that she had just visited Washington D.C., where she saw a copy of “our Great Charter of Liberties, the Magna Carta.”  The Magna carta, as is well known, was a charter granted by King John of England in 1215 to a group of barons; it was constantly invoked and reconfirmed and, at the end of the 16th and in the early 17thcentury, that is, some 450 years after King John has granted it, many – though not all—read the Magna Carta as if it were a charter that set limitations on what the English kings could do. In some odd way, it was comprehended as a document listing the rights of subjects and was heralded –as it is still heralded today- for recognizing important rights. Not wanting to undermine my student’s enthusiasm I asked myself: how could I explain to this student that what she saw in Washington D.C. was an English feudal document whose original intent had very little to do with what it came to symbolize? A document whose importance was acquired over time because, centuries after it was enacted, it was given a new meaning and a new role?

The question I first had to tackle was whether this mattered at all. Was it significant that a 21st-century undergraduate student misread an early English 13th-century document such as the Magna Carta? What would this student stand to learn had she understood what the Magna Carta really was when it was originally signed, or why and how it had come to acquire the status it presently has? Was this history relevant to her present-day concerns? Was myth breaking as important as myth making? Is the past a thing that is just gone; or does it tell us something essential about the present and, indeed, the future?

Understanding the 13th-century Magna Carta would entail remembering a feudal past, in which powerful lords searched to protect their jurisdiction and property against an expanding monarchy. It would also require imagining how society changed over time: mainly, how the privileges of a few barons became the rights of all Englishmen and how, in the process, claims for rights could limit what kings could legitimately do. Given its projection in the USA, this narrative would also need to include an explanation of how these ideas crossed the Atlantic and mutated there. Within a larger history of European law, the explanation would have to engage with the question not only of why the Magna Carta had acquired its mythical status but also why similar feudal charters, so abundant and so frequent elsewhere in Europe, did not? What was so particular about the English legal and political system as to make a feudal document given to a few barons so central to political and legal developments in the early modern period and thereafter? Why was the Magna Carta chosen to carry this enormous burden? What were the consequences of this choice?

The importance of context: Magna Carta and the device of legal presumptions

To understand properly the role of the Magna Carta in legal and political discussions, one would have to comprehend not only, nor even mainly, what it dictated. While the text itself remained surprisingly stable despite constant copying and confirmations, what continuously mutated was the legal context in which it operated. That the Magna Carta came to symbolize what it does today; that my student was so proud at having seen a copy, thus had everything to do not with the text itself, but with the contexts in which it was read. If we wished to understand what the Magna Carta stood for in each given moment, we would therefore need to reconstruct the various systems in which it operated.

As a legal historian, I know that what the Magna Carta currently stands for has nothing to do with the document itself and everything to do with how it was used and remembered. If my student knew this history, I reasoned, she might understand the past better, but she might also acquire means to imagine differently her present and future. It could supply her with instruments to question narratives, to understand the processes that lead to their formation, and to comprehend that the roads we have taken (and still take) are never evident nor foretold.

The Magna Carta, of course, is not the only legal remnant that still strongly influences our present or allows us to imagine our future. Plenty of other instruments, institutions, and texts inherited from the past fulfill that role. Both relics of a time gone and important features of our everyday life, they give things certain meanings, they supply solutions, and they offer techniques through which to analyze and understand reality.

Take, for example, the device of legal presumptions. These were a Roman invention allowing citizens to assume the existence of things without having to prove them first.  Not only was the employment of presumptions a Roman technique, but also some of the presumptions we still use to-date originated in Roman times. One of the most powerful is the legal presumption that children born to a married couple are the natural offspring of both spouses. This presumption allowed registering children as offspring without their parents having to prove their descent. Essential to avoid lengthy processes of identification and registration, this presumption survived for some 2,000 years and still fulfills the same function today despite the existence of scientific procedures allowing us to establish with certitude by quick and reliable techniques who are the genetic parents of the recently born. While this persistence may not be altogether surprising, here, too, the contexts, in which the presumption was used (and still operates), could dramatically change its meanings as well as its functions. Implemented under radically different social conditions, it could come to fulfill a completely different role. In present-day Spain, for example, it provides the authority to register a child born to a gay couple, who are legally married, as the natural offspring of both same-sex spouses.

To explain how such things happened and why we need to understand them, I wanted to write a book that would highlight the constructed character of law and its context-dependency. For me, the history of legal development in Europe featured the continuous construction and (re)construction of the normative order, and the continuous working and re-working of past traditions to the point at which, on occasions, they completely betrayed their original design. Would not King John of England be shocked by how his Magna Carta was used centuries after it was enacted? Would not the Romans be surprised by the employment of their presumption regarding the parentage of newborn children in contemporary Spain?

The law I was targeting was not a body of learned law, which evolved with a certain stability over time in a closed space restricted to the European continent by professionals we came to identify as lawyers. Neither was I interested in the development of legal doctrines and institutions. Instead, I sought to reproduce the political, social, and cultural roots of law -the shared preconceptions lying behind and giving it sense and apparent reasonableness- as well as to narrate how law influenced society. Because this was my intention, the story I wanted to tell was necessarily a longue durée story, which began with the Roman Empire (which itself, of course, took on many elements from preceding systems) and which, like evolution, still unfolds today.

Continuity as Change and Change as Continuity

In this long, complex, and hazardous trajectory and in their quest to obtain certain goals, agents propelling legal development often justified their agendas by arguing in terms of either continuity or the need for change. Though most presented their case as belonging unequivocally to one category or the other, regardless of what they said, their activities usually combined both.  The most striking example is the dissimilarity between developments in seventeenth-century England and eighteenth-century France.

During the seventeenth century, in the midst of an acute political crisis that had degenerated into a civil war, English jurists adopted a new vision of their political and legal system, undertaking what some historians have identified as a true revolution. Before jurists elaborated these new interpretations, it had been generally agreed that England’s common law was a system of royal courts that was imposed by the Norman kings, who were foreign occupiers. In the late sixteenth and in the seventeenth century, however, English jurists began imagining common law as a system of customary procedures and solutions that evolved over time, claiming it had in fact begun before the Normans arrived and that it had suffered no major interruption or changes since. Ingeniously, despite introducing major innovations that completely changed what English law was (and would become), those proposing these interpretations in the seventeenth century never presented their work as revolutionary. Instead, they insisted that they were only recovering and upholding old and ‘true’ traditions, which they claimed the king had refused to follow.

Contrary to the continuity claimed by seventeenth-century English jurists, in the late eighteenth century, radical change in France was heralded by explicit revolutionaries. Many (if not most) argued for the need to completely overhaul the social order and the legal and political system. Tossing out all pre-existing legal sources and allegedly relying no longer on traditional solutions, only on reason and the general will, they suggested that their actions would begin a new age, and indeed called it so (and endowed it with a new calendar). Yet, the French system that emerged as a result had strong elements of continuity. Equality, liberty, and fraternity were not extended to women, religious minorities, or slaves, to mention just a few emblematic examples.

To understand the past, we therefore need to know not only what had transpired but also how it was reconstructed, used, and comprehended by both contemporaries who lived through these events and future interpreters who looked back to them in order to reform their present or dream of a different future. We also need to appreciate that most legal developments do not happen overnight, nor can they ignore what had already transpired (even if they pretend to do so). Observing law as it mutated over the course of its long history as I do in this book makes this point extremely clear: law is constantly elaborated, re-elaborated, and re-worked once again, as different individuals, communities, and institutions seek to identify, construct, re-construct, manage, and re-manage the basic rules that would regulate their activities. As they look back to the past, they both adopt and reject it.

A Multiplicity of legal orders

Another central theme of my book is the attempt to reconstruct the multiple and potentially conflicting legal orders that coexisted in Europe in each given moment. In each period, I argue, there were several interpretive methods, political norms, favoured sources, leading personnel, and dominant jurisdictions. The interplay between these various elements led to extreme “multinormativity.” (i.e. several laws in existence side by side!)

Today, we tend to identify English law with common law. Yet, until the seventeenth century and, according to some scholars, until the eighteenth and perhaps even the early nineteenth century, alongside common law many other legal systems operated in England. There were local courts, feudal (manorial) courts, ecclesiastical courts, courts of equity, merchant courts, and so forth. Common law was not the only legal system in operation and it was hardly the most important one. Contrary to the continent, where a clear and unified legal pyramid existed so that legal decisions in lower courts could normally (if license was granted) be appealed to the king’s highest courts, such was not the case in England. For example, there was no appeal from feudal court to the common law courts, and neither could the judges of common law force feudal courts to relinquish their jurisdiction and pass the matter to their examination. Part of what I tell in the book, therefore, is the story of how common law came to dominate, indeed came to symbolize and stand for, the entire English legal system, when and why this happened, and what were the results.

Multinormativity, however, was not peculiar to England. In continental Europe, multiple legal orders and possibilities also existed, and why certain of them became more dominant than others is a question to ask, rather than a foretold story to affirm. To take another paradigmatic example: the division French lawyers make between pays de droit écriteand pays de droit coutumier. The division, that is said to have partitioned France into a Northern half (or rather two thirds) that followed customary law, and a southern half (or rather a third), which was heavily influenced by Roman law, is also indicative of multinormativity. Yet, this pluralism was more complex than meets the eye. We now know that the writing down of the so- called customary law began in France in the thirteenth and fourteenth century. Initially championed as a private enterprise of particular jurists, by the fifteenth and sixteenth centuries, royal authorities fostered these processes. They initiated campaigns to write down the customary law and sent jurists to oversee them. Royal commissions, which undertook the compilation of customary law, left ample evidence proving that its members, rather than considering themselves as recorders charged with locating and identifying existing norms, sought to influence these norms. These officials decided what to write down and what to ignore. They homogenized the customs of different regions and they extended the validity of those customary norms that they considered “useful” throughout the realm. By the end of this process, the so-called customary law of France was no longer dependent on local creation, nor was it oral. Instead, it now existed in written form, which had the power of law because the king so willed it.

The jurists who were responsible for this legal transformation (from customary to royal, and from oral to written) were all trained in Roman law and the texts they produced referenced the terms, techniques, and structures of Roman law. Furthermore, after customs were codified, they became subject to academic comment and interpretation by professional, university trained, jurists. Thus, although its specific contents were on occasions somewhat inspired by old traditions, after its compilation, France’s law of the pays de droit coutumiercould hardly be considered a customary law.

Meanwhile, in the French territories that allegedly followed Roman law, a plurality of local customs were also in existence, Roman law allowing and even encouraging this pluralism. As a result, it seems fair to say that the idea that some parts of France followed Roman law and others customary law, was a distinction that made sense politically, but did not necessarily reflect a legal reality. The question a legal historian must therefore ask him or herself is why was this over-neat dichotomy coined, by whom, for what end, and how has it influenced later developments.

English and European Law: dancing together, not side by side

Another overriding preoccupation, which I wanted to tackle, was the widespread assumption that common and civil law, English and continental law, were two completely separate and distinct systems. This assumption is central to all narratives of the development of law in Europe. It is shared by most jurists and non-jurists, both continental and English, and it features massively in debates regarding European law.

Legal historians who have studied the foundational period of English common law have long affirmed that it had continental roots and several have explored the continuing influence between it and the Continent. Yet, histories of European law still focus either on the English or on the Continental system. When they describe both, they do so separately: half of the text deals with the Continent and the other half with England. No effort is made to link them together.

Rather than following this route, in this book I adopted an analysis that observed both the English and the continental law at the same time by using a similar methodology. I examined the formative period of both, I analyzed how they responded to challenges and how they changed in the early modern period, I compared their eighteenth-century mutations, and I scrutinized them throughout the nineteenth century and into the formation of the European Union in the second half of the twentieth century.  This method demonstrated that both English and continental law formed part of the very same legal tradition. Their specific technologies or solutions might have varied to some degree or the other, but they shared a common genealogy that bound them together more strongly than that which drew them apart. Both legal systems took strikingly similar routes more or less at the same time, among other things, because they often responded to similar pressures in comparable ways. These routes led them to moments of greater unity and moments of larger divergence, but divergence was sometimes more apparent than real. Rather than being foreign to each other, English common law and continental civil law formed part of a single European tradition from which they both drew as well as contributed.

To mention but one emblematic example: the role of immemorial customs. As is well known, in the seventeenth century, English lawyers suggested that Common Law was made of immemorial customs. This interpretation allowed them to place checks on the kings who, according to them, could not modify the legal order.  Though traditionally interpreted as an English particularism, both “customs” and “immemoriality” were not invented in England. Continental jurists described the local variations of the common European Continental law as “customs” from as early as the thirteenth century and they attributed to them the quality of “immemorial” soon after. Tying both things together, these  jurists explained that to prove the existence of customs it was sufficient to argue that they were immemorial. The immemoriality Continental jurists described was a category of proof, not a historical reality. It referenced a special legal presumption that, because classified as juris et de jure, admitted no proof to the contrary. Paradoxically, because what was immemorial could not be substantiated, it required no corroboration: it was by definition correct even if false. This was true in both the continent and in England.

Once we realise that ‘immemoriality’ in the English customary law is part of a larger European context and usage of the notion, this enables historians of seventeenth-century England to make sense of something that has previously been considered an inexplicable internal contradiction: the claim that the ancient pact that 17th-century lawyers defended originated in Anglo-Saxon times, yet the assertion that it was also immemorial. Furthermore, it would suggest, as continental historians have already asserted, that – precisely because information was lacking – immemoriality could be easily attached to relatively new things. In other words, memory of what was remembered and claims about what was forgotten were often instruments to introduce change.

Europe and the World

The last issue that was central to my narrative was the wish to explain how European law had acquired the large resonance it currently has and why it influenced large territories and many societies outside Europe. My aim was not to advocate for a Eurocentric narrative that pretended that this dominance was the natural result of the accomplishments, perhaps even superiority, of that law. Instead, I traced the way European law came to refashion itself as both the epitome of reason and as a system with potential universal applicability. I argued that the enormous influence European law has had around the globe could of course be explained by political and economic factors, but that it also required an intellectual elaboration. Ancient Romans linked community membership to law and linked both to the extension of political hegemony, but these links mutated dramatically in the Middle Ages. The propagation of Christianity allowed for the exporting of Roman law to new areas in Asia, Africa, and Europe. With the advent of colonialism, new explanations were adopted to justify the imposition of European law on non-European territories. The same thing happened during the eighteenth-century revolutions and nineteenth-century construction of nation-states, when European legal systems were presented as instruments that were identified with a rationality that was said to be universal, and as they came to represent the aspirations of a growing middle class.

Conclusions

If one traces how European society has evolved over time, and how law enabled this evolution, as well as was modified by it, one sees a clear story in which multiple agents constantly looked to the past in order to reform their present. Law was contingent on context, and different solutions were proposed and adopted according to what was considered possible and just. Roman law may have been a diving duck, as Goethe had once said (meaning it was always there whether you could see it or not), but it dived in both continental and English waters. Furthermore, it changed colors and shapes so often and so much that it was no longer clear whether it was a duck at all, and which type of duck.

To tell the story of the development of law in Europe it is essential that we observe both the continent and England. As skewed mirrors of one another, or as two dancers in a tango, developments in one cannot be understood without understanding developments in the other.  There is nothing in English legal history that would suggest that English law was destined to be distinctive from other European systems. Symbolic as the Magna Carta might have been, it was its use, rather than its contents, that allowed those who so wished to argue for an English exceptionalism.

About the author

Tamar Herzog is Monroe Gutman Professor at Harvard and an affiliated faculty member at the Harvard Law School. This policy paper draws from her recently published A Short History of European Law: The Last Two and a Half Millennia. (Cambridge MA: Harvard University Press, 2018), and also her new article, “English Immemorial Customs and Continental and Continental Law.” In Cane P. and Kumarasingham H., eds. The Cambridge Constitutional History of the United Kingdom. Cambridge: Cambridge University Press (forthcoming). Her other publications have included:  Frontiers of Possession: Spain and Portugal in Europe and the Americas. (Cambridge MA: Harvard University Press, 2015), Upholding Justice: State, Law and the Penal System in Quito. (Ann Arbor: University of Michigan Press, 2004) and Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America. (New Haven: Yale University Press, 2003).

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Further Reading

- Donahue, Ch (1991-1992). “Ius Commune, Canon Law and Common Law in England,” Tulane Law Review 66: 1745-1780.

- Helmholz R.H. and W. David H. Sellar (eds) (2009), The Law of Presumptions: Essays in Comparative Legal History, Berlin: Dunker and Humblot.

- Helmholz, RH (2001). The Ius Commune in England. Four Studies, Oxford and New York: Oxford University Press.

- Ibbetson, D (2005-2006). “English Law and the European Ius Commune, 1450-1650,” Cambridge Year Book of European Legal Studies 8: 115-132.

- Seipp, DJ (1993). “The Reception of Canon Law and Civil Law in the Common Law Courts before 1600,” The Oxford Journal of Legal Studies 13 (3): 388-420.

- Teuscher, S (2013). Lords’ Rights and Peasant Stories. The Writing and the Formation of Tradition in the Later Middle Ages, Philip Grace (trans), Philadelphia: University of Pennsylvania Press.