Roman Law Influencing Commlonlaw

2005] International Law / Internationales Recht
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Influences of Roman Law and Civil Law on the Common
Law
Diana Nestorovska∗
I. Introduction
Common Law practitioners have often been hostile to any perceived Roman Law or Civil
Law intrusions into their legal system. Despite this, Roman Law and Civil Law have
influenced the Common Law at various points in English legal history. In examining how
the Common Law has so been influenced, this essay will firstly define the terminology that
will be employed hereafter and examine the formative years of the common law, equity
and the nationstate. The impact of Roman Law and Civil Law influences on the English
legal system during these periods will subsequently be analysed. Finally, having regard to
the key features of the Common Law, this essay will evaluate the arguments for and against
the harmonisation and eventual merging of the Common Law with Civil Law, and
determine whether any such rapprochement is feasible and occurring.
For the purposes of consistency and clarity, it is prudent to outline the terms that will be
used in this essay.1 ‘Civil Law’ encompasses canon law, mercantile law, maritime law,
legal principles espoused in Continental juristic writings (eg the Glossators, German
Pandectists etc.) and the codified national systems of Continental countries such as France
and Germany, all of which can trace their roots to Roman Law.2 ‘Common Law’ refers to
the common law, equity and statute while ‘common law’ refers to the body of laws that
∗
In the final year of a Bachelor of Arts, Bachelor of Law degree at the University of Wollongong, NSW,
Australia. This essay was originally submitted as a research paper for LLB337 Comparative Law in spring
session 2004; an elective offered by the Faculty of Law, University of Wollongong, NSW, Australia. The author
wishes to acknowledge Dr Thomas Musgrave, SubDean, Faculty of Law, University of Wollongong, NSW,
Australia, for the original essay question and for his comments on the original research paper. The essay question
was as follows:
‘Despite the oftentimes fierce, and sometimes even irrational resistance of Common Law practitioners in the past
to what they perceived as encroachments of aspects of Roman Law or the Civil Law into their legal system, the
English legal system has in fact been influenced in many ways by Roman Law and by the Civil Law. In what
ways has the Common Law been so influenced, and what impact has this had on its development and functioning
as a legal system? Does the fact that the Common Law has at various times and in various ways adopted
elements of Roman Law and the Civil Law into its system demonstrate that the Common Law is capable of
mutating into a legal system which can be harmonised with, and eventually merge, with the Civil Law at some
point in the future, or are there essential attributes of the Common Law which would prevent such a process from
occurring?’
1
Adapted from the terminology used by G. Gorla and L. Moccia in A ‘Revisiting’ of the Comparison between
‘Continental Law’ and ‘English Law’ (16th19th Century)’ (1981) 2 Journal of Legal History 143, 144.
2
Ibid.
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emerged from the traditional forms of action.3 ‘European common law’ refers to the period
prior to the rise of national legal systems when ‘common legal rules and principles spread
throughout Continental Europe and England thanks to a transnational spirit of mutual
understanding…and ‘fraternity’ amongst jurists.’4 Finally, ‘Roman Law’ refers to the
Emperor Justinian’s Corpus Iuris Civilis, as differentiated from the law of the classical
Roman period.5
II . Roman Law and Civil Law Influences on the Common Law and
their Impact
(a) The development of common law
The common law developed during Henry II’s reign, when royal courts traveled around the
English countryside dispensing the King’s justice.6 The royal courts initially operated
within a restricted jurisdiction, dealing with matters concerning the King and country
including taxation, serious crime and property.7 Local matters were dealt with by the feudal
courts, which were eventually eclipsed by the popularity and expansion of the royal courts.8
The extent to which judges drew upon the Roman Law and Civil Law during the formative
years of the common law is unclear. The emergence of the royal courts generally coincided
with the emergence of universities in Europe, the foremost of which was at Bologna, where
the newly discovered Corpus Iuris Civilis was studied by the Glossators and taught.9 As the
many lawyers and judges of the early royal courts were educated, they arguably imparted
this knowledge onto the common law.10 The fact that Roman terms are still part of the
English legal tradition is worth noting.11 One writer suggests that the early royal judges
made new laws ‘out of necessity’, reshaping local customs, Roman Law and Civil Law
3
Ibid.
4
W. Senior, Doctors’ Commons and the Old Court of Admiralty: A Short History of the Civilians in England
(1922), 111 in Ibid.
5
A.R. Emmett, Roman Traces in Australian law (2001, ABR Lexis) 1, [14]; F. Pringsheim, “The Inner
Relationship between English and Roman law”, (19331935) 5 Cambridge Law Journal, 347, 350.
6
W.J.V. Windeyer, Lectures on Legal History, 2nd Edition (1957, Law Book Company), 47.
7
R. David and J.E.C. Brierley, Major Legal Systems in the World Today, 3rd Edition (1985, Stevens and Sons),
314.
8
Ibid.
9
Emmett, above n 5, 15.
10
W. Holdsworth, A History of English Law: Volume II (1977, Methuen & Co Ltd and Sweet and Maxwell),
177.
11
J. Frank, ‘Civil Law Influences on the Common Law – Some Reflections on “Comparative” and “Contrastive”
Law’ (19551956) 104 University of Pennsylvania Law Review 887, 891.
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principles to fit around the forms of action that were used in the courts.12 The courts never
revealed the origins of these customs and principles.13 Instead, the doctrines of precedent
and stare decisis as well as the fiction that judges merely declare the law ensured that their
decisions would be presented as the product of reason.14
The formative years of the common law also saw the publication of the first books on the
English legal system.15 Bracton’s Concerning the Laws and Customs of England was
published in 1256.16 Influenced by the Italian jurist Azo, Bracton drew upon Roman terms,
maxims and doctrines ‘to construct upon native foundations a reasonable system out of
comparatively meager authorities’ that included rolls of the king’s courts, the register of
writs, legal enactments and an earlier treatise of the same name written by Glanvill.17 Thus,
Roman Law influenced the substance and structure of Bracton’s treatise.18 Centuries later,
Bracton’s work on bailments and servitudes, which heavily drew upon Roman Law, was
used to develop the modern day law of bailments and easements.19 As can be seen in Coggs
v Bernard20 and Re Ellenborough Park21, Roman Law was used to fill a gap in the common
law.
Thus, the Roman Law and Civil Law influenced the English legal system as the common
law emerged, notably through judges and jurists.22 Arguably, these influences provided the
common law with an organisational framework and substantive principles where it was
deficient, and essentially ‘inoculated’ the common law against a fullscale reception of
Roman Law and Civil Law during this period.23
(b) The rise of equity and its clash with the common law
While the royal courts were in their embryonic stages, other courts in England had to deal
with matters outside the jurisdiction of the common law: these other courts practiced in the
Civil Law and included the ecclesiastical courts, the Court of Chancery and the Court of
Admiralty.24
12
David and Brierley, above n 7, 323.
13
Ibid.
14
Ibid.
15
Emmett, above n 5, 1617.
16
Ibid.
17
Ibid; Holdsworth, above n 10, 269, 286.
18
Holdsworth, above n 10, 270271.
19
Emmett, above n 5, 29, 86.
20
(1703) 2 Ld Raym 909; 92 ER 107 in Ibid 23.
21
[1956] Ch 131 in Emmett, above n 5, 89.
22
J.H. Baker, An Introduction to English Legal History, 3rd Edition (1990, Butterworths), 33.
23
Ibid.
24
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The ecclesiastical courts applied the canon law, a subcategory of the Civil Law as
defined.25 These courts dealt with the clergy and personal matters including matrimony and
probate.26 While the jurisdiction of the ecclesiastical courts was eventually transferred to
the common law courts in the 19th century,27 the canon law influenced equity before then,
which, in turn, later became a part of the Common Law.28
By the 16th century, the common law forms of action were too inflexible to deal with an
emerging Renaissance society: change in the common law could only ever be achieved
incrementally.29 Disgruntled litigants had been appealing directly to the Chancellor for
relief since the 14th century, but by this stage the trickle had become a steady stream.30 The
Chancellor up until 1529 was a member of the clergy and the king’s personal confessor.31
In dealing with these appeals and thereby developing the rules of equity, he emphasised
justice and conscionability, concepts which stem directly from the canon law.32 Indeed, a
feature of modern day procedure, discovery, traces its root to the ecclesiastical idea of
‘scraping the conscience of the defendant.’33
After 1529, and the prohibition on canonistic teachings at Oxford and Cambridge a few
years later, the Chancellor was a lawyer who nevertheless continued to infuse equity with
Civil Law learning.34 The influences of the Roman Law and Civil Law in equity prevented
the Civil Law from replacing the archaic common law in its entirety, as equity became a
corrective jurisdiction to supplement the common law and infuse it with notions of
justice.35
During the 17th century, the power struggle between the English Parliament and the Crown
enveloped the country’s legal institutions.36 The common law courts were associated with
the former while the Civil Law courts, notably, the Court of Chancery, were associated
with the latter.37 The compromise of 1616 and the eventual triumph of the English
Parliament over the monarchy during the English civil war meant that the Civil Law courts
would thereafter be associated with ‘monarchical despotism’.38 While there were many
25
Windeyer, above n 6, 37.
26
P.H. Winfield, The Chief Sources of English Legal History, (1925, Harvard University Press), 57.
27
28
Frank, above n 11, 894.
29
30
Ibid 324325.
31
Ibid.
32
A.T. Vanderbilt, ‘The Reconciliation of the Civil Law and the Common Law’ in B. Schwartz (ed.), The Code
Napoleon and the Common Law World, (1956, Greenwood Press), 393.
33
Ibid.
34
David and Brierley, above n 7, 325; Emmett, above n 5, 18.
35
36
L. Moccia, ‘English Attitudes to the ‘Civil Law’ (1981) 2 Journal of Legal History 157, 160.
37
Ibid.
38
Ibid.
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resemblances between the European common law and the English legal system during this
time, political events increasingly saw the Common Law lawyer defend the homegrown
Common Law from ‘foreign encroachments’.39
From 1616, therefore, the common law courts and equitable courts existed parallel to one
another.40 However, despite this compromise, the rivalry between the common law courts
and the Civil Law courts was not entirely extinguished, as can be seen when the former
appropriated the Court of Admiralty’s jurisdiction over maritime and mercantile matters.41
The source of mercantile law in the 17th century was Malynes’ Lex Mercatoria.42 First
published in 1622, the work ‘extracted the observations of the learned in the civil laws
upon all the precedent points’ relating to mercantile law.43 The Court of King’s Bench
employed the fiction that all international commercial transactions were made in London
and issued writs of prohibition against the Court of Admiralty, preventing it from hearing
mercantile disputes.44 Thereafter, mercantile matters were dealt with by the common law
courts.45 However, mercantile law was largely crafted in the 18th century by Lord
Mansfield, the then Chief Justice of the King’s Bench.46 He introduced Civil Law principles
relating to international trade, shipping, commercial contracts and insurance into the
common law.47
Arguably, by 1873, principles that originated in the Court of Admiralty and that had not
yet been appropriated into the common law would have been so appropriated once the
Court of Admiralty merged with the High Court of Justice.48 Similarly, the common law
courts and equitable courts were procedurally fused and hence, formed the ‘Common Law’
as defined in this essay.49
(c) The rise of the nationstate
The 18th and 19th centuries saw the emergence of the modern day nationstate and an
intellectual tradition that celebrated systematisation.50 Many Continental countries codified
39
Ibid 164; Gorla and Moccia, above n 1, 147.
40
41
Windeyer, above n 6, 178; P. Stein, The Character and Influence of the Roman Civil Law: Historical Essays,
(1988, The Hambledon Press), 219.
42
Stein, above n 41.
43
Ibid 220.
44
Ibid 219.
45
Ibid.
46
Ibid 220.
47
Ibid.
48
See Emmett, above n 5, 54, 57 and 89; Windeyer, above n 6, 179.
49
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their laws while England increasingly turned to statutes.51 The drive towards codification,
coupled with the insular mindset of English lawyers since the 1616 compromise and
subsequent civil war, fragmented the once great European common law.52 However,
Roman Law and Civil Law continued to influence the common law. For example,
Blackstone’s Commentaries on the laws of England (17651769) attempted to present the
common law in a methodical manner and clearly borrowed its organisational structure from
Justinian’s Institutes.53
In addition to shaping its form, the Civil Law continued to fill gaps in the common law.
Thus, the Civil Law influenced ‘disputes about the prerogative rights and powers of the
Crown…the origins of the privilege against selfincrimination…and the early history of the
law of libel and slander.’54 The German Pandectists influenced the common law with
respect to corporate personality, the theory of possession and the law of contract, notably in
contractual mistake.55 Pothier and Savigny were widely read among Common Law lawyers
for their theories regarding contract.56 In Taylor v Caldwell,57 impossibility of performance
was introduced into the English law of contracts, as espoused by Pothier and the Roman
principle of impossibilium nulla obligatio.58
III. Can the two Systems Harmonise and Eventually Merge?
(a) Factors pointing towards harmonisation
It has been argued that ‘the differences that once seemed significant between the civil and
the common law are becoming blurred or hazy’59 and that the two systems are already
harmonising as regards the sources of law, procedure, drafting techniques and judicial
50
Stein, above n 41, 223; J.H. Merryman, ‘On the Convergence (and Divergence) of the Civil and the Common
Law’ (1981) 17 Stan. J. Int’l L. 357, 359.
51
J.H. Merryman, The Civil Law Tradition, (1985, Stanford University Press), 28; M.A. Glendon, ‘The Sources
of Law in a Changing Legal Order’ in M.A. Glendon, M.W. Gordon and C. Osakwe, Comparative Legal
Traditions, 2nd Edition, (1994), West Publishing Co), 242.
52
Merryman, above n 50.
53
Stein, above n 50, 216.; A. Watson, Roman Law and Comparative Law, (1991, University of Georgia Press),
179.
54
R.H. Helmholz, ‘Continental Law and Common Law: Historical Strangers or Companions’ (1990) Duke Law
Journal. 1207, 12141218.
55
Stein, above n 50, 226228.
56
Ibid.
57
(1863) 3 B&S 826 in Pringsheim, above n 5, 362.
58
Pringsheim, above n 5, 362.
59
Glendon, above n 51, 250.
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views.60 For example, since the 19th century Common Law and Civil Law countries have
increasingly relied on legislation to ‘codify’ parts of their law or compel law reform.61
Associated with this increase in legislation, which now regulates almost every aspect of a
person’s life, is the rise of administrative law.62 There has been a move towards increased
bureaucratic discretion, which is significant for the Common Law since it favours formal
rules.63 Similarly, in Civil Law countries such as France, public law is largely uncodified.64
This seems highly incongruous in a legal system that otherwise celebrates rationality and
order.65
Another factor pointing to harmonisation is the increasing acknowledgement on the part of
common law judges that they make the law rather than blindly adhere to precedent.66
Likewise, there is a shift in attitude in France where judges, traditionally relegated to the
role of merely applying the law with reference to the code, are establishing lines of
‘precedent’ to guide courts and practitioners.67 This is arguably evident in areas of the
private law such as delictual responsibility.68
Some writers argue that globalisation is compelling harmonisation.69 Increased
international transactions have prompted countries with similar economic, social and
political values to integrate.70 Integration could potentially lead to the emergence of another
European or international common law.71 The European Union (EU) is the best example of
integration: it is a body with its own Parliament, Court and bureaucratic institutions.72 The
EU employs the technique of unification to harmonise laws across member states; a
60
B.S. Markesims, ‘Learning from Europe and Learning in Europe’ in his (Ed.), The Gradual Convergence in P.
Legrand, ‘European Legal Systems are Not Converging’ (1996) 45 International and Comparative Law Quarterly
52, 5455.
61
Glendon, above n 51, 242.
62
Ibid 247.
63
Ibid.
64
R. David, English Law and French Law, (1980, Stevens), 99.
65
66
Glendon, above n 51, 245; see M. Kirby, ‘Beyond the Judicial Fairytales’ (2004) Quadrant 26.
67
F.H. Lawson, A.E. Anton, N. Brown, Amos and Walton’s Introduction to French Law, 3rd Edition, (1967,
Clarendon Press), 11.
68
For example, the Affaire Jand’heur discussed in Ibid 205. In that case, a truck seriously injured a girl who was
walking on a pavement. The French Cour de Cassation held that the defendant could only escape liability by
proving that the accident was caused by some external factor for which he was not to blame. The decision was
based on an interpretation of article 1384, paragraph 1 of the French Code Civile, which states that ‘A person is
responsible not only for the damage which he causes by his own action, but in addition for that which is caused
by the actions of persons for whom he must answer or of things in his care.’ The fact that liability could be
imposed without the need to show fault was a departure from previous interpretations of the Code.
69
Merryman, above n 50, 363 and L.N. Brown, ‘The Two Legal Traditions: Antithesis or Synthesis’ (1980) 18 J.
Common Market Studies 246, 248.
70
Merryman, above n 50, 363364.
71
See B.S. Markesinis, ‘Bridging Legal Cultures’ (1993) 27 Israel Law Review 363, 382 in Legrand, above n
60, 55.
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technique which relies on treaties, conventions and legislation.73 One writer has argued that
the EU’s semiconstitutional structure and the prevalence of broad legislative and treaty
provisions – a feature of the civil law – have ‘Europeanised’ the British legal institutions,
leading to a convergence of substantive laws and legal approaches.74
In arguing their case for harmonisation, some writers point out that the human need for
simplicity coupled with progress will lead lessdeveloped legal systems to ‘catch up’ to the
developed ones.75 Aside from legal evolution, harmonisation in this situation has been
achieved through legal transplants – the conscious choice of a nation to adopt a foreign law
or institution.76 The adoption of Americanstyle constitutionalism in many parts of the
world is an example of legal transplantation.77
Other writers see harmonisation as a ‘a situation in which the common nature of human
beings is properly observed and expressed by the law.’78 Derived from a natural law
perspective, this point is particularly evidenced through the widespread acceptance of
human rights in the Western world79 and the use of general principles in both systems.80 In
France, the Conseil Constitutionnel has invoked the concept of ‘general principles’ to
determine the constitutional validity of legislation.81 In England, where judges avoid
speculating beyond the facts of the particular case, the notion of natural justice has been
cited as an example of a (limited) move to more deductive modes of reasoning.82
Finally, some writers argue that while their legal rules and contexts may differ, both
systems produce similar outcomes, thus illustrating that they are not irreconcilable.83 For
example, succession law in the Civil Law provides for a reserve.84 In Common Law
countries such as the United Kingdom and Australia, the traditional notion of freedom of
testation has been curtailed in recent years through statute, leading to a similar result.85
72
See O.F. Robson, T.D. Fergus and W.M. Gordon, European Legal History: Sources and Institutions, 2nd
Edition, (1994, Butterworths), 304.
73
Brown, above n 69, 249.
74
J.E. Levitsky, ‘The Europeanisation of the British Legal Style’ (1994) 42 Am. J. Comp. L. 347, 348.
75
76
Ibid 367. See also Brown, above n 69, 249.
77
Merryman, above n 50, 3678; Brown, above n 69, 250.
78
Merryman, above n 50, 361 citing A. Passerin D’Entreves, NATURAL LAW, (1951).
79
Ibid 363; Brown, above 69, 252.
80
Merryman, above n 50, 375; Brown, above n 69, 250.
81
Brown, above n 69, 250.
82
Ibid 251. Dr. Musgrave (introductory note above) pointed out in the original essay that natural justice is a
limited example because it is invoked in relation to procedural matters and is narrow in scope.
83
Ibid 253.
84
Ibid.
85
Ibid citing the Inheritance (Family Provision) Act 1938 and the Inheritance (Provision for Family and
Dependents Act 1975. In the author’s home state, a comparable statute is the Family Provisions Act 1982
(NSW).
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(b) Factors against harmonisation
Writers claiming that the two legal systems are harmonising have been criticised for
limiting the scope of their analysis to legal rules and concepts.86 In particular, this narrow
focus fails to consider ‘the law machine – the complex of legal structures, actors and
processes’ when assessing the extent to which harmonisation, if any, is occurring.87
Legrand notes that when one focuses on the mentalities that underlie the Civil Law and the
Common Law, ‘these two legal traditions reflect two modes of experiencing the world’
which simply cannot be reconciled.88 While they may have similar rules, concepts and
outcomes, this is peripheral: the key features of the Common Law prevent intermingling on
a deeper level.89
As for these key features, there is firstly the basic division in the Common Law between
common law and equity. Indeed, the idea that ‘justice’ is infused into the Common Law
through a separate corrective jurisdiction is a novel concept for civil lawyers.90 Secondly,
the Common Law clings onto an inductive mode of reasoning which is reactive rather than
proactive.91 Thirdly, while both the Common Law and Civil Law make use of legislation,
their respective approach to ‘systematisation’ differs: judges in the Common Law approach
legislation with the same inductive mindset as they would approach case law, and case law
is still an authoritative source of law for the interpretation of statutes.92 Indeed, the idea that
the Common Law is moving away from precedent is clearly unfounded, since even judicial
‘activists’ will seek to justify their rules on the basis of past authorities, no matter how
obscure.93 Fourthly, the Common Law notion of facts preceding the law is diametrically
opposed to the Civil Law system's emphasis on the law preceding facts.94 Thus, in the
Common Law, ‘rights’ do not exist per se, but rather, arise when there is an ‘assemblage of
those facts that are necessary for supporting a claim in a court of law.’95
Aside from the key features of the Common Law, other factors indicate that the systems are
not harmonising. The importance of administrative law in evidencing harmonisation may
be overstated, particularly as modern states move away from the welfare model and
86
Legrand, above n 60, 53.
87
Brown, above n 69, 252 Brown acknowledges that law is more than about rules but, as noted in the text above
at n 87, he states that different rules, structures and cultures can produce similar outcomes. Merryman, above n
50, 382 also recognizes that convergence and divergence can occur at various levels, including legal rules,
culture and structures.
88
89
Ibid 55.
90
Lawson et al, above n 67, 17.
91
92
Ibid 66.
93
Kirby, above n 66, 32.
94
Ibid 68.
95
Ibid 70.
87
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towards decentralisation.96 Similarly, the idea that globalisation and integration are
compelling the systems to merge has been dismissed as an overexaggeration.97 In the case
of European integration, one writer has pointed out that the harmonisation of European law
is patchy at best since EU laws often only require ‘partial harmonisation’ and the European
legal system merely exists alongside the national legal systems.98 Deficiencies in the
creation and implementation of European laws have also been noted.99
Finally and perhaps, most importantly, is the idea that Civil Law practitioners and Common
Law practitioners do not approach certain ideas in the law with the same assumptions, no
matter how similar those ideas may be.100 Contract law provides a pertinent example. When
a Civil Law practitioner speaks of ‘contrat’, this concept does not neatly correspond to the
Common Law practitioner’s notion of ‘contract.’ Contrary to the Civil Law, contracts in
the Common Law require consideration, thus excluding bailments and gifts from the scope
of its law of contract.101
IV. Conclusion
Thus, it can be seen that the Roman Law and Civil Law greatly influenced the Common
Law during the development of the common law and equity, through judges, jurists and the
intervention of the Chancellor. These influences provided the English legal system with
just enough substance and structure to prevent a fullscale reception of the Civil Law. Even
after the rise of the nationstate and the fragmentation of the European common law,
Roman Law and Civil Law continued to influence the Common Law from beyond the
Channel. While many writers claim that the Common Law and Civil Law are already
harmonising, there are key features of the Common Law, including its basic structure, the
role of legislation and precedent, its mode of reasoning and, most importantly, its
underlying assumptions, which have remained in tact despite peripheral changes. Thus,
harmonisation, let alone a convergence, appears unlikely in the near future.
96
97
98
T.M.J. Möllers, ‘The Role of Law in European Integration’ (2000) 48 American Journal
of Comparative Law. L. 679, 683685.
99
Ibid.
100
101
Lawson et al, above n 67, 150.
88

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