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Excerpts from Arthur T. von Mehren , “ The Civil Law System : An

Historical Introduction in John Honnold ( Ed. ) The Life of the Law ,
Collier – Macmillan Ltd., London ( 1964)

The legal systems of the world are, for the purposes of comparison,
frequently divided into two groups: the civil law system, seen in French
and German law, and the common law system developed in England.
Two points of difference are usually emphasized in comparing the civil
and the common laws. First, in the civil law, large areas of private law are
codified. Codification is not typical of the common law. Second, the civil
law was strongly and variously influenced by Roman law. The roman
influence on the common law was far less profound and in no way
pervasive. These points of difference should not be allowed to obscure
the extent to which the civil and the common law laws share a common
tradition. Both systems were developments within western European
tradition. Both systems were developments within western European
culture ; they hold many values in common. Both are products of western
civilization.

This section sketches in broad outline the development of the

common and civil law systems with particular attention to the question
of why the Continent had recourse to codification whereas England
never codified its law.

Our sketch must begin with the Romans. Roman law, over its long
history, was brought to a high level of juristic development . The
Romans, with their genius for institution and their practical common
sense, achieved excellent solutions for particular problems and combined
these solutions into a remarkable body of law. This law, reflecting the
relatively high development of Roman political, economic, and social life,
met the requirements of a culturally and economically advanced society.
After the fall of Rome, such a society was not to begin to re- emerge in
Europe until the later Middle Ages.
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Much of what is today Europe, including parts of England had been

Romanized for some 400 years before the western Roman Empire was
shattered by the German tribes and formally came to an end. ….With the
breakup of the Roman Empire in the West, the only political and cultural
force capable of creating and maintaining legal and political unity
disappeared . Highly effective organs of social control, the Roman courts
and administrators, were replaced by relatively weak and imperfect
institutions. Large areas of human activity were no longer under law.
Western Europe might, however , not have slipped back into a localized,
agrarian society if to the fall of Rome had not been added the expansion
of Islam.

The Mediterranean was the Roman world’s great artery of

commerce. The barbarian kingdoms, “ founded in the fifth century on the
soil of Western Europe , still preserved the most striking and essential
characteristic of ancient civilization, to wit, its Mediterranean character.”
The great landlocked sea made communication and transportation
relatively easy. It provided an essential basis for both the unity and
commercial life of the Roman Empire. Even after the breakup of the
Empire, it fulfilled this function. Trade continued……

The rise of Islam in the course of the seventh century changed this
whole picture. By conquest, the Moslems obtained control of Africa and
Spain and possession of the Balearic Isles , Corsica , Sardina , and Sicily.
Western Europe was cut off from the Byzantine Empire and lost its great
avenue of communication and transportation …..The ending of
commercial activity, the interruption of commerce, “ brought about the
disappearance of the merchants, and urban life, which had been
maintained by them, collapsed at the same time.” The Roman cities
survived only as centers of diocesan administration, losing both their
economic significance and their municipal administration. Some coasting
trade remained along the shores of the North Sea until the end of the 9th
century when the Norsemen destroyed it. The activities of first the Avars
and then the Magyars prevented use of the Danube as an alternative
artery of commerce.
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These facts made profound economic, legal, and social changes

inevitable in Western Europe. The legal and political order appropriate to
the highly – developed commercial civilization that Rome had achieved
could not survive the collapse of its political and later its economic basis.
…… Western Europe became essentially a rural civilization. An estate
economy without markets developed. Sale and purchase were not the
normal occupation of anyone, they were expedients resorted to only in
times of bad crops or when it was necessary to obtain a few essential
commodities, such as salt, which could not be produced locally.

Roman law was not entirely lost or forgotten during this period.
Elements of Roman law persisted in memory or as custom and habit. The
Church preserved in its law and cultures much of Roman civilization.
The system of personal law that prevailed in the German kingdoms
subjected the Roman element of the population to Roman law, though
this law became obscure and corrupted……

The most important single event for the subsequent history of

Roman law in Western Europe occurred, paradoxically perhaps, after the
fall in 476 of the Western Empire. The Roman Empire continued in the
East with its seat at Constantinopole . It was there, in 528, that Emperor
Justinian ( 527 – 565 ) ordered the great compilation , systematization,
and consolidation of Roman Law later known as the Corpus juris civilis.

Justinian’s Codes were introduced into western Europe in 544

when the eastern empire reconquered Italy. They were not, however, of
real significance for western European law until the twelfth – century
“revival” of the study of Roman law at the Italian universities.

It was probably Irnerius who gave at Bologna, in the twelfth

century, the first lectures on the Digest. These lectures are a milestone in
European legal history. They mark the discovery of the great compilation
of Roman law and begin the development of a legal science around that
body of law. Irnerius’ lectures came at a time when profound political
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and economic changes were already under way in western Europe. “The
revival of maritime commerce was accompanied by its rapid penetration
inland. Not only was agriculture stimulated by the demand for its
produce and transformed by the exchange economy of which it now
became part, but a new export industry was born”.

The twelfth century saw a rapid increase in the number of fairs.

These fairs provided organized facilities for commercial exchange. Towns
developed into commercial centers …..These and other developments
led, from the twelfth century onward, to demands for a new law.
Custom, “which had been gradually elaborated to regulate the relations of
men living by the cultivation or the ownership of the land, was
inadequate for a population whose existence was based on commerce and
industry”……

The creation of a new law and legal science on the Continent and
in England was a long, complex process. Its history is a part of the general
history of the economic, political and intellectual development of
western Europe. The new law was woven from many strands: existing
customs and practices, the customs of merchants, canon law, the revived
Roman law and, at a later stage, natural law philosophies. Various
agencies contributed to its elaboration: practitioners, judges,
administrators, scholars, men of affairs, churchmen, and philosophers. In
the period from roughly the end of the eleventh to the beginning of the
fourteenth century two differences which were to be of crucial
importance for the later history of the civil and the common laws, appear
in the general legal situation on the Continent and in England. On the
continent the revived Roman law, based on the study of the Corpus juris
civilis has much greater impact than in England. During this same period,
the English kings, in striking contrast to their French and German
counterparts, created an effective, centralized administration of justice.

In the eleventh century, legal studies, especially in Italy and

southern France, began to change in remarkable manner. System and
science gradually replaced the primitive legal thought characteristic of
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earlier periods. Irnerius’ lectures at Bologna on the newly discovered

Digest were “an event arising out of the spontaneous growth of ideas and
requirements in different localities of the more civilized regions of the
Europe.” They came at a most propitious moment. Two areas of life, the
political and the commercial, required new legal solutions. Politically, the
great problem was to organize a sufficiently strong central power.
Economically, it was necessary to develop legal techniques to permit the
carrying on and further development of trade.

The local law had not proved adequate to these challenges. The
administration of justice was very decentralized and lacked trained,
specialsed personnel. The feudal system, with its localizing tendencies,
prevented the establishment of central judicial agencies that could
develop a law common to the larger political and economic units that
were emerging. Lacking trained, specialized personnel working in a
tradition, the local, customary law had little growing power.

…………………………….The Corpus juris contained a law

capable of solving satisfactorily many of the problems of a more active
economy and a more cultivated society. Roman law offered, if not the
only, the best hope for a unified common law. Roman law had also
already formed and shaped, at least in part, many of the existing customs
and social institutions of western Europe. The Corpus juris civilis came,
therefore, not as completely strange and foreign but as part of a shared
and not entirely forgotten past.

During the period between 1100 and 1500 the Roman Law, the
Corpus juris civilis, became the basis for legal science throughout western
Europe. The Corpus juris also made important contributions to practice at
the level of specific rules and solutions. The degree of Roman law
influence, particularly in the latter respect, differed in the various parts of
the Continent.

By 1500 France and Germany, along with western Europe as a

whole, had thus achieved the basis for a common legal science grounded
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on Roman law sources. In England, though English law was influenced

by continental developments, this romanised legal science was never
received. The revived Roman law had, of course, some influence on the
developing common law. Vacarius was at Oxford teaching Roman law in
1151. The intellectual community of the period was small and
international in character. It kept in relatively close contact, aided by the
fact that learned conversation and learned writing were in Latin. It is
clear that English lawmen borrowed from their continental brethren and
found suggestive insights in continental learning. Roman law also
influenced the common law through the canon law of the catholic and
later the Anglican church. At various periods in English legal history the
ecclesiastical courts and judges, as well as lawyers trained in canon law,
were active in the administration of the law relating to testamentary
matters, domestic relations , and admiralty. In these branches of the law,
Roman conceptions as modified and molded by christian ethics, were of
particular importance in shaping the common law that we know today.

The Roman law, though it influenced the rules and solutions of

certain areas of the common law, never decisively shaped its techniques
or habits of thought. There are no famous English glossators or
commentators on the Corpus juris. The Corpus juris never became for
English lawmen the starting point for systematic reasoning and
investigation that it was for the lawmen of the Continent. How is this
difference to be explained? The problem is related to the question of why
France and Germany had recourse in modern times to legislative
codification of the private law.

The basic fact of English legal history is the early creation of a

national, efficient, and centralized administration of justice. This
development was possible because in England political power was at an
early date centralized, rationalized and made effective. In 1066, the
Norman invasion brought to England a class of capable administrators in
the service of a lord who claimed central political power by right of
conquest. In feudal theory England was one fief. Thus the feudal system,
instead of tending to fractionalize political power as it did on the
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Continent, gave an acceptable basis for the development of effective

organ of central power. The early English kings, many of whom were
unusually capable and energetic, made the most of their opportunities.
They early created institutions designed to secure and increase central
governmental authority. The Domesday Book ( 1086 ) symbolizes both
the administrative skill and diligence of Norman officialdom and
William’s determination to use the feudal system , with its confusion of
government and property, to strengthen the royal, central power.

Among the most important institutions developed by William and

his successors for the maintenance and strengthening of central authority
was the King’s Court. At this period, a tripartite division of power
between the executive, legislative and judicial branches of government
was unknown. The concept of conscious legislation had not developed
and would hardly have fitted the needs of a period during which change
tended to be gradual. The royal courts held a large share of this
undifferentiated governmental power.

In the twelfth century, Henry I ( 1100 – 1135 ) began the practice

of sending his ministers around the country to hear cases in the local
courts. Before the end of the century, the King’s, with its regular circuits,
was the most powerful political institution in the country. These courts
were staffed with trained officials, who regularly visited every part of
England, but whose permanent headquarters were at the king’s court and
whose allegiance was to the central national political
authority………………………..

The institutional fact of a unified court system thus resulted in the

growth of a law common to the entire realm. The common law,
unhampered by a strict rule of stare decisis, was able to develop new rules
and techniques adequate for a period in which the rate of change was
relatively slow. The centralization of justice called forth an organized
class of lawyers. The English bar soon established a tradition of law
teaching. The universities never came to occupy the dominant role in
legal education that they early achieved on the continent. The existence
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of an independently organized bar with a vested interest in the law

administered in the English courts may well be the basic reason why
roman law was never received in England.

England thus achieved a truly common law through a slow and

organic growth. The English courts created, over many centuries, a
unified law. The contrast with France and Germany is striking. Neither of
these countries achieved until modern times a common law in the sense
of a general body of law common to the whole country. The explanation
for this difference between the legal situations of England and of France
and Germany is fundamentally institutional. France and Germany
achieved a centralized administration of justice at a much later period
than did England…………………………

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