Sunday, 17 July 2022

English common law


The Effect of the European Civil Code on Our Legal System

Prior to feudal times, laws developed differently in continental Europe. The Roman empire’s early dominance in this part of the world brought a higher degree of literacy, and written Roman Law was codified by the Emperor Justinian in A.D. 533. After the fall of the Roman empire, the legal system was entrenched in European society. This Roman codified law differed from the English Common Law because it had been reduced to written statutes whereas the English law comprised the verbal decisions and the particular customs of the landowners and nobles who adjudicated cases. The Justinian Code was similar to our present legal system and included differentiation between public law, which is related to the relationship between the individual and the state (e.g., constitutional law or criminal law) and private law, which is concerned with the relationship between individuals (e.g., commercial law, family law, and torts). The dominance of Roman Law declined in continental Europe but by the 11th century, with the development of international trade and more complex business arrangements, the Justinian Code returned as a standard. This system of laws is referred to as civil law.

When William the Conqueror occupied England in 1066, he was astute enough to realize that the English Common law system should not be replaced entirely by the civil code. He established royal courts which allowed the system of precedent to continue, but developed consistency in the application of laws and introduced written statutes based on the Roman law or civil code principles which could clarify the common law. Our legal system today is a marriage of those two traditions.

In 1804 the Napoleonic Code was created in France; it addressed issues of equality of the classes and was the predecessor of modern human rights legislation. The civil law system and the Napoleonic Code still have an effect today on many of the states that were originally settled by the Spanish and on the Canadian Province of Quebec. Today, the term “civil law” not only refers to the system of laws found in Europe and other noncommon law jurisdictions, but also to our system of private law that allows one citizen to recover damages from another.

This set the stage for much more elaborate classifications of local and national legal systems beginning with nineteenth-century evolutionary theorists. Law in these schemes was part of the larger social system that changed over time. For instance, Sir Henry Maine (1822–1888), interested in the striking parallels between the development of English common law and classical Roman law, posited in Ancient Law (1861) (Maine 1977) stages of social development common to different peoples that could be correlated with particular instruments of legal growth. Legal systems could be characterized by whether social change was primarily dealt with by legal fictions, equity or natural law, or conscious creative legislation.

Max Weber (1864–1920) (Weber 1968) used many of the same historical sources as legal evolutionists, but in Wirtschaft und Gesellschaft (1922) constructed ideal types to facilitate the comparison of actual social and legal systems in trying to explain the rise of industrial capitalism. His four-cell typology for lawmaking and law application considered the rationality or irrationality of legal thought, as well as whether the legal norms and decision making were highly differentiated from religion, ideology, or emotion. He argued that the category of formal (autonomous) rationality with a consistent body of general legal norms provided the predictability facilitating modern capitalism.

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