Introduction

During the Renaissance, Continental Europe underwent a pivotal intellectual transformation; cultural, social and political assumptions and structures, once thought fundamental, were questioned and changed to reflect their deliberations. European legal systems were not immune to these changes. After a revival of Roman law in late medieval Italy, the phenomenon spread to France and Germany, among others. These countries were said to have “received” the Roman law. In view of this phenomenon, some legal scholars have questioned why, during the Renaissance, the English common law remained relatively intact. After all, the classic historian opinion assumed that the common law was in serious difficulties at the beginning of the sixteenth century, and that ‘the continuity of English legal history was seriously threatened’ by current Romanizing trends. [Baker p. 4] By the time the Roman laws reached England, the country was far too politically stable and effective for a foreign legal code to usurp its national law.

Resurrection of Corpus Juris

In the late eleventh century, a complete manuscript of the Digest was found in Pisa, Italy. [Stein p. 43] The Digest was part of the Corpus Juris Civilis, the body of civil law issued under Justinian I. A professor at the University of Bologna, Irnerius, made the interpretation and explanation of the Digest, as well as of the other parts of Justinian’s legislative work, his enterprise. [Stein p. 46] He and his school, comprised of students from all the countries of Europe, attempted to recreate the science of Roman law. Since the Corpus Juris did not expound clear legal principles per se, these scholars, known as “Glossators,” would compare potentially conflicting texts and infer principles that would explain the apparent contradictions. [Stein p. 46] Their work would extend into the early thirteenth century. By then, they had laid the groundwork for a theoretical understanding of the Roman civil law, which would come to serve as the foundation for most of the legal systems in continental Europe.

The Reception in Continental Europe

Later on, the Glossators became Commentators, who took the next step of attempting to codify the previously extracted legal principles into a cogent system of laws. [Stein p. 75] They combined Roman law with the statutory law of Italian cities and with canon law; Roman law was adapted to address practical contemporary needs. [Stein p. 75-86] And so, lawyers began to be trained in Roman law. However, these events were not isolated only in Italy. The new science of Roman law, as inaugurated by the Glossators in Bologna, spread out into other countries, including France and Germany. Through the action of university trained judges, lawyers, and draftsmen of legal documents, the Roman law began to spread across Europe. This was called the “Reception”.

It is not possible to understand Roman Law as the law of the Roman Empire, but only as the Justinian Civil Code, which was the only major law book available to the European Kingdoms at the time. This great codification containing a universal system of written laws, non-contradictory fundamentals and amount of application, caught the attention of many kingdoms, specially the new absolutism monarchs. However, rather than enacting roman laws as laws of the kingdom, the new absolutist movements only took their centralized and universal written court system. Examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems were comprised of great codifications and a creation of centralized systems of courts and laws. These centralized processes assured Monarchs that they would have further control over the legal system, replacing tradition, natural law, and local practices with their own personal version of a universal and centralized Civil Code.

The Non-Reception in England

In England, the story of the Reception is a bit more complicated. King Stephen (1092/6-1154) took suspicious notice of the spread of the study of civil law. His opposition, however, was ineffectual. [Re p. 466] Roman and canon law began to be taught at Oxford by Vacarius, an Italian scholar; Cambridge also issued degrees in the civil law. [Stein p. 467-8] “Every ambitious youth studied eagerly the Corpus Juris” [Re p. 467]

Around this time, intellectuals were attacking the language and content of English law as barbarous, and praising the Civil law as refined and humane. [Baker p. 4] Henry II (1154-1189) established a well-ordered system of royal courts, and Henry III (1216-1272) forbade the teaching of Roman law in the schools of London. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law.

One of the more effective counterweights to the Roman law education at Oxford were the professors at the Inns of Court, a historical analog to the present day bar association, who taught the Common Law. The lawyers who dominated the lower house of the legislature, much of the nation's bureaucracy, and nearly all the courts of law, were trained in advanced schools of municipal law and not in the university law faculties. By the time of Henry VII and Henry VIII, the new absolutism of the Tudors already had a centuries-old centralized courts system, which kept written records. This was only possible due to the Norman Conquest, which successfully created a centralized court at London, in order to oversee the whole country. In such manner, Henry VII and Henry VIII achieved what they wanted without recourse to alien jurisprudence. Under Henry VII, common-law trained ministers such as Empson, Dudley, and Lovell, carried the royal interests as far as any Civilian would have dared. Henry VIII advanced common lawyers for the first time to the offices of master of the rolls and master of requests and, after Cardinal Wolsey, he first appointed a bencher of Lincoln's Inn (Sir Thomas More) and then a sergeant at law (Sir Thomas Audley), as lord chancellor. [Baker p. 418]

Conclusion

Nevertheless, although there are few specific examples, there is evidence that the Roman law was recognized as a valid authority by the English courts for some time. [Re p. 468] In the long run, however, the Common Law obviously prevailed in England. What made a difference in England’s case, as opposed to France or Germany, was that its legal system was too entrenched for a new body of law to usurp it. As one author put it, “the legal fabric of the government and its institutions were not such as to permit the direct reception of Roman law by the King's courts!” [Re p. 468] The Reception tended to occur in places where there was no such robust legal system. The fact that England already had some of the best characteristics from the Civil Code, offered no incentives for change, as they did to the other Absolutist Monarchs. Thus, England didn’t have a particular need for a new body of law. In the words of Maitland, “there was no need in England for that reconstitution de l’unité nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces.” By this time, there was a certain level of political and legal stability in England, unparalleled by any of the territories where the Roman law had its greatest effect.

References

F. W. Maitland, English Law and the Renaissance (1901). Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham L. Rev. 447, 466 (1961). Peter Stein, Roman Law in European History (Cambridge, 1999). The Oxford History of the Laws of England: Volume VI 1483–1558, John Baker, (Oxford 2003)

-- IgnacioMenchaca - 16 Dec 2014