Article by Charles Donahue, Jr.
My topic is the ius commune and English common law. Canon law and canonic institutions provide the bridge between the two. There are substantial problems of definition, which it may be well to address at the outset.
If we define ius commune as that body of law which a court regards as authoritative in the absence of local law, then the ius commune of most of the secular courts in England is the same as the common law of England. That is why the same term is used. But the common law of England at no period is the same as the ius commune of the Continent. For our purposes, the important characteristics of the Continental ius commune are that it transcends political boundaries and that it is taught in the universities. This ius commune has narrow and broad definitions. Narrowly, the ius commune is a system of private law, based principally on Roman law and largely Bartolist in conception, that becomes increasingly dominant in Continental legal writing of the sixteenth and seventeenth centuries. This is the ius commune of Coing's Europäisches Privatrecht. Broadly, the ius commune is anything that has to do with university teaching of law, be it Roman law or canon law, be it public law or private law, be it in the Middle Ages or in the early modern period, be it in England or on the Continent. Because of this connection with university teaching, we may refer to the ius commune as “the learned law.” For our purposes, we will also find it useful to include the practice of those courts that look to Roman or canon law as authoritative. Strictly speaking, of course, this is not ius commune, but in England, the practice of the civil and canon law courts is so obviously dependent on ideas found in the ius commune that it is useful to broaden the definition. In English usage, this broadly defined ius commune, that is, anything taught as law in the universities and anything reflected in the courts that looked to university teaching for authority, is called “civil law” and those trained in it “civilians.” (“Civil law” is also used in opposition to “canon law,” although context normally tells us whether the term “civil law” is to be taken broadly or narrowly.)
Narrowly defined, English common law is the body of law applied in a particular set of courts in the absence of local custom pleaded and proven (and it turns out that it is difficult to plead and prove local custom). The particular set of courts are the central royal courts of common law: the Common Bench (bancum commune, later called the Common Pleas), the Court before the King (bancum coram rege, later called the King's Bench), and somewhat later the Exchequer of Pleas (placita in scaccario). By the seventeenth century, these courts had concurrent jurisdiction over most important actions dealing with property and obligation, and the judges of these courts, in somewhat different roles, had virtually exclusive jurisdiction over most major crimes. If we abandon the institutional element in the definition and define common law simply as the custom of all England, that body of law that will be applied throughout England in the absence of local custom, then our range becomes considerably broader. We will certainly include equity, a body of principles, and later of rules, applied in the Chancellor's court, perhaps also the general law applied in the ecclesiastical courts, perhaps also that law applied in the tribunals derived from the King's Council, and, finally, that law applied in certain local courts in the absence of more specific local custom. The broader definition is important because it gives us our institutional point of intersection with the ius commune. The ecclesiastical courts, at all periods, apply canon law and hence the ius commune as broadly defined. The Chancellor's court, the concilliar courts, and a few of the local tribunals show, at some periods, considerable influence from the ius commune.
Finally, we need a word to tie the ius commune to the common law of England. The standard word is “influence,” and the standard meaning of the word is direct borrowing of rules and sometimes of broader principles: “reception,” if you will, in one of the multifarious senses of the word. The word “influence,” however, need not have so narrow a meaning. It can be used to describe any relationship between people, institutions, or ideas where one can posit that a development in one person, institution, or idea would not or might not have taken place had it not been for the fact that another person, institution, or idea was present or known. When we speak of the influence of one legal system on another, I think it is well to speak broadly. We can, I think, posit that the Ch'ing Code of eighteenth century China (1740) and the Code of Hammurabi of Babylon of 1750 B.C. are totally free of influence of the ius commune, the one on cultural and geographical grounds, the other on chronological grounds. The same cannot be said of the English common law, even narrowly defined. But to capture the broader type of influence of which I am speaking, one must go beyond specific rules and speak instead of basic principles, of organizing ideas, of techniques of argumentation, of habits of thought. Rather than speaking of conscious borrowings, one must speak instead of parallels, of similarities of language, of coincidences that seem too striking to be coincidental.
The definitions are important. If one defines ius commune, “common law,” and “influence” narrowly, then the influence of the ius commune on the common law has been small indeed. The first Restatements of the common law in America in the first half of this century, to take but one of the many places to which one might look to find the common law at its final stages of development, show far less of the influence, in the narrow sense, of the ius commune than do the great European codifications of the nineteenth century. Even in those areas where there are remarkable parallels, it turns out that direct borrowings are unlikely.
As we broaden our definitions of ius commune, common law, and influence, however, it becomes less possible to speak of a small influence of the ius commune on the common law. The parallels are there, and they are too striking and there are too many of them for them to have arisen simply by chance. In the realm of basic principles, organizing ideas, techniques of argumentation, and habits of thought, the parallels are sufficiently great that one might want to call the common law simply a variant, admittedly an eccentric variant, of the multitude of legal systems that ultimately derive from the ius commune. So great are these resemblances that we must emphasize at the outset three facts about the history of the ius commune in England that normally force us to argue from possible influences rather than certain ones.
First, training in the ius commune was never required of common-law lawyers. Some of them can be shown to have known quite a bit about the ius commune, and, as we will see, the opportunity existed for all of them to be influenced by it, but at no time did a common-law lawyer have to be trained in the ius commune.
Second, at no time was the ius commune a formal source of law in the central royal courts of common law in England. This statement is not so significant as it might seem because the English doctrine of sources of law did not become well developed until the nineteenth century, but at no point did the English courts of common law adhere to the doctrine that we find at least in some places on the Continent: that in the absence of local law, the courts would look to the ius commune for an authoritative statement of the law.
Third, except in the twelfth and early thirteenth centuries, English contributions to the literature of the ius commune are relatively small. This statement is particularly true of the later Middle Ages. Thus, when English lawyers, be they common lawyers, civilians, or canonists, look to the ius commune, they are looking to a literature that is, by and large, foreign. The reason that the English contributed little to the literature of the ius commune may have more to do with the way in which the faculties of law at the English universities recruited their professors than it does with any nationalism on the part of English lawyers. It does mean, however, that when nationalism becomes a force in the sixteenth century, the ius commune will be regarded as foreign.
With this by way of introduction, I would like to proceed to review the state of our question. The best summary, for our purposes, is John Barton's Roman Law in England. I will try to summarize more recent scholarship as we go along. Barton confines himself to Roman law (relatively narrowly defined), to the period before 1500, and to the influence, in a rather narrow sense, of Roman law on English law (which he does define broadly). I will try to include more material about canon law and about the later periods. We will then try to sketch what happens if we define influence somewhat more broadly. Finally, we will speak about reciprocal influences, influences from the common law on English institutions of the ius commune and particularly on the ecclesiastical courts.
About the Author
Charles Donahue, Jr. Professor of Law, Harvard University Law School. A.B., Harvard University 1962; LL.B., Yale University 1965.
Citation
66 Tul. L. Rev. 1745 (1992)