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The Reception, a process in the renaissance of replacement of "barbarian" medieval customary law by classical roman law [1], was occurring during the renaissance over Europe. Nevertheless, according to F.W. Maitland, as he explained in English Law and the Renaissance (1901), such process did not have the same success in England as in the rest of Continental Europe. What are the reasons that Maitland and latter authors give for the survival of common law in England? | | | Why was there no Reception in England? Some of the same forces and circumstances which had led to the Reception in Europe actually worked against it occurring in England. First, Henry II (1154-1189) had established a well-ordered system of royal courts before the Commentators had begun to codify the Corpus Juris into a coherent legal system. The royal courts made possible the beginning of a unification and soon, comprehensive statements of the national law. Second, the universities at Oxford and Cambridge trained the English legal profession in the common law. England had its own lawyers trained in its own system. The Reception tended to occur in places where there was no such robust legal system. 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.
-- JulianAzran - 18 Nov 2014 | |
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The Renaissance in Europe, understood as the rebirth of classical culture, is a social construction, rather than an historical truth. Such term was first used in Italy to manifest an artistic break from the gothic art. Even though such movement took certain inspiration in classical roman art, especially in sculpture, the vast majority of authors agree that this was not in any way a rebirth of classical Roman art, but rather a new artistic and intellectual movement.
In law, this process has been defined as the Reception, which is the resurgence and study of Roman law by the European Kingdoms.
The Reception can also be conceived as a social construction, rather than a historical fact. Nevertheless, during the sixteenth century, there is an undoubted academic interest in the Justinian Civil Code. Moreover, 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.
Thus, examples of such systems can be found in the Spain and Germany of Habsburgs and in the France of the Valois. Such systems comprise of great codifications and a creation of centralized systems of courts and laws. By such processes, the Monarchs assured that they could 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.
In the case of England, on the other hand, the process of Reception was rather timid, compared to other European Kingdoms. 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 complete country.
In addition, the English lawyers did not have a formal academic background in Roman Law (Civil Code), given that their “University” was the court’s inn, where they studied and commented on previous cases, as a way to arm themselves for their future trials. No “formal” or “academic” study of Law was conducted by the English lawyers. Therefore, there was no culture or desire from the English bar to receive external influences and the King could administer the current court system in a totalitarian fashion.
Therefore, it is possible to state that the Reception in Europe had a very limited effect, in particular in England, which already had a centralized court system, and a class of lawyers trained in Common Law. 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.
-- IgnacioMenchaca - 20 Nov 2014 | | |
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