Intellectual Legacy
It may seem paradoxical that the idea of a treaty among the main European parties, establishing a general system of public law, was the vow of an English statesman who lived in the age of global Britain, i.e. in the era of the maximum deployment of the concepts of sovereignty and national identity. It is much less paradoxical if we consider that the idea did not â in William Pittâs words â involve Great Britain.
From a more remote historical point of view, the EUâs modern âgeneral system of public lawâ geographically coincides (apart from Poland, some northern countries and some German âLĂ€nderâ) with the ancient Roman Empire and this coincidence also embraces the UK, although limited to England and Wales.
English legal history actually begins with Roman Britain. For four centuries England was an integral part of a single political and institutional system_
âAlongside and allied to this is the fact that it was a world dominated by the rule of law, which closely regulated the relations between the individual and the State and between one man and anotherâ [P. SALWAY (1981)].
As is often said, law is a language and the Roman heritage is still perceived today through language.
Since the origins of the history of European nations, in constructing their legal systems both continental and Anglo-Saxon languages have used terms inherited from the Latin world âiusâ:
âĂ partir de ius sâest forgĂ© tout un vocabulaire qui passera du latin aux langues europĂ©ennes avec la renaissance mĂ©diĂ©vale du droit romain dans les universitĂ©sâ [S. KERNEIS (2018)].
Terms like âjurisdictionâ, âjudgeâ, âjuridiqueâ, âjudiciaryâ, âjurisprudenceâ and âjusticeâ have equivalents in all European languages: a semantic legacy witnessed by ancient documents such as the writing of the Magna Carta. It was precisely on âLatinâ words that the legitimacy of fiscal power was formulated: fiscal power could not be levied except âper commune consilium regni nostriâ, clause 12 (â[âŠ] by the common counsel of our realmâ) [A. ARLIDGE, I. JUDGE (2014)].
This is an inheritance witnessed also by the name of the constitutional writ aimed at challenging unlawful detention: habeas corpus ad subjiciendum (the full name â as pointed out by the main authorities â âbetraying its venerable originâ [T. BINGHAM (2010)]. Analogously, later the Petition of Rights (1628) clarified that its rules derived from the âlegem terraeâ: contemporary authors note that those rules already included âelements of substantive law and procedural proprietyâ [D.J. GALLIGAN (1996)].
On the other band,
âles difficultĂ©s des juristes Ă construire un droit europĂ©en illustrent bien sÈr la diversitĂ© des cultures juridiques [âŠ] de lâattachement des nations Ă leurs droits et aux traditions qui les fondentâ [S. KERNEIS (2018)].
In the complex scenario of different legal traditions, lââaffaiblissement de la culture latineâ represents an original historical mark de la diversitĂ© juridique of the British Isles.
Historians note that the oldest Anglo-Saxon legislative sources belong to the rules of Kent (VII century) and âcontrairement aux lois du continent rĂ©digĂ©es en latinâ [S. KERNEIS (2018)] the rules are written in the old English language.
The documents written in Latin survived through universities and the Inns of Courts until the 15th century: âthe first translations [of the Magna Carta] into English date from this periodâ [A. LYON (2019)]. But the early formation, from the 12th century onwards, of a national system of law (Common Law) implied a more limited influence of Roman law in England than on the continent, with the exception of the ecclesiastical courts âwhich clung to the vestiges of Roman Lawâ [B. ABEL-SMITH, R. STEVENS (1967)]:
âfrom the middle or end of the thirteenth century, no lawyer in an English Common law court, for example, would have thought to build an argument on texts drawn from Roman Lawâ [J. BELL, C. KILPATRICK (2006].
On the other hand, on the continent in the 11th century, the rediscovery in Italy of ancient Roman law instead nurtured the foundations of what was the beginning of a âEuropean legal science based on the study of the compilation of Roman lawâ [R. LESAFFER (2009)] and which, thanks to the confluence of Roman and Canon law, gave rise to what was known as ius commune.
It is not surprising, therefore, that over time the advocates of a European private law system (âthe common private law of Europeâ) sought links with historical traditions, especially recalling the peculiar amalgam of learned law given by ius commune. The end of the 15th century marked the resolution in favour of learned law throughout Europe, but with the clear exception of England.
At that time the distinction was already clear.
ââCivilianâ was the term commonly used to describe English lawyers trained in the Roman hand canon laws whose careers were spent in the several courts where the European ius commune provided the principal source of substantive and procedural lawâ [R.H. HELMOLTZ, in D. IBBETSON et al. (2019)].
Historians have often stressed the hostility towards âciviliansâ felt by most English common lawyers. On the other hand, the issue is even more complex if one looks at the foundations of the various sources of English law.
From this point of view
âso far as there is any consistent theory of custom at all in Roman Law, it is clearly relegated to a subordinate position among the sources of lawâ [C.K. ALLEN (1964)].
A broader question, however, is its influence in the foundation of the doctrine of precedent or âhow far Roman Law directly inspired the beginnings of our equitable jurisdictionâ [Ibid].
The topic is very broad and embraces the history of relations between common law and ius commune. For our purposes it will be sufficient to note that:
âDurant les siĂšcles qui suivirent, ils divergĂšrent pour former deux grandes familles, celle des droits issus de ce que les juristes anglo-saxons considĂšrent ĂȘtre Civil Law, le droit romain, et celle des droits de Common Law, un droit des juges prĂ©tendu coutumier. Lâopposition allait durer, elle divise aujourdâhui lâEuropeâ [S. KERNEIS (2018)].
The gap in intellectual origins was widened by the European civil codification process in the early 19th century. The âcodificationâ movement was rejected by the common law tradition, which was formed on the grounds of private law based on custom and case law rather than on a code.
From the specific point of view of public law, the original elements that characterized English âpatterns of institutional notionsâ [P. CANE (2009)] may be traced back to the Middle Ages as well. Sporadic traces of a single remote language can also be found in legal terms of public law: e.g. the evolution of the concept of ultra vires to denote an excess of authority by independent statutory bodies or the notion of locus standi in the judicial review to indicate the legal capacity to challenge an administrative decision.
These are limited examples reflecting common origins but stemming from a remote past. Although they apparently recall âvieilles categories fondamentales public/privĂšâ, they leave traces that even today continue to inspire visions (infra Ch. 2) and that determine the foundations (infra Ch. 3) of the current relationship
âentre droit et Ă©conomie dans lâĂ©laboration de la norme ou bien encore de la concurrence entre Civil Law et Common Law Ă travers notamment le projet de construction dâun droit europĂ©enâ [S. KERNEIS (2018)].
