Periodic Reporting for period 4 - CLCLCL (Civil Law, Common Law, Customary Law: Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries)
Période du rapport: 2021-11-01 au 2022-09-30
What is the problem/issue being addressed?
A highly significant division in present-day Europe is between two types of legal system: the Continental with foundations in Civil Law (with an ultimately Roman law basis), and English Common Law. Both systems often trace their continuous history back to the 12th century. The present project re-evaluates this vital period in legal history, by comparing not just English Common Law and Continental Civil Law (or Ius commune), but also the customs crucially important in Continental Europe even beyond the twelfth century. Such comparison disrupts the simplistic English:Continental polarity. The project has analysed the form, functioning, and development of local, national, and supra-national laws. Similarities, differences, and influences have been examined from perspectives of longer-term European legal development.
Why is it important to society?
Misrepresentation and significant ignorance of legal and constitutional matters is a feature of many aspects of contemporary life. Not only the public but even the supposedly well-informed confuse the European Court of Human Rights and the European Court of Justice, still more so the differences of their legal histories and jurisprudence. Destructively deep are prejudice and ignorance about the characteristics and traditions of Continental Civil Law and English Common Law. The mutual ignorance of the two systems has wide repercussions, e.g. in relation to notions of sovereignty and to written and unwritten constitutions. Proper historical re-examination of this subject is very timely because of current invocation of supposed legal histories, be it Eurosceptic celebration of English Common Law or rhetorical use of Ius commune as precedent for a common European Law.
What are the overall objectives?
The project’s central objective is to counter this ignorance and misrepresentation of the Civil Law and the Common Law systems and their traditions. A subsidiary objective is the development of methods for the effective study of comparative legal history, and their dissemination as possible models for others researching in the field.
Conclusions of action
Research tested previous assumptions about differences and separation between English and Continental laws and between customary and academic law. For conclusions, see below, Progress beyond the state of the art and expected results until the end of the project
A highly significant division in present-day Europe is between two types of legal system: the Continental with foundations in Civil Law (with an ultimately Roman law basis), and English Common Law. Both systems often trace their continuous history back to the 12th century. The present project re-evaluates this vital period in legal history, by comparing not just English Common Law and Continental Civil Law (or Ius commune), but also the customs crucially important in Continental Europe even beyond the twelfth century. Such comparison disrupts the simplistic English:Continental polarity. The project has analysed the form, functioning, and development of local, national, and supra-national laws. Similarities, differences, and influences have been examined from perspectives of longer-term European legal development.
Why is it important to society?
Misrepresentation and significant ignorance of legal and constitutional matters is a feature of many aspects of contemporary life. Not only the public but even the supposedly well-informed confuse the European Court of Human Rights and the European Court of Justice, still more so the differences of their legal histories and jurisprudence. Destructively deep are prejudice and ignorance about the characteristics and traditions of Continental Civil Law and English Common Law. The mutual ignorance of the two systems has wide repercussions, e.g. in relation to notions of sovereignty and to written and unwritten constitutions. Proper historical re-examination of this subject is very timely because of current invocation of supposed legal histories, be it Eurosceptic celebration of English Common Law or rhetorical use of Ius commune as precedent for a common European Law.
What are the overall objectives?
The project’s central objective is to counter this ignorance and misrepresentation of the Civil Law and the Common Law systems and their traditions. A subsidiary objective is the development of methods for the effective study of comparative legal history, and their dissemination as possible models for others researching in the field.
Conclusions of action
Research tested previous assumptions about differences and separation between English and Continental laws and between customary and academic law. For conclusions, see below, Progress beyond the state of the art and expected results until the end of the project
Much of the participants’ time was initially spent on individual research and exploration of issues regarding specific areas of Europe; it was vital that the comparative element be based on secure foundations. A set of pre-determined shared issues ensured that such individual research retained collaborative coherence. In addition, considerable collaborative work was undertaken and this grew for the remaining years of the project. An important aspect of the collaborative working was a focused study of a topic that illuminates all the issues central to the project: litigation concerning cases of dispossession. Through this topic we compared the influence of academic law on practice; the development of procedure and court practice; and the elementary legal ideas of land law.
Major outputs:
(i) articles, published, in press, or in typescript, on issues such as procedure, notions of possession, and legal education, plus an over-view essay ‘European legal development: a view from 1190’;
(ii) a collected volume, arising from a conference held by the Project in June 2019, published in 2021;
(iii) online transcriptions of texts;
(iv) editions of legal texts, with translations and extensive interpretative material, in print/in press;
(v) monographs on the development of English Common Law in comparative context, on court procedure in English ecclesiastical courts, and on lordship and land-holding in France;
(vi) online resources for wider audiences, including for teachers and students of legal history; notably two audio courses, one specifically on dispossession, the other much broader (https://clicme.wp.st-andrews.ac.uk/dispossession/; https://clicme.wp.st-andrews.ac.uk/legal-history-from-a-european-perspective/) the ‘Video Encyclopaedia’ for those interested in medieval law (http://clicme.wp.st-andrews.ac.uk/encyc/); a group of online videos concerning jury trial, past and present (https://vimeo.com/314491277 https://vimeo.com/339101279).
A series of workshops and conferences brought in further expertise and helped dissemination. The largest was the British Legal History Conference in 2019. Smaller workshops included an Atelier Doctorale at the French School in Rome in February 2019, on the theme ‘Dal caso alla regola, dalla teoria ai fatti: alle radici della cultura giuridica europea’. Such smaller workshops were crucial in developing our methodologies for comparative legal history. They also furthered our aim of stimulating work on legal history by early career scholars.
The work of the project has been further disseminated through lectures and conference papers. Named or plenary lectures have been given by project members at Padova, Harvard, Chicago, Cardiff, Melbourne, and Berkeley. The Senior Researcher, postdoctoral researchers, and PhD students also presented a project panel at the 2019 American Society for Legal History Conference.
The Project gathered a Twitter following of approximately 1500. This allowed crowdsourcing of suggestions during text-editing and particularly during the compilation of the Video Encyclopaedia.
Major outputs:
(i) articles, published, in press, or in typescript, on issues such as procedure, notions of possession, and legal education, plus an over-view essay ‘European legal development: a view from 1190’;
(ii) a collected volume, arising from a conference held by the Project in June 2019, published in 2021;
(iii) online transcriptions of texts;
(iv) editions of legal texts, with translations and extensive interpretative material, in print/in press;
(v) monographs on the development of English Common Law in comparative context, on court procedure in English ecclesiastical courts, and on lordship and land-holding in France;
(vi) online resources for wider audiences, including for teachers and students of legal history; notably two audio courses, one specifically on dispossession, the other much broader (https://clicme.wp.st-andrews.ac.uk/dispossession/; https://clicme.wp.st-andrews.ac.uk/legal-history-from-a-european-perspective/) the ‘Video Encyclopaedia’ for those interested in medieval law (http://clicme.wp.st-andrews.ac.uk/encyc/); a group of online videos concerning jury trial, past and present (https://vimeo.com/314491277 https://vimeo.com/339101279).
A series of workshops and conferences brought in further expertise and helped dissemination. The largest was the British Legal History Conference in 2019. Smaller workshops included an Atelier Doctorale at the French School in Rome in February 2019, on the theme ‘Dal caso alla regola, dalla teoria ai fatti: alle radici della cultura giuridica europea’. Such smaller workshops were crucial in developing our methodologies for comparative legal history. They also furthered our aim of stimulating work on legal history by early career scholars.
The work of the project has been further disseminated through lectures and conference papers. Named or plenary lectures have been given by project members at Padova, Harvard, Chicago, Cardiff, Melbourne, and Berkeley. The Senior Researcher, postdoctoral researchers, and PhD students also presented a project panel at the 2019 American Society for Legal History Conference.
The Project gathered a Twitter following of approximately 1500. This allowed crowdsourcing of suggestions during text-editing and particularly during the compilation of the Video Encyclopaedia.
The findings of the project emphasised the lack of inevitability in the divergence of English and French, particularly northern French, law. Major similarities remained throughout the period, and in terms of legal scholarship, English engagement with Roman and canon law appears possibly more significant than in northern France, except for in Paris. It appears that at least until c. 1200, there may have been considerable similarities between English centres of Roman and canon law scholarship and what are referred to as the ‘lesser schools’ of north Italy; a shift from conflating Bologna and ‘north Italy’ produces a new perspective. In terms of legal practice, the influence of Roman law in north Italy was considerably greater than in England or northern France, although the speed of change varied between cities more than traditional views might allow.
The Project has also sought to answer questions beyond ones of chronology and of influence of Roman and canon law. Shared patterns of legal development, learning and practice have been explored. For example, collections of cases for purposes of legal knowledge and study appeared probably first in canon law, but soon after in northern France and then in England. Such a pattern warns against any peculiar early association of English law with case law. On the other hand, by the end of the period, the particular focus of English legal education upon procedure was emerging through a series of works and for reasons linked to practice.
Finally, the Project has explored the methods for successful execution of comparative legal history. It has emphasised the importance of comparing more than two areas or systems, as an important method for testing conclusions. It has also brought together approaches from the Civil and Common Law traditions of legal historical scholarship. And it has broken down the divisions between lawyers’ and historians’ approaches to legal history.
The Project has also sought to answer questions beyond ones of chronology and of influence of Roman and canon law. Shared patterns of legal development, learning and practice have been explored. For example, collections of cases for purposes of legal knowledge and study appeared probably first in canon law, but soon after in northern France and then in England. Such a pattern warns against any peculiar early association of English law with case law. On the other hand, by the end of the period, the particular focus of English legal education upon procedure was emerging through a series of works and for reasons linked to practice.
Finally, the Project has explored the methods for successful execution of comparative legal history. It has emphasised the importance of comparing more than two areas or systems, as an important method for testing conclusions. It has also brought together approaches from the Civil and Common Law traditions of legal historical scholarship. And it has broken down the divisions between lawyers’ and historians’ approaches to legal history.