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European Law and the “Myth of English Exceptionalism”

Like someone with dual citizen allegiance, I am a “legal binational.” My first law degree is Civilian (my JD, and initial practice, are from Québec), but my Yale degree and 33 years’ teaching Torts stateside have definitively branded me a Common Lawyer. I’ve had periods where I thought each system superior to the other. I’ve pondered the difference between legal epistemology and legal substance as I taught Comparative Law. Each year, during annual lectures at George Washington University Law School, I speak to Civilians who marvel at the ability of Americans to function without a written code that purports to answer all questions, and each year I assuage devotees to the common law who treat civil codes as symbols of totalitarian diktats.

Tamar Herzog is a legal historian (with a joint appointment at Harvard in Latin American affairs and in history), and though she has taught in law school, she likely never had exactly my problem. But she has experienced the “comparative dilemma” in her own way, as she explains in the Introduction to her new book, A Short History of European Law

She reports having encountered an undergraduate student who was looking forward to seeing the Magna Carta when it was on display in Washington, D.C. a few years ago. The undergrad was eager to view the “great charter of liberties.” But this “misreading” of the document evidently aggravated Professor Herzog. She yearned to explain to the student that the Magna Carta was little more than a relic of “a feudal past in which powerful lords sought to protect their jurisdiction and property against an expanding monarchy.” Professor Herzog decided to write this book as a “short, useful introduction to European [where “Europe” includes Britain] legal history that could be used to discuss the evolution of law over time.”

And so she has done. This book is not particularly short (275 densely packed pages). But it is useful for those who require a basic chronological history of the Western legal tradition. The relative lack of footnotes means that this work is intended for students as opposed to researchers. The writing style is serious and descriptive, not breezy or dramatic. It will not be a bedtime read, as sleep might come sooner than anticipated!

Centralized Versus Decentralized Jurisprudence

Professor Herzog details how Roman law expanded, together with Christian hegemony, from England to Bulgaria to the Baltic states. From the 6th through the 10th centuries, Roman law was cross-pollinated by Germanic invaders, to the point where it became very difficult to distinguish the two. This early Roman law was quite primitive, at least on the criminal side: Until the 13th century, the law appealed to divine intervention by forcing criminal defendants to undergo ordeals (placing a limb in boiling water, walking on fire), which would cause no harm if the Lord Almighty indicated that the defendant was in the right. On the Continent, the barbarity of church-imposed ordeals resulted in their replacement by state-appointed inquisitors. But in England, the delegitimization of ordeals encouraged a different response: the rise and increasing power of lay jurors. Thus did the gradual divergence between England and the Continent, between centralized and decentralized authority, originate well before the codification movement.

The author spends some time detailing the ways in which the English system of writs (forms of action) was a politically expedient way for monarchs to procure legitimacy in the face of rival feudal lords. Essentially, the French-speaking conquerors of England offered judicial competition to their subjects. New royal courts had to increase their power (jurisdiction) incrementally, of course, but gradually a reputation for honesty and fairness enabled them to compete successfully with feudal dispute-resolution. Royal courts were (literally) based on forms, not substance, so though the substantive outcome of disputes might be the same, the linguistic approach to their resolution was very different.

Even as late as the 17th century (as Herzog illustrates with a description of Calvin’s Case), basic legal questions could be resolved in England not by a parliamentary act or a royal decree, as on the Continent, but by appealing to the courts and requesting a remedy. This focus on forms, and on decentralized decisionmaking, does not mean that Roman law was foreign to England. To the contrary, as Herzog points out, the common law was developed by a Norman dynasty that used the services and advice of Roman (and canon) law jurists. 

Only in the 17th century did a new creation myth (led by Sir Edward Coke and others) arise, according to which the common law was an indigenous Anglo-Saxon system that preceded the Norman Conquest. This paradigm shift (of which William Blackstone was a proponent) saw the common law as created spontaneously by the volk, predating the Conquest. In reality, though, it was the Normans’ procedural tool in their battle with Anglo-Saxon lords. The “myth of English exceptionalism,” writes Herzog, “was the result not so much of what English law actually was but of how it was reimagined.”

Professor Herzog devotes considerable attention to the well-known history of modern (post-Enlightenment) European law, the advancement of reason over faith, and the belief in the possibility of finding and transcribing a complete, logical organization of juridical rules into a coherent system. The title of her book notwithstanding, she devotes a chapter to “North American developments,” in which she relates Coke’s and Blackstone’s view that the upstart American colonies did not practice common law. Her efforts to debunk the “transfer theory” (that the common law was transferred from England to the Americas) are utterly unpersuasive to this author, as they abstract from the juridical culture of the colonies and the legal training of those American jurists who had any.

Ramifications of 1789

More useful is Professor Herzog’s description of the effect of the French Revolution on European ius commune and on the codification movement. Systematization and logical analysis of legal rules had of course proceeded across the Continent, including in England (the prime example being Blackstone’s Commentaries). But the French Revolution brought with it the dual triumph of rational positivism (with its rejection of theistic legitimacy of laws) and nationalism. 

The French and German codification movements represent two stylistically different ways of implementing these two notions. Civil codes are “why-stoppers” (that is, immediately upon their adoption, the normative legal theories and the cases that preceded them tend to be abandoned), and in that way are incompatible with the natural law spirit that guided the glossators and post-glossators who systematized prior rulings. Upon independence, nationalistic leaders are attracted to a civil code much as patriots love their flag. But many prominent jurists in non-codified civil law countries (for example, South Africa and Scotland) were horrified at the prospect of codification for this reason.

Positivism and internationalism surely led to the movement for a European civil code, which was vigorously opposed by Great Britain for obvious reasons. Professor Herzog devotes her final chapter to the emerging super-state that is Europe. She describes the virtual coup d’état through which laws adopted in far-off Brussels were held by European Community courts to have supremacy over democratically adopted laws in each member country. “European law became the largest source of new law, with 54% of all new French law originating in Brussels” despite the lack of participation of French voters in EC elections. Of course, Herzog’s book was written before Britain’s Brexit referendum, but it would have been interesting to read her analysis of the influence the triumph of Euro-positivism may have had on the vote.

This book is far from perfect. Its treatment of the United States is, as I have indicated, poor—indeed, Professor Herzog conflates the Louisiana Civil Code (a true civil code that in fact served as the model for the Code civil du Québec) with the code of the state of New York, which is really a common law compilation. But for those interested in understanding the history of European Law and the ways in which its British and Continental variants developed, this is a useful compendium indeed.

Reader Discussion

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on October 07, 2019 at 14:27:05 pm

Well, this was sure a disappointing read. "Magna Carta a relic of feudalism?"

Feudalism was a stage of social development that followed the catastrophic Fall of the Roman Empire which brought with it lawlessness as Roman troops were recalled from the Provinces. Ordinary people--who were vulnerable targets for highwaymen, roving bands of thieves & cutthroats, and invading enemies--sought protection from the landed gentry who, in turn, needed civilians to work the land (so everyone could eat) and act as a militia in case of an attack by any number of aggressors. From this arrangement came the concept of a contract between government and the people. It was government's job to protect their lives, property and certain rights (such as trial by jury before one's peers). One of these rights was to work.

But, perhaps the most famous of these rights is to private property, rights which also applied to tenants. This was expressed by Sir Edward Coke, the great British Common Law jurist, who said "A man's home is his castle, and in this castle he is King." No one, not even the King of England, could cross his threshold without his permission. A most famous quotation and one familiar to fans of the BBC drama series, "Rumpole of the Bailey".

By helping to establish stability everywhere it was practiced, feudalism paved the way for the Renaissance and Protestant Reformation. Was t perfect? No, because so system of government is perfect. Humans are incapable of creating anything that is perfect in every way. But the Magna Carta was a brilliant contract presented by the Lords to the King. If he didn't agree, they would not crown him.

You would not be enjoying such protections here and now if it weren't for Magna Carta. The Declaration of Independence, U.S. Constitution, Bill of Rights and the 13th, 14th, 15th, 19th & 24th amendments are descended from its principles and other familiar principles derived from it.

Magna Carta is one of the great documents in the history of the Western World, in the history of Liberty. The best books I have ever read on the subject is Dan Jones' "Magna Carta: The Birth of Liberty" (Penguin).

Further reading:

"The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of the Rule of Law" ed. by Ellis Sandoz (Liberty Fund).

"The Selected Writings of Sir Edward Coke" ed. by Steven Sheppard (Liberty Fund). The great Common Law jurist of history.

"Roger Williams and the Creation of the American Soul" by John Barry (Penguin). Williams, a Protestant exile who brought Liberty of Conscience to America, translated the Holy Bible into a native American tongue, and founded Rhode Island Colony, worked for Coke as a clerk. Williams influenced William Penn, who influenced 18th Century Americans.

"The American Republic: Primary Sources" ed. by Bruce Frohnen (Liberty Fund)

These books are better than a college education. And much safer.

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Standing Fast
on October 08, 2019 at 10:19:25 am

Tamar Herzog is wrong on so many points it would take another entire book to detail her errors. No surprise that she does not hold any "law school" degree whatsoever from any Anglo-American law school (just a bachelors degree in law from Hebrew University in Israel in 1987).

It seems to me that much of her thesis is ideologically driven -- creating, mistating or spinning facts when necessary. This of course explains the relative lack of footnotes. Let us take just one example, which I would have prefered that the book review author had not "dignified" when he paraphrased above as follows:

"On the Continent, the barbarity of church-imposed ordeals resulted in their replacement by state-appointed inquisitors."

In reality, the ordeals were not "imposed" by the Church. Here is some true history:

Ordeals were known and practised by various peoples of antiquity, and are still to be met with today among uncivilized tribes. The Code of Hammurabi prescribes their use for the ancient Babylonians. Among the Jews existed the test of the Water of Jealousy, conducted by the priests, in which the woman accused of adultery must consume the draught in their presence, after having offered certain sacrifices, and the effects of which established the woman's guilt or innocence (Numbers 5:12-31). Among the Indians are to be found likewise various kinds of ordeals, particularly that of the red-hot iron. This test of holding a red-hot iron was also known among the Greeks. The Romans, however, with their highly developed system of dispensing justice, did not employ this means of obtaining proof. Ordeals found their chief development among the Germanic peoples, in Germany itself as well as in those kingdoms which came into existence, after the migration of the nations, in the old Roman Provinces of Gaul, Italy, and Britain. They were an essential part of the judicial system of the Germanic races in pagantimes, were tolerated and preserved at the local level with some variation after the conversion of these peoples to Christianity. The tribunals of Rome never made use of ordeals. The popes were always opposed to them and began, at an early date, to take measures for their suppression. It is true that in the beginning no general decree was published regarding them; however, in individual cases concerning ordeals brought to them, the popes always pronounced against the practice, and designated it as unlawful. Various accounts in regard to the co-operation of the popes in the practice of ordeals in Frankish times which are contained in apocryphal writings have no historic value. From the twelfth century, a thorough and widespread opposition to ordeals, as a result of the stand taken by the popes, began to manifest itself generally. As a result of the General Council of 1215, several synods of the thirteenth and fourteenth centuries published prohibitions in this connection. A synodheld at Valladolid in 1322 declares in Can. xxvii: The tests of fire and water are forbidden; whoever participates in them is ipso facto excommunicated.(Hefele, Konziliengesch, VI, 616).

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Vox Populi
on October 10, 2019 at 14:40:47 pm

Vox:

Thank you for that little bit of history and an accurate assessment I may add.

"In reality, the ordeals were not “imposed” by the Church. Here is some true history:"

Indeed, it may be said that it WAS IMPOSED upon the early church and the itinerant preachers / priests who chose to minister to the populace of the (still) pagan Germanic hinterlands.

One must ask:

"What exactly could the priest have done to stop this practice?" - other than to find some means of ameliorating the suffering. It would seem that they were powerless to prevent the practice against the wishes of the tribal leaders.

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Guttenburgs Press and Brewery
on October 11, 2019 at 15:08:42 pm

Thank you for this information, I didn't realize this.

I guess people should realize until the Protestant Reformation and the move to separate church and state in many places, the ecclesiastical government and the civil government were two branches of...the government. In some ways, this worked well, but in too many ways it meant abuse of power by both.

For an in-depth look at the Protestant Reformation, read John Calvin's "Institutes of the Christian Religion" 1559 (translated by Beveridge). It has extensive sections on the roles of the church, the magistrate, and the citizenry, and the just limitations on power. At the very end there is an interesting sequence of commentary by Calvin about resisting tyrants.

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Standing Fast
on October 12, 2019 at 17:24:43 pm

Correct:

"I guess people should realize until the Protestant Reformation and the move to separate church and state in many places, the ecclesiastical government and the civil government were two branches of…the government."

Indeed, in far too many countries, it was the Crown that appointed the Church hierarchy to include Bishoprics, Cardinals and prelates / Leaders of Monasteries.

Surprise, surprise, these "clerics" were often members of the nobility and Court hangers on. For many second - born sons, this was a means to power, influence and comfort.
Again, one must question, "precisely, what could be done.

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Guttenburgs Press and Brewery
on October 12, 2019 at 18:17:27 pm

Yes, this practice began with the Roman government before the collapse. When Christianity was elevated from an illegal to a legal religion, and then declared by the emperor to be the only legal religion, the emperor or his agents appointed bishops. They selected sons from high-born Romans, a good number of whom had no acquaintance with Christianity. But some were devout Christians. As the centuries passed, the new civil governments took on the chore of appointing bishops. Wherever church and state are part of the same government, the civil authority rules the church.

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Standing Fast
on October 17, 2019 at 06:00:30 am

I recommend Hugo Rahner's Church and State in Early Christianity:

https://www.amazon.com/Church-State-Early-Christianity-Rahner-ebook/dp/B00GB97QQK

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Vox Populi
on October 17, 2019 at 14:07:12 pm

Thank you for the recommendation!

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Standing Fast
on October 23, 2019 at 11:44:16 am

This review seems to have a misleading title: from the way the book is explained here it seems Herzog is not denying that the common law system is different (or 'exceptional', with the political implications that word holds) to the continental civil law system. Rather Herzog seems to be saying that both English law and civil law have their origins in medieval Roman law used throughout Europe, and that common law can't trace itself back to the pre-conquest Anglo-Saxon system. Would it be more accurate to title it 'European Law and the Myth of the Anglo-Saxon roots of English law'?

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Mr Jon
on October 23, 2019 at 13:53:56 pm

Well, actually, English Common Law is somewhat different than European Law, and can be traced back to the pre-conquest Anglo-Saxon system. Around A.D. 1050 Edward the Confessor published his Code of English Common Law, a.k.a. "The Ancient Constitution"--almost two hundred years before Magna Carta. Interestingly, Edward took this code from longstanding Anglo-Saxons' traditions which had origins in the British customs that preceded it, Justinian's "Digest of Roman Law" (A.D. 400) and Viking justice.

Justinian's code was a blend of Judeo-Christian legal principles (sanctity of life, property rights, rules of evidence, etc.) and the Twelve Tables of Roman Law established in 450 B.C. These came together with the establishment of the Early Christian Church. Those two traditions are divided into Jewish law and Greco-Roman law, each of which has its origins in antiquity, and can be traced back to legal principles established by the ancient Sumerians.

Christianity introduced principles that were new at the time and which brought forward the best of each tradition. The end result was the American Revolution: the Declaration of Independence, U.S. Constitution, Bill of Rights, and the 13th, 14th, 15th, 19th and 24th Amendments.

For a really good study of Magna Carta, read Dan Jones' book by the same name (Penguin), "The Writings of Sir Edward Coke" and "The Roots of Liberty" (Liberty Fund, Inc.). You should also study Torah and Jesus' Sermon on the Mount. You cannot rely on what you learned in high school or college or in the street to teach you history, Liberty or principles of English and American Common Law.

One of the biggest fallacies is the popular notion that English Common Law was never written down, but is a jumble of legal opinions and new laws based on tradition. Not so. We ae not taught that the English King, Edward the Confessor, codified them. And this is the code that Rumpole of the Bailey refers to when he talks about "The Ancient Constitution". The Anglo-American tradition of Common Law is decidedly different than European Law. The Europeans largely kept to the model of Church & State government while English Protestants brought the principle of Separation of Church & State to North America.

Read John Barry's biography "Roger Williams and the Creation of the American Soul" (Penguin), a combination of historical epic, political philosophy and legal principles that all Americans should become familiar with. He it was who preached "Separation of Church & State", and he it was whose influence extended to Thomas Jefferson and beyond--long after he had been forgotten. And it was all about protecting the rights of Conscience for the purpose of advancing the Christian religion, not muzzling it.

That is why European scholars do not understand American principles of Liberty, law and government. And you can see how radically different it was by the time the Pilgrims landed at Plymouth Rock--the Mayflower Compact is an example of these traditions in action.

If you buy into the narrow view of origins and influences of English Common Law, you will never be able to understand the principles embodied in America's founding documents. Spread your wings and study the documents of the Judeo-Christian Natural Law Tradition. Liberty Fund has a number of really good books that explore this tradition.

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Standing Fast

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