Democracy, Freedom, Justice, Law, What’s all this?
TERMS History of the legal system, emergence and variations — Common Law & Civil LawDINDEXATE The Economist, Dec. 31, 1999WORDSThe right to law
. . . And what about the justice system that upholds all political and other rights, and much else besides?
“The first thing we do, let’s kill all the lawyers,” says Dick the butcher to Cade the tailor in one of Shakespeare’s plays, as the two fantasise about a perfect England. Cade loves the idea. Many today might love it even more. At the end of the millennium, some societies feel weighed down by a growing burden of laws and lawyers. How tempting to hark back, like Dick, to a halcyon time when benign rulers ruled with inborn, natural justice, when a man’s word was his bond, tradition and custom were respected, and disagreements were resolved with simple common sense. Too bad that it never existed.
Life for most people in 999, and long after, was rough. Trade, investment and innovation were to alter that. But the transformation could not have happened without the framework of law that first secured property rights and personal safety, and later made possible transactions between strangers continents apart, with the assurance that the deal would be fulfilled, or else. Nor would the invention of any amount of rights count long for much, without means of ensuring them. Small or primitive groups can function with simple sets of rules and informal understandings; not so today’s highly urbanised society and global economy.
Today’s legal systems have had a slow and complex evolution. Most contemporary law is derived from the two great legal traditions of Western Europe, the civil law of continental Europe and the common law of England. The two have spread to nearly every other region of the world, usually imposed through colonialism, but sometimes, as in Japan, Korea and China, adopted in conscious imitation of Europe. These legal transplants, even when imposed by outsiders, incorporated some local customary rules, and they have diverged from their European models. But their ancestry can still be discerned.
Modern European law emerged from a deliberate resurrection of Roman law. For centuries after the collapse of the western Roman empire, the great body of its law lay largely forgotten. It survived in part in the church, and in bastardised forms in areas of southern France and Italy. Elsewhere, the cruder customary law of the German tribes took its place. The uniformity of the empire gave way to a patchwork of legal authorities, as local princes or nobles applied local rules in a sporadic and often capricious way.
As political order became more firmly established, these customary rules were ill-suited to cope with the resultant growth in trade, the expansion of towns and the administration of greater swathes of territory. Responding to this need, groups of scholars in the late 11th century rediscovered the Corpus Juris Civilis, a huge compilation and refinement of Roman law made five centuries earlier at the direction of the Byzantine emperor Justinian I.
Centred on the University of Bologna, in northern Italy, generations of these scholars produced a vast literature commenting on and expanding Roman civil law. Students from all over Europe flocked to Bologna to learn the new law first-hand, and returned to their own countries to set up law faculties in the newborn universities. Meanwhile, guilds and merchants’ associations were developing their own rules and courts to handle commercial agreements and resolve disputes. Increasingly, public officials, local judges, and merchants’ courts, when they needed an appropriate rule for novel situations, turned to the university scholars.
Though often applied in different ways or adapted to local conditions, the new rules thus spread throughout Europe, comprising what became known as the jus commune, a common stock of procedures and concepts which gave the law of mainland Europe a strong sense of unity. The rise of the nation state eroded this unity, but scholars continued to play a central role in the law’s development, maintaining a link with the Roman past in great national codifications of laws, such as the Code Napoleon of 1804, and the German Civil Code, which took nearly 20 years to compile, and went into effect on the first day of the present century. Such national codes were in turn exported to many countries outside Europe.
England goes its own way
England took a completely different path. The Norman conquest of 1066 had given it a centralised government and administration long before continental nation-states had begun to form. This made England resistant to the legal revolution that later swept across the rest of Europe.
The Normans found a system of courts in being, and not ones that always toadied to the mighty. What customary service did the villein John, a semi-free peasant, owe to the lord of the manor? A jury of peasants gathered at the manorial court would decide. Was Robert a villein or the free owner of the land he’d been evicted from? A villein, said Simon, the powerful landowner who now held it, in a recorded case of 1202. He brought a string of witnesses to prove his case. Bribed, said Robert—and the court took his side.
All this, though, was ad hoc, most of it concerned with determining matters of fact. In time, rules created case-by-case by the king’s counsellors, and then by a new set of officials, the judges, replaced the jumble of local rules and courts. The result was England’s common law.
Roman-law teachings from the continent did not impress English judges. They preferred to apply royal decrees and the decisions of their predecessors, adapting these to novel cases through reasoning by analogy rather than by applying abstract rules. Early in the 19th century Jeremy Bentham, a utilitarian philosopher, argued that England too should codify its law. Its politicians and lawyers thought otherwise: English law, like its offspring in America, remained an ad hoc mixture of statute and precedent.
New law, old purpose
Today the volume of law has swollen hugely, as legislatures, ever faster, pump out new laws and regulations. This new law often varies greatly from country to country, even when it is meant to handle similar problems. Yet the law is also being pulled towards cross-border consistency by the growth in trade, communications and travel; most international transactions are now governed by English or American law.
Differences between the civil and common-law traditions too have been eroded, as they borrow from each other. Civil-law courts pay more respect than in the past to precedent, while in recent decades common-law countries such as the United States have enacted uniform legal codes.
And law everywhere shares its old purpose: to free life from arbitrary, or merely random, action and decision, and provide redress against them. That can mean conviction of burglars, recompense for injury, protection from fraudsters—or from governments, witness the growing use of judicial review to challenge official action in those very countries where lawyer is becoming a rude, if well-rewarded, word.
In many poor countries (and not so poor ones, like Latin America) the issue is not too much law or too rich lawyers, but too little access to law, let alone rule by it. The institutions of law exist almost everywhere. Yet much of the globe remains literally lawless. For billions, lawyers, binding contracts and courts to enforce them remain out of reach. Property rights and civil rights are the preserve of a small elite, or even pure fiction. At best, civil law is often what a corrupt judge says it is, and crime is what such judges say poor men have done but rich ones not. And the biggest threat to life and liberty is often the very government that poses as the guardian of both. Remember this the next time someone tries to raise a chuckle by quoting the line: “Let’s kill all the lawyers.”
Copyright 1999 — The Economist Magazine
