A Short History of European Law

A Short History of European Law
A Short History of European Law

the last two and a half
millennia
Tamar Herzog
Cambridge, Massachusetts
London, England
2018
Copyright © 2018 by Tamar Herzog
All rights reserved
Printed in the United States of America
First printing
Library of Congress Cataloging-in-Publication Data
Names: Herzog, Tamar, author.

Title: A short history of European law : the last two and a half millennia /
Tamar Herzog.
Description: Cambridge, Massachusetts : Harvard University Press, 2018. |
Includes bibliographical references and index.
Identifiers: LCCN 2017019315 | ISBN 9780674980341 (alk. paper)
Subjects: LCSH: Law—Europe—History. | Common law—History. | Civil law
systems—History. | Law—Europe—International unification—History.
Classification: LCC KJ147 .H47 2018 | DDC 349.409—dc23
LC record available at https://lccn.loc.gov/2017019315
Jacket design: Tim Jones

Jacket art: The Court of Chancery during the Reign of George I, by Benjamin Ferrers, circa
1725, courtesy of the National Portrait Gallery, London
Contents
Introduction: The Making of Law in Europe 1
part one Ancient Times

1 Roman Law: Now You See It, Now You Don’t 13
2 The Creation of Latin Christendom 34
part two The Early Middle Ages

3 An Age with No Jurists? 47
4 Lords, Emperors, and Popes around the Year 1000 62
part three The L
ater M
iddle Ages
5 The Birth of a European Ius Commune 75
6 The Birth of an English Common Law 93
part four The Early Modern Period

7 Crisis and Reaffirmation of Ius Commune 119
8 Crisis and Reinvention of Common Law 131
9 From Ius Gentium to Natural Law: Making European 152
Law Universal I
vi Contents
part five Modernity
10 North American Developments 167
11 The French Revolution 183
part six The Nineteenth Century

12 Codifying the Laws of Europe: Making European 207
Law Universal II
13 Codifying Common Law 217
Epilogue: A Market, a Community, and a Union 231
Notes 245
Further Reading 255
Acknowledgments 279
Index 281
Introduction
the making of law in eur ope
A few years ago, an undergraduate student reported to me with excite-

ment that she had just visited Washington, D.C., where she saw a copy of
the great charter of liberties, the Magna Carta. Not wanting to dampen
her enthusiasm, I asked myself how I could explain to this student that
what she saw was a feudal document whose original intent had very little
to do with what it came to symbolize, and whose importance was acquired
over time b ecause, centuries a fter it was enacted, it was given new meaning
and a new role.
The question I first had to tackle was whether this mattered at all. Was it
significant that an early thirteenth-century document such as the Magna
Carta was misread by a twenty-first-century student? What would this stu-
dent stand to gain had she understood what the Magna Carta r eally was and
why and how it had come to acquire the status it now has? Was this history
relevant to her present-day concerns? Was myth-breaking as important as
myth-making? Is the past gone, or does it tell us something essential about
the present and the f uture?
Understanding the thirteenth-century Magna Carta would entail remem-
bering a feudal past in which powerful lords sought to protect their jurisdic-
tion and property against an expanding monarchy. It would require imagining
how society changed over time—mainly, how the privileges of a few barons
became the rights of all Englishmen—and how, in the process, claims for
rights limited what kings could do. Given its projection in the United States,
this narrative would also include the story of how these ideas crossed the
1
2 A Short History of European Law
Atlantic and mutated. Within a larger history of European law, the expla-
nation would have to engage with the question of not only why the Magna
Carta acquired this mythical status but also why similar feudal charters,
abundant and frequent elsewhere in Europe, did not.
As a legal historian I know that what the Magna Carta currently stands for
has nothing to do with the text itself and everything to do with how it was
used and remembered. If my student knew this history, I reasoned, she might
understand the past better, but she might also acquire a means to imagine
differently her present and f uture. It could supply her with instruments to
question narratives, understand the processes that led to their formation, and
suggest where they could take us next.
The Magna Carta, of course, is not the only legal remnant that still deter-
mines our present or allows us to imagine our future. Plenty of other instru-
ments, institutions, and texts inherited from the past fulfill the same role. As
both relics of a time gone and important features of our everyday life, they
give things certain meanings, they supply solutions, and they offer techniques
through which to analyze and understand reality. Take, for example, “due
process”—the obligation of courts to follow a particular procedure. Intui-
tively, many among us would consider it a relatively modern phenomenon
linked to society’s ambition to ensure the implementation of justice. Yet,
due process, if not in name then at least in practice, was born long ago in
medieval England. The story of its emergence is linked not so much to
guaranteeing the right result (which it did not) but to the insistence that
judges of common-law courts obey very strict procedural rules. Under-
standing why procedural rules became so important in English law and
how, over the years and because of very odd transformations, they came to
be seen also as instruments protecting litigants, would allow us to have a
better grasp, for example, of why certain things were covered by due process
while others were not, or why this set of rules developed in E ngland rather
than elsewhere.
Engagement with the past would also enable us to comprehend how Euro
pean law came to refashion itself both as the epitome of reason and as a system
with potentially universal applicability. The enormous influence Euro
pean law has had around the globe could of course be explained by political
and economic factors, but it also required an intellectual elaboration. An-
cient Romans already linked community membership to law and both of
these to the extension of political hegemony, but these links metamorphosed
Introduction 3
dramatically in the M iddle Ages. The advent and propagation of Chris

tianity allowed the projection of Roman law to new areas in Asia, Africa,
and Europe. With colonialism, new explanations were a dopted to justify
the imposition of European law on non-European territories and p eoples.
The same happened during the eighteenth-century revolutions and nineteenth-
century construction of nation-states. Tracing the evolving need to explain
the relevance of European law elsewhere would illuminate, for example,
some scholars’ criticism of contemporary international law, which they trace
back to Europe and which they consider a European rather than a truly
global human heritage.
Having taught legal history for some twenty years in both law faculties
and history departments in various countries and universities in Europe and
the United States (at the University of Chicago, Stanford, and now Harvard),
I often felt the need for a short, useful introduction to European legal his-
tory that could be used to discuss the evolution of law over time. Weary of
big surveys that w ere heavy on details but light on explanation or on tracing
development and change, and unhappy with t hose that endlessly repeated
stereot ypes and misconceptions or w ere provincial in their outlook, I inten-
tionally wrote this book with both my history and law students and my
colleagues in mind. What would they need to know to appreciate both
how foreign and nonetheless familiar the past was? In a field so abundant
with nationalistic affirmations, which myths needed to be put to rest and how
could this be done? How could one integrate the history of law in Europe in a
single narrative that would allow for local variations while also respecting
the profound unity across Europe, including England? How could one com-
municate the preoccupations of Continental legal history with which I
grew intellectually (and which seeks to establish overreaching principles) to
an audience more familiar with other types of legal history that are tradi-
tionally focused on concrete examples? How can a short book reproduce what
we know and what we don’t, what we are sure of and what we hesitate to
affirm, and yet give a narrative of how things have changed over time and
(sometimes) why they did?
This book attempts to answer some of t hese questions in manageable and
clear language. Its main goal is to give readers useful instruments with which
to understand both the present and the past. Rather than supplying endless
details, it engages with the most essential elements required to rethink our
own standards by indicating when and how they emerged and developed.
Denaturalizing our present-day legal systems, it demonstrates that we reached

these systems after a haphazard and complex progression whose trajectory
into the future is far from evident. Today we might take it for granted that
law is something that is created and can be changed, but as I demonstrate
in this book, this vision is a relatively recent invention. For many centuries,
law was said to exist b ecause it simply did, b ecause it was spontaneously
created by the community, or b ecause God had handed it down. Even if
these perceptions w ere untrue, in the sense that law was always made by
someone somewhere, the fact that p eople believed them was of g reat signifi-
cance to how they viewed, interpreted, or obeyed the law, to whom they
listened, and why. If today we take it for granted that each country has its
own law, this too is a relatively recent phenomenon, law in the past being
embedded in communities that shared things other than politic al alle-
giance. Knowing which factors justified legal obedience and why they mat-
tered is essential for understanding how law functioned historically, as well
as how it does today.
To describe the complexities of the past and demonstrate its relevance to
the present, in this book, which surveys almost two and a half millennia, I
ask how in different moments in time Europeans constructed their legal sys-
tems, where they thought norms came from, who they allowed to make,
declare, or implement t hese norms, and what the results w ere. Rather than
describing specific legal institutions or rules, I am interested in deciphering
how norms were generated, in order to indicate how they should be read and
understood given their particular historical context. I am also keen on dem-
onstrating that their comprehension may tell us something important about
whom we came to be.
Throughout the pages of this book, I constantly engage with two major
narratives that have accompanied most research on legal history. The first
portrayed law almost as a given. Sensitive to how particular solutions changed
over time, for example, how contracts were drawn up or what proving a case
in court required in different periods, on most accounts it implicitly assumed
that law was law. It was as if society had changed, and so had its rules, but
law as a field of action and a depository of knowledge and techniques re-
mained the same. For most authors, law included norms that people obeyed,
as if where t hese norms originated, how they w ere comprehended, which
other types of norms existed, and who implemented them and in which way
mattered very little. This narrative often seemed to imply that it was almost
Introduction 5
inconsequential whether law was attributed to communal creation (as in cus-

tomary law), God (as in canon law), legislators, or judges. Neither did it
matter w hether law aimed to innovate or maintain the status quo, or w hether
lawyers and jurists presumed to interpret it literally or believed it represented
a higher truth, which was not directly evident and which they sought to
uncover.
As already indicated in my treatment of the Magna Carta, in this book I
do the exact opposite. I describe the development of law in Europe as a phe-
nomenon that involved not only choosing between rival solutions (as most
scholars supposed) but also identifying basic assumptions regarding the rules
themselves. Returning to the Magna Carta, to understand its meaning one
has to comprehend, not only what it dictated, but also the normative system
in which it operated. It is only by considering contemporary notions re-
garding the making, modifying, and imposition of rules that we can appre-
ciate what the Magna Carta sought to institute. Its changing meaning over
time was likewise linked to transformations not so much in the text itself
(which remained surprisingly uniform despite constant copying and correc-
tions) but in the legal contexts in which it was read. That it came to symbolize
what it does today, in short, has everything to do with context (or, rather,
contexts), which radically altered over time and which this book seeks to
uncover and reconstruct.
The Magna Carta also teaches us that, in their quest to obtain certain
goals, agents often played with continuity and change. They argued for con-
tinuity when they innovated, or they clamored for change when in reality
they allowed for none. To understand the past, we need to know not only
what happened but also how it was reconstructed, used, and comprehended
both by contemporaries who lived through t hese events and by future inter-
preters who looked back to them in order to reform their present. Over the
course of history, law was elaborated, re-elaborated, and reworked once again,
as different individuals, communities, and institutions sought to identify,
construct, reconstruct, manage, and re-manage different rules to regulate
their activities.
If my first aim is to destabilize the idea that legal solutions changed but
the legal framework (who imaged t hese solutions, who implemented them,
which was their authority, and how they gained it) was inconsequential, the
second narrative I wish to question is the presupposition that English
common law and Continental law (also known as civil law) were utterly
distinct. My own experience as a lawyer trained in a universe that used

both of these legal systems and as a historian working in both Europe and the
United States suggested that this separation could not be true. Instead of
treating e ither one system or the other, as most legal histories do, or ob-
serving the specific instances and ways by which the two systems on occa-
sions influenced one other, I adopt an analysis that observes English and
Continental law at the same time by using a similar methodology.
To do so, in my description of developments from the late Middle Ages
to the present, I deliberately alternate between Continental and English law,
with the intention of placing them into dialogue with one another. My aim
is to showcase both what these systems shared and how they differed. Above
all, I wish to demonstrate the degree to which, even when they took different
paths, they were largely propelled to do so in response to similar develop-
ments and pressures. I also suggest that the paths they took were inspired
by a common tradition that supplied not only questions but also a horizon
of possible solutions.
Thus, I examine the formative period of Continental ius commune along-
side common law, I analyze how both systems responded to challenges and
changed in the early modern period, I compare their eighteenth-century mu-
tations, and I scrutinize them throughout the nineteenth c entury and into
the formation of the European Union in the second half of the twentieth
century. Rather than being foreign to each other, as many previous authors
concluded, I argue that English common law and Continental civil law
formed part of a single European tradition from which they both drew and
were enriched. They were, in fact, substantially much more similar than
meets the eye.
I begin my analysis with Roman law b ecause of its continuing presence
throughout European history. Among the endless ways in which Roman
law’s hegemony is still felt today is our constant dependence on presump-
tions, which were a Roman invention allowing one to assume the existence
of things without having to prove them first. Not only was the employment
of presumptions a Roman technique, some of the presumptions we currently
use originated in Roman times. Take, for example, the legal presumption
that c hildren born to a married c ouple are the natural offspring of both
spouses. This presumption allowed parents to register their children without
having to prove their descent, a function it still fulfills today despite scien-
tific advances allowing us to prove ancestry. Constantly present throughout
Introduction 7
history, this presumption, however, could come to satisfy new needs. Used
under radically different social conditions, in present-day Spain, for example,
it authorizes the registration of a child born to a legally married gay c ouple
as the natural offspring of both spouses.
Roman law is an important point of departure for European legal his-
tory not only b ecause of its ongoing legacy but also b ecause this legacy was
eventually shared by most (if not all) Europeans. Penetrating slowly, first
with the expansion of the Roman Empire and then with the conversion to
Christianity, it became the common stock in Europe most particularly a fter
it was taken up by medieval scholars and reworked to fit contemporary
needs. Forming the basis also for the initial development of English common
law, its validity and influence w ere tested during the early modern period
and w ere affirmed or denied with the coming of modernity. Over the course
of this history, paradoxically, even those who rejected adherence to Roman
law often argued their case by analogy to it.
The understanding of Roman law, of course, changed over the course of
history, and so did its use. What it meant in the classical period had very
little to do with how medieval jurists used it, or what English common-law
lawyers and German nineteenth-century jurists made of it. Despite this huge
variation in the way it was understood and incorporated, Roman law never-
theless maintained its prestige, and so did some of its basic methodologies
and tenets. As usually happens, this interpretation and reinterpretation of
the past enabled a creative engagement, not only with what had transpired
in the past, but also with constructing the present and the future.
The constant invocation of Roman law also required as well as explained
the permanent strain experienced in Europe between stability and univer-
sality, on the one hand, and dynamism and local responses, on the other. If
Roman law supplied the backbone for a common European legal tradition,
it could not solve the constant tensions between local and global, individual
solutions and overreaching principles. Th ese tensions w ere already present
in Rome itself, where historians distinguished between law as practiced in
the center and as followed in the provinces, but they continued throughout
European history. It was precisely in order to overcome such tensions that
in the eleventh, twelfth, and thirteenth centuries, efforts w ere made, in both
Continental Europe and England, to create a unifying common law (Chap-
ters 5 and 6). This ius commune, a term the English initially also used to desig-
nate their common law, was meant to cement and give coherence to a legal
world that in reality comprised hundreds of thousands of local arrange-

ments. W hether the search for commonalities succeeded, and to what degree,
is part of the story I describe. Another is how the struggle for unification
affected how communities w ere defined. Moving from personal associations
(that encompassed p eople according to their relations with one another) to
territorial jurisdictions (that imposed law on all those who inhabited a certain
territory) and sometimes adopting midway solutions, communities expanded
or contracted according to the perceived sameness of members. Sometimes
family was the factor that justified the imposition of a common law, but
often as important w ere a shared religion, a shared subjection to a lord, the
sharing of fields, or the maintenance of trade relations, to mention just a
few examples.
The struggle to unite people u nder the same law was also taken up by the
Church, whose authorities w ere the first to designate the law that was
common to all Christians as a ius commune. Yet, if the Church played a major
role in propagating Roman law (Chapters 2–4), it also affected European
normativity in other ways. A fter the Roman Empire converted to Chris
tianity, the distinction between secular and religious lost much of its saliency.
This was particularly true in late antiquity and the early M iddle Ages, but it
continued to be a fairly accurate description of European law even in later
centuries because of the omnipresence of canon law and the commanding
role of Christian morality. At a certain moment in time, some European
actors began searching for a system that would no longer depend on ex-
ternal authorities or traditions but instead would be self-explanatory. The
reign of self-evident truth, where rules could be justified not because they
had an authoritative foundation but b ecause they made sense to those who
created them, propelled what we now identify as modernity. But this mo-
dernity was not necessarily secular. In the minds of many of its eighteenth-
and nineteenth-century proponents, human reason and a natural law that
was said to be imposed by nature on h umans could perfectly cohabit with a
belief in God.
Modernity brought about major transformations, but regardless of the in
teresting question of whether these were revolutionary or not, legally, at
least, these changes were often more radical in intent than in practice. In
the end, their most pressing legacy was the belief in h uman agency and the
conviction that humans were capable of improving themselves as well as their
societies. Thereafter, law would come to exemplify the general drive to move
Introduction 9
away from the art of conserving a status quo (as has been the case before) to
the art of innovating in order to create a seemingly better world.
Having started this book with Roman law, I end it with the establish-
ment and growth of the European Union, which for me is both a point of
arrival and a point of departure. To what degree can Europe today have a
common law, and who are the agents and interests propelling such a legal
unification? Are these processes of unification particular to Europe or do
they also operate on a global scale? How can the nation-state, invented in
the late eighteenth century, cope with the challenges of both Europeanization
and globalization?
To answer some of these questions and make some of these points, the
individual chapters that follow each address a certain topic, as well as
describe its evolution. In order to make the narrative clearer, I sometimes
sacrifice chronology for the sake of illustrating better what I describe. I do
so, for example, in Chapter 1, where I discuss provincial Roman law codes
that were enacted a fter the empire converted to Christianity. Similarly, in
Chapter 2, which describes the Christianization of Rome, I deal with some
of the issues also covered in Chapter 3, which focuses on the early M iddle
Ages. In Chapter 6, where I study the foundational period of common law,
I sometimes venture into the early modern period.
If chronology is complex, so is the geographical and political entity I
identify as Europe. Evidently, over the course of the period I cover, Europe
and the definition of what belonged to it were both invented and had
greatly mutated. An idea rather than a continent, Europe changed forms
and shapes and eventually ventured overseas to territories we now identify
as colonial. The projection of European law was just as amorphous. During
Roman times, parts of the Mediterranean and Asia were subjected to it, as
were European overseas domains later on. By the eighteenth, nineteenth,
and twentieth centuries, the legal tradition I describe as European reached
its utmost expansion due to the growing hegemony of the Continent
but also b ecause elites around the globe chose to use and adapt European
law to their own needs and desires. B ecause of this extension, some of
the most important developments in European law happened outside the
Continent, as when the law of nations was turned into natural law in the
colonies, or as in the constitutional innovations introduced in North
Americ a. These not only were a consequence of European law, they also
greatly modified it.
Precisely b ecause I was looking to describe the most fundamentaldevel-

opments, r ather than all d
evelopments, not all European countries feature
equally. In my story, some parts appear as protagonists, whereas others are
only mentioned in notes. The places and times I describe sometimes were
chosen because of their importance, but more often they were selected
because they illustrate some of the main arguments I wish to make.
part one
Ancient Times
1
Roman Law
now you see it, now you d
on ’ t
The city of Rome was probably founded in the early part of the seventh
century bce. Initially ruled by monarchs, at around 509 bce it had converted
into a republic, in which a senate (an assembly of elders) appointed annually
two public magistrates (consuls) to govern the community. This system of
government lasted until 27 bce, when the senate declared Augustus em-
peror. Having traded and fought extensively with its neighbors, Rome
gradually expanded its control, first throughout the Italian peninsula and
then throughout the Mediterranean and into parts of central and northern
Europe. In 285 ce, the empire was divided into a western and an eastern part.
This division, justified by the enormous size of the territories under Roman
control, gradually gained political saliency. In 476 ce, Germanic troops in-
vaded the city, forcing the abdication of the emperor, thereby bringing about
what has come to be known as the “fall of the Roman Empire.” Despite these
developments, which terminated Roman political hegemony in the west, the
Eastern empire, with its capital in Constantinople (present-day Istanbul),
survived until its conquest by Ottoman tribes in 1453.
Rome left an enduring legacy in many areas and multiple ways. How-
ever, one of its clearest bequests was its influence over the development of
law. Th
ere is a saying attributed to Goethe according to which Roman law
was like a diving duck. It could be swimming on the surface or diving
deep in the water, but whether you saw it or not, it was always there.1 This
belief in the persistence of Roman law throughout European history was not
13
unique to Goethe or the nineteenth c entury in which he lived. It is currently

shared by most historians, who usually begin the story of the development
of law in Europe with Roman law. Of course, Romans were not the first
people to have a normative system, and, like all other societies, they con-
stantly borrowed from neighboring polities, most particularly from the
Hellenistic world. It is also clear that Roman law evolved dramatically over
time, continuously adapting to new circumstances and challenges.
Yet there is a general agreement among scholars that Roman law, most
particularly as practiced in the six hundred years between the third century
bce and the third c entury ce, featured some of the most important elements
we identify today with law as practiced throughout European history. Among
them was the emergence of a secular law (even if applied by believers), the
centrality of conflict resolution, and the emphasis on private law. Rome also
experienced the emergence of specialists in law. As I will argue below, t hese
specialists, identified as jurists, transformed the normative system into a
professional field involving specifically designed procedures that had to be
followed if the right answers w ere to be obtained. They coined terms and
elaborated concepts that allowed them to translate everyday life into legal
formulations. Roman law, in short, supplied new ways to think about nor-
mativity, which Europeans ever since have followed in different intensities
according to time, place, and subject.
Ancient Courts and Divine Judgment

Experts of Roman law disagree about genealogy and dates, argue about the
meaning of terms, and differ over why certain developments took place.
However, most approve of a narrative that points to a gradual process that
led to the secularization of the law, the creation of new remedies, their sub-
sequent abstraction, and the rising importance of jurists and juridical
training, which featured organized methods for understanding the law as
well as generating and applying it. Most point out that, as far as we can tell,
Roman law began as a system to adjudicate conflicts among individuals that,
from archaic times (eighth to fourth century bce), was centered on society’s
responsibility to guarantee order. This was done by providing mechanisms
ensuring that, rather than engaging in violence, those who disagreed could
find redress at the courts. Initially the use of courts was optional and re-
quired the consent of plaintiffs and defendants. Over time, however, courts
Roman Law 15
acquired additional powers allowing them sometimes to compel litigants to

appear before them as well as to impose their decisions.
This emerging system was identified as the ius civile, that is, the com-
munal law (the law of the civitas). In the archaic period, questions of law as
well as a ctual conflicts could be presented to a body (college) of patricians
who were also priests (pontifices). Guardians of communal norms, as well
as experts in ritual performance, these patricians ruled on w hether certain
behaviors conformed to social expectations, and they suggested what could
be done in order to obtain remedy.
As far as we can tell, patricians who served as pontifices followed oral tra-
ditions that captured unwritten customs (mos) that w ere both religious and
secular in orientation. Their responses to litigants, formulated as revelations
of a secret truth, were considered by definition final and required no external
proof. Supreme interpreters of the law, pontifices closely guarded their knowl-
edge, passing it from one generation to the next.2
During this period, law was rigid and formal. Rather than a free narra-
tive of what had transpired and what required remedy, there was a closed
list of c auses of action (legis actiones) that litigants could invoke. Th ese ac-
knowledged that the plaintiff was injured in ways that should be investigated
and redressed. Different c auses of action entailed different procedures, with
some sending plaintiffs to a judge and o thers allowing him or her to obtain
immediate reparation. The decision to adopt one cause of action or another
was determinant. Not only did it define what the parties wished to achieve,
but choosing an inadequate cause of action could lead to the termination of
the proceedings.
Litigants invoked t hese causes of action before the pontifices. This invo-
cation required the taking of a ceremonial oath, the utterance of certain
words, and the performance of certain acts. Defendants responded in the
same way, using preset responses. Religious in origins, this ritual had to be
followed accurately, as pronouncing the wrong words or d oing the wrong
3
thing could lead to dismissal. The pontiffs then determined whether the
cause of action that was invoked was correct and w hether the parties used
the right rules and procedures.
The oldest written source we have from this period is a fifth-century
bce set of rules best known as the Twelve T ables. Although no complete
copy of the T ables has been found to date, several reconstructions made by
historians are available. Th ese historians sought to recreate the Tables by
arranging the quotations found in the writings of subsequent jurists. It is

unclear, however, how much was lost and what the original design of the
Tables was. Neither is it completely clear that all that was said to have origi-
nated in the Tables was indeed included in them.
Allegedly written down in order to diminish the monopoly of pontifices
by making the law better known, the Twelve T ables list the obligation of
litigants to appear in court, sanctioning them if they did not. The Tables
also spell out procedural rules, regulate forms of legal transactions, and list
other basic norms of communal life, enumerating elements of family law and
the management of property (contracts, torts, inheritance, loans, real estate,
theft, and so forth). Casuistic, partial, and incomplete, according to testimo-
nies dating from later periods the Tables w ere nevertheless considered suf-
ficiently fundamental to the proper functioning of Roman law that their
contents were memorized and recited by children, and copies were inscribed
on bronze, ivory, or wood panels that w ere displayed in public places.
The publication of the Twelve Tables was an important turning point in
the history of Roman law not only b ecause a secret law, collectively shared
by the pontifices, was made public but also because it marked the appear-
ance of lex, that is, of a law that was distinguishable from the religious order
controlled by priests. This law would operate not between the community
and its gods but among community members, and it would eventually des-
ignate a new secular and political sphere of action controlled by lawmakers
who published the law rather than religious experts who guarded it.
It took some time, however, before the Twelve T ables fulfilled this poten-
tial of creating a sphere of legality that would be distinguishable from the
religious order. Initially their interpretation and application was still in
the hands of the pontifices, who w ere seen as t hose most capable of under-
standing and implementing their instructions. Around the end of the fourth
and the beginning of the third century bce, though, secular officers began
taking their place. Also during this period, giving answers (responsa) as to
what the law included became an aristocratic prerogative that was no longer
based on religious expertise.
The Rise of Civil Litigation

From around 367 bce, special officials called praetors (later identified as
praetor urbanus) were nominated annually in order to oversee the resolution
Roman Law 17
of conflicts.4 Initially praetors mostly followed existing procedures, ensuring

that the right cause of action was employed and that it was employed cor-
rectly. However, soon a fter—the debate continues as to when exactly—
significant modifications w ere introduced, instituting adjudication the way
we think about it today.
The first and most important change for which historians have had dif-
ficulty establishing a time line—there is a debate w hether it happened in
the archaic period, in which pontifices ruled over the procedures, or after-
ward—was the division of adjudication into two distinct parts, the first
dealing with questions of law and the second with questions of fact.5 In the
former, praetors decided on the admissibility of the case. In what today would
be conceptualized as a preliminary hearing, they determined w hether the
courts would be willing to hear the case and which remedy should be given.
This first part (in iure, that is, “within the law”) was concerned with identi-
fying the legal issues at stake and the appropriate remedy; in the second part
(apud iudicem, “in the presence of a judge”), a ctual adjudication took place.
In this part, the presiding judge (called iudex) had to ascertain the facts of
the case, that is, what actually happened. The iudex heard the parties and
considered their evidence. A fter he determined what had transpired, he
proceeded to apply the solution that the praetor had identified in the pre-
vious stage.
The division of adjudication into two parts, the first concerned with
establishing the legal question and the second with applying it to concrete
circumstances, was essential to the development of law. This division reg-
istered the institutionalized awareness that it might be useful to isolate the
normative order (the rule) from the chaos of everyday life (the particular cir-
cumstances of each case). Freed from the burden of the details specific to
place, time, and parties, thereafter pontifices and / or praetors (depending on
when this division took place) could begin formulating general rules that
could be applied to all similar cases.
While the division of the process into two parts was important, the second
innovation, which was as crucial and which most historians date to the third
century bce, was the introduction of new c auses of action. No longer w ere
praetors forced to follow the old c auses of action and the religious rites that
dominated the work of the priests. Instead, they w ere now at liberty to create
new solutions embracing both the admissibility of cases as well as the types
of remedies that the courts would supply.
This development was gradual. It probably began as a procedure specifi-

cally targeting the adjudication of conflicts involving foreigners, who were
ineligible to use legal actions reserved for citizens.6 However, sometime
around the second or first century bce (exact dating is still unsettled), it was
also introduced into litigation among citizens a fter praetors were allowed to
create new legal actions. These new actions—identified as “formulas”—usually
consisted of short pronouncements that categorized the issue legally. Praetors
drew these up after they heard litigants’ claims and understood what they
aimed to achieve. Offering ad hoc solutions to specific conflicts and often
adopted a fter negotiation between the parties, most formulas included the
identification of the person who should act as a iudex, a summary of the ques-
tions at stake, the facts required to support it, and an order stating how to
proceed if the facts of the case w ere proved. For example, if there were a case
of a conflict between individuals named Titus and Agrippa over the owner
ship of a horse, a formula would begin by stating who would be the judge
(say, a citizen named Marcus). It would continue by declaring that it ap-
peared that the horse in dispute belonged to Titus. If Agrippa, who held it,
refused to return the h orse to Titus as he was instructed by the judge, he
should pay Titus its just price. If, on the other hand, it appeared that the
horse was not Titus’s, then Agrippa should be absolved. The formula could
also specify the defenses (excuses) litigants could use; for example, it could
allow Agrippa to argue that Titus had promised not to sue him.
A fter praetors clarified the legal issues at stake and prepared the formula,
the parties would take their business to a iudex, whose role was to decide
whether the facts of the matter justified the application of the rule set by the
praetor. Unlike praetors, who w ere public officials nominated to a yearlong
term, iudex w ere private individuals usually chosen by the praetor from a
list of eligible men. A typical iudex would hear witnesses and consider other
evidence. In the case mentioned above, he would verify w hether the h orse
belonged to Titus and what its just price was. If Agrippa raised a defense,
the iudex would decide on its veracity and would or would not f ree him from
his obligation. Decisions of the iudex could not be appealed.
A Growing List of Formulas

It is possible that in the first few decades in which this system operated, for-
mulas were mostly tailored to the parties and their specific concerns and
Roman Law 19
reflected the evolution of Roman society and its needs. However, we know
that relatively soon, praetors began drawing up standardized formulas that
no longer included reference to the particular conditions of the case. Worded
hypothetically, these formulas could specify, for example, that the praetor
could rule against a seller who refused to hand to the buyer what was agreed
upon, unless the seller showed no fault.
As formulas became more abstract, they could easily apply to more than
a single case. Realizing this potential, some praetors began issuing lists of
formulas that they would be willing to use in the f uture. Praetors working
in Rome tended to post these lists in the Forum Romanum, the main
square of the city, for all to read. The lists enumerated, seemingly in random
fashion, the cases the praetor would agree to hear. For example, going back
to Titus and Agrippa, the list could include the praetor’s promise to rule in
favor of a person whose property was taken away without compensation.
Identified as edicts (edictum), eventually the lists of remedies w ere published
annually by praetors before they assumed office. From the mid-first century
bce they w ere considered binding on the individual praetor who published
them.
Initially each praetor published his own edict, with his particular list of
remedies that would be valid only during the year in which he was in office.
Yet gradually, first in the provinces and then in Rome, most praetors began
copying earlier lists and referring to formulas already in existence. By the
first century ce, repetition was so common and edicts w ere considered so
prescriptive that praetors could no longer disregard what they had included
by adding or subtracting from them. This became the rule in the second
century ce when, under Hadrian (r. 117–138 ce), edicts were collected in an
official compilation that was declared to be sufficient and final.
This development marked both the maturity and the end of an impor
tant period of Roman law. Before formulas w ere fossilized by the continuous
repetition of the same edicts, praetors could create new formulas as well as
deny the admissibility of old formulas. By granting or refusing to grant ac-
cess to the courts, by indicating which circumstances deserved a remedy and
which did not, and by allowing defendants to invoke certain defenses but
not o thers, praetors intervened in the legal order by creating or denying
what today we would identify as rights. Their intervention was so impor
tant and so massive that the norms they created by granting or refusing
to grant remedies were identified as forming a new source of law, which
paralleled the old ius civile and was later designated as ius honorarium, liter-
ally, the law that was made while they exercised their office (honos).
The importance of ius honorarium as a legal source allowed historians to
characterize Roman law as a “law of remedies.” Focused on how to redress
the breach of peace and guarantee the return of the status quo, ius hono-
rarium was mainly concerned with what individuals could do when
they were wronged. It prescribed where they could go and which reme-
dies they could receive. Much less interested in coining general principles
or developing guidelines, this law was practical and casuistic. It collected
the accumulated experience of Roman praetors but also authorized legiti-
mate expectations as to what a wronged person could do. Alongside the
existing law (ius civile), this magistrate-made law (ius honorarium) shaped
Roman law as a synthesis between expert opinion based on customs, rit-
uals, and systematic presentation (ius civile), on the one hand, and everyday
conflicts and their resolution (ius honorarium), on the other.
The Emergence of New Procedures

Over time, new procedures emerged. Most important among them was the
cognitio (literally, “investigation”), which reserved both the preliminary
hearing of the case and the reception of proofs to an imperially nominated
and salaried judge. Having begun during the reign of Augustus (27 bce–14 ce)
(or earlier, according to some historians) as a measure taken only in certain
types of cases, cognitio eventually expanded to include most litigation. This
marked the end of the division of the process into two distinct parts, one
assigned to a praetor (and perhaps pontifices) and the other to a iudex.
With the gradual institution of cognitio, and most particularly starting
in the third century ce, new officers were selected to serve as judges, and the
emperor himself began hearing some cases, as did Roman governors in
the provinces. The result was that conducting t rials was no longer part of the
public duty of prominent individuals (who could be appointed for one year
as praetors or be nominated iudex) and litigation was no longer based on an
agreement between parties who consented to the way their discord would
be translated into a formula and agreed to subject themselves to the juris-
diction of the praetor and iudex. Instead, t rials w
ere now u
nder the privy of
officially appointed judges that both investigated the case and delivered the
sentence.
Roman Law 21
The Contribution of Jurists

Sometime in the late third century, or during the second or first century bce
(the exact timing is still under debate), the work of praetors was accompa-
nied by deliberations by a group of intellectuals we now identify as jurists
(iuris consultus or jurisprudentes). Roman jurists were men who engaged with
the normative order as part of their public duty. Many were members of the
Senate, and some might have served as consuls. They had no particu lar
training or official appointment, nor w ere their activities remunerated, yet
they advised praetors on how to proceed by suggesting new formulas. They
also answered questions from individuals who sought advice on which rem-
edies could be requested or on how to manage their affairs or draw up doc-
uments in ways that would be legally useful and efficient. Jurists sometimes
analyzed real cases, but they also gave their opinion on hypothetical cases
meant to help interested parties plan their activities.
Although jurists were private individuals, many of whom held no official
appointment, their influence on Roman law cannot be overestimated. Ju-
rists guided the praetors and the parties, they creatively interpreted the for-
mulas, and, above all, they profoundly transformed the law by molding its
different tenets into a professional knowledge that only they shared. They
elaborated a method to think about legal phenomena, invented a termi-
nology, coined principles, identified organizing units, and referenced a se-
ries of ideas that would guide European law ever since.
The way jurists set about to create this new knowledge was both simple
and ingenious. Beginning with a set of individual cases and a long list of
casuistic solutions, jurists compared real cases against one another as well
as against hypothetical cases. They asked what w ere the similarities and the
differences. They distinguished between elements that, although mentioned
in the rule or formula, w ere not normative and t hose that, on the contrary,
were normative, by identifying the legal problem (quaestio iuris) that the
case, norm, or formula was meant to resolve. Going back to Titus and
Agrippa, rather than simply ruling that Agrippa had to give Titus the just
price for the h orse, by comparing his case to o thers, jurists came up with
the concept of “good faith” (bona fides). According to that, agreements
must be settled on without simulation or dissimulation. If Titus retained
the horse because Agrippa agreed not to sue, Titus could be accused of
committing fraud.
Employing t hese procedures, Roman jurists elaborated many essential

concepts that are still with us. They typified an enormous range of activities
and social relations into a list of preset categories, including such things as
“obligations,” “contracts,” “guardianship,” “partnership,” “inheritance,” and
“sale,” to mention just a few examples. This enabled them to distinguish be-
tween different forms of sale, or a variety of ways to obtain ownership. It also
allowed coining rules that would be valid for all sales or all ownerships, and
others that would not. According to some historians, this process resulted in a
true metamorphosis that conceptually transformed “acts of w ill” (the ac-
tions of individuals) to “acts of knowledge” (which translated what had
happened into an intellectual abstraction).
The result was a new model for thinking about social relations. This new
model, which we now identify as legal, consisted of a method to comprehend
how p eople dealt with one another and what the consequences of their ac-
tions should be. This method was said to operate abstractly and adopt proce-
dures that were completely indifferent to and independent of attachment to
particular people, places, or times. In other words, regardless of its specific
stipulations, where and when it was agreed to, or by whom, according to
Roman jurists a sales contract was a sales contract. As such, it could include
elements that were individual to this particular contract, but it was also sub-
ject to common rules that applied to all sales contracts of that type.
Roman jurists also invented quintessential juridical instruments, such as
legal presumptions (praesumptio iuris). L egal presumptions allowed jurists
to assume that certain things were true without having to prove their exis-
tence. Reversing the burden of proof by placing it, not on the person who
wished to demonstrate the presumptions, as is usually the case, but on the
person who wanted to refute them, presumptions allowed jurists to infer,
from what they knew, what was not known or could not be proved. A typ-
ical presumption from this period involved the conclusion that all property
possessed by a married w oman was given to her by her husband. A com-
monsense observation in that particular society and time, it could be used
in legal proceedings and be a dopted as a truism unless there was proof to
demonstrate the contrary. Other presumptions included the idea that can-
cellation of a deed testified to the extinction of the debt, or for resolving ques-
tions of inheritance, that various individuals who died in a shipwreck all
died at exactly the same time.
Although much of this scholarly production was oral, by the second
century bce some jurists began collecting their responses (responsa), sum-
Roman Law 23
marizing important cases, and recording court decisions. O thers produced

commentaries or treatises on certain topics or wrote general essays on Roman
law. As this literature proliferated, new genres appeared. In the second
century ce, a jurist named Gaius proposed a practical manual to introduce
the uninitiated both to the law and to legal thinking. The manual, titled
Institutes, divided Roman law into three parts: the law of persons (personal
status), the law of things (including obligations), and the law of actions (what
kinds of actions w ere available to litigants who wanted to achieve certain
things). Although not particularly important when it was written, this manual
became a model to follow. By the fifth c entury, it was also subject to inter-
pretation and commentary.
Jurists and the Law

Although jurists w ere not formally appointed and their advice had no binding
force, their answers could be normative. This was the result not of an offi-
cial appointment (which they lacked) but of the reputation and prestige of
the jurists themselves and the belief that their analyses embodied reason.
Because the degree to which their advice was followed depended on how re-
nowned the person who gave it was, not all opinions by all jurists were
considered equally prescriptive.
The fact that private individuals could express opinions about the law and
that t hese opinions were abided by was not always agreeable to the Roman
authorities. Several emperors attempted to control these processes by insti-
tuting, for example, a system of licenses to give advice, or by drawing up
lists that prescribed which jurists were to be followed and in which order of
preference. Best known among these efforts was Augustus’s listing of jurists
having the right to give responses, Constantine’s (r. 306–337 ce) fourth-
century-ce instructions that only certain works by certain classical authors
could be cited in Roman courts, and the fifth-century (426 ce) Law of Ci-
tations that allowed only the use of the opinions of five selected jurists. The
Law of Citations also instructed that if t hese jurists disagreed, the majority
opinion would prevail and that, if t here was no majority b ecause the various
jurists pointed at various (rather than only two) solutions, the opinion of
Papinian (140–212 ce) should be followed.7
Despite their persistence, these imperial efforts at controlling juridical cre-
ation w ere mostly in vain. Juridical literature continued to develop, and
its usage continued to depend mainly on the reputation of jurists, not on
imperial decision making. In the long run, imperial control over this legal
source was achieved more efficiently by co-opting jurists, not by at-
tempting to manage the normative reception of their opinions. To this end,
several emperors employed prestigious jurists in their court or arranged for
them to give responses on their behalf. Some jurists even became mem-
bers of the council that advised emperors on the most important m atters of
state.
This cooperation between jurists and the emperor led to important
changes. By the third century ce, most juridical activity was centered on
jurists giving responses as members of the imperial bureaucracy. In their
capacity as imperial officials, their determinations were now binding not
because of their inherent goodness but because they were considered orders
of the emperor.
Juridical Training
Initially jurists had no special preparation other than living in the commu-
nity and being involved in its affairs. As members of the Roman elite, most
were trained in rhetoric, the art of persuasion, but they had no legal training
per se. With the growing importance and number of jurists, however, some-
thing akin to a professional preparation began appearing. Instruction
mostly took place orally, with a group of apprentices following a master as
he gave advice or delivered speeches. As this practice became popular, indi-
vidual preparation was replaced by communities, or groups of people, who
came to listen to jurists publically expound their opinions on points of the
law. Although teaching continued to be informal and voluntary, t hose ha-
bitually listening w ere sometimes identified as “students” who formed “socie
ties” and paid some remuneration to their “teachers.”
By the first c entury ce, the following of masters became so institutional-
ized that two rival schools of thought made their appearance. Identified as
the Proculians and the Sabinians, these schools w ere named after the jurists
who founded them. Historians disagree as to the difference between the two
schools. Most believe that they were probably distinct in their approach to
legal analysis, one adhering more closely to the letter of the law and the other
caring more about material justice.
The congregation of students around masters was particularly noticeable
in the second c entury ce, when several locations w ere identified as places
Roman Law 25
where law teaching habitually took place. In t hese locations, teachers gave
courses on a variety of subjects, including juridical thought and imperial leg-
islation. At the end of their studies, students received a certificate. By the
fourth century ce these schools came u nder the control of emperors, who
appointed the teachers and gave them the status of civil servants. In 425 ce,
Theodosius II (r. 408–450 ce) declared illegal the teaching of law outside
these state-sanctioned institutions.
Legislation
Another means to create legal norms was legislation. Assemblies (meet-
ings of all male, adult, Roman citizens) could pass statutes (leges) as well
as plebiscita (laws made in assemblies of plebeians). According to some
historians, the Senate, where leading men of the republic met to discuss the
affairs of the day, was a legislative body that not only recommended but
also prescribed certain solutions (senatus consulta), most particularly u nder
the Republic (ca. 509–27 bce). In the late Principate (ca. 27 bce–284 ce),
a new form of legislation, the oratio principis, appeared, allowing emperors
to deliver speeches telling the Senate which norms it should adopt.
These various legal sources fared differently in diverse periods. Laws and
statutes passed by assemblies were an important source of law until the first
century bce. Senate decrees were important in the first and part of the
second century ce. The accumulation of imperial legislation led to the appear-
ance of collections of imperial constitutions such as the third-century ce
Codex Gregorianus, which included legislation from Hadrian to Emperor
Diocletian (r. 284–305 ce), or the more famous early fifth-century Codex
Theodosianus, formally promulgated by Theodosius II and including sixteen
books divided into titles and covering legislation dating from 306 to 437 ce.
But even at the height of their prominence, these sources were of little weight
when compared to the production of praetors and jurists. Among other
things, legislation tended to add to and explain, rather than change, the legal
situation. Furthermore, its most frequent field of action was public, not pri-
vate, law. Legislation also covered such issues as criminal law, testamentary
succession, and f amily law.
The relatively secondary role of legislation in the making of Roman
law was paradoxically confirmed with the advent of the empire. Roman
emperors, who sought to influence the legal order, legislated massively.
However, to justify their growing legislative powers they often disguised

themselves as judges and jurists. They published edicts (as the praetors once
did), rendered judgments (decreta), or gave answers to questions of law pre-
sented to them either by the interested parties or by praetors (rescripta).
These answers were often written not by the emperors themselves but by
jurists working for them and in their name. Contemporary jurists con-
sented to these practices, yet they continued to uphold the centrality of
juridical thought and insisted on their role as custodians of a legal method-
ology. The emperor, they argued, was free to legislate, but examining the
legitimacy of his enactments rested with jurists. A fter all, jurisprudence, not
imperial pronouncements, embodied knowledge of matters divine and human
and distinguished what was just from what was not.8
Ius Gentium
Owing to the conviction that polities depended on agreement among mem-
bers to live together under the same normative order, Roman law was ap-
plied exclusively to the citizens of Rome. Because each community had its
own laws, which w ere the laws of its civitas (its community of citizens), in
theory foreigners (peregrini) had no right to Roman law even when they were
present in Rome. Foreigners of the same group were to use their own ius
civile, that is, their own communal law. But what would happen when indi-
viduals of distinct communities came into contact? Which laws would apply?
To take care of such situations, a different system had to be devised. Born
sometime in the fourth or third c entury bce—the dates are not very clear—
this system was eventually identified as ius gentium (literally, the Law of
Nations, P eoples, Gentiles, or Tribes). Managing it would be a new figure,
a special praetor for foreigners (praetor peregrinus), a post created in 242 bce.9
The emergence of ius gentium rested on the assumption that while some
norms were particular to a specific community, others were common to all.
Ius civile represented the former; ius gentium represented the latter. From its
birth, therefore, ius gentium was imagined as a universal system that could
fit any person of any community or legal tradition. To discover what it
included, in theory the praetor peregrinus (or provincial governor) was to
identify the legal principles shared by all humans. Because what this meant
in practice was not always clear, t hose dealing with ius gentium had a much
greater liberty to add, subtract, or change the law than did other officials
Roman Law 27
who w ere charged with applying Roman law. Thus, although much is un-
known about how the praetor peregrinus proceeded to identify the contents
of ius gentium and w hether his understanding of it truly differed from his
understanding of Roman ius civile, it is nevertheless clear he enjoyed a rela-
tive liberty that allowed him to, for example, abandon the old causes of
action and, as we saw earlier, and introduce new formulas. The quest to
identify a ius gentium also allowed the praetor peregrinus the pioneering
adoption of important principles, such as the obligation to have good faith
(bona fides) in contracts. The formulas the praetor peregrinus created, the rem-
edies he supplied, and the edicts he published established important new
practices and doctrines soon imitated by other praetors and since used by
jurists.
Imagined as a law that was not based on the specific historical experi-
ence of a particu lar community but instead was anchored in h uman expe-
rience, eventually ius gentium was said to represent h uman reason and the
nature of t hings. As a result of this understanding, on occasions Romans
considered it also as embodying a natural law (ius naturale). They suggested
that it was so reasonable and compelling that nature, rather than h uman
convention, was responsible for its creation.
The Extension of Roman Law throughout the Empire

Conceived as the law of a particular community, Roman law was thus tied
to citizenship, which was an inherited status exclusive to the inhabitants of
the city and their descendants. However, in a long proc ess extending
from the fourth to the first century bce, Roman citizenship was extended
to most individuals living in the Italian peninsula and Gaul (present-day
France). In 212 ce, Emperor Caracalla granted it to all free residents of the
empire. As a result of this extension, Roman law was no longer the exclusive
system of the citizens of the city, but instead the common stock of all
imperial subjects.
The way this legal extension took place was particularly interesting.
Rather than reimagining Roman law as a territorial law that ruled first
over a city, then over a region, then over an empire, as eventually many
powers would do, what Romans did in order to broaden the validity of their
legal system was to grant Roman citizenship. In other words, rather than
making the territory Roman, they transformed foreigners into citizens, and
rather than arguing that Roman law should be universally applied, they
redefined the extension of the Roman community by including in it all the
inhabitants of the empire. Roman law theoretically remained the same;
what changed was the definition of who Romans were.
The expansion of citizenship and, with it, of Roman law, throughout the
empire led to important developments. One that has drawn the attention of
many scholars was the emergence of a series of peripheral or provincial
Roman legal systems. These included local expressions of Roman law,
which were radically different from place to place and vastly diverse over
time. Once portrayed as “vulgar” b ecause of their distance from the centers
of creation and from juridical debates, their more salient feature was that
they were greatly influenced by local conditions and customs, most partic-
ularly in the Hellenistic East, where Romanization was harder to achieve
than elsewhere.
Although the emergence of local variations of Roman law probably
predated the extension of Roman citizenship to all the inhabitants of the
empire, it is generally believed that this extension accelerated the frag-
mentation of Roman law. By ordering that Roman law would immedi-
ately replace all previous legal traditions, the Antonine Constitution, which
sanctioned the extension of citizenship in 212 ce, unilaterally imposed the
trappings of Roman law onto preexisting native systems. In theory man-
dating a complete legal overhaul, in practice, however, this goal was unat-
tainable. The result was an extremely complex structure that allowed the
development of multiple and parallel legal systems that, although formally
identified as Roman and sharing some characteristics, w ere nevertheless radi-
cally different from one another.
This extreme pluralism was not formally acknowledged. Roman jurists, of
course, knew that differences, sometimes substantial ones, existed among the
laws operating across the empire, but they did their best to conceal this.
They did so by redefining the scope of customary law. They argued that, after
the imposition of Roman citizenship, all persisting differences between the
(original) Roman law and the (local) Roman law w ere but exceptions an-
chored in local customs. Reimagining all legal differences as part of a local
customary law allowed jurists to sanction and legitimize the survival of a
vast body of native law despite the fact that, in theory, the empire tolerated
only the existence of one common (Roman) law.
Whether they predated the imposition of Roman law or emerged after it
was imposed, paradoxically, the reclassification of legal differences as customs
Roman Law 29
greatly transformed Roman law. By recognizing as legitimate (Roman) cus-

toms what w ere in reality foreign norms, and by giving them normative value
within Roman law, Roman jurists opened the door for the massive penetration
into their legal system of non-Roman concepts and legal arrangements. One
example is that Hellenistic forms of contract or foreign understanding of pos-
session could thereafter give rise to a ius civile litigation even in Rome itself.
The complexities that resulted could be demonstrated by observing de-
velopments in the Iberian Peninsula. Rome intermittently controlled Iberia
from the end of the third century bce, and its final conquest is said to have
been completed in the year 19 bce. Roman domination persisted until the
end of the fourth c entury, when Iberia was conquered by the Visigoths. This
convoluted history was reflected in the way local law developed. Initially sev-
eral systems coincided in the territory. There was Roman law for Roman
citizens, indigenous law for the natives, and complex rules, based on different
principles, for assigning cases involving Romans and non-Romans. None
of these systems, however, existed in isolation. They interacted to such
a degree that indigenous law gradually became Romanized to the point
that, rather than ensuring separation, its imposition led to acculturation.
Its employment allowed indigenous people to familiarize themselves with
Roman law and accept some of its basic tenets under the guise of their being
local. Provincial edicts and pronouncements added to this growing body of
local law, as did Senate decisions that specifically targeted Hispania.
Over time the number of local inhabitants recognized as Romans grew
substantially through individual concessions of citizenship to “worthy” na-
tives. Several indigenous cities received the status of Latin municipalities,
and their inhabitants acquired Roman citizenship. A fter all f ree residents of
the empire w ere made Roman citizens, then, at least in theory, only Roman
law persisted in Hispania. Yet this transition was neither immediate nor com-
plete. Customary indigenous law persisted b ecause it was considered known
or good, because t here was an insufficient number of experts in Roman law,
and b ecause it was gradually merged with Roman law.
This amalgamation of Roman and non-Roman was further enhanced
a fter the Western Roman Empire fragmented. This became particularly
evident in the early sixth c entury, when the Visigoths (who conquered His-
pania at the end of the fourth c entury) proceeded to recompile the local
Roman law. The Lex Romana Visigothorum (also known as the Breviary of
Alaric), which they elaborated, was in the M iddle Ages considered a trust-
worthy source for late Roman law. However, although the Lex Romana
reproduced some essential Roman texts, such as abstracts from the second-
century Institutes of Gaius or the fifth-century Theodosian Code, compilers
of this law selected which parts to include and how to interpret them. They
incorporated and reproduced in their collection a simplified and abbrevi-
ated version of Roman law based on very few sources that were repeatedly
used and cited. It is also possible that by the time the Lex Romana was
enacted, Roman law was already u nder the influence of not only local Ibe-
rian customs but also the laws and customs that the Visigoths brought with
them to Iberia. If this was true, then not only did the Lex Romana capture
only some parts of Roman law, but it is possible that it contained a not
particularly faithful representation of how Roman law fared in Iberia be-
fore, during, or a fter the Visigoth conquest.
If the extension of citizenship was one challenge, another was Emperor
Diocletian’s (r. 284–305) decision in 285 ce, in the midst of a prolonged crisis,
to divide the empire into two parts. Diocletian apparently wished to facilitate
the administration of this vast polity by naming two rulers and building two
capitals. Yet what began as a mere administrative and political tool ended up
forming a true divide. In the post-Diocletian period, Constantine (r. 306–337)
materialized the division of the empire by erecting in the east a New Rome,
which he called Constantinople, where he transferred his residence.
The growing distinction between East and West was also noticeable le-
gally with the gradual emergence of an Eastern and a Western Roman law. It
became particularly prominent after the Western empire fragmented in the
fifth c entury and was overrun by a g reat variety of tribes we now identify as
Germanic (see Chapter 3). Thereafter, Western Roman law became heavily
influenced by Germanic legal traditions. Meanwhile in the East, Roman law
came under the renewed yet intense influence of Hellenistic culture.
Most historians tend to categorize the survival of Roman law in the East
as marking the emergence of a separate and distinct legal tradition, which
they identify as Byzantine. Yet, paradoxically, this so-called Byzantine law
eventually gave rise to the most important compilation of Roman law that
survives to date, the Corpus Iuris Civilis.
The Corpus Iuris Civilis

The Corpus Iuris Civilis, as it came to be known in the sixteenth century,
was a collection of various pieces of Roman law.10 Sanctioned by Justinian
Roman Law 31
(r. 527–565), emperor of the Eastern empire in the sixth century ce (that is,
after the fragmentation of the Western empire), in reality the Corpus included
several independent compilations that were enacted successively. Common
to all of them was that they were prepared by a committee of experts with
the aim of guarding, even restoring, the glory of Roman law as well as sup-
plying a practical code for the Eastern empire and a teaching tool for
students.
First among t hese compilations was the Code (Codex), which in a first edi-
tion of 529 and a second edition of 534 outlined various texts of imperial
legislation, some ancient, some less so, some general and some pertaining
specifically to the Eastern empire. The Codex mostly sought to fuse selec-
tively three preexisting compilations (the Codex Gregorianus, the Codex Her-
mogenianus, and the Codex Theodosianus), adding to them the most recent
imperial legislation and omitting what was considered obsolete or contra-
dictory. The second edition of the Codex also included decisions by Justinian
as to how to solve certain conflicts and promote reform. The Code, which
was meant to replace earlier collections, was arranged according to subject
matter, and inside each subject the laws were arranged chronologically.
The second compilation carried out u nder the auspices of Justinian was
the Digest (or Pandects). Finalized in 533 ce, it reproduced extracts from the
writings of some of the most influential Roman jurists who had worked
between the first c entury bce and the fourth century ce. Arranged by
topic, the Digest dealt with important areas of private law, mostly family
law, property law, contract law, and inheritance.11 It was divided into
fifty books that followed the arrangement of the Code.
The third compilation, titled Institutes, was promulgated in 533. Mainly
based on the manual for students authored by Gaius in the second c entury
ce as well as containing elements from other students’ manuals, Justinian’s
Institutes described the principles of Roman law and divided them by the
law of persons, t hings, and actions.
Although meant to collect and reproduce the law, the Corpus Iuris Civilis
nevertheless innovated a great deal. The quantity of material considered for
inclusion was enormous, forcing the editing committee to choose what
should be incorporated and what not. Historians have estimated that, to pre-
pare the Digest, which compiled jurists’ opinions, some thirty-eight authors
and two thousand books were consulted but that only about 5 percent of
this material made it into the last version. Committee members were also
told to settle conflicts and produce a unitary body of law and were man-
dated to adapt this law to the conditions and legislation of their time.
If the process of elaboration implied change, so too did the inclusion of
this material in legislation sanctioned by the emperor as the law of the realm.
The juridical opinions that w ere reproduced in the Digest now acquired the
status of law. The same happened with the Institutes, a manual for students
that thereafter was authorized as the formal vehicle with which to under-
stand Roman law. Justinian was so adamant about giving his collections the
power of law that he prohibited references to the original material or to pre-
vious recompilations. He also forbade the elaboration of commentaries and
glosses, forcing jurists to center their attention on his compilations and on
them alone. Often unsuccessful, these measures nevertheless exemplified the
degree by which Justinian desired to ensure the beginning of a new age.
The Afterlife of the Corpus Iuris Civilis

Despite the fragmentation of the Western Roman Empire in the fourth and
fifth centuries ce, what we now identify as the Byzantine Empire (the Roman
empire of the East) survived until the conquest of Constantinople by the
Ottomans in 1453. From the sixth century (when the Corpus was elaborated)
to the fifteenth century, therefore, in theory at least, Roman law as com-
piled in the Corpus continued operating in the East.
Formal continuity, however, could not mask what w ere in reality substan-
tial mutations. Most remarkable among these was the gradual adoption of
Greek rather than Latin. Used since the mid-sixth century—Justinian him-
self began legislating in that language—ultimately Greek became the legal
language of the East, forcing jurists and practitioners to translate, summa-
rize, and interpret some of the major Latin texts.
The adoption of Greek, the continuing reference to the Justinian codifi-
cation whose presence in the West was at best patchy, and the need to apply
Roman law to constantly evolving new circumstances, gave rise to the cre-
ation of a distinct Roman legal system that was particular to the East. The
eleventh-century schism that enshrined a distinction between a Latin and
an Orthodox Christian Church, the former observed in the West and the
latter observed in the territories of the Byzantine Empire, also contributed
to a widening gap between Western and Eastern traditions of Roman law.
Roman Law 33
Despite this growing divergence, practitioners in the East constantly as-

serted their ongoing association with and reliance on Roman law. Subsequent
Byzantine emperors presented their legislation as amendments (rather than
derogation) of the Corpus, and the Institutes, the manual for law students
included in the Justinian compilation, also maintained its place in legal ed-
ucation. It is therefore paradoxical that the division between East and West,
which was not particularly clear in the early Middle Ages, would eventually
become clearer and to some degree definitive only after the Eastern Justinian
Corpus would reemerge in the West, where it would fuel the “revival” of
Roman law in the eleventh and twelfth centuries.12
2
The Creation of Latin Christendom
In the first c entury ce an important agent appeared on the horizon

of what was to become European law. Its initial impact was timid and partial,
but by the fifth c entury it became a major player. This transforming agent
was a new religion, Christianity, and it was about to turn the ancient world
upside down.
Christianity was born as a Jewish sect sometime in the early part of the
first century ce. With relatively h
umble beginnings, it expanded rapidly, first
in the Eastern Mediterranean and then along its western shores. Roman of-
ficials initially rejected the new religion and, thinking it subversive in both
method and creed, persecuted its followers. But by the fourth c entury ce,
the tide had turned. In 312 Constantine recognized Christianity as one of
the permissible religions, and in 383 Theodosius I declared Christianity the
official religion of the empire.
The combining of Christianity with the Roman Empire produced an
earthquake. It shook some of the basic foundations of Roman law, and once
the seismic activity was over, what emerged was a new system. This system
no longer linked law with citizenship. Nor did law become territorial. In-
stead, normativity was now tied to a shared creed. In theory, it united all
Christians, regardless of their origin or location. This new system was also
propagated by new actors, the believers. It was through the missionary
activities of these individuals and following their path that, in the early
medieval period, both Christianity and Roman law w ere introduced across
Europe. Gradually forming part of the legal and cultural stock even in territories
34
The Creation of Latin Christendom 35
that never formed part of the empire, this introduction created a space we
now identify as Latin Christendom.1 What it meant for European legal de-
velopment is the subject of this chapter.
The New Religion

Historically, the new religion was an offspring of Judaism. Although even-
tually moving away from it, Christianity shared the Jewish vision of God as
a lawmaker. According to this tradition, at the basis of the relationship be-
tween the believers and the divine was an agreement (a covenant) that en-
sured that if the believers obeyed God’s law, they would be rewarded. Their
observance of that law would guarantee that God would favor and protect
them.
This understanding of the relationship between God and believers,
which Judaism introduced and Christianity then followed, portrayed God
not as a capricious being that reproduced h uman faults and passions but
instead as a virtuous power that acted through legislation. God’s rules
were, in theory, clear, and those who entered into the covenant knew what
they included.
This conceptualization of lawgiving was new with respect to Roman law.
Whereby Roman law focused on conflict resolution, Christianity featured a
law that was based on a contract, an agreement between parties. Rather than
being anchored in customs and elaborated by praetors and jurists as in Rome,
the Christian law was divine in origin. And rather than being open to all
citizens of an imperial polity, this law was offered by God only to the Isra-
elites.2 Roman and Christian law w ere also distinct because the norms they
adopted were radically different, as were their identification of right and just
behavior and their conceptualization of what the community consisted of
and what it was destined to achieve.
The Christianization of Roman Law?

Given these vast differences between Roman and Christian law, many
historians rushed to assume that the advent of Christianity greatly and
immediately affected Roman law. They expected to conclude that the rise of
Christianity in Rome brought about major changes and that t hese would
be easily traceable in the historical record. They also anticipated that after
Rome Christianized, Roman law and the behavior of Romans would have
substantially mutated.
But many historians now disagree about how important or pervasive the
influence of Christianity on Roman law was or, most particularly, how im-
mediate. They also question whether legal changes (even when they occurred)
affected practices, or whether they remained a dead letter, more revealing of
the intentions of a small elite than of what happened in society at large.
Those holding the view that little changed a fter the Christianization of
the empire argue that the new conceptualization of law as divinely mandated
did not immediately influence Roman law. As long as the empire lasted,
Roman officials continued to operate as before, inventing, reinterpreting,
and applying the existent law. Criminal law also continued to uphold Roman
traditions and was not greatly affected by the new, radically distinct, Chris-
tian morality. Families continued to function as they did in the past, with
children maintaining their role as guardians of familial memory despite the
new Christian promise of afterlife and Christian criticism of Roman earthly
commemorations. Social stratification and status w ere essentially preserved
despite the new ethos that Christians were to live in brotherly and nonhier-
archical communities.
While many historians sought to answer the question whether the con-
version of the empire affected Roman law by comparing the norms before
and a fter it took place, others suggested that not all contemporary legal
changes w ere necessarily tied to the adoption of the new religion. Mutations,
they argue, could easily be motivated by an evolution common to both Chris-
tians and non-Christians. A fter all, Roman law had constantly changed
even when the religious belief of Romans did not. Was it possible, for ex-
ample, that some innovations, such as demands for female chastity, reflected
notions coming from the provinces and from non-aristocratic circles that ad-
hered to customary practices rather than to the new Christian beliefs?
Some historians reached the conclusion that Christianity introduced no
substantial or immediate changes. Others affirmed that even if the authori-
ties, modalities, and language remained the same, the contents of Roman
law shifted in what was to become a long and slow process of integrating
Christianity with Roman law. Th ese scholars point to legal adjustments
adopted a fter the conversion of the empire, mainly through imperial legis-
lation. For example, beginning in the fourth century ce, sins were added to
the existing lists of crimes, and new regulations were made regarding pious
bequests. Also innovative was the distinction between appropriate and in-
appropriate public entertainment, the idea of indissoluble marriage, the le-
gitimization of natural c hildren, and the duty to pay alimony to wife and
offspring. Beyond imperial legislation, it is possible that Christianity might
have influenced the way Romans conceptualized and sought to control sexual
conduct. It might have led to new practices regarding charity and welfare.
In short, Christian elements and a Christian agenda may have gradually pen-
etrated Roman law, and Christianized Romans behaved (at least to some
degree) differently than pagans.
Historians of late Roman law also debated why Roman emperors intro-
duced Christian ideas into their legislation (when they did). Some argued
that the emperors w ere motivated by true religious belief; o thers said that
they were politicians seeking to maximize their power and capitalize on new
societal trends that w ere beneficial to them. For example, was Constantine’s
legislative work motivated by Christian zeal or by traditional Roman con-
cerns? By referencing customary legal practices, was it possible that Constan-
tine nevertheless created new norms that introduced Christian ideas, fusing
them with Roman precedents and values? Taking into account his legislation
regarding the emancipation of slaves, was his support for the idea of freedom
a result of his wish to free individuals who were enslaved because of their
Christian belief (as some have argued), or was it part of a more general move
against his opponents, allowing him to portray these opponents as tyrants
and himself as a liberator? How did introducing new methods for emanci-
pation, mainly by allowing Christian masters to f ree their slaves in church,
affect Roman laws on slavery? How did it help the propagation and consoli-
dation of Christianity?
The Romanization of the Church

If historians disagree on whether the introduction of Christianity led Ro-
mans to reconsider their legal traditions and adapt them accordingly, and
to what degree, there is nevertheless a general consensus that the empire’s
espousal of the new religion radically affected Christianity. The first and
clearest sign of that was the Romanization of the Church. Born in the Eastern
Mediterranean and prospering in Asia Minor and the Near East, early Chris
tianity was deeply influenced by Hellenistic culture. It was predominantly
Greek-speaking and took on many Hellenistic traits. Yet once it reached
Rome and became the official religion of the empire, Rome gradually emerged
as an important Christian center, and in many areas Latin replaced Greek
as the main vehicle of communication.
Other important changes also took place. Early Christianity was very
local in character and contained many different communities who agreed
on hardly anything. Th ese communities w ere self-regulated and often con-
fronted one another. A fter Christianity became the religion of the empire,
this extremely nucleated structure gradually came under attack. Now that
Christianity was endowed with a state (the Roman state), an additional system
of law (to Church law was now added Roman law), and a series of authori-
ties (Roman authorities), t hese began regulating Christian life. What followed
was a slow process of centralization that eventually led to the formation of
the Church as we think of it today—a structure of authority with a more or
less fixed canon of beliefs and a set of authorized texts.
The institutionalization of Church authorities and the definition of a
common creed was a mission that late Roman emperors undertook with g reat
expediency. This imperial positioning vis-à-vis the Church had Roman pre
cedents. Pagan Roman emperors were considered representatives of the gods,
with whom they were believed to have direct communication. Because the
gods favored them, the emperors were u nder the obligation to ensure that
the gods would be worshipped. Applying this understanding to Christianity,
late Roman emperors presented themselves as defenders of the correct faith
and as leaders responsible for its propagation. As benefactors of the Church,
they adjudicated conflicts among Church members and among different
Christian communities and decided who was right and who was wrong in
matters of faith.
Following t hese beliefs, from as early as the fourth c entury ce emperors
also called meetings to declare the basic tenets of Christianity. The Council
of Nicaea (325 ce), organized by Constantine, settled the issue of who Jesus
was and what his relationship to God was. It adopted the so-called Nicene
Creed, later expanded at the Council of Constantinople (381 ce), which
affirmed the divinity of Jesus and the existence of a trinity (the f ather, the
son, and the Holy Spirit). The Council of Carthage (397 ce) identified the
official canon of the Church and selected the texts that would be included
in the authorized scripture.3 Early councils also provided procedures to or-
dain the clergy and to call for meetings of bishops (synods) and adopted
some of the principal liturgical practices.
Over time, imperial intervention grew exponentially. Subsequent em-

perors interfered with Church matters not only by dictating solutions but
also by forcing them on opponents by persecuting and punishing them. By
the end of this process, Christianity and its dogma became a m
atter of im-
perial law. Imperial law determined, as the fifth-century Theodosian Code
did, what true Christianity was and which religious practices w ere to be
followed.
Defining Heresy
The gradual definition of what Christianity was and what believers should
follow also led to the identification of what it was not. This process of
delegitimizing certain positions began long before the conversion of the
empire, but it greatly accelerated thereafter. It was so quick and powerf ul
that, disregarding past divisions, by the fifth century ce Christian authors
could argue that Christianity included “all which has been believed every-
where, always, by anyone.” 4 Recognizing some debates among the faithful as
legitimate (these w
ere identified as schisma) and others as not (heresy), the
result was the division of Christians into orthodox (those who believed cor-
rectly) and heterodox individuals (those who did not).
As t hese opinions propagated, Roman emperors began legislating against
heretics. B ecause of the identification between empire and Church, they
defined heretics as criminal offenders. Their disobedience, it was argued,
constituted contempt for the emperor and his imperial law and endangered
the community. It therefore could, and indeed was, equated with treason
and was punishable by death. Thereafter, St. Augustine (354–430 ce) could
advocate persecution of heretics, believing that they were dangerous dis-
senters whose opinions could pollute the community and bring about its
downfall.
Promoting Conversion
If the union of empire and Christianity generated mechanisms leading to a
single dogma imposed on all believers and punishment of t hose who refused
to adhere to its tenets, it also provided opportunities to promote conversion.
Wishing to achieve this goal, different emperors legislated in this direction,
granting converts special privileges. They also inflicted on pagans legal and
economic limitations, such as prohibiting their rites, ending state subsidies

to support their religion, and removing the immunities of their priests. On
occasion, emperors confiscated treasures found in pagan temples or con-
sented to the destruction of t hese temples. In the 340s and 350s, laws w ere
enacted prohibiting pagan worship u nder penalty of death. Many regula-
tions favored Christians in public office or prohibited the employment of
pagans. Particular pressure was place on elites, who w ere to be rewarded or
punished because of their creed in ways that w ere much more severe and
meaningful than the treatment meted out to s imple folk.
As a result of such measures, by the early fifth c entury St. Augustine, one
of the f athers of the Church, could openly advocate the use of coercion and
violence to promote conversion, arguing that Roman emperors had the un-
questionable right to employ all means at their disposal to prohibit paganism.
External pressure, he argued, could provoke a genuine change of heart
and could lead to true faith. His views were accepted by emperors such as
Justinian, who in the sixth century legalized the forced conversion of pagans.
Thereafter, Roman law became an instrument for advancing, even imposing,
conversion, a move presented as a necessary means to ensure the well-being
of all humankind.
The Church as a Roman Institution

From the perspective of European legal history, however, the most mean-
ingful development during this period was the growing identification be-
tween the Church and the law and structures of Rome, which the Church
continued to uphold even after the Western Empire fragmented. Bishops,
for example, w ere fashioned after Roman consuls or praetors. They received
similar judicial, administrative, and legislative powers in both the religious
and the secular realms, they were to follow procedures that originated in
Roman law, and they were expected to take into consideration what Roman
law instructed. Like Roman officials, bishops also met in assemblies to co-
ordinate their activities as well as to legislate, and they w
ere exempt from
public service, controlled extensive properties, and enjoyed great prestige.
In the absence of local government, most particularly a fter the Western
empire fragmented, bishops often undertook responsibilities as state officials,
such as overseeing inheritance and succession, supervising public works,
settling private disputes, and operating schools.
The Church’s adoption of Roman structures and laws was also clear in
other ways. Dioceses were conceptualized as Roman units, and the Church
itself was legally constructed as a corporation (universitas), a status that in
Roman law was held by the state and other public bodies, allowing them to
own property, receive gifts, and make contracts. Church buildings were
called basilicas after the old Roman spaces where assemblies met and where
praetors rendered judgments on elevated platforms. Church canons (rules)
used the imperial style and were read, interpreted, and obeyed as if they were
imperial decrees. Roman jurisprudence became a vehicle through which to
discuss theological questions, and bishops responded to petitioners by using
the forms and formulas of Roman jurists. One result of this merger was
various books, such as a fourth-century discussion of why paganism was false
and Christianity was true that was titled “Divine Institutes” after Gaius’s
manual for law students. This allusion was purposeful, according to the au-
thor, because just as Roman jurists used Gaius’s Institutes to settle juridical
disputes, his book would do the same with regard to religious creed.
Historians thus conclude that early ecclesiastical law grew out of the con-
stant interaction between Roman legal practices and the requirements and
needs of the Church. The Church, of course, also preserved the Roman lan-
guage (Latin) as well as Roman forms of oratory, expression, literature, ar-
chitecture, and art. By the time of Pope Gregory I (590–604) some authors
portrayed their world as one “in which most Romans had been Christened,
the empire itself sometimes was called a res publica christiana and the
Church long since granted peace (tranquilitas).”5 Criticizing this situation
a thousand years later in 1651, Thomas Hobbes remarked that “the papacy
is no other than the ghost of the deceased Roman empire, sitting crowned
upon the grave thereof.” 6 As for historians, they have long asked if the
empire was swallowed up by the Church, or the Church by the empire.
Most agree, however, that Christianity transformed Rome and that Roman
society transformed Christianity, and that, in the process, law acquired a
new character.
Christianization and Romanization after Rome

In the centuries following the fragmentation of the Western Roman Em-
pire (during a period we now identify at the early M
iddle Ages), Christianity
spread throughout Europe and so did Roman culture and law. This process
of diffusion was long and complicated. Initially, conversion efforts were fairly
feeble. As long as the Church consisted of a multiplicity of bishops, each
working in his diocese, there were insufficient means or coordination with
which to bring about the conversion of large populations. However, with the
foundation of the monastic o rders (which produced dedicated missionaries,
most particularly from the sixth century onward) and the gradual affirma-
tion of the papacy (during approximately the same period) the Church moved
into an expansionist mode.
From the sixth to the twelfth century, Christianity gradually established
itself in most of central, northern, and eastern Europe. Expanding westward
from the Italian peninsula to present-day France and Germany, it reached the
British Isles, and to the east it spread into Moravia, Slovakia, Serbia, Bul-
garia, Poland, Hungary, and the Baltic states. Next came northern Europe,
with the Netherlands, Denmark, Sweden, Norway, and Iceland. At times
incremental, at others advancing and retreating, by the end of the twelfth
century this process of conversion produced an important homogenizing ef-
fect that, among other things, introduced Roman law and Roman struc-
tures all over Europe.
As a result of these processes, the new Christianized understanding of
Roman law, which initially was limited to the territories of the empire, won
primacy throughout much of European territory. Missionaries and Church
officials responsible for this dissemination might have cared about the con-
version of the so-called pagans, but while they spread the word of the gospel,
they also propagated the language, rhetoric, art, ceremonies, culture, and
law of Rome. They introduced Roman administrative structures, formulas,
and procedures and imposed Roman ways of thinking, arguing, and re-
solving conflicts.
Particularly transformative in this regard were the proc esses taking
place in territories that had not been part of the Roman Empire. There,
the accumulated effect of Christianization and Romanization was especially
noteworthy, eventually replacing earlier traditions. According to some histo-
rians, the diffusion of Romanized Christianity throughout much of the
Continent resulted in the “making of Europe.” That is, it brought about the
gradual buildup of the cultural, administrative, legal, and political charac-
teristics that enabled Europe to cohere.7 By the tenth century if not earlier,
Europeans of very distinct regions with vastly diverse pasts and cultures
could feel themselves identified with Christianity and present themselves as
heirs to Rome.
While this was happening in much of southern, western, central, and

northern Europe, in the East a different strand of Romanization made in-
roads. Th
ere as elsewhere, converts to Christianity were introduced not only
to a new religion, but also to Roman trappings. Yet these trappings w ere dis-
tinct. They were mostly Hellenistic in orientation and conducted in Greek
and disseminated an Eastern, rather than a Western, Roman tradition.8 Their
effect, however, was as important and as enduring. A fter the conquest of
Constantinople, the capital of the Byzantine Empire, by the Ottomans in
1453, Eastern Roman law survived in the institutions and laws of the Or-
thodox Church. Applied to the Greek population living u nder Ottoman oc-
cupation, it was administered by the patriarch of Constantinople and other
Church officials who, by implementing Orthodox canon law, also preserved
a Roman legacy.
part two
The Early Middle Ages

3
An Age with No Jurists?
The approximately five hundred years between the demise of

the Western Roman Empire in the fifth century and the year 1000 are usually
characterized by historians as highly chaotic.1 The religious unification of
Europe under a gradually expanding Christianity led to the emergence and
imposition of canon law across the Continent. Yet initially this canon law had
highly disjointed structures of authority and a g reat variety of contradictory
norms and sources. Meanwhile, the conversion of Europe was accompanied
by extreme political fragmentation with the emergence of a multiplicity of
small polities, each independent of the other. The Continent also experienced
the massive movement of h uman groups from the north to the center, south,
and east. Many such groups, often identified as “Germanic,” had initially
allied themselves with the Roman Empire, with which they traded, to
which they supplied soldiers, and where they wished to immigrate. However,
by the end of the fourth century some of these groups began seizing sufficient
power to bring about fall of the Western empire (according to some histo-
rians) or its radical modification (according to o thers). As they took over
formerly Roman territories, the growing political and economic hegemony
of several of t hese groups, which established kingdoms in areas now be-
longing to Germany, France, Spain, Italy, Switzerland, and North Africa,
led to the introduction and dissemination of new legal cultures across the
Continent. These mixed with existing native and expanding Roman and
canon law in diverse ways, creating complex amalgamations that were dif
ferent from place to place and period to period.
47
In approximately the year 800, a combination of local, Germanic, Roman,

and canon law crystallized. Although it had different expressions in distinct
locations, it nevertheless featured some common notions regarding what law
was and where it came from. According to some scholars, this emerging con-
sensus allows us to view this period—which many historians consider to
have witnessed the emergence of Europe as a cultural, religious, and eco-
nomic space—as exhibiting the first genuinely common law. How this vi-
sion emerged and what it consisted of is the subject of this chapter.
Early Canon Law

Church leaders had always legislated, and they continued to do so after the
Roman Empire converted to Christianity. Yet in the aftermath of the frag-
mentation and dissolution of the Western empire in the fifth c entury, the
character of Christian law was greatly modified. No longer sanctioned by
emperors or supported by state institutions, this law was now wholly depen-
dent on Church authorities and on their claim to have the duty as well as
the power to regulate the lives of all believers independently of where they
resided.
The normative system that resulted was identified as canon law (canon
being the Greek word for “rule” or “guide”). Building on what was decided
by Church assemblies and emperors and continually referencing and bor-
rowing from Roman law, early canon law was nevertheless distinct from its
Roman precedent. No longer the product of a political authority that could
impose its will on those who resided in the territory, as was the case under
Rome, instead it was theoretically based on a spiritual authority that was to
be levied only on Christians. Spread over many territories and polities, Chris-
tians w ere said to share a common legal order b ecause, by virtue of baptism
rather than citizenship, they w ere members of a community whose laws could
be enforced on them even against their w ill.
The emergence of the Church as a nonterritorial entity based not on po
litical power but on a shared belief, bishops’ growing responsibility for pro-
ducing and applying norms, and the lack of competing powers, allowed the
Church to expand its legal activities and substantially increase the volume
of its law. Church officials often provided solutions for quotidian m atters
such as adjudicating commercial contracts or overseeing inheritance. Mostly
local in focus, orientation, and application, early medieval canon law could
An Age with No Jurists? 49
differ substantially from one place to the next, and, lacking an efficient cen-
tral authority, different Christian communities could disagree about almost
everything.
In the quest to reinstitute a central authority for the Church, beginning in
the sixth c entury and more clearly in the following centuries, successive
bishops of Rome began claiming a special role for themselves. Arguing that
after the demise of Rome the Church was the only structure that could claim
universality and the only administration left with an imperial vocation, these
bishops identified themselves as Pontifex Maximus (the high priest in ancient
Rome) as well as popes (from the Greek term pappas, meaning “father”). As
such, they insisted they w ere to lead the Church and be superior to all other
bishops.
Although it took several centuries to complete, the institution and con-
solidation of the papacy led to the desired centralization. So did the calling
of periodic assemblies of bishops. Having begun in the fourth century u nder
the auspices of Roman emperors, by the early M iddle Ages t hese assemblies
became important agents in regulating the relations among the different
Church authorities and communities, as well as in defining the content of
Christian dogma.
The massive accumulation of norms that resulted led to the need for com-
pilation. From the sixth c entury onward, different individuals and organisms
sought to collect canon law and ensure that copies of its main tenets would
be available at least to those in leadership positions. Well known among
these efforts w
ere the collections made during the reign of Charlemagne, the
late eighth-and early ninth-century Frankish ruler. Charlemagne’s aim was
to create authorized versions of important texts and ensure their distribution
throughout his realm. Despite these and other efforts, however, no single
authoritative compilation of Church law came into existence before the
twelfth century.2
The plurality of sources and the absence of a general and authoritative
compilation led to the emergence of a great assortment of canon laws that
were radically distinct. Local churches formed their own collections, which
they followed, often disregarding instructions from Rome. There was so
much uncertainty as to what the common tenets of Christianity w ere, that
even as late as the ninth c entury savvy authors could introduce into the
Christian dogma what today we know w ere forgeries. One famous ex-
ample is the production and dissemination of false papal decrees, including
declarations on points of law. Mixing authentic material with newly in

vented ideas, with cut-and-pasted sentences that did not belong together,
some of these false decretals reconstructed the contents of letters that had
existed but were lost, while others modified the meaning of what had been
determined. They w ere inserted into a collection said to have been authored
by Isidore Mercator, probably a pseudonym. The collection included sixty
letters and decrees attributed to early popes, of which it is now believed that
fifty-eight were forgeries. It also contained a treatise on the early Church
and the authentic canons of fifty-four early councils. It ended with an enu-
meration of papal decrees by popes from the fourth to the eighth century,
most of which were pure invention.
The forged decretals limited secular rulers’ control over bishops and Church
property and made important changes in the way ecclesiastical t rials w ere to
be handled. Defending the jurisdiction of bishops against intervention by
archbishops and provincial synods, they also included instructions regarding
liturgy, the sacraments, and marital law. Inserted alongside genuine mate-
rial, t hese forgeries, spreading throughout Europe, were considered reliable
and w ere widely followed. They were instrumental to the affirmation of
Church authority until the fifteenth century, when scholars began expressing
serious doubts about their validity.
Particularly important in this regard was a document identified as “the
donation of Constantine.” This document, completely fabricated and in-
cluded in the false decretals, affirmed that Constantine had transferred im-
perial powers onto Pope Sylvester I (314–335) and his successors. According
to what was stated, Constantine not only recognized the pope as the successor
of the apostles Peter and Paul, and Rome as the main Christian center, he
also allowed the pope to appoint secular rulers. Unsurprisingly, this docu-
ment became essential in the eleventh and twelfth centuries during debates
between popes and kings regarding the breadth of their powers.3
On occasions inserting anachronistic information about real events or
using a style that was inappropriate to the period, the false decretals w ere
nevertheless sufficiently well executed to have fooled even the highest au-
thorities of the Church and the most important compilers of Church law.
Other less famous falsifications also existed, most probably written by canon
law experts who, while falsifying some decrees, also collected unadulterated
material. It is now believed that most of the fake documents w ere created by
collectivities rather than a single individual in a single location, and that
t hose involved in their elaboration must have had access to rich enough li-
braries and sufficient knowledge to obtain such trustworthy results.
The Continuing Presence of Rome

The predominance of canon law in early medieval Europe ensured the con-
tinuing presence of Roman law, as Church legislation continued to resort to
Roman forms and formula and theologians continued to produce exegeses
by drawing on Roman terminology and analysis. To allow for this to happen,
Roman law was taught in many abbeys and cathedral schools and was con-
sidered such an authoritative source that it could be used in cases where canon
law was silent. Early Christian texts, such as the sixth-century Rule of
St. Benedict (for monks living in communities) or the Etymologiae of Isidore
of Seville (which sought to systematize all knowledge in an encyclopedia-type
publication), also made references to Roman law. They appealed to Roman
law categories as well as to terms and normative solutions. This continuing
relationship between Roman and canon law was captured by the con
temporary saying Ecclesia vivit lege romana (The Church lives by Roman law).
Yet Roman law also persisted in Europe in ways other than its conserva-
tion by the Church. In territories u nder the control of the Eastern Roman
Empire, such as parts of present-day Italy in the sixth and seventh centu-
ries, the Corpus Iuris Civilis (the sixth-century compilation of Roman law
made under Justinian) was known and used, and legal transactions recov-
ered by scholars demonstrate frequent references to Roman law. Mostly in
Latin, these transactions also followed Roman forms or implicitly reproduced
Roman discussions. This was particularly clear in areas of law covering land
or contracts.
The enduring presence of Roman law was also registered elsewhere. In
the Frankish empire, sixth-and seventh-century clerks imitated Roman
notarial practices in order to draw up donations, testaments, sales, and
marriage contracts. The same thing happened in Gaul (present-day France),
where there w ere ninth-century compilations of Roman notarial formulas
that had been in use from as early as the sixth century in both secular and
ecclesiastical administration. Many royal officials, who often served as judges,
had knowledge of both Roman and canon law. As many as twenty famous
experts in Roman law may have been active in Gaul between the fifth and
the eighth century, and Roman citations and formulas were prevalent in a
g reat diversity of transactions. In cities of Roman origin, Roman law also

persisted in commercial dealings and urban administration continued to em-
ulate Roman practices.
Persistence was also clear in Iberia. In the kingdom of León (present-day
Spain), tenth-century judges continued to apply the legal procedures of
Visigothic Spain, which w ere Romanic in origin. In Galicia (northwest
Spain), copies of the Forum Iudicum (a collection of laws promulgated
in the seventh c entury by the Roman Visigoths, also known as Lex Visigo-
thorum on which, see below) circulated and w ere used by judges who held
the Roman title of Iudex. Roman-Visigothic law also survived on the Iberian
Peninsula in territories under Muslim occupation, where it was considered
the “personal law” of all Christians.
The Germanic Element

Historians of the early Middle Ages have long disagreed whether the many
distinct groups that immigrated from northern to central, eastern, and
southern Europe that we now identify as “Germanic” shared a common legal
tradition. Some historians have pointed out that the movement of these
groups was haphazard, carried out in small units, and placed their members
in such intense contact with other cultures that it is difficult to assert what
their original mores had been. It is also possible that, because documentation
regarding the seventh and eighth centuries is more abundant than records
from earlier periods, our understanding of t hese groups and their practices is
both profoundly anachronistic and incorrect. Historians who express such
doubts conclude that if these groups shared anything at all, it was an
Indo-European rather than a specifically Germanic tradition. This Indo-
European tradition featured a “primitive” attitude to law that relied on
orality and supported no central institutions, no clear procedures, and no
set structures.
Other historians nevertheless suggest that even if there was no single Ger-
manic law, the groups that immigrated from the north to the south, east,
and west did introduce to the European mainland certain elements that
could be identified as distinct, most particularly when compared to Roman
traditions. Rather than being Indo-European (and thus also shared with
Rome), they were Germanic. Most important among these elements was a
different organization of public life. Whereas Roman law sustained the
existence of a res publica, or a state, the Germanic family of laws did not.
Germanic society was divided into large kin groups led by elders, who were
responsible for rendering judgment on disputes among members as well as
making most other decisions regarding the management of communal life.
In their deliberations, the elders appealed to an unwritten and flexible order
that could be constantly negotiated. Although we have very limited infor-
mation regarding how this transpired, the assumption is that, rather than
being abstract, these legal systems w ere concrete, relational, and strongly in-
fluenced by rituals and formulas. The decisions reached by the assemblies of
elders reflected a constantly mutating normative horizon that was meant to
fit the circumstances of place, time, case, and parties rather than to pursue
an abstract justice or obey an abstract principle.
Regardless of the important question of whether the northern immigrants
did in their origin share a common legal Germanic tradition, it is clear that
by the third and fourth centuries ce their members (who gradually came to
dominate Europe) w ere already greatly affected by both Roman law and
Christianity. Under Roman influence, the newcomers’ legal attitude changed
and their political structures underwent centralization and aristocratization.
There is some evidence, for example, that by the sixth and seventh centuries,
participation in assemblies was mostly restricted to the elites, and military
leaders began claiming the status of hereditary kings. Other areas of the law
might also have undergone dramatic transformations. Gradually the popular,
oral, and flexible elements of legal creation disappeared and, under Roman
influence, leaders of the so-c alled Germanic tribes began promulgating
statutes. In the sixth, seventh, and eighth centuries, law books that sought
to record and reproduce the erstwhile oral normative system also made
their appearance. Mainly written in Latin rather than German, these books
sometimes w ere used as instruments to ensure the survival of what was de-
fined as “the good old order,” but more often than not they confirmed the
degree to which this order had already been altered. The written law that
they included tended to be more systematic and abstract than what we be-
lieve the original law might have been, and it established kings as the main
instruments for authorizing (if not outright creating) the legal order.
These important mutations were already evident in the sixth-century Salic
laws (Pactus Legis Salicae, also known as lex salica) that both collected older
norms and sought to replace vengeance by compositio, that is, a monetary
arrangement. Best known today as the legal basis by which European
monarchs excluded from succession t hose who descended of female line, the
Salic laws enumerated a long list of remedies available to injured parties
instead of violence. Written in Latin and organized to some degree as a
Roman edict, the laws were nevertheless interwoven with German terms
and also sought to reproduce Germanic traditions.
Another striking example of the fusion between Roman, canon, and Ger-
manic law was the mid-seventh c entury Liber iudiciorum (also known in
the M iddle Ages as Lex Gothica or Forum Iudicum), which collected laws of
both Germanic and Roman origin and also included royal legislation en-
acted by the Visigoth kings. The Liber, which was greatly influenced by the
writing of theologians and was approved by local bishops in the eighth
Council of Toledo (653), was applied by the Visigoths to their Iberian sub-
jects of both Roman and Germanic origin. Written in Latin and demon-
strating familiarity with Roman concepts, it covered such diverse aspects as
legislation, the administration of justice, family law, obligations, penal law,
and sanctions against Jews and heretics. Designating a territorial rather than
a personal law, its success was so spectacular that it survived the conquest of
Iberia by Muslims in 711 ce. Thereafter it regulated the life of Christians
living under Islamic rule.
Changes in administrative practices were also noticeable. Th ere is ample
evidence, for example, that orality, usually associated with Germanic tradi-
tions, by the eighth century was no longer as central to the medieval legal
order as it had been. By that time, codices appeared across Europe enumer-
ating legal arrangements. Some were conceived as collections of laws, whereas
others sought to reproduce different types of legally useful documents. Most
popular among the latter w ere books containing formularies that scribes
could copy, amend, abridge, or reorganize. During this period, recording
offices (chanceries) w ere also founded, and seals became instruments dem-
onstrating the authenticity of their production. Thereafter, written law and
written records circulated in a legal world that was still profoundly oral but
that was gradually undergoing important transformations.
As a result of all t hese processes, by the tenth c entury it becomes extremely
difficult to distinguish Germanic from Roman law, or Germanic from canon
law. Of course, some legal institutions clearly originated in one system or
the other, but in practice, Latin expressions and Latin and Christian ways
of thinking, interpreting, and organizing the material dominated to such
an extent that a Germanic law was no longer easily recognizable.
Divine Intervention
ntil the thirteenth century, God’s direct participation in communal assem-
U
blies was considered both possible and desirable. This mostly happened in
difficult cases, in which it was hard to establish what had happened. In such
cases, contemporaries believed that God would intervene by indicating who
told the truth and who lied, who was guilty and who innocent. His ruling
would take the form of a miracle that would save the person who was worthy
of being defended from suffering unnecessary injury. To solicit this inter-
vention, assemblies would subject the parties to an ordeal, that is, to a test.
There were several ways in which this could be done. The defendant could
put his or her hand in boiling w ater, walk on fire, or eat too much bread too
fast. These activities, it was reasoned, would normally result in an injury. If
this did not happen, it was b ecause God wanted to help the defendant. This
was his way of indicating that the person was innocent or was telling the
truth. Thus, t hose who were not harmed during an ordeal w ere held to have
proved their case.
The Church initially encouraged these tests b ecause they gave concrete
proof of the immediateness and mercy of God and helped solve difficult ques-
tions, but by the turn of the millennium it began disapproving them, and
in the thirteenth century (in the Fourth Lateran Council of 1215) it with-
drew its support for them altogether by prohibiting the participation of the
clergy. During this period, ordeals w ere gradually reclassified as both irra-
tional and pagan. Historians have long debated why these changes took
place. Some have suggested the aim was to cleanse the Christian commu-
nity from its pagan past or to ensure that only practices that found backing
in the scriptures would be authorized. It is also possible that the authorities
of the Church were unhappy with “demanding” that God perform a miracle
(to prevent an innocent person from suffering) or with involving clerics,
who w ere present in all ordeals, in decisions regarding the shedding of blood.
Also essential to the gradual abandonment and then prohibition of ordeals
might have been the fact that by the early thirteenth century ius commune
(see Chapter 5) provided society with new professionals, identified as jurists,
who w ere experts on how to manage (and solve) conflicts. To the difficult
problems ordeals sought to solve these professionals offered new solutions
based on the collection, examination, and evaluation of both written and
oral proof. Attempts to centralize criminal justice in the hands of both
secular and ecclesiastical authorities enhanced these tendencies, by de-

manding a move from a judgment of God to a judgment of men.
Although historians contest the reasons for the gradual abandonment and
eventual deauthorization of ordeals by the Church, most agree that these
processes produced major legal changes. As ordeals lost their legitimacy, Eu
ropeans searched for (or w ere already in the process of developing) new
mechanisms for solving difficult questions, such as determining criminal re-
sponsibility in cases with no direct witnesses to the crime. On the Conti-
nent this led to the adoption of a new legal procedure (the Romano-canonical
procedure also known as ordo iudiciarius or the inquisitorial process) that
had judges investigate the alleged crime and decide on a verdict according
to their analysis of the proof. This process was introduced in the twelfth
century before ordeals were abolished, but it was greatly enhanced, and its
practice expanded from ecclesiastical to civil courts, a fter 1215. Charging
judges with both finding out the truth and ruling on it, this process—which
could be initiated by a magistrate who suspected a crime had been com-
mitted but had not received a formal complaint or accusation—specified
which proofs would be deemed sufficient, what to do in cases where evidence
was lacking, how to interrogate, and which punishments could be inflicted
in the cases in which there w ere indications but not a certainty regarding
guilt. Searching to ascertain empirically what actually happened and not
only guilt or innocence, by the late thirteenth c entury this procedure also
involved, on occasion, the use of torture against suspects and witnesses as a
means to achieve certitude in difficult cases.
According to historians of common law, in England t hese same devel-
opments—the gradual delegitimization of ordeals and their eventual
abandonment—encouraged a different response, namely, the increasing
powers of lay juries in criminal cases. Lay juries existed in Europe (and
England) before 1215, when they mainly operated (as grand juries would
today) to bring accusations against p eople suspected of having committed
crimes (presentment juries) or to dismiss private accusations of crime on the
basis of prior hate or spite (de odio et atia). Although the use of juries ex-
panded over time to encompass new duties and new offenses, it was only
after 1215, in direct response to the Church’s deauthorization of ordeals, that
the English monarchs assigned juries with the task of issuing final verdicts.4
From that point in time, juries, rather than God, determined the veracity of
the accusations. The qualifications of jurors were not based on professional
preparation or logical deliberation. Instead, they depended on the fact that

jurors were locals who knew the defendants and w ere familiar with the case.
Because such was the assumption, contrary to Continental judges, juries did
not have to hear and evaluate evidence, neither w
ere they outside, detached
observers. Instead, what they ruled was largely based on what they experi-
enced personally, and on what they already knew.
The Result: A Fragmented Yet Unified World

Regardless of the question where norms came from, during the early Middle
Ages most individuals lived in a world in which the geographical extension
of political entities as well as their laws was extremely confined and in which
norms could be radically distinct from one place to the next. Made of frag-
ments of Roman, Germanic, local, or canon law, the legal universe that con-
temporaries inhabited was highly segmented, multivalent, and compound
and reflected a g reat variety of norms that originated in multiple o rders. This
universe also conflated morality and law, and suggested that human order
was but a (poor) imitation of a superior, divine order.
Although we do not know much regarding how this complex universe
actually functioned, because documentation is scarce and often deficient,
the general assumption is that during this period the most difficult task was
to identify how disputes could be settled. To help establish that, authorities
and parties occasionally requested the intervention of local experts identi-
fied as iuratores (jurors). As people under oath (which was what iuratores
meant), t hese local individuals met to discuss how a specific conflict brought
to their attention should be resolved.
Conflicts that were not brought before jurors were adjudicated by vil-
lage or town assemblies, which could include up to a few hundred people.
Contrary to the activities of jurors, village and town assemblies were open
to all. Conducted as rituals as well as festivities and having a clearly sacred
character, t hese assemblies w ere both a confirmation of the role of justice
in communal life and occasions to implement it. As happened in archaic
Rome, the rituals followed in t hese assemblies mandated the use of partic
ular formulas and the taking of specific actions. Often a mixture of
Roman, canon, local, and Germanic law, these formulas and actions w ere
fairly repetitive and followed a precise script that was thought to be funda-
mental for the attainment of justice. In most cases they required that the
plaintiff or defendant formally repeat their version of what had transpired,

usually by taking an oath. Other ritual acts could consist of grasping a sym-
bolic rod to express consent or invoking divine intervention in the form of
ordeal.
How such ceremonies varied across time and space, we are not sure. How-
ever, because of their local character, they must have varied by location and
must have changed dramatically over time. Historians have traditionally sug-
gested that whatever their origins might have been, whatever formulas were
invoked, rituals followed, and votes taken, all of them reproduced a cus-
tomary law that was particular to that community. In recent years, though,
other scholars have insisted that, rather than being customary as they w ere
once described, t hese practices w ere constantly negotiated. They allowed
for the dominance of some individuals over o thers and often showcased
profound divisions within the community. If they w ere to represent an
“old” way of doing things, or a custom, their antiquity was usually limited
in time. Appeals to tradition w ere usually strategic, and the tradition that
was invoked was normally tied to perhaps only one generation’s memory. It
is thus possible that by calling things “traditional,” contemporaries referred
to their inherent virtue, not necessarily their longevity. In other words, that
a thing was old indicated a heuristic quality, not a genealogy.
Appeals to norms, which w ere often tied to the need to resolve conflicts,
could also take place ceremoniously as part of a routine a dopted by com-
munity members to bolster their relationship with one another as well as to
recognize their subjection to the local authorities. In such cases, norms w ere
recited orally in public meetings that were both theatrical and celebratory.
Educational in orientation, the recitation of norms was meant to fix them
in people’s memory, but it was mostly directed at socializing members,
teaching them what was good and what was desirable. Here too, although
norms were presented as old and permanent, historians have remarked that
they were far from stable. U nder the guise of continuity, modification was
persistent, memory serving as both an instrument for conservation and as a
means to introduce change.
The Fusion of Sources

Local, Germanic, canon, and Roman law thus coexisted in early medieval
Europe. Emblematic of such mixtures w
ere the activities of Charlemagne.
King of a Frankish empire that covered large parts of present-day France and
Germany, expanded north to the Netherlands and east to the Baltic region,
and that was also in control of Northern Italy and the northern fringes of
what is now Spain, Charlemagne was a secular ruler of Germanic origin who
also oversaw spiritual m atters. Ruling over a loose association of territories,
some more Latinized than others, in the year 800, he was anointed by the
pope as “emperor of the Romans.” For the pope, this move guaranteed Char-
lemagne’s mostly military support and was also a step in freeing the Western
Church from control by the Eastern Roman Empire. For Charlemagne, this
coronation suggested that he was both king and emperor and that he, in
this later capacity, could also intervene in ecclesiastical affairs as Roman
emperors once did.
Although Charlemagne is remembered as a formidable legislator, what
he instructed and what he enacted was not legislation in the sense we give it
today. Like all leaders at that time, Charlemagne had no pretension to create
a new order that would depend only on his will. Instead he sought to ar-
range and systematize existing solutions and ensure obedience to them. A
guarantor of justice rather than the maker of norms, and in charge of peace-
making rather than imposing his personal rule, theoretically his role was to
declare the law by making it manifest and to ensure obedience.
Charlemagne intervened in both religious and secular affairs and in-
structed both religious and civil authorities on how they should proceed.
Fashioning himself as the protector of the Church as well as of the physical
and spiritual well-being of his subjects and all Christians everywhere, he
reformed ecclesiastical institutions and sought to restore clerical discipline,
recover Church properties, and encourage the use of authorized collections
of canon law. Charlemagne also ordered the writing down of local laws and
the Romanization of norms of Germanic origin. Pursuing some measure of
unity in his kingdoms, he promulgated edicts that were designed to introduce
centralization, not necessarily standardization. His quest was to establish
the authority of his court, not to secure uniformity, and his empire indeed
remained a fragmented structure with a great diversity of regimes, norms, and
legal sources.
The actual management of this chaotic amalgamation of local, Roman,
Germanic, and canon law was not always easy. Canon law, for example,
which theoretically was relevant to all Christians, affected not only religious
duties but also such diverse activities as contract making or debt collection.
Local law, which only covered members of concrete communities, coexisted

alongside princely norms. Though some topics w ere typical of local arrange-
ments and o thers more appropriate for princely dictates, the distinction be-
tween local and princely was often problematic, and both could govern
alongside canon law in questions of contracts and debt. The orientation and
instructions of t hese parallel normative systems could of course harmonize,
but they could also bitterly conflict.
Yet despite their potentially contradictory nature, as far as contemporaries
were concerned this amalgamated system never lacked coherence. Contem-
poraries did not ask (as subsequent generations did) whether certain norms
were Germanic, canonic, or Romanic. Neither did they perceive of the pos-
sibility that their religious duties would vary from their duties to family, com-
munity, or prince. Instead they assumed that, together, t hese various legal
sources represented how things w ere and ought to be because such were the
ways of the world and b ecause this was what God desired.
Were There No Jurists?

Historians thus usually conclude that early medieval law mostly embodied
the personal duty to behave correctly. This duty was anchored in family and
communal obligations as well as in religious duties. Norms w ere mostly oral
and w ere supposed to be learned, or negotiated, through living in the com-
munity. There was no single authority or body with a monopoly on legal
production, nor was there any need for formally sanctioned rules. Enacted
by h uman interaction and sometimes guided by the clergy, this normative
universe could envision the direct participation of God through ordeals and,
in the absence of ordeals, sought to find other procedures to mediate between
the parties or to discover the truth.
Although such a system required no jurists in the sense of individuals
trained in law or who earned their living by giving legal advice, experts w
ere
not lacking. Among them were the elders who agreed on how to adjudicate
conflicts and the theologians who indicated to believers how they should
behave. Also abundant were canon lawyers and moral theologians who
defined the structures of authority inside the Church and debated the ex-
tension of ecclesiastical jurisdiction, the meaning of certain sins, or which
price was just and which abusive. Emperors and kings also continued to
employ legal advisors who helped them collect, systematize, and write down
local and canon law. Without the existence of such experts, the ninth-century
legal forgeries of canon law would not have succeeded. A fter all, the indi-
viduals who fabricated them must have been sufficiently familiar with both
Roman and canon law to create these successful imitations.
Expertise was also part of the day-to-day practice of the law. In the ninth
century, glosses and commentaries on different parts of Roman and local
law began appearing in Europe. In Pavia (present-day Italy), the study of law
was so intense that scholars w ere divided among the antiqui, who mostly
centered their attention on Roman law, and the moderni, who also dealt with
Germanic law. Roman and canon law also sustained the work of scribes and
notaries, two professions that came into prominence in Europe during this
period alongside the growing use of written documentation. Scribes and no-
taries were responsible for producing legally efficient documents. They drew
up and recorded a g reat variety of transactions, often by resorting to old for-
mulas they found in textbooks. The early Middle Ages, in short, was per-
haps a world with no jurists, but it was certainly a universe in which many
professionals gave advice, suggested to kings and their subjects how to pro-
ceed, indicated to their community what was right and what was wrong,
and pondered on how God’s laws could be discovered and implemented.
4
Lords, Emperors, and Popes

around the Year 1000
The year 1000 carries an enormous weight in the European imagina-

tion. It stands for the maturity of an early medieval society that soon a fter
would disappear or at least would mutate sufficiently to be considered as new.
This story of change begins with chaos. A fter the demise of the Western
Roman Empire, no other polity emerged to replace it. This so-called power
vacuum led to extreme fragmentation. Beginning in the sixth century, the
inhabitants of Europe experienced processes of conversion and Romaniza-
tion, but despite growing homogeneity in some respects, around the year 800
Europe could be imagined as an archipelago, with villages controlling their
hinterland but no common authority to unite them or dictate common rules.
Attempts at unification, such as under Charlemagne, were relatively brief or
failed in the long run. Experiencing constant migratory waves that led to
settlement, conquests, and reconquests by various Germanic, Slavic, and Vi-
king groups, instability from within was accompanied by invasions from
outside by Muslims approaching from the southern Mediterranean and
Magyar tribes arriving from Asia.
The precarious situation that resulted led to important economic changes,
mostly the decline of commerce and the move to a subsistence economy. It
also led to the rise, sometime between the ninth and the tenth century, of a
series of social, economic, and political institutions traditionally identified
as “feudal.” What feudalism was, when and where it originated, how it was
practiced in different parts, and whether it was a historical reality or a nar-
rative created by scholars a posteriori to explain what had transpired, have
62
Lords, Emperors, and Popes around the Year 1000 63
all been contested issues for many years. Yet most historians agree that what
ever forms existed in Europe around the year 1000, by the eleventh and
twelfth centuries they had come u nder attack. With new authorities who
identified themselves as kings, the eleventh and twelfth centuries also wit-
nessed the consolidation of the Church. The struggle for both secular and
religious centralization and the growing competition within kingdoms be-
tween kings and lords and within the Church between the pope and other
bishops was further complicated by the tense relations between secular and
religious authorities fighting over who was superior to whom. In what fol-
lows, I survey these developments, ask questions about them, and explain
how and why they were important to European legal history.
The Conventional Portrait of Feudalism

ere are many theories about what feudalism was and how and why it had
Th
emerged. Clearly, though affecting many areas in Europe, it was not prac-
ticed identically everywhere and may not have constituted a “system” in the
way historians once described it. Furthermore, much of what we know about
feudalism comes from descriptions written in the twelfth and thirteenth cen-
turies, when it was already undergoing decline and change and when those
describing it had their own motives to present it in particular ways. Regard-
less of whether they identify it as “feudalism” or not, whether they agree on
what precisely it included, or if it comprised of a system or only encompassed
a range of disparate practices, most historians concur that in the ninth, tenth,
and eleventh centuries many parts of Europe shared several fundamental
characteristics that were lacking in the earlier times.
According to the conventional portrait, most important among these
characteristics w
ere relations of personal dependency between powerful in-
dividuals (lords) and subject populations (vassals). These relations featured
unequal exchanges whereby the lord protected and cared for vassals and they,
in return, had to be loyal and obedient and give their lord aid, service, and
advice. Highly regulated practices indicated how the bond between lords and
vassals was to be created and how it was to end. In its classic formulation,
feudalism appeared as a deeply ritualized affair with feudal relations being
established in an elaborate ceremony identified in the literature as “homage.”
Varying according to place and time, homage usually required that the vassal
put his hands between the lord’s and declare his wish to become part of the
lord’s h ousehold as well as take a solemn oath of fidelity, usually on the holy
Scriptures or a relic. The lord then hugged and kissed the vassal and recog-
nized him as “his” man.
Feudal relations initially mostly covered mutual protection, which was
understood as military defense. By the tenth c entury, if not earlier, in many
areas these also began involving property relations. It is hard to establish why
this happened. Perhaps protection was now not only military but also eco-
nomic, including the duty to provide subsistence. Perhaps because of extreme
instability, landholding individuals and communities w ere willing to relin-
quish their control over their properties, which were transferred to a lord in
exchange for protection. Although we are not sure of the nature of these pro
cesses or their precise chronology, their results were fairly clear. In large
parts of Europe, powerful lords appeared who w ere now considered the pro-
prietors of large domains. In most places t hese lords allowed vassals to have
usufruct or tenure rights over the land in exchange for some sort of com-
pensation, either tribute, military service, or labor. Part of the payment vas-
sals made was also symbolic and included recognition of subjection and an
oath of allegiance.
As economic concerns became central to this system, lords began ensuring
that their vassals had the financial resources they deserved according to who
they were. This was typically done by giving them use of the land, but it
could also be achieved by granting them an office or another type of income.
Eventually the duties of lords also extended to judicial protection, and lords
began holding sessions in which they acted as judges, applying what was
said to be the customary law of the land. This allowed lords to acquire many
of the functions we identify today with government. They policed their
territories, adjudicated conflicts, and dispensed punishment. They collected
taxes and applied, if not outright created, the norms that governed the com-
munity. In many places these developments marked the end of the kind of
communal justice that was practiced by local assemblies and juries in the
early Middle Ages. In other places communal justice persisted, though rad-
ically modified because now controlled by the lord and his men.
Although according to the classical formulation feudalism was based on
an agreement between parties to constitute a personal relationship, it was
nevertheless clear that even if originally some choice was allowed, most vas-
sals did not enter into this relationship by exercising f ree w ill. By the tenth
century, furthermore, feudalism had lost most of its initial purpose as a
defensive mechanism and evolved mainly into an economic system of ex-

ploitation. Rights and obligations became hereditary for both lords and
vassals, and the degree of exchange between them substantially dimin-
ished. This system of personal dependency came to dominate the European
landscape. It expanded throughout Europe, reaching present-day France,
Italy, England, Scotland, Ireland, Wales, the Slavic territories, and parts of
the Iberian Peninsula.1
A Feudal Society?
As a result of these developments, according to the traditional portrait, by
the year 1000 most Europeans lived on rural estates where they were tied as
vassals to a lord who exercised jurisdiction over them. In most places, the
lord accumulated what today would be classified as legislative, executive, and
judiciary powers. He made the rules, he applied them, and he adjudicated
conflicts. In his decision making, he might have been guided by the existing
local law—that was usually the pretension—and he was certainly supposed
to care about canon law, but it was his word and his interpretation that car-
ried the day.
Feudalism, however, was not a s imple two-tier system. Instead, it was
imagined as a multilayered one in which (minor) lords could be vassals of
(greater) lords. The hierarchical structure that resulted allowed a mega-
lord—for example, the German emperor—to be the master of several lords
who, in turn, had vassals of their own. Because the lords’ vassals were not
the emperor’s vassals, the emperor could not directly request their collabo-
ration. Instead he had to address them through their immediate lords. This
pyramid of command guaranteed the loyalty of important lords and the sub-
mission of their vassals, but it also imposed restrictions on the emperor.
Not being able to directly command the vassals of his vassals implied that
when the emperor wanted them to do or refrain from doing something, he
had to depend on the mediation of the lords, who could ask for concessions
in return.
This situation, which was necessary in the ninth c entury when feudalism
probably emerged, became unsustainable after some lords—now identified
as monarchs—began to expand their jurisdiction. Beginning in the eleventh
and twelfth centuries, they sought to diminish the power of their peers or
control them by summoning them to the courts and converting them into
their servants. Through these mechanisms, lords not only became members
of royal h ouseholds, they also lost their power base in the countryside where
their vassals resided, from which they w ere mostly absent.
To further facilitate the submission of all those inhabiting their kingdoms,
kings also encouraged the growth of cities. Recognizing t hese cities as “free”
because not u nder obedience to a feudal lord, kings placed them and their
inhabitants under the king’s direct authority. Although this policy was
successful, and cities grew in number and size all over Europe, in the long
run the most efficient tactic kings used to consolidate their powers was to
institute themselves as supreme adjudicators. They claimed a role as arbiters
between lords and established royal courts throughout the realm. This method,
which most monarchs attempted to implement, first succeeded in England
and resulted in what we now identify as the Eng lish common law (see
Chapter 6).
Questioning Feudalism
For many years, the above description was the standard textbook narrative
regarding the nature and history of feudalism. Beginning in the 1990s, how-
ever, some historians began asking w hether there was one type of feudalism
or several, and w hether feudalism as classically defined had existed at all.
They questioned the term used to describe t hese developments (“feudalism”)
but they also disagreed over whether an institution that fit this description
ever materialized in real life. They suggested that it was only a model that
rarely (if ever) was put into place. Or they maintained that the large variety
of situations and practices they uncovered in the archives could never be re-
duced to a system with clear principles. In short, they saw “feudalism” as a
theoretical abstraction that obscured rather than enhanced our under-
standing of the past.
Scholars also insisted that despite the pervasive presence of lords and
vassals in many parts of Europe, not all contemporaries lived u nder a
feudal regime. Some territories were more “feudalized” than others, and
even where classic feudalism might have been the dominant form of eco-
nomic, social, political, and legal order, there also existed free peasants and
urban dwellers, their numbers varying by region and period. Feudalism,
these scholars sustained, had captured our imagination far more than it
ever deserved.
It is nevertheless clear that something of importance happened in

ninth-and tenth-century Europe. W hether we call it feudalism or not,
whether we believe it to be a single phenomenon or various, a coherent
system or disparate practices that w ere packaged together by scholars who
disregarded their heterogeneity, and regardless of the question of whether
it affected all of Europe or only parts thereof, it is evident that during
this period the structures of European polities vastly changed. Many autono-
mous villages became dependent, demand for protection became perva-
sive, and power structures became pyramidal with the gradual appearance
of lords and overlords who monopolized many functions of government
and justice. Interactions among those inhabiting the same village or
town might have been only slightly modified, but relations between
communities and between them and local authorities suffered important
mutations that eventually led the way to the formation of monarchies
and states.
Lords, Emperors, and Church Authorities

To solidify their position, German emperors sought support from the Church.
The alliance between powerful individuals and the Church was, of course,
much older than the ninth and tenth centuries, yet it is commonly assumed
that this mutual dependency reached new heights during this period. The
place where this took place was the Carolingian Empire.
The Carolingian Empire was a loose association of polities that covered
parts of present-day Germany, France, Switzerland, Austria, Italy, Belgium,
Luxembourg, and the Netherlands. It was headed by Charlemagne, who in
the year 800 was anointed by Pope Leo III as “emperor of the Romans.”2
Charlemagne’s empire fragmented after his death, but in the tenth century a
new dynasty emerged that was able to extend control once again over large
territories. Leading it was Otto I (912–973), whom Pope John XII in 962
crowned emperor of the “Holy Roman Empire,” which was the name the
German territories pretending to be imperial now received.
Although on both t hese occasions, popes supported the German impe-
rial claim, eventually the relations between t hese emperors and the Church
would become extremely fraught. In the late eleventh c entury, tensions esca-
lated into open conflict that scandalized many Europeans. The occasion was
a disagreement over w hether emperors could appoint bishops. As the action
of handing over the staff (scepter) to the chosen bishop in acknowledgment

of his spiritual authority was called “investiture,” we usually refer to that
conflict as the “Investiture Conflict.”
From the perspective of European legal history, this episode brought to
light the difficult question of what were the correct relations between the
pope and the secular powers of Europe. Who was superior to whom? Could
popes intervene in secular matters? Could emperors do so in religious af-
fairs? Could the secular and the spiritual be distinguished at all, or was t here
only one community in Europe, a single Christian ecumene?
Roman traditions, which both secular rulers and the Church espoused,
did not facilitate the distinction between a secular and a spiritual realm. Be-
fore their conversion to Christianity, Roman emperors were high priests
(pontifices maximi) who were central to the Roman religious cult. A fter their
conversion, Roman emperors kept this view, legislating on religious matters
and actively intervening in religious affairs—for example, by calling for and
participating in meetings of bishops where the Christian canon was fixed.
A fter the Western Roman Empire was overrun by Germanic tribes, Popes
Leo I (440–461) and Gregory I (590–604) actively fashioned themselves not
only as leaders of an expanding Christendom but also as secular powers with
near-universal reach.
Yet because they required the help of secular leaders, not only to subsi-
dize and protect the work of missionaries and Church officials, but also,
on occasions, to secure their control of Rome, from as early as the sixth century
successive popes habitually appealed to Germanic monarchs to assist
them. These monarchs—for example, Charlemagne—could thereafter
portray themselves as protectors of the Church. They legislated on religious
matters and constantly limited Rome’s control and autonomy in their
territories.
With the rise of powerful lords, the autonomy of the Church was further
compromised by local lords’ growing control. During this period, it became
customary for lords to appoint bishops in their territories. It also became
common for these lords to elevate the bishops they selected by recognizing
them as feudal lords (tenants-in-chief ) and by granting them jurisdiction
over both territory and people. Nomination as lords guaranteed bishops the
administrative and financial powers to control their flock (now also vassals),
but it also aided the overlords who nominated them to secure their loyalty.
ecause ecclesiastical lordships w

B ere tied to a particular diocese and w
ere
granted to whomever was nominated bishop, if the overlords controlled nom-
ination, they could also control who would lead these lordships. They
would thus ensure that important feudal domains would remain u nder the
overlords’ direct control and would be granted periodically to whomever they
saw fit rather than becoming the perpetual property of a single family as
would happen in other cases.
The linking of feudal powers with the holding of ecclesiastical office meant
that, as far as the overlord was concerned, it was vital to guarantee that these
ecclesiastical yet seigneurial domains not fall into the wrong hands. Hence,
it was necessary for these overlords to control the nomination of bishops.
But the popes also wanted to control the nomination of powerful bishops
who were feudal lords, and equally considered the provision of offices to al-
lies an important means to secure their loyalty.
Clearly expressing this preference, in the late eleventh c entury Pope
Gregory VII (1073–1085) began a wide-reaching reform with the aim of
obtaining control over these coveted offices. He or one of his close collabo-
rators authored a decree (now known as Dictatus Papae) that listed twenty-
seven important papal resolutions.3 Among other t hings, it denied German
emperors the right to nominate and depose bishops and invest them with
their pastoral rod. The decree also stated that the Church was founded by
God and that it was the only truly universal body. If emperors disobeyed
papal orders, the pope could depose them and free their vassals of their oath
of obedience.
While establishing the preeminence of Church over empire and popes
over emperors, the Dictatus Papae also sought to secure the primacy of the
pope within the Church. It determined that only the pope could establish
new laws, form new congregations, transform the status of existing institu-
tions, and control Church officials. Only he could move bishops between
dioceses, call general synods, and identify the chapters and books that w ere
sacred. The Dictatus further stated that the pope could be judged by no one
and that his decisions could not be appealed. The pope had these exceptional
powers, the decree said, b ecause he was no ordinary bishop. A direct suc-
cessor of Peter, the pope was the only living figure who could use the impe-
rial insignia, whose feet should be kissed by all princes, and who should
be the object of veneration by having his name, now considered “unique,”
recited in churches. Through the merits of Peter, he was holy. The Dictatus
Papae also asserted that one could not be a believer without being in har-
mony with the Church.
The Investiture Conflict

The question of investiture was tested in 1076, when Emperor Henry IV
(1050–1106) ignored the papal nominee for the archdiocese of Milan (a rich
feudal territory) and instead appointed one of his own men. A fter Pope
Gregory threatened Henry with excommunication, Henry called for a
meeting of the German bishops. U nder his inspiration and guidance, in a
synod in the city of Worms in 1076, the bishops renounced obedience to
Gregory, declared him deposed, and requested the election of a new pope.
Though they censured Gregory, claiming that he had obtained the papacy
by usurpation and deceit, the main accusation against him was innovation.
According to the bishops, he had invaded their customary and legitimate
powers to the point that he was creating confusion that was destroying the
Church.
Pope Gregory responded to t hese challenges by excommunicating the em-
peror and freeing the German nobility from their duty to obey him. Isolated
from his lords, who threatened to elect another emperor to succeed him, in
1077 Henry made an act of public capitulation to the pope. The story, how-
ever, did not end there. The nobles followed up on their threat and nominated
another emperor (Rudolf, duke of Swabia); the pope supported this new can-
didate and excommunicated Henry a second time. Henry again declared the
pope deposed and elected a new pontifex (known as Antipope Clement III)
in his place. With Henry’s armies at the gates of Rome, Gregory fled the city
and died shortly thereafter.
In 1122 the successors of Henry and Gregory (Emperor Henry V and
Pope Calixtus II) reached a compromise formally resolving the Investiture
Conflict. At the Concordat of Worms, they recognized the elections of bishops
as a papal privilege but allowed the emperor to preside over them and inter-
vene in cases of dispute. According to the compromise, the emperor could
no longer invest bishops with the staff, but he could require them to give him
homage. Though an understanding was seemingly reached, both sides
maintained their basic positions as to who they were and how they were to
relate to one another. Neither was the conflict within the Church completely
resolved. Subsequent popes continued to argue for a superior, perhaps abso-

lute, power, and many bishops and theologians contested t hese claims.
And European Legal History?

Law in eighth-to eleventh-century Europe was still based on a combina-
tion of Roman, Germanic, canon, and local law, but it was also increasingly
determined by locally powerful lords who controlled vassals. In some places
where free cities or free peasants existed, local autonomy persisted, but it,
too, was gradually limited by the emergence of superlords who fashioned
themselves as emperors and kings.
Although many of these changes could be explained by the particular cir-
cumstances of place and time, what was perhaps most surprising about t hese
developments was the constant reference to a covenant between unequal
partners. Of course, unlike the covenant between Christians and their God,
the covenant between lords and their vassals was not religious, but it was not
altogether secular either, as lords were theoretically endowed with a Chris-
tian mission and their vassals obeyed them because, among other things,
they had taken an oath. Furthermore, during this period lords often refash-
ioned themselves not only as Christians but also as religious leaders who w ere
responsible to both the secular and the spiritual well-being of their subjects.
The idea that lords had acquired their powers b ecause of some sort of cov-
enant or exchange between them and their vassals was extremely important.
Even if partially (or wholly) fictive, even if abusive, even if not truly free, this
foundational myth of consent, agreement, and exchange as the basis for po
litical power would eventually become central to European history. It would
appear in endless reiterations and forms throughout the centuries and
would become the justification upon which monarchies and eventually states
would be established as well as destroyed. The contractual vision of poli-
ties would come to supply both a justification for government as well as a
means by which to criticize the authorities and demand that they behave in
certain ways.
While relations between lords and vassals restructured the ways Euro
peans conceived of power and interacted with the normative system, now
growingly at the hands of lords, the Investiture Conflict can be identified as
a pivotal moment in the development of a new vision of European law. A
first attempt at reestablishing a clear distinction between a secular and
a religious sphere, it also featured what some conceptualized as a true

revolution—a llowing the Church to f ree itself of feudal control and in-
stitute an independent legal system. This system, which would come to
regulate both the Church’s internal affairs as well as the life of all Chris-
tians, would become the first legal system in Europe to rely mostly on
legislated solutions created by a single authoritative voice, the pope. The
Investiture Conflict was also instrumental in propelling the next great mu-
tation in European law: the rebirth of Roman law in Italian universities in
the twelfth and thirteenth centuries.
part three
The Later M
iddle Ages
5
The Birth of a European Ius Commune
The twelfth c entury is considered a pivotal moment in European

history. The demise of feudalism (where it existed) and the rising power of
monarchies were accompanied by economic prosperity and a demographic
boom. With the growth of production and the emergence of new commer-
cial routes and centers, the urban network was greatly enlarged and immi-
gration intensified. New towns w ere established and depopulated centers
were revitalized. As monarchical powers expanded, so did royal entourages,
and as towns grew in size and importance, so did their administration.
Historians have long considered this period a true “Renaissance.” They
suggest that it was accompanied by a spectacular expansion in artistic, sci-
entific, and intellectual production that also profoundly affected European
law. The point of departure was a highly fragmented system that varied ac-
cording to place, group, and subject matter. The point of arrival was the birth
of a new constellation that was potentially common to all Romanized Chris-
tians and would thereafter be identified as their ius commune, literally, their
common law.1
As we have seen, around the year 1000, law was fragmented, geographically
confined, and dependent on local, Roman, Germanic, and canon law, as well
as feudal legislation. These various normative regimes mutually influenced one
another, but rules could differ dramatically from one village to the next.
The new circumstances of the twelfth c entury led to the search for a novel
normative order. In contrast to law based on local regulation, differing from
place to place, newly emerging communities that had no previous legal
75
traditions, the intensification of relations between communities and with

non-European trading partners, and the growth of immigration required
a different type of law that would bridge such differences. The need for
reform was also felt in other spheres, such as public law, which was insuf-
ficiently developed to support the needs of emerging municipal bodies and
royal administration. H ere, too, a new legal order had to be imagined. With
economic prosperity and intensified support to learning, a larger segment of
society could (and found it useful to) dedicate itself to intellectual pursuits.
Propelled by the political, social, cultural, and economic conditions and
backed by municipal and royal authorities as well as by the Church, all
seeking to solidify and augment their powers, a novel method to approach
normativity began appearing in Europe, gradually yet dramatically changing
its legal landscape. This innovative method was introduced in northern
Italy, yet it quickly spread to other parts, where it remained in force u ntil
the nineteenth century, perhaps beyond. How and why this happened and
how European law changed as a result is the subject of this chapter.
The Study of Law in Europe

The legal revolution that took place in Europe in the twelfth and thirteenth
centuries was shaped by three interlocking elements: the discovery and re-
constitution of ancient Roman texts (mainly the Corpus Iuris Civilis), the
adoption of a new method to analyze them (Scholasticism), and the inven-
tion of a new environment in which to do so (learning centers, which grew
into universities). Historians have long debated which preceded what. Did
the new method lead to the formation of new intellectual environments, or
did the new environments encourage the formation of new methods? Was
everything initiated by the discovery of ancient texts, or w ere texts sought
after because they now mattered in new ways?
Whatever the exact genealogy and causality might have been, scholars
agree that the combination of new sources, new methodology, and new in-
tellectual environment produced a profound transformation. This transfor-
mation was not only intellectual but also social and political. It was driven
by the growing prominence of kings who sought to justify their extending
powers, by new municipal corporations and agents who wished to do the
same, by papal desires for primacy; and by the intensification of commerce
The Birth of a European Ius Commune 77
and learning. With new economic resources to support individuals dedicated

to scholarship, the new European normative order not only assisted the pre-
tensions of kings, popes, municipal officials, and urbanites, it also produced
new professionals, the intellectuals, who made a living by teaching, advising,
and writing books.
Reconstructing Ancient Texts

Scholars in Europe knew for centuries about the existence of the sixth-
century compilations of Roman law ordered by Emperor Justinian.2 Frag-
ments of these compilations circulated in different parts of the Continent, but
none of the available copies was considered trustworthy or complete. An
abbreviated version of the Code (imperial legislation) was available, and so
were parts of the Institutes (the manual for students), but the Digest (the
volumes containing juridical opinions) was not.
Toward the end of the eleventh c entury, a copy of the Digest reached Bo-
logna, in northern Italy. Th ere are many accounts about how and why it
miraculously materialized and who was responsible. It is currently agreed,
however, that whoever the person was, the so-called discovery of the Digest
was probably tied to the Investiture Conflict—the struggle between the
German Emperor Henry IV and Pope Gregory VII regarding emperors’
powers to elect bishops (see Chapter 4). B ecause during this conflict both
sides, wishing to justify their positions, appealed to Roman law, both ac-
tively searched for new fragments of that law that would back their claims.
It is thus possible that the “rediscovery” of the Digest during this period of
conflict involved no true unearthing but instead could be explained as a stra-
tegic move by t hose who had known about its existence but now sought to
capitalize on it in new ways.
Following the rediscovery of the Digest, several individuals began recon-
structing the legal compilations undertaken by Justinian.3 This effort in-
cluded collecting different segments that w ere known as well as seeking
new ones. Once sufficient material had been accumulated, the different parts
were put together in what was believed to have been the original design. This
done, scholars trusted that for the first time in centuries they had access to
a correct and full copy of the Justinian corpus, which they believed accu-
rately represented Roman law.
The Method
Satisfied with the text they had reconstructed, scholars began studying it.
The methodology they employed was innovative. Identified as Scholasticism,
it was based on the assumption (taken as a certainty) that Roman texts were
imbued with a hidden harmony. The obligation of readers was to prove that
such was the case by offering an interpretation that synchronized the dif
ferent parts and enabled the reconstruction of a coherent message.
Most scholars following the Scholastic method began with a philological
analysis of the texts, their terminology, order, and phrasing. Shaping their
observations as a dialogue, they asked questions and debated the answers.
This dialectical thinking and exposition was mainly geared toward com-
paring passages to one another. Working under the assumption that the
various parts w ere not contradictory, scholars employed logical arguments
in order to demonstrate that such was the case. One of their favorite tech-
niques was the distinctio. Analyzing two fragments that seemed similar yet
pointed to different solutions, these scholars proceeded to demonstrate that
although the fragments appeared identical, they w ere in fact profoundly dis-
tinct. B ecause they w ere different, the solutions offered could be diverse
without t here being a contradiction. Hence, what appeared at first glance as
a contradiction was instead part of a coherent system in which all the dif
ferent pieces pointed to the same rationale.
By following this method, scholars hoped to reveal the criteria that guided
Roman jurists and the techniques that organized their reasoning. Their aim
was not to uncover the particular solutions Roman jurists adopted but in-
stead to extract the rule (regula) that explained their consistency. By putting
together what they learned from individual examples and cases, these scholars
hoped to understand what they considered to be the inner core, the basic
essence, of Roman law.
The adoption of the Scholastic method converted the Digest, which was
unknown and hardly used in Europe up to this point, into a particularly
attractive source of Roman law. Reproducing the opinions of different ju-
rists, the Digest included an exceptional number of disagreements and con-
tradictions. It therefore was an excellent source allowing scholars to make
distinctions and elaborate terminology, concepts, and criteria.
Because Scholastic analysis used textual exegesis that paid close attention
to the specific terms Roman texts employed, their order, and their meaning,
it was essential for scholars to ascertain that the documents they examined
were accurate. If they w ere not, then their discussion of them would be based
on false evidence and would not lead to the ultimate truth. Thus, as the dis-
covery and reconstruction of ancient texts led to their study, their study led
to additional effort to ensure the accuracy of the texts. Textual reconstruc-
tion and textual exegesis, in short, mutually supported one another.
From the twelfth to the sixteenth c entury (considered the formative pe-
riod of this new European legal science), scholars (now identified as jurists)
debated the principles, terminology, and structures of Roman law. Though
they were trying to explain ancient texts, their endeavor did not revive the
ancient law of Rome, but instead reinvented it. Medieval jurists came up with
new ways to assess, analyze, and relate to legal questions. Their interpreta-
tions were perhaps anchored in a prestigious Roman past, but, in reality, and
as would be forcefully argued in the fifteenth and sixteenth centuries (see
Chapter 7), they w ere entirely new.
The Environment
The individuals engaged in these debates mainly taught or studied in the
various study centers and universities that appeared in Europe in the late
medieval period. W hether universities formed part of a longer tradition or
were a completely new phenomenon is a m atter of debate. In late antiquity,
there w ere schools in which instruction was given to students, usually in
order to prepare them for a particular professional task. Th ese schools
taught grammar, dialectics (the art of reasoning), rhetoric (the art of expo-
sition), arithmetic (the study of numbers), geometry (the study of figures),
astronomy, and music. From as early as the first c entury ce if not ear-
lier, Rome also featured schools where students of law congregated. These
began as informal gatherings, but by the early fifth c entury they w ere
sufficiently institutionalized that emperors could limit the study of law
exclusively to them.
In the sixth c entury, monastic schools began appearing all over Europe.
First emerging spontaneously and then encouraged by popes and emperors,
these schools taught poetry, astronomy, and mathematics but w ere mostly
focused on understanding the Scriptures. In some places, rhetoric and Roman
law might have been studied, too. By the late eighth and ninth centuries,
monastic schools were joined by episcopal or cathedral schools, which
covered similar subjects but were mostly located in the large urban centers
that began appearing throughout Europe.
Twelfth-and thirteenth-century study centers and universities w ere there-
fore both old and new. Appearing in several European cities where demo-
graphic growth, economic prosperity, and urban revival were particularly
strong, they drew crowds that came to listen to masters lecture. The congre-
gation of a large number of masters in certain locations, as well as urban
regulations favoring it, brought several of these new learning sites into prom-
inence. Paris, Bologna, Toulouse, and Oxford became famous among stu-
dents and teachers b ecause of the excellence of teaching but also b ecause of
the scope of what was being taught. Designated as studium generale—places
where it was possible to study (almost) everything, including theology, med-
icine, and law—these centers w ere transformed into “universities” after
they were legally recognized as corporations.
One of the most important characteristics of the new learning centers
was that they w ere truly pan-European. Teachers and students came from
all over Europe and they circulated from one university to the next. The
teaching language was Latin, and most of the universities employed a similar
curriculum and method. Popes and emperors, who fashioned themselves as
global figures, typically encouraged the founding of these centers, although
their enthusiasm sometimes met with opposition from local authorities,
who resented the arrival of many foreign teachers and students who w ere
habitually poor, unfamiliar, and—in the eyes of many—not particularly
productive. The new learning centers w ere also criticized occasionally
by local bishops who previously had controlled all education in their dio-
ceses and gave licenses to teach. Despite this (often fierce) opposition,
universities prospered. By the mid-fifteenth century, some sixty cities in
present-day Italy, France, Spain, Portugal, E ngland, Scotland, the Czech
Republic, Austria, Germany, Belgium, Croatia, Hungary, and Poland had
a university.
Universities were greenhouses for the creation of a group of scholars who
shared not only a way of life and a profession but also ideas and ways of
thinking. They produced the “intellectual,” a new sociological figure whose
main occupation was to study or teach. With the birth of states and with
growing municipal powers, many intellectuals would come to occupy impor
tant public offices. Thereafter, studying at the university would open new
c areer opportunities to individuals who could afford to invest time and
money in their intellectual preparation. Studying would also become a mech-

anism allowing the advancement of the m iddle classes (to use an anachro-
nism). It would enable the emergence of a new type of nobility whose prestige
was no longer linked to soldiering or bloodline but instead was based on
intellectual achievements.4
Among t hese new intellectuals, some would come to be identified as ju-
rists, individuals dedicated to the study of law. Recognized as experts in this
particular domain, by the twelfth, thirteenth, and fourteenth centuries ju-
rists who studied in universities became particularly coveted councilors. They
were acknowledged as professionals who could advise on juridical matters,
plead for the parties, and help the expanding administration of cities and
monarchies. Depending on time and location, their mediation would even-
tually become a prerequisite in all legal interactions.
How the New System Operated

The combination of new sources, methodology, and environment created a
novel system of law. U ntil the mid-thirteenth c entury, discussions in uni-
versities mainly focused on the reading and comprehension of ancient texts.
Though these discussions were mostly oral, we do have written fragments of
how this was done. These fragments mainly contain glossa. A gloss was a brief
annotation between the lines or on the margin of a text that explained its
terminology, content, principles, and main points, asked questions, and com-
pared this segment to a word, sentence, or paragraph that appeared else-
where. Faithful to the Scholastic method, the authors of glosses (known as
glossators) tried to harmonize the different fragments by demonstrating that
what seemed to be a contradiction or lack of coherence was not. The gloss
explained the text, but it was also used as an index to facilitate cross-references.
Most importantly, it allowed medieval jurists to develop a specialized ter-
minology, invent new categories, and suggest new ways of thinking about
the law.
A short gloss attributed to Rogerius, a scholar who taught in Bologna in
the twelfth c entury, exemplified this method.5 Analyzing the Institutes (the
sixth-century manual for law students), Rogerius observed that it defined
“justice” as the “the constant and perpetual desire to give to each man his
due right.” Asking why the Institutes mentioned “desire” rather than requiring
an actual implementation, Rogerius concluded that this was not an oversight
but instead a purposeful choice. It was meant to explain to law students that
even if the goal of dispensing justice was not reached, the intention to do
so was sufficient to qualify the action as just. By adopting this explanation,
Rogerius established the importance of “intent” in legal interactions. He
suggested that what you did and what resulted from your action was impor
tant, but no less essential was the state of mind (intention) that accompanied
your act.
Next Rogerius observed that, according to the Institutes, justice contained
three central mandates: to live justly, not to injure others, and to render to
each his own (ensure that each person received the treatment he or she de-
served). Asking why t here w ere three rather than one single mandate and
how each differed, Rogerius concluded that the first precept (“to live justly”)
referred to crimes against oneself (sins). The second and third precepts
(“not to injure another” and “render to each his own”) dealt, on the contrary,
with crimes against other p eople. He explained that b ecause crimes against
other individuals were more frequent and more severe, they w ere prohib-
ited twice. Yet their doubling did not diminish the fact that in reality t here
were two ways in which one could hurt other p eople. “Not to injure an-
other” (the first of the two precepts) pointed to “commission” whereby
to “render each one his due” (the second of the two precepts) pointed to
“omission.”
By studying only a few sentences of the Institutes and by observing rep-
etitions as well as the choice of words, Rogerius thus justified some of the
most basic categories we still employ today. He demonstrated the importance
of intent, and he clarified the distinction between performing a wrongful
act and failing to do the right t hing (commission and omission). None of t hese
observations was truly necessary in order to understand the Roman text, yet
the analysis of this text gave Rogerius an opportunity to imagine a new way
to categorize legal phenomena.
Starting in the late twelfth c entury, some scholars began collecting legal
questions and publishing them. These documents, reflecting intellectual
engagement with actual practice rather than with theory, usually centered
on real or hypothetical cases that jurists had to solve and presented points for
consideration and discussion. Also common w ere collections of glosses in
large bodies known as apparatus, some of which contained as many as
100,000 fragments. Other types of publications were the summae, which dis-
cussed the contents of an entire book such as the Institutes (the student
manual) and the commentum or lectura, which reproduced lectures given by

a law professor.
From the fourteenth c entury on, scholars began demonstrating a greater
degree of freedom, focusing their attention less on the texts themselves than
on the doctrine they sought to develop. Their main goal was the practical ap-
plicability of the legal principles that could be drawn from Roman texts, and
they w ere less concerned than previous jurists with being faithful to the orig-
inal source. Typically, fourteenth-century scholars often based their analyses
not on the Roman texts themselves but on the glosses of preceding jurists.
During this period scholars also began giving consilia. Somewhat similar
to ancient Roman juridical activity, consilia were written opinions on matters
of the law. They were authored by jurists at the request of interested parties
who had sought their advice on how to plan their activities or how to solve
certain situations. Demonstrating the originality of medieval jurists, these
answers creatively applied theoretical debates developed in universities to ev-
eryday situations. Dealing with juridical questions either hypothetically or
post factum, jurists often acted as hired guns whose role it was to find the
solution that best fit their clients. Nonetheless, their responses became an
important source of law. Well argued and well expressed, many of t hese ju-
ridical opinions w ere followed as if they w ere authoritative statements of
what the law dictated.
A particularly remarkable figure during this period was Bartolus of Sax-
oferrato (1313–1357). An extremely prolific jurist, teacher, and judge, Bartolus
published treatises on a g reat variety of topics, wrote commentaries, and en-
gaged in giving counsel. He wrote on some of the most important issues of
his time, such as the power of German emperors over parts of Italy, con-
flicts between different jurisdictions, citizenship, and dowries. Typical of his
work were his treatises on the legal consequences of changes in the course
of rivers upon property rights and jurisdiction. Although rivers were useful
dividers, Bartolus argued, natural changes in their course w ere constant. It
was therefore essential that jurists reflect on how these changes affected
rights. He concluded that rivers could add or remove land and that this had
consequences for riverbank owners, whose property rights could be enlarged or
diminished as a result. Bartolus also determined that if these alterations in
the course of rivers were sufficiently slow to produce new customs and new
ways of relating to the modified landscape, the territorial jurisdiction of
riverine communities could also increase or be reduced.
This was a revolutionary conclusion because, contrary to property rights,

which most jurists agreed could constantly mutate, before Bartolus’s time
territorial jurisdiction was thought to be permanent and unalterable. In his
answer, Bartolus not only invented a new rule (jurisdiction can change),
he also created a new vision of what territorial jurisdiction was. This vi-
sion, which comprehended territorial jurisdiction not as naturally given
but instead as dependent on how individuals and communities related to
space, allowed him to give an efficient response to the challenges that his
contemporaries faced, among them the growth of cities and states and the
constant redefinition of their boundaries. The idea proposed by Bartolus
that both property rights and territorial jurisdiction were created and could
be modified by human activity was so powerful and so convenient that it
soon became recognized as the established norm.
Canon Law
Scholars have long debated whether discussions in universities began by
studying Roman texts or canon law texts or whether both things coincided.
Questions of chronology aside, it is clear that the same methodology (Scho-
lasticism) and the same concerns expressed with regard to Roman law were
also applied to the study of canon law. H ere too, the first task scholars faced
was the reconstruction of the corpus of that law, which was dispersed in a
variety of sources and collections, some more global and authoritative than
others (see Chapter 3).
In the twelfth c entury, a successful compilation was proposed by Gra-
tian. Gratian (who may have also used the work of previous scholars) col-
lected, examined, selected, and systematized the different sources of canon
law (the Bible, legislation and decisions of Church councils, papal decisions,
and the writings of the Church f athers and early saints).6 Arranging this ma-
terial logically in three parts, he enumerated the sources, described Church
hierarchy, and listed the rules regulating the hierarchy’s activities. Also in-
cluded were instructions regarding judicial procedure, Church property, the
religious orders, marriage, sins, repentance, and penance. Matters of doc-
trine and matters of law were intermingled throughout the work, but the
latter predominated.
This compilation (Concordia Discordantium Canonum, literally the har-
mony of discordant canons, later known as the Decretum) was unofficial.
Yet it was considered so reliable that it ended up being followed as if it had

been formally endorsed. Other compilations of canon law followed, most
important among them the thirteenth-century Decretales (also identified as
Liber Extra because it included what was left out of the five books of the
Decretum) and Liber Sextus and the fourteenth-century Clementinae. By the
early sixteenth c entury, these compilations together received the name Corpus
Iuris Canonici in order to distinguish them, yet make them parallel to, the
Justinian Corpus Iuris Civilis.7
As with the study of Roman law, a fter scholars were convinced they had
recovered a genuine body of Church law, they began centuries of analysis,
exegesis, and study. Gratian was the first to do so, adding to his compilation
brief annotations (dicta) that addressed and explained apparent contra-
dictions with the aim of harmonizing the whole. Other scholars soon fol-
lowed. Applying the Scholastic method and constantly conversing with
their colleagues studying Roman law, canon-law jurists ended up glossing,
commenting, and writing treatises on canon law. They developed vocabu-
laries, extracted principles, and systematized the juridical thinking of the
Church. As a result of these similarities in method and places of creation,
over time canon and Roman law tended to fuse to such a degree that it was
sometimes hard to distinguish between them.
Typical of this amalgamation was the development of Romano-canonical
court procedures (ordo iudiciarius) in the twelfth and thirteenth centuries.8
A means to replace the ordeal a fter it was deauthorized by the Church, this
procedure, inspired in Roman cognitio, was first adopted by popes and ec-
clesiastical courts and then taken up by secular jurisdictions, including royal,
feudal, and municipal courts. Developed due to ecclesiastical impetus, it was
propelled by Romanist and canonist jurists who taught at the various Euro
pean universities. Heavily inspired by the Justinian Corpus Iuris Civilis, it
was also greatly affected by canon law, mainly through its continuing regu-
lation and elaboration by papal decretals.
Feudal Law
Alongside Roman and canon law, scholars also turned their attention to
feudal institutions. Starting in the twelfth century they suggested that a
“feudal law” had existed in Europe as early as the eighth century. This law
governed relations between lords and their vassals as well as between the
various lords. It identified lords and their duties and defined how individ-
uals became vassals and what they owed to their masters. Feudal law also
dealt with the jurisdiction of lords over their vassals, feudal courts, and con-
flicting claims of various lords over the same individuals or lands. It focused
on issues typical to feudalism such as access to and use of land, as well as
inheritance.
The genealogy of how this field of inquiry came into being is quite sim-
ilar to what we know of Roman and canon law, and it is probable that it
emerged contemporaneously. Already in the eleventh century, some scholars
had begun discussing feudal law, yet juridical interest in that law began
in earnest only with the publication in the mid-t welfth c entury of an au-
thoritative text, the Libri Feudorum. This text, compiled in present-day
Italy, collected decisions from so-called feudal courts, as well as feudal cus-
toms, legislation, and juridical writing. By the thirteenth century the litera
ture on feudalism had expanded so dramatically that there w ere now experts
(feudists) dedicated to writing commentaries on these laws.
The erudite literature on feudalism introduced the study of feudal law to
universities. The result was the gradual Romanization of feudal law, which
was discussed, analyzed, and understood by using Roman terminology, cat-
egories, and ways of reasoning. The fusion between the two fields was so
complete that, in practice, they merged. One indication of this was that by
the thirteenth c entury, for example, several scholars appended parts of the
Libri Feudorum to their copies of the Corpus Iuris Civilis and glossed them
together. Another was the influence of Roman law on discussions regarding
feudal law—for example, allowing feudal jurists to apply the Roman idea of
dominum to explain the relations between lords and vassals. They suggested
that lords had dominium directum of the land (allowing them to direct what
would happen on it, collect dues, and exercise authority) and vassals had do-
minium utile (giving them the right to use the land).
Why twelfth-century scholars cared about feudalism sufficiently to turn
their attention to it is one of the least studied questions. As described in
Chapter 4, by the time scholars began thinking about feudalism, it was al-
ready declining everywhere. Remnants of what it had been persisted in dif
ferent parts of Europe in various intensities, but the powers of lords, as well
as the number of unfree individuals, gradually diminished as monarchies,
the economy, and cities grew. Historians who argue that our vision of feu-
dalism is distorted would suggest that the reason twelfth-century scholars

cared about it was relatively s imple: they reimagined the feudal past for their
own purposes, which was why we should not trust their interpretations.
Looking back to feudalism allowed twelfth-century jurists to develop doc-
trines dealing with relations between lords, kings, and their subjects, the
meaning and extension of jurisdiction, and land rights, all of which w ere
very important at that time precisely b ecause feudalism was d ying. It also
enabled jurists to conceptualize public authority as the outcome of a pact
between rulers and ruled that included mutual obligations. According to this
theory, subjects could legitimately rebel against monarchs who, by not re-
specting the pact, became tyrants. In feudalism, in short, these scholars iden-
tified elements that could serve not only to explain the past but also to
structure and control their own twelfth-and thirteenth-century societies.
Ius Commune
The study of Roman, canon, and feudal law in medieval study centers and
universities by scholars who reconstructed texts and then applied the new
Scholastic method to them revolutionized European normativity. It created
innovative ways to think about, analyze, and discuss the legal order. Scholars
of course continued to disagree with one another, but they did so using
common terminologies, concepts, arguments, and techniques.
The complex system of knowledge, organization, and interpretation that
resulted included solutions to particular legal problems, such as who had the
right to use land or who was a citizen of which community. But above all it
proposed a new vision according to which, despite wide variations in the con-
crete answers proposed in different parts of Europe, juridical thought was
not particular to a place, a society, or a time. Instead, it was based on reason.
This implied that the new juridical method could have a universal vocation
and embody, as it came to be known, a ius commune—a law potentially
common to all. Thereafter, following the guidance of ius commune became
identified as rectum or directum; that is, the right way of doing t hings.9
Comprising centuries of juridical opinions, this new legal constellation,
now referred to as ius commune, was clearly different from classical Roman
law, that is, from the law that regulated life in ancient (both republican and
imperial) Rome. Said to be inspired by that ancient law, it was nevertheless
entirely new in scope, method, intention, and solutions. It did share with
Rome, however, the idea that jurists were at the forefront of juridical creation
and that jurisprudence, the science of law, was the most important normative
source.
Spreading Ius Commune

Replicated in universities across Europe and propelled by the constant move-
ment of intellectuals from one city to the next and their employment by
municipal, royal, and imperial governments as well as by Church authori-
ties, and eventually by the relative abundance and wide circulation of printed
material, the new juridical science expanded throughout Europe. Some Eu
ropean territories w ere affected earlier than others, some were affected more
intensely, but by the sixteenth century at the latest, some version of ius com-
mune was present almost everywhere.10
This process of dissemination was initially backed by secular rulers and
municipal authorities who believed that the new science would solidify their
powers and justify their growing demands for superiority. Following this
strategy, in the thirteenth century King Alfonso X of Castile officially in-
corporated the new juridical method into Castilian law. He ordered his ad-
visors to recompile its doctrines alongside canon and local law, producing a
collection now known as the Siete Partidas because it has seven parts. Con-
sidered radical when it was enacted b ecause of its dependence on juridical
scholarly discussions, it was not u ntil the fifteenth c entury (after ius com-
mune penetrated into Castile through other channels, mainly the founding
of universities and the circulation of jurists) that the Partidas became cen-
tral to the Castilian legal system. By that stage, however, Castilian kings were
already wary of ius commune and w ere no longer as enthusiastic about its
penetration, which they could not control. As ancient Roman emperors had
attempted to do with their own jurists, successive Castilian monarchs en-
deavored to limit the effects of ius commune. They established a hierarchy of
legal sources, according to which royal laws would be at the top, followed
by customs (fueros), and only then the Siete Partidas.11 They also decided that
new ius commune doctrines could not be adopted without their consent.
These efforts, however, were largely unsuccessful. By that stage, the legal
method proposed by ius commune was considered the most logical way to
andle juridical questions. W hether permissible or not, recognized by kings

h
or not, by that time it had become a repository of solutions that no jurist or
lawyer could afford to ignore.
The New Juridical Science and Preexisting Law

ntil fairly recently historians tended to think about ius commune as a
U
substantive law that mainly included concrete solutions to particular prob
lems. As a result, many suggested that it stood in opposition to preexisting
local, municipal, royal, or canon law, which it sought to replace. According to
this narrative, after ius commune expanded throughout Europe, authorities,
jurists, and locals had to choose between following ius commune or re-
maining faithful to their legal traditions, as obeying both was impossible.
This interpretation, which dominated the field for many years, has been
largely discarded. Instead it is now proposed that the new method devel-
oped in universities did not necessarily replace the previous legal system but
it came on top of it, suggesting new ways to organize, explain, and system-
atize the preexisting normative order.
According to this interpretation, preexisting laws and ius commune
peacefully coexisted. This could happen because indigenous local law, leg-
islation (where it existed), and native variants of canon and feudal law were
all identified by ius commune jurists as including a ius proprium (a law
proper to a specific community or place). The task that jurists who were
trained in ius commune undertook was not to remove the ius proprium but
instead to synchronize local arrangements (which continued to vary dra-
matically from one place to the next) by reinterpreting them in ways that
would not be contradictory to the new ius commune. Jurists achieved
this by arguing that ius proprium gave concrete solutions to specific
problems, but both the problems and the solutions should be analyzed,
interpreted, and decided according to the methods developed by ius com-
mune. Furthermore, in cases in which local law gave no answer, in its
capacity as a “general law” (lex omnium generalis) ius commune could inter-
vene, suggesting solutions. Ius commune, in short, would supply the terms,
concepts, procedures, and techniques of analysis that jurists would employ
whether they debated local, Germanic, canon, municipal, feudal, or royal
law. Meanwhile, ius proprium would be understood as the local expression
of a ius commune, the particular, local, manifestation of an ultimate and

shared technique.
Because European kings and municipal authorities called upon jurists to
help them regulate their kingdoms and cities, over time the influence of ius
commune became so pervasive that it greatly modified the ius proprium.
Jurists not only offered advice and proposed legislation, they also compiled,
collected, and arranged the existing law. As they documented institutions,
processes, and regulations, they refashioned them according to their criteria
and understanding. They incorporated, synchronized, and systematized the
normative order to such a degree that by the end of this process it was no
longer recognizable. By that time, rather than explaining ancient texts, what
ius commune jurists mostly did was to intervene in the legal order. Answering
questions, counseling, and surveying as well as chronicling certain practices,
they radically transformed the preexisting law.
An example of how jurists proceeded to do the above can be found in
juridical discussions of naturalization. The local laws of various Italian com-
munes allowed for naturalization under certain conditions. Roman law also
had instructions regarding the transformation of foreigners into citizens. By
studying both, ius commune jurists invented a theory that explained what
naturalization was and what it required. This theory held that individuals’
adhesion to communities was normally tied to birth and descent. It was
therefore by nature that certain people belonged to a polity. For naturaliza-
tion to transpire, foreigners needed to change their nature. This change in
nature could occur if sufficient time had elapsed since the foreigner arrived
at the locality and if he could demonstrate that this prolonged residence had
influenced him. Starting from these premises, jurists listed the conditions
for naturalization and the type of proofs that were required, as well as how
these could be substituted by legal presumptions. They also concluded that
the different practices followed by the various Italian communities were but
local manifestations of this common rule.
Observing how they operated, some historians concluded that by refer-
encing Roman categories and texts, what these jurists mostly did was codify,
systematize, and abstract principles from what they observed unfolding
around them. To return to our example, the ways each Italian commune
treated naturalization were different. Some communes wanted foreigners to
marry locally, o thers demanded that they pay a minimum amount of taxa-
tion, or forced them to acquire real estate, but these differences, jurists
sustained, w
ere inconsequential b ecause all conditions w
ere directed to the
same end. They all sought to establish the same thing, namely, that the
person requiring naturalization had changed his nature and was no longer
a genuine foreigner.
Historians have thus concluded that, rather than understanding ancient
Roman law, what medieval jurists did was to develop methods with which
to synchronize and integrate the various legal regimes that coexisted in Eu
rope and the many sources from which they had emerged. Their main task
was not to interpret ancient documents but to make Roman, Germanic,
local, feudal, and canon law as they w ere practiced in different parts of the
Continent cohere together into a common system, a ius commune.
The Results
The new techniques created by jurists did not remain an abstraction, nor
did they penetrate only the highest echelons of society. Instead they perco-
lated into and affected everyday life even in remote villages. In the late M iddle
Ages, ordinary peasants in tiny hamlets along the Spanish-Portuguese border
often fought over their right to use the land. Although their description of
why the land was theirs did not employ the correct terminology (possession),
it nevertheless faithfully reproduced juridical doctrine regarding land rights.
It suggested, for example, that entitlement depended on having utilized the
territory for an extended period of time without encountering opposition. It
also pointed out that the silence of rivals could be understood as consent.
This conclusion, which referenced a juridical presumption (under ordinary
circumstances, silence equaled consent) was also accompanied by the un-
derstanding that a violent response against invading neighbors did the con-
trary, that is, it manifested disagreement.
The illiterate peasants who engaged in t hese debates had not studied law,
nor were their vindications prepared by lawyers. However, what they said
and did was surprisingly identical to what ius commune jurists argued. It was
based on abstractions offered by t hese jurists after they studied a g reat variety
of customs and ways of doing.
How peasants came into this knowledge is hard to ascertain. They them-
selves gave no clear answer. When asked why they believed certain rules ap-
plied, they clarified that the norms they invoked w ere natural, that they
were universal and that, as a result, they needed no proof or explanation.
Apparently, by that stage, the conclusions of ius commune were indeed seen as
so logical and reasonable and were so widely accepted that contemporaries
assumed that they were common to all humanity, they w ere immutable, and
they w ere true.
The study of law that began in the twelfth c entury thus revolutionized
European normativity. Having no formal means to impose itself, it spread
across borders and through institutions with or without authorities’ approval.
Carried from place to place by jurists who w ere convinced of its superi-
ority, it allowed them to rethink the existing normative order, refashioning
it anew. By the end of this process, there was no place that ius commune did
not touch, no field it did not affect.
6
The Birth of an English Common Law
England formed part of the Roman Empire until the fifth century,
and Roman and Romanized citizens as well as indigenous Celts and converts
to Christianity formed part of its community. Roman law was introduced
to the island and affected in diverse intensities both Roman citizens and
Romanized natives. What happened next is a m atter of debate. According
to most scholars, with the withdrawal of Roman troops, Roman law as well
as Christianity virtually ceased to exist in E ngland. According to o thers,
pockets of both persisted, most particularly among native Celts and in the
western regions.
But regardless of what happened in the fifth c entury, most historians agree
that in the late sixth c entury Roman and canon law w ere reintroduced to
the island by Christian missionaries. Equally present was some version of
Germanic law, carried to England by successive Germanic groups that in-
vaded its territory. As a result of these developments, from the seventh to
the eleventh century the legal situation in England was not dramatically dif
ferent from that in other parts of Europe where native, Germanic (including
Danish), canon, and Roman law all coexisted to some degree or the other.
Evidence from this period illustrates this complexity. In the seventh
century, for example, Roman law was taught at a school in Canterbury.
During the same period, Anglo-Saxon remedies for various offenses were
written down.1 The aim was to replace blood feuds with monetary payment,
a move indicating, according to some scholars, the growing influence of
Christianity and perhaps Roman law (the debate still lingers). In the sixth,
93
seventh, and eighth centuries, Anglo-Saxon donations and testaments often

cited jus ecclesiasticum (ecclesiastical law) as their guide and inspiration, and
so did records of slave manumission as early as the seventh century. By the
ninth c entury, Christian influence on legal remedies was particularly clear,
many making direct references to the Bible.2 Also during this period, some
royal decisions used terms originating in Roman law and so did agreements
that included oath. Seventh-and eighth-century Anglo-Saxon charters dealing
with land imitated formulas used by papal administration, copied the practice
followed in Italy, or bore signs of Frankish and Celtic influence. By the
ninth century the number of charters written in vernacular (Old English)
grew spectacularly, as did the use of legal formulas of Roman origin.
If canon and Roman law gradually penetrated the island, so did feudal
institutions. Anglo-Saxon laws written down after the Norman Conquest
(1066), allegedly in order to reproduce the legal situation predating the in-
vasion, captured many of t hese trends. The Quadripartitus (ca.1108–1118), a
collection of such norms that only survives in fragments, contained a Latin
translation of Anglo-Saxon laws, a few Latin documents, and two treatises
on status, pleading, and theft that followed the structure of Roman law and
were influenced by Christian morality.
Despite striking similarities between developments in E ngland and in
Continental Europe, most historians suggest that beginning in the eleventh
and twelfth centuries E ngland took a different path. This path would allow
the development of a distinct legal system that, according to most, was very
different from the ius commune that came to dominate the rest of Europe.
How and why this happened is the subject of this chapter, in which I trace
the development of English common law and ask whether it was different
from ius commune and, if so, how.
Law under the Early Normans

fter the Norman invasion (1066), nothing indicated that England would
A
take a different path.3 Although early Norman kings established themselves
as colonial rulers, taking over the properties of natives, this political, social,
and economic upheaval was nevertheless accompanied by a legal continuity.
Initially Norman monarchs appeared adamant that such would be the case
and proceeded to record the laws that predated their arrival with the alleged
aim of arresting any possible encroachment on the existing normative order.4
The Birth of an English Common Law 95
In line with what was happening elsewhere, Norman monarchs such as

William the Conqueror (r. 1066–1087) and Edward I (r. 1272–1307) employed
men of letters as aids and councilors. Among such experts was Lanfranc
(1005–1089), archbishop of Canterbury. Lanfranc was an Italian-born teacher
and canonist who, as a member of the King’s Council, advised William the
Conqueror also on secular matters and contributed to the compilation of
existing laws and customs.
There is also evidence that the teaching of Roman and canon law was in-
troduced into England in the middle of the twelfth century by a jurist from
Bologna. This jurist, Vacarius, taught law at Oxford, a new learning center
having no clear date of foundation that nonetheless was considered to have
begun attracting students in around 1096. To help his students, Vacarius
composed a manual (Liber pauperum) that included extracts from the Di-
gest (the sixth-century Roman recompilation of juridical opinions) and the
Codex (the book including imperial legislation) alongside gloss. Copies of
the Roman Corpus Iuris Civilis soon became available on the Island, and in
the late twelfth and early thirteenth centuries the study of Roman law ex-
panded from Oxford to several additional centers. During this period,
training in canon law was introduced into local universities and cathedral
schools, and many Englishmen studied in Continental Europe, while others
avidly purchased Roman and canon law books for their libraries.
It is also currently believed that canon law was practiced in the ecclesias-
tical courts instituted by the Normans in the 1070s. According to this new
understanding, it was only a fter the sixteenth-century Protestant Reforma-
tion that a new doctrine emerged in England requiring canon law, now per-
ceived as a foreign law, to be received or approved by kings before it could
be applied in the kingdom.5
Thus, it is fair to conclude that England initially followed approximately
the same path as many other European countries, where Roman and canon
law were studied and practiced yet local legal arrangements also persisted.
If this was the case, when, how, and why did England take a different path?
The Superimposition of Royal Jurisdiction

Historians usually begin the account of English particularism by explaining
that Norman kings depended on the feudal lords who accompanied them to
the island and ensured its control. Like most other contemporary monarchs,
however, they wished to limit the powers of t hese lords, obtain direct access
to their vassals, and acquire full mastery of the land. To achieve this goal,
they devised ways allowing them to relinquish gradually the mediation of
lords. The method they chose was to extend their jurisdiction throughout
the realm. Beginning with Henry I (r. 1100–1135) and substantially intensi-
fying with his grandson Henry II (r. 1154–1189), Norman monarchs began
instituting a system of royal courts, which were to be superimposed on all
previously existing jurisdictions.
How they accomplished this task was beautifully described at the very
end of the nineteenth century. Although many historians now contest this
narrative, believing it a legend, it is nevertheless a story that deserves telling.
According to it, initially Norman kings demanded the right to intervene in
disputes and guarantee their peaceful resolution only when they were phys-
ically next to the litigating parties. This usually meant that their jurisdic-
tion was limited to individuals who w ere in attendance at their court. In a
subsequent stage Norman kings began appropriating the power to ensure
peace on special days such as their coronation or the weeks of Christmas,
Easter, and Pentecost. Eventually they moved from protecting dates to
protecting territories. They first defined the jurisdiction of their court in a
comprehensive way that covered a perimeter of up to three miles from
where they were physically located and then applied special protections to
the main roads and waterways of the kingdom u nder the excuse that they
led to the court. Gradually the network of roads and waterways under royal
jurisdiction was broadened to include almost all roads and waterways. By
the close of the thirteenth century, lawyers at the service of the monarchs
developed a legal fiction according to which the king was present every-
where in the kingdom. Thereafter, the protection of the monarch, which
was once limited to his household, included the entire realm and “the
king’s peace had fully grown from an occasional privilege into a common
right.” 6
The imposition of royal jurisdiction throughout the realm, which was first
temporal (protecting certain dates) and then geographic (protecting certain
places), was also carried out by assigning certain matters to royal hands. Here,
too, the process was gradual. Norman kings justified their growing inter-
vention by indicating that certain issues w ere of particular interest to them
and w ere thus worthy of their attention. Among such issues w ere disputes
over the exercise of royal franchise or the protection of particular persons.
Despite this extension, local, municipal, feudal, and ecclesiastical courts

persisted—except that now superimposed on them was a web of royal ju-
risdiction. This web was extremely thin: it is estimated that u ntil the late
eighteenth century, rarely were there more than fifteen judges in all royal
courts. Furthermore, although placed on top, royal judges had no supervi-
sory functions: their jurisdiction was entirely separate from that of ecclesi-
astical, local, and feudal courts. Adding royal courts on top of the existing
system of adjudication, therefore, did not create a hierarchical pyramid.
What it did was to allow litigants the choice whether to take their conflicts to
local, municipal, ecclesiastic, or feudal courts, or to request royal involve-
ment. Choice, however, was given only to freemen. Those who w ere unfree
had no right to plead before the king and no ability to solicit his protection.7
The growing web of royal jurisdiction led to occasional tensions, but by the
thirteenth and fourteenth centuries almost any free man owing allegiance to the
monarch could request his intervention in a multiplicity of affairs. This ex-
tension was justified by invoking the crown’s responsibility to guarantee
peace, which involved primarily the ability to adjudicate conflicts.
A Growing System of Writs

The growth of royal jurisdiction required the development of new legal
mechanisms. If, initially, kings could hear plaintiffs in person, they soon had
to delegate this faculty to some of their men. As the number of individuals
involved in hearing cases for the king grew, several royal courts w ere insti-
8
tuted. As officials and institutions proliferated, additional instruments were
created to regulate their activities. Together t hese developments, particularly
noticeable in the mid to late twelfth century but continuing thereafter, led
to the emergence of what we now identify as the English common law.
This development was gradual. Early royal intervention was administra-
tive rather than judicial. When the king or his officials received reports of
wrongdoing or a breach of the peace, they sent to trustworthy individuals
an order to redress the situation. This order, written in Latin on a small parch-
ment and bearing the king’s seal, was known as a “writ.”9 Written in the
royal chancery by royal officials, it reproduced the version of the offended
party and gave instructions as to how to remedy the situation. For example,
a lord might decide that b ecause his tenant did not pay him feudal dues, he
should be evicted. If the tenant disagreed and believed he could find no
remedy at his lord’s court, he could take the issue to the king. If the king (or
his officers) thought the matter deserved their attention, they could issue a
writ that instructed the addressee, a man of royal confidence, to make sure
that the lord would not proceed to oust the tenant. Writs could instruct lords
how to h andle the conflict or they could order them to listen to the parties
and adjudicate their claims.
Writs included an executive peremptory instruction meant to guarantee
peace. They were considered an efficient tool allowing the king, who was
charged with overseeing the welfare of the kingdom, to intervene in selected
cases. Yet although they supplied an efficient and immediate solution to
problems that needed redress, they w ere easily abused. Issued ex parte at the
request of the interested party, their grant assumed that the petition was
justified. Nonetheless, b ecause those requesting royal intervention some-
times misrepresented what had transpired, in the twelfth c entury a further
development took place. Writs began allowing alleged wrongdoers to choose
between complying with the order or appearing before a royal delegate in
order to explain why he or she should not.
This development, which allowed wrongdoers to defend themselves, was
revolutionary. It transformed writs from administrative documents into
orders to initiate litigation. Writs now sent the parties to royal officials who
heard their cases and decided whether the remedy included in the writ should
be granted or not. The need to appear before royal officials, justifying why
the writ should be applied or denying that it should, gave rise in the thir-
teenth century to a procedure known as “pleading.” Armed with a writ, a
plaintiff would present himself or herself before a royal official in order to
narrate the facts that justified the concession of a remedy. The defendant
would respond by denying some or all the facts, by admitting the facts but
giving them another interpretation, by denying the relevance of the writ, or
by introducing additional factors (excuses) that explained why, notwith-
standing, a remedy should not be given. The plaintiff would then respond
by invoking a similar set of preestablished answers.
This exchange between the parties was extremely formal. Rather than de-
scribing the facts of the case, it consisted of a set of pre-ascribed positions
and responses that the plaintiff and the defendant could invoke. The ex-
change continued until it became clear what was agreed between the par-
ties, and what was contested. It was only a fter this clarity was achieved that
the case went to “trial.” Contrary to pleading (that concentrated on claim
making), during the “trial” the parties had to prove the facts upon which
their claims were based. Proof could be established in a variety of ways de-
pending on time, issue, and place. The parties could take an oath, be sub-
jected to an ordeal, or a jury could be called upon. A fter the facts of the
matter w
ere proven (or not), the adjudicating official (now properly func-
tioning as a judge) determined whether the remedy included in the writ
should be granted (or not).
How Writs Functioned

In the centuries following this transformation, writs became instruments al-
lowing litigants to begin a lawsuit before royal officials. Issued by the royal
chancery, they reproduced the decision (1) that the case was within royal ju-
risdiction and (2) that it justified the king’s intervention. The writ instructed
royal officials, now identified as “justices,” to hear the case. If writs w ere a
means to commence litigation, their denial marked the impossibility of ad-
dressing the royal courts. In cases in which the chancery decided that t here
was no reason or cause for the king to intervene, it refused to issue a writ.
The immediate consequence was that royal courts had no jurisdiction over
the affair. Litigants who failed to secure a writ were thus barred from pleading
before royal courts, but they could still find redress in local, feudal, or ec-
clesiastical courts.
Initially writs were issued individually to the person requesting royal as-
sistance and they covered the specific circumstances of his or her case. They
were ad hoc and particular, w ere delivered sealed, and theoretically could
be used only once. Obtaining a writ required a substantial investment in
time, energy, and funds. Litigants had to convince the chancery that their
case merited royal attention, which during this early period was always pre-
sented as an exceptional grant rather than a routine right.
Because writs depended on the willingness of the king to intervene, they
were mostly granted to individuals whom the kings wanted to protect and
they covered issues that the king was most keen to control (mainly those
that could potentially curb the powers of lords) or that carried a greater risk
for a serious breach of peace. They w ere the product of piecemeal decisions
that reflected the monarch’s conditions and interests. But if writs depended
on the king’s willingness to intervene, they also w ere conditioned by the ex-
istence of a party interested in obtaining them. Pragmatic and practical
rather than abstract and theoretical, writs existed b ecause there was a con-
flict that required resolution, a party who chose to bring it to a royal court,
and a chancery that, representing the king, decided to intervene. Writs thus
proliferated in areas in which individuals sought royal protection and the
king was willing to give it. This meant that the creation of writs was driven
by private interests rather than by considerations of public good, and it was
shaped by the economic, political, and social circumstances of the time.
The Institutionalization of Writs

Although writs began as ad hoc, individual solutions to particular problems,
over time some writs became institutionalized. By the mid-t welfth c entury,
and more clearly in the thirteenth c entury, the chancery began keeping a
record of which writs had been issued in the past, and it routinely expressed
willingness to continue doing the same. As a result of these developments,
writs were no longer ad hoc solutions given to particular plaintiffs on a case-by-
case basis. Instead they became a fixed formula that litigants could obtain if
they knew what to ask for. To facilitate the identification of existing writs,
many received names, such as praecipe quod reddat (“command that he
render”), which instructed local authorities to give plaintiffs the land they
claimed as their own, or the novel disseisin (“recent dispossession”), which
did the same with regard to possession. Contemporaneously, a public list of
obtainable writs also made its appearance.
The growth of writs was spectacular. In around 1189 there w ere some forty
writs; by the end of the thirteenth c entury their number was ten times
larger. As writs became popular, royal jurisdiction extended, and as royal
jurisdiction extended, new writs were produced. In the process, royal inter-
vention, which was originally viewed as exceptional, became routine. By
that stage it was possible to imagine that royal jurisdiction would become
limitless, eventually supplying a remedy for almost e very wrong.
The success of writs was tied to monarchs’ ability to attract litigants to
royal courts, which litigants preferred over feudal, local, or ecclesiastical
courts. There were very few explicit statements of why this was the case, but
most historians believe that if litigants preferred royal jurisdiction, it was
because they thought it more equitable or more efficient than local or lordly
decision making. One of the advantages of royal courts was the ability to
compel defendants and jurors to appear in court when summoned. Also
important was the fact that judgment rendered by these courts was recorded
in rolls, which were safely stored in the Tower of London and could, in
theory, be found when needed. It is also possible that royal courts were re-
garded as instances in which, contrary to what transpired in other courts,
an impersonal, rule-bound process of dispute resolution took place.
The system of conflict resolution that emerged as a result of all these de-
velopments was gradually identified as “common law.” This system was
“common” b ecause it was superimposed onto local, municipal, and feudal
jurisdictions, it potentially encompassed the entire realm, and it was open
to all t hose under allegiance to the king.10 The commonness that it referenced
was politic al. This stood in clear opposition to ius commune, which, com-
bining Roman, canon, and feudal law, was identified as “common” because
it was theoretically shared by all the inhabitants of Latin Christendom.
These inhabitants w ere perhaps divided into a multiplicity of diverse,
even rival, polities, yet they adhered, so it was alleged, to a single culture,
a single religion, and a single (common) law.
Writs, Remedies, and the Growth of Common Law

In theory, by granting writs the king (and his officials) supplied the forum
(the court) and the procedure (which cases would be heard and by whom)
but not the substantive norms that would be applied. It is nevertheless clear
that, in practice, by giving access to the courts and by granting certain rem-
edies in certain cases but not in others, the king substantially modified the
existing normative order. Each time his chancery issued a writ allowing liti-
gants to seek a specific remedy, it also implicitly recognized the existence of
a right. And if allowing litigants access to the court created new rights, de-
nying a writ was the same as the suppression of a right or an obligation. These
rights and obligations theoretically continued to exist, but in practice they
were no longer available because t here was no writ enabling the interested
party to request their implementation.
This relationship between remedies and rights was to become the most
salient feature of common law. This important characteristic was already
present in the formative period. In the twelfth, thirteenth, and fourteenth
centuries, writs recognized (and thus created) such important rights as
the right to inherit land (given by the assize of mort d’ancestor, a writ en-
abling a plaintiff to sue a defendant for taking land that the plaintiff had
inherited a fter the death of his kinsmen) or the right not to be charged
with a crime u nless there was an official indictment or presentment (es-
tablished by the assize of Clarendon, 1166). The linking of remedies to
rights became more pronounced as time passed. By the early modern pe-
riod it occupied such a central place that many began arguing that common
law was nothing other than a system of rights, which they identified as the
rights of Englishmen (see Chapter 8). During this period, old writs such as
habeas corpus (“have the body”) regained particular prominence. It was now
suggested that this writ, which ordered authorities to present the judge with
the body of the person in custody, constituted a remedy against unlawful
imprisonment. It was further argued that, by supplying this remedy, habeas
corpus indirectly recognized the right not to be imprisoned without cause.
Eventually the idea that remedies created rights would be so important
that it could lead to decisions that otherwise could be considered peculiar.
This happened, for example, in 1704 when the House of Lords, sitting as an
appeal instance, reversed a decision by the Queen’s Bench denying recourse
to an individual deprived of the right to vote in parliamentary elections. The
denial was based on the commonsense observation that the individual re-
quired no remedy b ecause his preferred candidate won the election even
without his vote. The House of Lords disagreed b ecause “if the plaintiff has
a right, he must of necessity have a means to vindicate and maintain it and a
remedy if he is injured.” It was a vain t hing, the lords argued, “to imagine
a right without a remedy, for want of right and want of remedy are recip-
rocal.”11 The lords’ conclusion was straightforward: though the inability to
vote made no difference because the candidate preferred by the plaintiff won
the election anyway, the petitioner must receive a remedy because, under
common law, the lack of remedy implied the lack of right. Thus, if the court
did not grant the petitioner a remedy, it would be as if it did not recognize
his right to vote.
The Centrality of Procedure

If common law was particular in its insistence on the relationship between
remedies and rights, it was also special in focusing attention, not on ensuring
material justice (as Continental courts did), but on controlling the way the
courts functioned. Because it was founded as a system of licenses (writs) al-
lowing litigants to plead before royal officials, common law was extremely
attentive to procedural issues. It did not ask what the proper result should
be but whether the right procedure would be followed.
Pleading—how the parties translated their agreements and disagreements
into legal formulas that could be used at the court—was often considered
the most important issue. This translation began when the plaintiff chose to
invoke a specific writ, the defendant responded to it, and the plaintiff re-
plied. Because pleading was crucial to defining the issues at stake, experts
of common law insisted that it was essential to verify that it was done cor-
rectly. In the late M iddle Ages this became the main task of royal justices
who presided over these exchanges and ensured that the parties followed an
acceptable script. Because by that stage knowing which writs existed and how
to employ (and answer) them became a sophisticated pursuit, most legal lit
erature was dedicated to describing the complex ceremonies and formulaic
exchanges that ruled over the working of royal courts and advised practi
tioners on how to channel cases through them. The preparation of lawyers
followed this route, mostly centering on teaching candidates the art of
pleading and procedure. Yearbooks that reported on what happened in courts
did the same. Rather than describe rules and principles or narrate the deci-
sions reached by the judges, they reproduced the dialogues between the par-
ties and the judge, which led to the adoption of a commonly acceptable
question. The issue for them was how cases were actually formulated and
argued (that is, h
ow the facts of the conflict were transformed into legal argu-
ments), identifying what good claims w ere and how they could be presented.
Procedural rules were at the center of how the common-law courts op-
erated, but they w ere also important for safekeeping the prestige of royal
justice. For the royal system to operate well and compete successfully with
local, feudal, or ecclesiastical courts, it was essential to guarantee its repu-
tation. This could be done by, among other t hings, ensuring litigants that
a certain procedure would be followed without making exceptions b ecause
of the identity of the parties or the nature of the case. Among the instru-
ments devised to do so were the many rules we now identify as embodying
“due process.” These rules w ere designed to make sure that judges would be
impartial umpires whose main task would be to give the same opportunities
(that is, procedural rules) to both sides, allowing them to plead their cases
as if on equal grounds.
Because the task of common-law judges was mainly to oversee the ex-
changes between litigants at the court, not to verify the making of justice,
common law left almost no room for appeals. “Writs of error” allowed a su-
perior court to review and correct the proceedings of lower courts, but these
were mostly restricted to procedural errors that w ere evident in the record
and did not extend to challenging, for example, the factual or legal basis for
the decision. In exceptional cases, rather than allowing to appeal, common-
law courts allowed revisiting a case by ordering a new trial.
It is therefore not surprising that even as late as the fifteenth century,
common law judges often refused to depart from the traditional system of
rules in order to ensure material justice. The contrast with the rest of Eu
rope could not be greater. Continental judges were charged with doing
justice. How they arrived at a just decision was not particularly consequen-
tial. Although litigants in most countries had to follow a certain procedure
in order for their cases to prosper, for much of the medieval and early modern
period, this procedure was based on the “practice of the court.” Rather
than prescribing a strict formula, it could be abbreviated if the judge con-
sidered it beneficial, or prolonged, if justice so required. Suspects of crim-
inal offenses, for example, had a right to trial, that is, the right not to be
sentenced without a court reviewing their case, but judges had a huge dis-
cretion as to what would actually happen once the case was brought to their
attention.12 U ntil the sixteenth and even the seventeenth century, Conti-
nental judges could render decisions “following their conscience” rather
than the law. As a result, while common law mostly admitted appeals on
procedural issues, European courts did not. There, appeals were always
based on the allegation that the decision was unjust, the question whether
a specific procedure had been followed or not being considered almost
irrelevant.
Professionals of the Law

During the formative period of common law, members of the higher eche-
lons of royal administration, judges included, were often trained professionals
who had studied canon or Roman law at universities or cathedral schools.
Ranulf de Glanvil (ca.1112–1190) was an important and influential judge
during the reign of Henry II. He was said to have written the Tractatus de
legibus e consuetudinibus regni Angliae (ca.1187–1189), which was a manual
that surveyed the work of the English royal courts. Meant not only to re-
produce the practice followed by these courts but also to give it intellectual
coherence and authority, the manual was composed in Latin rather than in
French (the language of the court), probably to bring it to European-wide
scholarly attention and have it taught in schools and universities.
Henry of Bracton (Bratton) had a similar profile. The alleged author of
De legibus et consuetudinibus Angliae (ca. 1220s–1250s), a work most scholars
now attribute to several authors rather than to a single individual, and not
necessarily to Bracton, he too was a royal official who was university trained.
Although his participation in the writing of De legibus is currently ques-
tioned, it is nevertheless clear that whoever authored this text was extremely
familiar with Roman law. De legibus collected the norms of common law
while constantly referencing Roman law in ways that echoed contemporary
discussions in universities. Among other t hings, it appealed to ius commune
categories and to Scholastics in order to lend coherence to the Eng lish
records. This was done by drawing similarities and distinctions between
different texts in order to demonstrate that they did not contradict each
other. De legibus also emulated the order and divisions employed in the
Justinian Corpus Iuris Civilis, and it cited numerous passages of it as well as
canon law texts.
It is now believed that t hese two cases, particularly notorious, were not
unique and that in the twelfth and thirteenth centuries common-law experts
looked to and often adopted Roman law solutions much more frequently
than we have imagined in the past. It is also clear, though, that beginning
in the fourteenth century, successive English monarchs began appointing
to the bench laymen with no university training. Instead of preferring ju-
rists, as has been the case before, the main qualification of royal judges was
now that they were obedient servants. Because by that time great practical
knowledge was required to discern, for example, which writ was appropriate
to which case and how it functioned, eventually most royal judges were se-
lected from among the advocates working at the king’s court.
By the fourteenth c entury not only royal judges needed a particular set
of skills, mostly acquired by working at the courts; so did the parties who
had to identify the correct writ, understand which procedural and eviden-
tiary rules were associated with it, and know how to plead affectively. Adju-
dication in royal courts also required knowledge of French and Latin, as
French remained the spoken language of the English royal courts, and Latin
(alternating on occasion with French) its written language, u ntil well into
the early modern period.
The need for growing expertise led to the emergence of legal specialists.
ese included a variety of professionals such as procurators (who could stand
Th
for an absent party), barristers (who specialized in the a ctual pleading in the
courts), and attorneys (who counseled clients). Barristers eventually orga
nized themselves into guilds and began frequenting certain places. These
places, identified as “the Inns,” mostly began as residence halls but soon
emerged also as spaces for socialization and training, where young appren-
tices heard and observed masters perform different tasks. Th ere w ere four
“Inns at Court” where barristers trained, and an Inn of Chancery, where as-
piring attorneys watched how writs and other documents w ere drawn up.
By the fourteenth and fifteenth centuries, most Inns also offered apprentices
sessions of mock trials focusing on the process of obtaining evidence and
following procedures, lessons in argumentation of the law (“moots”), and lec-
tures (“readings”). Lectures required students to analyze written texts, mostly
statutes. Th
ese texts w ere often accompanied by factual cases, which were
meant to exemplify their meaning and extension. Moots w ere centered on
watching courts in action and conducting exercises mainly focused on pro-
cedure, the selection of writs, and pleading.
How Common Law Functioned

The particular way common law functioned can be exemplified by observing
how it developed the distinction between English subjects and foreigners.
Most historians point to a pivotal ruling in which this distinction was clari-
fied. In a decision known as “Calvin’s Case,” judges declared in 1608 that
birth in a territory under allegiance to the monarch was the condition that
rendered individuals English. Why the judges addressed this issue and how
they reached their decision is a fascinating story that illuminates the com-
plex procedures by which common law operates.
Calvin (whose true name was Robert Colville) was a Scot born after the
ascension of King James of Scotland to the English throne (1603). The ques-
tion the court had to answer was w hether, having been born in Scotland
after the u
nion of the crowns, Calvin could be considered an English sub-
ject. The importance of answering this question was that, if declared En
glish, Calvin would be entitled to inherit land in E ngland, but if he was a
foreigner, he would not. The answer the judges gave was positive because
they reasoned that Calvin was born u nder allegiance to James. Allegiance,
the judges stated, was owed to a physical person (James), not to a crown or
a kingdom (the English crown or E ngland). As a result, those born under
allegiance to James in one kingdom were subject to his royal jurisdiction ev-
erywhere. Thus, a Scot born in Scotland u nder allegiance to James could be
considered an English subject in England as long as James also reigned t here.
Today we know that Calvin’s case was a fabricated lawsuit. It was spon-
sored by a group of individuals who wanted to force a decision regarding
the status of Scots. This question had preoccupied James after he ascended
to the English throne. He appointed a commission that concluded that Scots
should be treated as English subjects, and he insisted that such was legally
the case. Yet the English Parliament refused to accept this solution. Because
under common-law remedies created rights, the only way to unblock the sit-
uation was to bring a case in which, by giving a remedy, the judges would
recognize a right, namely, the right of Scots to be treated as English subjects
in England. For this to happen, t hose interested in obtaining this recogni-
tion had to find a person who was in need of remedy.
The person they found was a young child born in Scotland a fter the u nion.
This child had inherited properties in England but his right to them was
denied b ecause, according to common law, foreigners could not inherit land
in E ngland. This child, who claimed to be a Scot in Scotland yet an English
subject in E ngland, thus had a reason to bring an action against t hose who
refused him his rightful inheritance. For the court to grant him the requested
remedy, it would have to recognize him as an English subject. This was
precisely what happened. The court gave Calvin a remedy allowing him to
inherit in England, thereby recognizing him as an English subject. There-
after, Scots born after the union would be identified as such without the
need for Parliament to acquiesce to that result.
This example makes it clear that even as late as 1608 basic questions such
as who was an Eng lish subject and who a foreigner could be resolved in
England not by a royal decree or a parliamentary act, but by appealing to the
courts and requesting a remedy. But Calvin’s case was also exemplary in other
ways. The judges reviewing it tied the right to inherit in E ngland to the status
of English subject. According to them, only English subjects could inherit
land in England; foreigners could not. But this rule too had developed because
of the particular characteristics of common law: its unique insistence on the
relations between remedy and right as well as on procedural requirements
that were often tied to the specific writ that was employed.
Today we know that the distinction between those who could and could
not inherit land in England probably had nothing to do with foreignness
and that, initially, birth outside the kingdom did not make p eople alien. A
question therefore arises: Why and how did the rule connecting land inheri-
tance with foreignness and foreignness with foreign birth come about?
According to historians, the reason may have been procedural require-
ments. The common-law writ that regulated succession determined that, in
order to inherit land, petitioners had to prove their genealogy by supplying
local witnesses. In cases of petitioners born outside the jurisdiction of the
court, the king could order the sheriff of their hometown to send a group of
local men as witnesses. However, this solution was impossible when peti-
tioners were born abroad. As a result, those born abroad were eligible to in-
herit land, but because of the particular procedural requirement tied to the
writ regulating land inheritance, they faced real difficulties in proving their
right to do so. Initially, whether they were or were not English was com-
pletely irrelevant. Nonetheless, over time, because of the tight connection
in common law between remedy and right, the practical difficulty in proving
genealogy (and therefore securing a remedy) was interpreted as inability to
inherit (the absence of right). Thereafter, b ecause there was no remedy
(foreign-born individuals could not prove their genealogy and thus their right
to inherit), there was no right. The circle was now closed: foreign-born indi-
viduals no longer had the right to inherit land in England, and those who
could not inherit because born abroad w ere identified as foreigners.
The Backlash
The proliferation of writs and the growing presence of royal jurisdiction were
not always appreciated by the lords and barons who saw their powers and
privileges diminish. Protests against this state of affairs led to a rebellion that
ended with the adoption of the Magna Carta (1215).13 Contrary to what is
commonly believed, the Magna Carta sought to guarantee mainly the priv-
ileges of the barons and freemen, not the rights of all Englishmen. It was
concerned with ensuring feudal control over land and feudal inheritance,
which legal developments in the late twelfth and early thirteenth centuries
seriously threatened.
Because the Magna Carta failed to resolve t hese issues, King Henry III
(r. 1216–1272), under renewed pressure from the barons who again rebelled,
in 1258 ordered his officials to halt the creation of new writs. In 1285 his son,
King Edward I, made a similar promise that no new royal courts would be
established and none would extend its jurisdiction to new subject m atters.
Because the pressure to extend royal jurisdiction continued and litigants
persevered in requesting royal intervention, in the late f ourteenth c entury a
new system came into being. Its creation was justified by the argument that
although no new common law writs w ere to be established, the monarch
still had to attend to special circumstances that justified his attention. Royal
conscience, it was alleged, could be discharged only if the king did what he
ought to do, that is, defend the weak and dispense justice. To comply with
this duty, presented as a moral obligation, the king would institute new pro-
cedures. In exceptional cases, because justice so required, he would allow
his chancellor to hear litigants and grant them an extraordinary remedy if
existing common-law writs supplied none.
As a result of t hese developments, litigants who could use writs already
recognized by the Chancery took their cases to the ordinary royal courts
(common-law courts). Those who could not find an appropriate solution in
the registry of writs addressed the Chancery and requested its extraordinary
intervention.
This development introduced a new system of conflict resolution. This
system was distinguished from common law because its operation, at least
initially, was divergent. While by that stage (the fourteenth century) common-
law courts were routinely open to all those who could find an appropriate
writ in the registry of writs, the new system gave remedies only in excep-
tional cases and it had no preset list of c auses of action.
This new system, emerging in the fourteenth c entury, was called “equity,”
and the court that adjudicated these extraordinary remedies was identified
as the Chancery court. Meant to deal with exceptional situations, equity was
intentionally fashioned as a flexible system with fluidly defined rules. It de-
pended on the discretionary powers of the chancellor, who was empowered by
the king to solve difficult cases in which common law supplied no appro-
priate solution. This, however, did not mean that equity was a completely arbi-
trary system. Initially most Chancery officials were university trained and
many of them were ecclesiastics. As a result, they frequently, directly or implic-
itly, a dopted the criteria, doctrines, and procedure of canon and Roman law.
In the fourteenth and fifteenth centuries, equity was where the most
exciting legal developments took place. Filling the vacuum left by the
institutionalization of common law, equity fostered the creation of new

instruments. Among them was the issuing of injunctions—remedies that
forbade the defendant from taking certain actions otherwise allowed. Equity
courts also elaborated means to enforce judicial decisions, for example, by
way of sequestration, authorizing the interested party to seize the properties
of the opponent who refused to obey a court order. Another important
remedy created by the Chancery court was the prohibition of enforcing
unreasonable, even if legal, contracts. Equity also developed important new
areas such as trust, mortgages, guardianship, bankruptcy, commercial part-
nership, and corporations, and included doctrines defining honest mistakes
as well as fraud.
Despite its original malleability, over time equity also became more in-
stitutionalized and more rigid. As with common-law writs, it evolved into a
system of permanent solutions. Th ese solutions would find their way into
lists of (equity) remedies that the parties could invoke. By the late fifteenth
century, equity thus clearly evolved into a second system of royal adjudica-
tion that ran parallel to the older system of common law, often interacting
and influencing it and vice versa. Thereafter, equity and common law began
integrating. This happened in part because individuals trained in common
law became chancellors; that was the case of Thomas More (1478–1535).
But the integration of equity with common law was also the result of changes
in the Chancery itself. By that time, rather than adopting ad hoc decisions
justified as exceptional because meant to discharge royal conscience in par-
ticularly difficult situations, chancellors began applying the same principles
of fairness to all similar cases. This tendency for repetition became the rule
in the second half of the seventeenth c entury, when the principals of equity
were formally systematized and classified. Thereafter, the royal conscience
that equity guarded became civil and political rather than natural and in-
ternal.14 No longer focused on discharging a subjective royal sense of right
and wrong, it now aimed at guaranteeing an objective fairness and providing
comparable solutions to similar conflicts.
Royal Legislation
Coinciding with the institutionalization of common law and the formation
of equity, English monarchs proceeded to legislate. From as early as the reign
of Henry II and throughout the M iddle Ages and the early modern period,
successive kings intervened in the legal order by enacting important statutes

touching upon a diversity of subjects. In the Assize of Clarendon (1166),
Henry II modified criminal procedure, instructing that all criminal accusa-
tions were to be made by a jury of twelve men (presentment). The assize also
established that criminal jurisdiction would be in royal hands as would be
the execution of convicted felons.
Equally famous were the statutes of Edward I that made trial by jury com-
pulsory in criminal cases, extended the scope of actions for damages, and
modified various aspects of land regimes. Several edicts by Henry VIII, such
as the Statute of Uses (1536), which regulated ownership and taxation, and
the Statute of W ills (1540), which allowed owners to determine who would
inherit their land, w ere of importance for property law. The Statute of Frauds
(1677) conditioned the validity of certain legal transactions in real estate on
these transactions being recorded in writing and the documents being ap-
propriately signed.
From the late thirteenth and f ourteenth centuries, Parliament, which had
begun as an advisory council and a court, began acquiring additional powers.
Among them was the hearing and presentation of petitions that sought to
address questions of legal, economic, political, or administrative nature. The
king’s response to these petitions was considered a legislative act, most par-
ticularly when it included instructions regarding applicability in the future.
By the mid-fourteenth c entury, a substantive amount of royal legislation was
enacted in this way. Although initiated by Parliament and often almost au-
tomatically granted, the power to enact remained exclusively at the hands
of the king.
Historians have long debated the importance of royal enactments. Some
suggest that because royal courts habitually assumed that royal legislation
could not contradict existing arrangements, they took g reat liberty in
interpreting it, on occasion even making exceptions to it, expanding its
instructions, or, on the contrary, ignoring them altogether. Th ese observers
also conclude that common law was superior to royal legislation because
legislation mainly repeated rather than changed existing norms, and stat-
utes w
ere not very numerous if compared to the quantity and importance
of other legal sources. As a result, even if statutory law was important, it
was responsible only for a small fraction of the growth of law, and it mainly
functioned in particular areas of law such as criminal law or real property,
but not others.
Other scholars point out that even as early as the thirteenth c entury judges
habitually discussed what the statutes prescribed. They suggest that lawyers
training in the Inns of Court were taught to comment on royal legislation
and that statute books w ere copied for their use. Some even argue that the
study of statutes was the centerpiece in lawyer’s education. If legislation was
such a marginal component of the legal system, how could this be explained?
Is it possible that our image of early common law was influenced too much
by seventeenth-century developments that sought to decenter the king and
make this law customary?
Was England Exceptional?

The system we now recognize as common law thus consisted of a collection
of remedies and procedures for settling disputes that developed as a result
of the growing preeminence of royal jurisdiction. It was based on the belief
that royal courts would be more just or more efficient than feudal or local
courts, and it was enabled by the success of English monarchs in central-
izing the administration of justice and affirming their superiority vis-à-vis
both lords and local communities. Although gradually triumphant, until the
seventeenth century (if not later) common-law courts nevertheless competed
with local, feudal, and ecclesiastical courts, which continued to exist, as well
as with the Chancery court, which developed a system of its own (equity).
Was the situation in Continental Europe dramatically different?
Historians who concluded that E ngland was exceptional tended to con-
centrate on the impermeability of its legal system to the influence of Roman
law. They argue that, although spreading throughout Europe, ius commune
failed to penetrate E
ngland, at least to the extent to which it influenced other
European countries. They suggest that such was the case because, contrary
to other European monarchs, the Normans who controlled England had no
reason to permit, let alone encourage, the penetration of the new legal method
into the realm. According to these narratives, ius commune was unnecessary
in England because by the time it became available, the English already
had a new, modern, centralized, and efficient legal system that, contrary to
t hose operating elsewhere in Europe, needed no improvement. Hence,
while the authorities and inhabitants of other European territories looked
to ius commune for inspiration and perfection, no such t hing happened
in England.
This narrative dominated much of the scholarship for many centuries,

but it has been criticized since by historians who point out that during the
Middle Ages no modern, centralized, or efficient English system ever existed.
During this period, the English normative order was divided among royal,
feudal, and local courts, and it contained rules originating in Roman, canon,
Germanic, feudal, and local law. Royal courts adjudicating according to
common law included only a small number of judges, and until the eighteenth
century the number of cases they saw was relatively small, if compared to
the quantity and importance of cases adjudicated by other courts.
Furthermore, in the last two to three decades historians have also stressed
that common law was developed by a French dynasty that used the services
and advice of Roman and canon law jurists in order to ensure the supremacy
of royal jurisdiction. Th ese jurists, whose work was essential in the formative
period of common law, employed ius commune terminology, concepts, and
methodology. In some areas, such as guardianship and defamation, common
law was highly influenced by the work of ecclesiastical courts, and even as
late as the fifteenth c entury allowed Roman jurists to plead. It is also pos
sible that common-law judges might have continued to consider Roman
law as an important point of reference even as late as the eighteenth and nine-
teenth centuries, most particularly when they searched for new insights or
desired to create or clarify categories. As far as they were concerned, Roman
law was not binding, but it included a collective wisdom that was worth-
while considering, even adopting. During the same period, lawyers and
judges might have used Roman law as a means to better comprehend common
law in ways that w ere not vastly different from how Continental jurists used
it to solidify and support their own ius proprium.
It is also clear that by fostering royal courts and developing procedures
that sanctioned their activities, English monarchs sought to achieve what
most of their European peers also desired, namely, affirmation of royal su-
periority vis-à-vis (mainly) feudal lords. The way they justified the extension
of royal jurisdiction, by appealing to their obligation to guarantee peace, was
not radically different from what happened elsewhere in Europe, where other
monarchs also referred to their duty to ensure concord. Yet, while the
Norman monarchs proceeded to create their own courts, other monarchs
used ius commune for the same purpose. They believed that because of its com-
bination of Roman and canon law it was sufficiently universal to assist them in
solving conflicts among communities whose laws were radically distinct. The
penetration of ius commune to the territories we now identify as Germany, for

example, is currently interpreted as the result of the urgent need felt by em-
perors for coordination and peacemaking among rival German polities.
If all of the above is true, then England diverged from Europe only grad-
ually. Divergence may have become particularly noticeable in the fourteenth
and fifteenth centuries, which was when the English monarchs at last suc-
ceeded in efficiently extending their royal jurisdiction throughout the realm.
Also determinant was the fact that by that stage most monarchs had ceased
appointing clerics and jurists to their courts and instead selected laymen who
were no longer trained in Roman or canon law. With the absence of
university-trained personnel and the preference for practical training mostly
acquired by pleading before the king’s court, common law (though not eq-
uity) gradually parted from the rest of Europe.
Adding to the distance that gradually appeared between E ngland and the
Continent was the growing prominence in thirteenth-and fourteenth-
century E ngland of lay juries. Juries began as assemblies of local men who
answered collectively under oath to questions asked by royal officials. Used
in the eleventh and twelfth centuries mostly as a means to collect information
locally, in the thirteenth century their employment greatly expanded. During
this period, juries were introduced in England in both civil and criminal
litigation as a means for fact-finding when other mechanisms, such as oath
taking, trial by b attle, or ordeal, became unavailable or w ere considered un-
trustworthy. Initially testifying on knowledge they already possessed as mem-
bers of the local society, by the fifteenth c entury jurors could also consider
other types of information that was brought to their attention.
Although juries also existed in the Continent and their tasks were similar—
to collectively testify to local circumstances—after the Continent moved to
adopt the inquisitorial process in the thirteenth c entury, identifying the
relevant facts and deciding the case was reserved to judges, not juries. Even-
tually t hese distinct paths would lead the English and the Continental sys-
tems in different directions. In Continental Europe, judges would be charged
with the implementation of justice and, in criminal cases, would decide
whether to investigate, whether to bring the suspect to trial, whether the
proofs were sufficient, and what a just resolution would be. In England judges
would oversee procedure, yet juries would decide w hether to prosecute, which
were the fact of the matter, and whether a conviction should follow. Though
less notorious, in civil cases the same distinction between a judge charged
with ensuring justice (the Continent), and a judge that oversaw procedure
(mainly pleading) and delegated decision making in juries (England),
held true.
These differences, however, did not imply that the system that emerged
in England was completely new. Many historians point, for example, to the
striking similarities between common and ancient Roman law. They sug-
gest that in both places conflict resolution and the courts were at the center
of the legal system. In both places, trials were conceptually divided between
a first stage, in which the debated question between the parties was framed
(before a praetor in Rome, and during pleading before a judge in England),
and a second stage, in which nonprofessionals (iudex in Rome, jurors in
England) evaluated the facts of the matter and rendered judgment. In both
places, by granting remedies, praetors in Rome and the king’s officials
in England, created rights. Th ese remedies—which took the form of writs in
England, formulas in Rome—were initially ad hoc solutions to particular
problems but, over time, praetors and officials tended to repeat them. Repeti-
tion eventually led to the creation of a closed list of remedies, which in Rome
found expression in edicts elaborated by praetors and in England in a public
registry of writs. A fter formulas and writs fossilized, legal creation was
channeled through other means: jurisprudence and legislation in Rome, leg-
islation and equity in England.15
As a result, despite what is commonly assumed, ius commune and common
law were perhaps not twins, but they were certainly siblings. As one histo-
rian put it, taking into account the “basic principles, organizing ideas, tech-
niques of argumentation, and habits of thought,” one “might want to call
the common law simply a variant, admittedly an eccentric variant, of the
multitude of legal systems that ultimately derived from ius commune.”16 Said
differently, Norman monarchs might have been successful at promoting their
own jurisdiction in unprecedented ways, but the legal system they instituted
was heir to a European past and engaged in their European present. As will
be argued in Chapter 8, if E ngland seriously parted ways from Europe, this
may have happened not during the M iddle Ages but instead during the six-
teenth and seventeenth centuries, when common law was reinvented by
legal experts who sought to curb royal ambitions.
part four
The Early Modern Period

7
Crisis and Reaffirmation of Ius Commune
The premise of ius commune was the existence of a single community,

Christian and Roman, identified as Latin Christendom. In the twelfth and
thirteenth centuries when ius commune came into being, this community
was Catholic, that is, it sustained the fiction that its tenets included that
which has been believed always, everywhere, by everybody.1 Heirs to the
Roman Empire, and upholding its traditions, the members of this commu-
nity shared submission to a single central authority (the pope), a common
Roman and Germanic heritage, and, with the emergence of ius commune,
also a single overreaching legal system that harmonized to some degree the
enormous differences between the normative order of one place and the next.
Despite internal divisions and extreme localism, which often led European
Christians to confront one another bitterly, as far as contemporaries w ere
concerned, they all lived in a single ecumene—a common inhabited world.
These convictions came under pressure in the fifteenth and sixteenth cen-
turies. Political divisions in Europe grew stronger as monarchs gradually
affirmed their supremacy vis-à-vis both local lords and universal powers such
as the pope and the German emperors. Th ese monarchs strove to control
territories they now defined as kingdoms and fought to establish themselves
as sovereigns—that is, superior—not only with respect to other authorities,
but also with respect to the law. Th ese processes became particularly acute
in the sixteenth century with the coming of the Protestant Reformation
and the secession of a g reat variety of reformed denominations from the
Catholic Church. With political and religious fragmentation, it was only
119
natural that the idea of a common European / Christian law would also
come u nder attack.
Legal Humanists and the Contextualization of Roman Law

Although political and religious strife in Europe justified growing disbelief
in the shared heritage of a community that was once thought to be united
culturally, religiously, and (to some degree) politically and legally, the first
signs of fissure were intellectual, and they found expression in a current of
thought we now identify as humanism.
A product of the Renaissance, humanism was an intellectual, political,
and artistic movement that began in Italy in the fourteenth century and soon
spread throughout most of Europe. The Renaissance glorified antiquity but
it also sought to place man at the center of its attention. Th ose scholars who
shifted their focus from law, medicine, and theology to the study of the arts
(grammar, logic, arithmetic, geometry, music, astronomy, and rhetoric) be-
came known as humanists. Some among them embarked on philological
studies and devoted themselves to the vernacular languages of Europe. Others
were interested in history and material culture. They developed a taste for
antiquarianism and surveyed how techniques, preferences, and meanings
changed over time and according to location. H uman experience, human-
ists insisted, was always circumscribed by the period and place in which it
transpired, and an understanding of it could never be disconnected from
the where, when, and how.
These beliefs, which questioned both the unity and the permanence of
culture, placed humanists in a perfect position to stress differences and dis-
junctions across Europe. They encouraged them to appreciate the particular
practices they observed around them and to insist not on commonalities but
instead on divergences.
Applied to the study of law, t hese beliefs led humanists to criticize ius com-
mune scholars for disregarding context and employing no historical per-
spective. University-trained jurists, humanists argued, abused rather than
used Roman law. They employed it to solve present-day conflicts but had
not attempted to understand it properly. Criticizing this treatment, human-
ists insisted that law was always a product of the particular circumstances
of the society that created it. To understand what it instructed, it was vital
to historicize the law (to study change over time) as well as to contextualize
it (to study it in context).
Crisis and Reaffirmation of Ius Commune 121
While criticizing jurists for failing to account for how society and lan-
guage had changed since Roman times, humanists also censored them for
misunderstanding the nature of the legal sources they analyzed. Ius commune
jurists w ere mostly interested in harmonizing different pieces of Roman law.
Their methodology, Scholasticism, was based on the assumption that these
sources w ere coherent rather than contradictory. Even though this method
had proved useful to the development of ius commune, humanists insisted
that it was nevertheless very wrong. The Corpus Iuris Civilis that ius commune
jurists studied, and most particularly the Digest, which included the opinions
of Roman jurists, in fact comprised a wide, almost accidental, array of frag-
ments. Written by different p eople at different points in time, these fragments
were not consistent. Instead, each obeyed the logic of its time, place, and au-
thors, and the different fragments often contradicted one another.
Humanists therefore argued that the basic methodological assumptions of
ius commune jurists could no longer hold water. To truly understand Roman
law, what jurists needed to do was historicize and contextualize it. They
would have to account for the differences between Rome and their society
and consider Roman law as a historical phenomenon that had undergone
constant changes and mutations. This would require that jurists divide
Roman law into several periods and distinguish the different places in which
the various fragments w ere produced and the identity of their authors.
Jurists would also need to acknowledge the existence of multiple schools of
thought and the presence of contradictory solutions.
The Emergence of a French Method of Law

Historians have long debated w hether humanists’ criticism made a differ-
ence. Those who suggested that it did point to the emergence of a new legal
method. Identified as mos gallicus (the French manner) to distinguish it from
the existing method (now baptized as the mos italicus, the Italian manner),
this new method was practiced mostly by French legal humanists.2 These
humanists a dopted a historical and philological approach to Roman law. Not
unlike eleventh-century jurists, they began by reconstructing the texts they
wished to study. Seeking to purge existing versions of the many errors they
allegedly contained, they published critical editions and tried to eliminate
or at least discredit defective copies. Some humanists even reorganized the
Roman compilations that eleventh-century jurists had composed, reordering
them according to genealogy rather than subject matter.
A fter humanists were satisfied that they had reconstructed an accurate

body of Roman law, they proceeded to study t hese revised texts. Applying a
new approach, they made contradictions consequential—because they be-
lieved that they encapsulated disagreements, proved the development and
change of law over time, and showcased regional differences. Presenting their
work as an archeology of sorts, humanists labored to rediscover what Roman
law instructed at each given moment. They dug u nder centuries of accumu-
lated juridical exegesis that, according to them, obscured rather than clarified
what this law was. Contextualizing Roman texts, determining the original
meaning of terms, inquiring how they had changed over time, and consid-
ering each fragment separately, humanists thus strove, not to reconstruct a
coherent message (as eleventh-and twelfth-century jurists did), but to dis-
cover an evolving and living normative world.
Legal humanists relied on a close reading of texts, but they also applied
their knowledge of the past to their analysis. They read nonlegal sources and
integrated into their understanding the study of material culture and material
remains. Humanists also considered Greek texts that predated Roman law, as
well as Byzantine legal sources. Mostly applying their energy to Roman law,
some studied feudal and canon law. Their work ended up portraying much of
medieval jurisprudence as being a gross misinterpretation because those who
elaborated it were ignorant of classical culture, dismissed change over time,
and a dopted the false assumption that law was always homogeneous and wise.
The Protestant Reformation

The propositions advanced by legal humanists would eventually find their
widest implications with the coming of the Protestant Reformation. Stan-
dard narrative suggests that the Reformation began in 1517 when Martin Lu-
ther published his ninety-five theses against indulgences (reduction of time
in purgatory in exchange for payment of fees). Luther was neither the first
nor the last to criticize this practice, but his claims unleashed massive re-
form and counter-reform movements within Christianity. Regardless of why
his particu lar protest became powerf ul enough to divide Christians into
Catholics and Protestants, a question historians still debate, from a legal-
history point of view the Reformation was an important point of rupture.
First and foremost, it made people ask whether a single community of belief
indeed existed in Europe and whether this community could be adminis-
tered by a single shared ius commune. By the mid-sixteenth c entury the

answer was mostly negative. Following this conclusion, the new religious
denominations (now identified as Protestant) began elaborating their own
laws. No longer was there a common canon law, and by implication it was
unclear that ius commune could survive this crisis.
The Reformation also had indirect implications for w hether law could
guide Christians, and if so, which law. The Reformed denominations of course
believed in a lawgiving God, but in most Reformed churches salvation became
an individual affair that did not require legal mediation. Jurists were enemies
of Christ rather than his helpers, and law should not mediate between a be-
liever and his faith. It was the task of secular, not ecclesiastical, authorities to
elaborate sanctions that would deter sinners and guide the righteous. At any
rate, faith, as Martin Luther argued in his famous essay “On Christian Lib-
erty” (1520), depended on God’s grace, not on a blind, mechanical obedience
to legal precepts. Because the Scriptures contained everyt hing Christians
needed to know, all that was required to obey God’s w ill was to translate the
Bible into the vernacular and ensure that each h ousehold had a copy.
The Reformation thus proposed interpretations that could potentially
affect the normative world. It negated the existence of a single community of
believers in Europe and the possibility that all Christians would share a single
canon. It also decentered the normative system altogether by arguing that
neither law nor legal experts were required to guide Christians to salvation.
Politically the Reformation brought about a division between Catholics and
Protestants and among the various Protestant denominations. Rupture led to
a century of religious wars, which sometimes focused on doctrinal disagree-
ments but also w ere fought to obtain economic, political, and social goals.
Characterized by extreme violence, these wars, which divided families,
cities, regions, and kingdoms, further diminished the belief in a unified
Christian ecumene.
The Combined Effect of Humanism and Reformation

The combination of humanism and the Reformation was extremely subver-
sive. Ius commune depended on religious unity, now broken, and it was also
tied to the prestige of Rome. It had an authoritative appeal b ecause it was a
useful instrument for solving disputes and harmonizing the distinct laws of
Europe, but also because it was backed by the Church and was said to have
originated in an exalted past. If the backing of the Church no longer mat-

tered b ecause many believers no longer followed its teachings, and if medi-
eval jurists had erred and their method was a distortion of the truth, then
the status of ius commune had to be questioned, too.
Although this subversive potential was not apparent everywhere—
protestant Germany and the Netherlands, for example, continued to adhere
to and even enhanced their dependence on Roman law3—it is not surprising
that in the mid-sixteenth c entury a particularly virulent strand of legal hu-
manism became associated with the Reformation. While Church reformers
disputed the authority of the pope and advocated a return to an early (and
thus more authentic, according to them) Christianity, legal humanists ar-
gued the same with regard to law. They wished to free themselves of the work
produced by generations of jurists and instead revert to a so-called genuine
Roman law. Both Reformed ministers and legal humanists insisted that this
return to an early yet authentic past could be achieved by better under-
standing the texts that survived from antiquity. John Calvin’s commen-
taries on the Bible (1540–1557) demonstrated this point. Calvin was greatly
influenced by his years as a law student in universities that ascribed to mos
gallicus. It was as a law student that he first formed his vision of the differ-
ences between present and past, as well as his ideas regarding how the Scrip-
tures should be read and interpreted as a result.
Reimagining Local Laws

While many legal humanists challenged the established religious and legal
canon, some also extended their criticism to the political sphere. They mostly
reacted against the growing assertion of supreme power by kings and their
gradual claims for sovereignty. In France, the stronghold of mos gallicus, op-
position to the extension of royal sovereignty led some legal humanists to
turn their attention to local law. According to their claims, if it was correct
to assume that all laws were products of the society that created them, then
France must have an authentic law distinct both from the law in other areas
of Europe and from ius commune.
Following t hese convictions, French humanists proceeded to imagine
what this particular French law was. They collected local laws and attempted
to understand their commonalities and differences. The message they sought
to convey was both legal and political. If t here was an authentic law of the
land, anchored in France’s particular traditions, then this normative order
was superior to all others, including royal mandates, and all inhabitants of
the kingdom, including the king, must obey it.
In trying to affirm the specificity of French law, humanists also turned
their attention to feudal law. There they found elements that were surprisingly
useful for advancing their political and religious agendas. Most important
among them was the idea that relations between lords and vassals depended
on a pact. This pact was perhaps established between two radically unequal
partners, but it nevertheless included mutual obligations. B ecause political
subjection was based on a pact, it was possible to claim that monarchs who
did not fulfill their end of the pact were tyrants and could be legitimately
resisted and replaced. This theory would eventually become a radical phi-
losophy validating both resistance and revolution. Among other t hings, it
would justify, in seventeenth-c entury E ngland and eighteenth-century
France, the execution of kings.
The Customs of France

The work of the French Protestant legal humanist François Hotman (1524–
1590) was emblematic of these currents of thought. Hotman studied at the
University of Orléans and taught Roman law in Paris. A fter a period of exile
in Geneva and Lausanne, he returned to France, where he continued to teach
Roman law. Throughout his c areer Hotman harbored the idea of writing
down the laws particular to France. Identifying t hese laws as “customary,”
he insisted that they were Germanic rather than Roman in origin.
In one of his most famous essays, titled Anti-Tribonian (1567), Hotman
argued in favor of purging French law of the influence of both canon and
Roman law, which he considered foreign elements. Also advocating educa-
tional reform, he criticized universities’ monopoly over juridical training
and suggested that, rather than teaching Roman law, university professors
should impart classes on French law. Hotman also firmly believed that the
notion of uncovering Roman law by studying the Corpus Iuris Civilis was
ridiculous. The Corpus was enacted late (in the sixth c entury) and on the
periphery (in the Eastern empire). It was therefore hardly indicative of what
Roman law was genuinely like.
In his later work, such as Francogallia (1573), Hotman further advanced
these ideas. Striving to uncover the origins of French institutions, he concluded
that they pointed to the existence of a political pact that was particular to
that country. This pact, he argued, delegitimized royal claims for absolutism.
Instead it guaranteed the continuation of several liberties that Frankish sub-

jects enjoyed before the establishment of the monarchy. Because the pact
between kings and subjects was anchored in customary law, monarchs could
not violate it by citing Roman law, because the only legitimate frame of ref-
erence in France was local, French law.
How Customs Obtained This Status

egal humanists such as Hotman w
L ere not the first scholars to understand
the potential power of customs. As described in Chapter 1, a fter the extension
of Roman citizenship (and thus law) throughout the empire, Roman jurists
allowed the previous native legal systems to persist by reclassifying and recog-
nizing them as permissible “local customs.” Yet it was u nder ius commune ju-
rists that customs found their new prominence. From as early as the twelfth
and thirteenth centuries, t hese jurists engaged in transforming local norms
from oral and flexible to written and formal. Eventually, in the fourteenth,
fifteenth, and sixteenth centuries, campaigns to verify, clarify, consolidate,
and write down the laws particular to villages, towns, regions, and kingdoms
swept through large parts of Europe. In theory t hese campaigns w ere meant
to register the law that already existed. In practice, they greatly modified it.
The processes introducing t hese changes w ere extremely slow. In the early
Middle Ages, village assemblies or jurors (witnesses u nder oath) decided how
conflicts would be resolved. Although most historians agree that their deci-
sions must have hinged on a particular understanding of what was right and
what was wrong, what was possible and what not, discussions rarely invoked
abstract principles or rules. From the little evidence we have, it seems that
most decisions e ither were adopted after some negotiation between commu-
nity members or w ere imposed by powerful individuals in pursuit of their
own interests. There is no indication in the record that they replicated ear-
lier decisions or made reference to preexisting norms.
While this was the original character of local law, from the thirteenth
century onward, mainly through the work of ius commune jurists, this law
was subjected to a profound transformation. Arguing that local decision-
making depended on “customs,” that is, on practices that had existed in the
community long enough to have become prescriptive, jurists now stated that
village assemblies or juries that ruled on how conflicts should be resolved did
not create the law. Instead, they only discovered and then applied the norms
that already existed within the community prior to the conflict. According to
this vision, local law was not the product of negotiated solutions to particular
problems that w ere reached when necessary, but instead it was made of a se-
ries of norms (customs) that had evolved in the community over time.
This interpretation changed the essence of what village assemblies and
juries did. Rather than searching to adopt a practical compromise that would
preserve the peace as has been the case in the High M iddle Ages, these as-
semblies were now reimagined as bodies responsible for identifying and ap-
plying preexisting norms. From the fourteenth c entury onward, instead of
asking what the correct solution to a particular case should be, or whether
the solution was just or consensual, jurists observing or advising village as-
semblies began inquiring what their customs mandated. They asked w hether
the jurors or the members of the assembly were sufficiently familiar with
communal arrangements and whether their telling of these arrangements was
true and accurate. To decide on such issues, jurists considered the statements
collected from different p
eople and, contrasting one with the other, they
reached a conclusion regarding what the local customs “truly” prescribed.
The law that they searched for was a stable, old, and permanent law, which
they believed was part of communal heritage, even communal property. This
law contained privileges that belonged to all communal members.
Following their conviction that local law represented enduring, even im-
memorial, customs, jurists began formalizing this law by using increasingly
abstract and general categories. They systematized a wide range of solutions
and began arguing that these solutions had always existed in precisely the
same manner. The aim was to distill a local law that could exist indepen
dently of the circumstances of the case and time and that could fit any
number of similar situations. The road from abstraction to centralization was
swift but meaningful. By the late fourteenth and fifteenth centuries, the geo
graphical projection of certain norms, now identified as customary, was
expanded from a single locality to entire regions.
The influence of ius commune jurists on t hese developments was substan-
tial, but equally important was the emergence of royal bureaucracies and the
redefinition of relations between local and central powers. As smaller units
such as villages became integrated into larger polities such as kingdoms,
the identification of what t hese smaller units consisted of, and what w ere
the privileges of their inhabitants, became matters of concern. It was now
necessary for locals to obtain recognition of what they thought w ere their
traditions and for central powers to know what the limitations on their
freedom to act would be. As a result of these requirements, policies were
devised to identify and register the local normative order, sometimes in order
to conserve it, sometimes in order to change it. Efforts were also invested in
facilitating the work of royal and regional governments by standardizing
customs and expanding their reach, in order to diminish the complexity of a
legal system in which each village had its own practices and norms.
If politics mattered, so did the availability of jurists and of new techniques
of recording, mainly, the passage from orality to written forms. But if cus-
toms seemed to vindicate the importance of a popular law, created without
the intervention of jurists or kings, they also paradoxically testified to the
powerful presence of ius commune. Although German historians once argued
that Germanic territories turned to Roman law only in the fifteenth and
sixteenth centuries, a period they identified as “the Reception,” and ex-
plained this reception by suggesting that Germanic customary law was far
too chaotic and fragmented to be useful, it is now clear that many Germanic
territories w ere deeply influenced by ius commune long before the sixteenth
century. In the fourteenth and fifteenth centuries, ius commune jurists in-
deed collaborated in the formation and formalization of Germanic customary
law, which scholars no longer believe was the expression of popular wisdom.
Rather than two regimes in opposition, in the late medieval period, in Ger-
many and elsewhere, customary law and ius commune merged together as
ius commune jurists labored to collect, register, but also change and modify
the local law. This legacy of collaboration would again become crucial in the
nineteenth century, when German jurists codifying their laws would turn to
Roman law in order to develop mechanisms that would allow them to com-
prehend and describe the so-called customary law of the various German
states and territories (see Chapter 12).
Monarchies and the Writing Down of Customs

Although the writing down of customs was common across Europe, the
French tradition from which Hotman emerged was particularly emblem-
atic of such processes. From as early as the thirteenth and f ourteenth centu-
ries, several French jurists drew up compilations of local law. Written in the
vernacular, though structured by reference to the Roman Corpus Iuris Ci-
vilis, these compilations were widely followed. In the fifteenth and sixteenth
centuries, French royal authorities began fostering t hese processes by ini-
tiating campaigns to write down the customary law. Organized regionally,
these campaigns called for a meeting of the representatives of the three

estates (noblemen, ecclesiastics, and commoners) with royal commissioners
and lawyers. These assemblies were to agree on what the local customs were
and prepare written texts that enumerated and explained them. As a result
of these projects, by the late sixteenth century much of French customary
law had been written down.
The writing down of French customary law allowed experts to imagine
the country as a territory divided between pays de droit écrit (areas of written
law), which allegedly followed Roman law, and pays de droit coutumier (cus-
tomary law), which did not b ecause their legal order was said to be customary.
Yet, considering how customs w ere written down, it becomes evident that
this opposition between customary and Roman, oral and written, was mostly
rhetorical. Among other things, although the customary laws of France were
said to have been created in a distant past, records demonstrate that such
was not the case. Commissions charged with identifying customary law in
the sixteenth c entury left ample evidence proving that their members mostly
negotiated with one another and with locals. Rather than considering them-
selves recorders charged with locating and identifying existing norms, they
sought to influence these norms by deciding what would be written down
and how. By the end of this process, not only were customs invented anew—
because, among other things, they were greatly influenced by the work of
Roman law jurists who collected them—but also they w ere no longer oral.
If there was no reason to assume that some parts of France had an old
authentic oral law while others did not, it was equally wrong to conclude
that the French customary law stood in opposition to Roman law. As hap-
pened elsewhere, French jurists employed Roman law terminology, criteria,
and doctrines to register customs. A fter customs were codified, they became
subject to academic comment and interpretation by professional, university-
trained jurists. Thus, even if one could ever imagine a pure custom untouched
by Roman law, which would be extremely difficult, such a custom did not
exist in France, at least not in the late medieval and early modern period.
A Last Word on the Political Utility of Customs

Hotman hoped that the writing down of customs would limit royal claims for
sovereignty by producing norms that the king could not violate. But the
French kings who encouraged t hese processes sought to achieve the contrary.
By reducing customs to written texts, these kings aspired to control the local
normative order and indeed change it. Royal commissioners who engaged in
this task understood what was at stake. They constantly imposed their opinion
on locals as to how norms should be identified and written down, what should
be added and what subtracted. Royal officials also favored the unification of
various customary regimes and selected those customs that should be appli-
cable everywhere in the kingdom. The writing down of customs, royal jurists
hoped, would also stop their evolution by fixing them conclusively. No longer
would customs change, no longer would negotiations be possible. Most im-
portantly, the local norms that became royal law after they were written down
would no longer depend on the community. Instead, they would obtain their
validity and would be legitimized and obeyed because the king had so willed.
In the long run, rather than being an instrument for preservation, the
writing down of customary law was a means to introduce change. It ush-
ered in, not the preservation of communal privileges and liberties, as Ho-
tman had wished, nor the permanence of orality, but the beginning of a new
age that featured the growing intervention of kings in the normative order.
In the aftermath of its official recording, local law would no longer depend
on the community. It would instead be imposed on locals by outsiders who
would tell them what their own customs dictated. Paradoxically, the one
point on which both humanists and kings converged was the hope that cus-
tomary law would replace ius commune. For Hotman this would be a means
to return to a genuine French law and resist royal intervention in the nor-
mative order. For kings, this would be a way to augment their powers u nder
the pretense that they conserved the ancient law rather than created a new
one. But the hope that customs would replace ius commune w ere frustrated.
Not only did Ius commune survive the fifteenth-and sixteenth-century crisis,
but the writing down of customs manifested its hegemonic presence.
8
Crisis and Reinvention of Common Law
In the sixteenth c entury, E ngland experienced a particularly viru-

lent period of religious, political, social, and economic strife. A confronta-
tion with the papacy led to the creation of the Anglican Church. Because
King Henry VIII had no male descendant, the country endured several suc-
cession crises, with various factions each supporting a different contender.
Disagreement regarding the identity of the rightful heir entailed questioning
not only who the correct successor was but also who had the authority to
decide on such matters. The Reformation, which divided the English into
Catholics and Protestants, also produced multiple Protestant denominations,
and political struggles often became confessional rivalries and vice versa. In
the seventeenth century t hese problems were accompanied by debates re-
garding the legal consequences of a union between Scotland and England
(1603), mostly w hether the ascension of a Scottish king to the English throne
should bring about legal unification. It also required deciding how to react
after the king, upon his coronation, declared that all ancient laws w ere ipso
facto null and void. The king (James I) also determined that monarchs w ere
above rather than under the law, and were accountable only to God. Rather
than receiving their authority from the p eople, and rather than being bound
to these people by some sort of pact for which they could be held account-
able, they are divinely appointed.
Adding to this complex constellation, there was growing confrontation
between the monarch and Parliament. Because in 1611 King James dismissed
131
Parliament, in the following years the struggle against James’s pretensions

was mostly channeled through the common-law courts, where Chief Jus-
tice Edward Coke, but also many o thers, believed that b ecause kings w ere
under rather than above the law, they, the judges, could censure their ac-
tivities. The power struggle that ensued continued into the reign of James’s
son Charles. It led to the dismissal of various prominent judges (including
Coke), the impeachment of o thers, and the abolishment of certain courts.
It also produced tensions within the judicial system itself as common-law
courts were seen as supporting Parliament, whose allegations they backed,
whereas the equity judges were perceived as associated closely with the mon-
archy. Contrary to common-law justices, equity judges w ere mostly trained
in Roman or canon law. Dispensing extraordinary remedies where common
law was otherwise s ilent or inadequate, by definition they exercised a juris-
diction that enabled the extension of royal powers beyond the realm of
common law.1 These characteristics allowed many common-law lawyers and
judges to view equity judges as allies of royal pretensions. They argued that
equity judges followed a foreign legal system (Roman and canon law) that
was dangerous, not only politically but also religiously and culturally. James’s
1616 declaration, that whenever equity and common law conflicted, equity
should prevail, did not improve these ailing relations.
Compounded with Scottish and Irish revolts and a foreign invasion, this
entanglement produced a civil war, in which armies representing King
Charles I clashed with those representing Parliament. In 1648, after a period
of sheer anarchy, Parliament, accusing the king of breaking his pact with
the p eople, convicted him of high treason and sentenced him to death. The
monarch was executed in 1649, the monarchy and the House of Lords were
abolished, and a republic (the Commonwealth of E ngland) was instituted
under the leadership of Parliament’s military commander, Oliver C romwell.
The monarchy was restored in 1660 in the person of Charles’s son, yet the
relationship between the king and his subjects had changed forever.
Though the English civil war ended with victory for Parliament, the is-
sues that haunted political and religious life before 1649 w ere not resolved.
In 1688, in response to fears that a Catholic contender would inherit the
crown, Parliament invited the Dutch Prince of Orange, William, who was
married to Mary, the Protestant daughter of the king, to rule over the country.
Accusing the monarch of abusing his powers, William set out for E ngland
and confronted King James militarily. Defeated on the battlefield, James left
Crisis and Reinvention of Common Law 133
the country. Parliament declared the crown vacant and called upon William
and Mary to occupy it. The invitation, however, was conditional. The terms
under which the kingship of William and Mary would be accepted were de-
tailed by Parliament. The 1689 document that came to be known as the Bill
of Rights, listed, among other things, important checks on what the kings
could do.
Historians look back to this period to explain the origin of a new mo-
dernity that was said to have emerged in England in the sixteenth and
seventeenth centuries. They explain the ideologies, strategies, interests, cul-
tures, and practices that justified this upheaval and trace the individuals
and networks that were responsible for their genesis. In what follows, I ask
which legal structures facilitated t hese developments and how law changed as
a result.
Dissatisfaction with the Legal System

As we have seen, the emergence of common law in the twelfth and thirteenth
centuries was a direct result of the development of a royal system of adjudi-
cation. The expansion of royal jurisdiction throughout the realm required
the adoption of rules as to who could access royal courts, in which types of
cases, and what the procedures would be. Th ese rules were embodied in royal
orders identified as writs that instructed royal officials to listen to certain
litigants in certain ways. Although in theory royal officials were to implement
a preexisting law, as writs multiplied they became an important tool for legal
creation. The grant of remedy—the ability to sue in court—was thought to
generate a right, and inversely, inability to find redress was understood to be
denial of entitlement.
Growing exponentially during the twelfth and thirteenth centuries, this
system of royal jurisdiction we now identify as common law came under
pressure in the fourteenth c entury. Fierce opposition by barons and feudal
lords to the continuous expansion of royal powers led successive monarchs to
promise to halt the creation of new writs. Yet royal officials found it difficult
to adapt available remedies to the requirements of a constantly evolving so-
ciety. Pressure to reform the system led kings to authorize the Chancery to
intervene in new cases (where writs did not exist) by giving exceptional rem-
edies b ecause justice so required. Royal legislation in the forms of statutes
also intervened in the legal system, creating new rules and procedures.
The growing complexity of t hese legal arrangements, made of a g reat va-

riety of legal sources, led some scholars to complain in the sixteenth and
seventeenth centuries that the legal system was far too rigid. O thers sug-
gested that it was far too opaque. Existing remedies and procedures, they
argued, were not obvious to the uninitiated and were often hard to under-
stand even for trained professionals. The use of Latin and French instead of
the vernacular English and the adoption of a particular style of annotation in
the courts (identified as “court hand”) made the work of judges particularly
difficult to follow. Too many piecemeal changes were introduced without
systematization. All this resulted in a legal system that was characterized by
great uncertainty and was extremely expensive, inefficient, and often inac-
cessible to the point of being dysfunctional.
Contemporaries also complained about the coexistence of a multiplicity
of dramatically different jurisdictions, courts, and normative systems on the
island. Common law and equity w ere the systems followed by royal courts,
but parallel to them w ere hundreds of feudal, ecclesiastic, and municipal
courts, each obeying radically different rules, procedures, and norms. This
multinormativity was considered normal in the Middle Ages, when the royal
system of courts was first established. During this period, most lawyers,
judges, and intellectuals believed it was advantageous because it allowed flex-
ibility and correctly reflected the complexity of a society in which kings were
considered superior to urban and feudal powers that nevertheless remained
(almost) untouched. Yet, with the coming of modernity, the acceleration of
economic activity, and growing immigration, many began insisting on put-
ting some order into what was now perceived as chaotic. They suggested the
need to rationalize the law, systematize accumulated knowledge, and clarify
hierarchies between norms and jurisdictions with the aim of guaranteeing
greater legal certainty and legibility.
Questioning Royal Justice

Although it was substantial, the criticism of the opacity, difficulty, and
multinormativity of the legal situation initially did not strike at the heart
of the common-law system. Most judges, lawyers and intellectuals suggested
that some measure of reform would be sufficient to render the situation
more tolerable. In the sixteenth and seventeenth centuries, however, a poten-
tially far more dangerous element was added, namely, the growing criti-
cism against the monarchy in the midst of an acute religious and political
upheaval. This was a serious threat to common law, whose expansion during
the twelfth, thirteenth, and fourteenth centuries was directly tied to the
prestige of the monarchy. This expansion was based on the assumption that
litigants would find justice more fair, impartial, and efficient in royal courts
than in all other judicial and administrative instances. If royal jurisdiction
grew during this formative period, it was b ecause the king was willing to
engage in dispensing justice and b ecause he was asked to do so by his vas-
sals. The more they turned to royal jurisdiction, bypassing feudal and
urban courts, the faster writs were created, and the greater was the reach of
common law.
In the sixteenth and seventeenth centuries, however, who the king (or
queen) should be became a matter of debate. Growing discord regarding how
to identify the legitimate claimant to the crown was accompanied by dis-
agreement over w hether the reigning monarch acted as he should, or whether
he had abused his powers (a question asked with regard to both Charles I
and James II). Also discussed w ere other essential questions such as w
hether
kings w ere subject to the law or superior to it, and w
hether they could change
the law or required the consent of Parliament. Conflicts between common-
law and equity judges added to t hese tensions, as they brought royal officials
into conflict with one another, allowing for interpretations that were often
outright contradictory and that moved much of the political debate into the
realm of the courts. Should common law, which had its own professionals
and rules that mostly backed Parliament, prevail over equity— mostly
manned by Roman and canon-law jurists who backed the king—or should
the inverse be true? Could a king who was dissatisfied with the legal system
overhaul, or even replace it? Would such a move be permissible or completely
illegal? During the seventeenth century, the conclusion that the monarch
was a tyrant led to the execution of one king (Charles I) and the removal of
another (James II).
These developments questioned some of the basic assumptions regarding
the superiority of royal justice. With the monarchy discredited, legal experts
searched to rescue common law from its traditional dependence on the crown
so that criticism against the monarch would not harm the reputation of the
legal system. They also sought to subject equity to common law. In order to
obtain t hese results, they set out to reinvent what common law was and why
and how it was important.
Juridical Response to the Crisis

Responding to these pressures, in the sixteenth and seventeenth century legal
experts a dopted three measures to reform and safeguard common law. Al-
though initially t hese measures w
ere not consensual and proponents of their
various parts did not agree about what they meant, in the long run they suc-
ceeded in winning acceptance and in changing contemporary (and poste-
rior) views to an astonishing degree.
The first move was to distance common law from the king, arguing that,
rather than being the product of royal intervention, this system was based
on a customary law that predated the Norman Conquest. Although dis-
covered by royal judges as they adjudicated conflicts and although com-
manded by the king, this law was created by the community and it
reflected its ancient norms. The second move was to conclude that common
law was the only significant system that had ever existed on the island, all
other jurisdictions and courts—equity included—being inferior and sub-
ject to it. The third move affirmed that common law included rules that
supported royal power but also limited what the king could do. Communal
agreement to obey the king, legal experts maintained, was given only as
long as he respected the customary privileges and rights of individuals and
communities.
Together, these moves, which are explained in greater detail below, con-
siderably changed the significance and substance of common law. Even
though they required an extensive rewriting of English legal history, their
success was so spectacular that by the eighteenth and nineteenth centuries
their reinterpretation was no longer contested. By that time, legal experts
both in E ngland and abroad referred to common law as the only legal system
of significance in England, and they determined that it reproduced a cus-
tomary law that included constitutional arrangements.
Only in recent decades have historians begun challenging t hese conclu-
sions. They question whether common law was customary, they point to the
importance of the local, urban, feudal, and ecclesiastical jurisdictions that
operated in England side by side with royal courts and the yet relative in
dependence of equity, and they demonstrate the degree to which the con-
stitutional arrangements that seventeenth-century authors vindicated were
based on a restrictive and often misguided (yet always interested) reading
of the past.
The First Move: Making Common Law Independent of the King

Awareness that political events in the sixteenth and seventeenth centuries
potentially endangered the very basis of common law led English legal ex-
perts to propose a new, ingenious and, to some degree, self-interested reading
of the English legal tradition. In accordance with the needs of the period,
their aim was to make law independent of the king, place checks on royal
activities, and position the judges of common law at the center of the po
litical system. Although this reading included a fairly fictitious story that
reversed the most basic understanding of what the law was, because of its
enormous political utility and its intellectual sophistication it soon became
the standard account of how common law emerged and what it included.
Mainly attributed to Edward Coke (1552–1634), although certainly begin-
ning before him and continuing a fter, as well as shared by many of his
contemporaries to some degree or the other, this new narrative suggested that
common law was not created by the king through writ-giving. Instead, at
the heart of this system was a customary law that predated the Norman in-
vasion and the institutionalization of royal courts and writs in the twelfth
and thirteenth centuries. Ancient to the degree that it was immemorial, that
is, its beginning was no longer recalled, this customary law dominated the
island before the Normans arrived. Anglo-Saxon (that is, Germanic) rather
than Roman in origin, this customary law was recognized by the Normans,
who in a series of successive confirmations promised to adhere to it. As with
all customary laws, rather than having been imposed by kings, this law was
created by the community; and rather than having been fashioned in royal
courts, it was only discovered and then upheld by judges. Common law, in
short, was not a Norman imposition. It was instead an authentic autoch-
thonous law.
This reinvention of what common law was enabled the envisioning of a
legal system that no longer depended on the king. According to this narra-
tive, English monarchs and their judges had to obey this law not only because
it was customary but also b ecause they had constantly promised they would.
Indeed, the seventeenth-century upheavals w ere a demonstration of what
happened when kings suddenly refused to continue respecting this old, cus-
tomary law and instead sought to introduce legal changes. Kings who violated
customary agreements with their subjects were tyrants and deserved removal,
even death.
The final aim of this new reinterpretation was not only to disassociate law
from the king, arguing that he was not charged with its creation, but also to
place common-law judges at the heart of the juridical system. According to
this understanding, these judges w ere no longer royal servants who dispensed
justice for the king by following his instructions (the writs). Instead, they
were charged with identifying preexisting norms (customs) and applying
them. They w ere a bastion both ensuring the survival of the authentic law
of the land and resisting royal pressure to change it (when such royal pres-
sure existed). Common-law judges were also members of an autonomous
body that was perhaps administratively dependent on the king but that le-
gally obeyed only the law.
To sustain this amazing transformation and create this fiction, Coke and
other legal experts had to modify not only the character of common law but
also their understanding of history. The argument that common law was a
customary law that predated the arrival of the Normans required, among
other things, rewriting the history of the Norman Conquest. In their effort
to do so, these experts suggested that there was no real conquest, e ither
because the Normans were (or could be seen as) legitimate heirs to the throne
or because they never acted as true conquerors. Rather than abolish the rights
of natives, as was customary in cases of conquest, the Normans w ere willing
to submit to the existing normative order, acting as lawful heirs who con-
tinued rather than disrupted the normal state of affairs. Converting the
Norman Conquest into a “non-event,” these experts thus argued that from
a legal point of view it marked no transformative moment. Legally, it was
as if it had never happened, because it had not changed the basic tenets of
English law.
In some odd way, this reinterpretation reiterated the assertions already
made by the first Norman kings, who indeed suggested that their principal
aim was to guarantee the continuation of the legal order. Yet it ignored the
legal revolution that had taken place in England in the twelfth, thirteenth,
and f ourteenth centuries, indeed the birth of common law. It suggested in-
stead that the institution of royal courts and the development of a system of
writs featured a continuity with ancient times rather than introduced a pro-
found change.
If negating the conquest upheld the antiquity as well as the continuity of
common law, it was also a powerful argument against the ambitions of
seventeenth-century monarchs. Upon his ascension to the English crown
(1603), James I of Scotland hoped to unify both kingdoms by imposing a

new legal regime or at least substantially modifying the existing one. The
response of English legal experts who opposed such measures was that even
the Normans had not dared do that. Nor had the many rulers and kings who
had successively invaded the island from Roman times until the Normans
arrived. Instead, they preserved the existing law.
The new fiction, according to which common law was not a conglom-
erate of writs and court procedures followed by lawyers but instead a cus-
tomary law that predated the arrival of the Normans, facilitated profound
ideological transformations. Common law was no longer “common” b ecause
it was instituted by the king and applied equally to all his vassals or b ecause it
was created by the judges and lawyers working in common courts. Instead, it
was “common” b ecause it was said to have originated in the community.
Like all other customary regimes, it emerged spontaneously from community
members. Typical of them and representing their spirit, it was by necessity
profoundly different from all other legal systems elsewhere. It represented
not the will of a single individual (the king) but the experience and wisdom
of many generations and was said to match perfectly the needs of society.
This customary law was essentially oral b ecause it was based on the way
community members behaved and what they believed was normative.
Because it originated in Anglo-Saxon rather than Norman times, this
law formed part of a Germanic rather than a Roman tradition. Created in
the early M iddle Ages long before the rebirth of Roman law in Europe (in
the eleventh and twelfth centuries), it was (or should be) immune to the
influence of canon law and Roman law, which w ere now presented as pro-
foundly foreign. Th ese characteristics explained Coke’s rejection of sugges-
tions to introduce parts of Roman law in England and the facilit y by which
he could criticize the Chancery court, where experts of this now seemingly
foreign law sat. Reimagining English law as Germanic allowed presenting
common law as an instrument different from and capable of resisting papal
power, mainly the encroachment of royal prerogative by the Church.
Although extremely radical, even revolutionary, when first proposed, these
ideas nevertheless found ample support among legal experts. For example,
William Blackstone (1723–1780), author of the Commentaries on the Law of
England (1765–1769), the most popular legal manual in the eighteenth and
nineteenth centuries, agreed with this analysis. He too swore by the hy-
pothesis that common law was essentially made of unwritten customs that
originated in Anglo-Saxon times, before the arrival of the Normans in the

eleventh c entury. Th
ese customs, according to him, w ere “as old as the prim-
itive Britons” and continued “unchanged and unadulterated.” Blackstone
also agreed that, despite conquests, invasions, and immigration by Romans,
Saxons, Danes, and Normans, England never experienced “any formal ex-
change of one system of laws for another.”2 The identity of its inhabitants
constantly changed, and so did their governments, but its laws persisted
unaltered.
Paradoxically, historians suggest that despite belief in the orality of the
law, Coke’s reinterpretation of common law was particularly successful
because it was published and circulated in written form. Coke used printing—
mainly publishing reports on selected court cases—to advance his reform
agenda. Deliberately addressing lawyers and hoping to contribute to both
their knowledge of the law and their identity as a group, Coke supplied a set
of rules and explained their reasoning in order to propagate among his readers
the view that common law was both ancient and superior. His reports w ere
extremely influential in the inns where lawyers met to discuss legal issues
and among law students. They allowed Coke to transform his personal
opinion into a public record of what the common law was. Through these
publications he became an authority to such a degree that it seemed that
“common law was what Sir Edward Coke said it was.”3
In the seventeenth c entury, therefore, English legal experts elaborated a
theory that allowed them to protect common law from the contemporary
political upheaval or even use this upheaval to bolster its importance. Lib-
erating this law from dependence on the king and his writs, these experts
placed the courts at the center of the normative system because they believed
that judges exercised the power to identify what it included. Thus, although
law was made by the community in a slow, spontaneous, and hardly per-
ceptible process that took centuries to complete, judges, now charged with
implementing this law, became responsible not only for the discovery of this
authentic customary normativity but also for its safekeeping.
This reinterpretation of what common law was also potentially solved an-
other thorny issue that haunted many in England at the time, namely, what
would happen to common law if the throne w ere vacant. The response was
that perhaps the courts required a king, but law could exist independently
of him and indeed had done so for many generations. By upholding these
fictitious arguments and by propagating them, sixteenth-and seventeenth-
century legal experts disguised a profound change u nder a mask of conti-

nuity, arguing that rather than innovating (as they have) they were simply
restoring what the king had unjustly and illegally taken.
Questioning the First Move: Was Common Law Customary?

The easiest way to question whether common law was indeed customary is
by examining how it emerged over time. This examination would clarify the
essential role played by the monarch and his officials in the creation of writs
and remedies. But beyond questions of genealogy that clearly tied common
law to the king rather than to the community, it is clear that customary law
the way English legal experts described it in the sixteenth and seventeenth
centuries was a twelfth-, thirteenth-, and fourteenth-century invention. Ius
commune jurists who w ere responsible for this invention (see Chapter 7) strove
to systematize the legal order by suggesting that the wide array of local ar-
rangements in Europe could be considered “customs.” They portrayed this
customary law as including principles that w ere repeatedly applied to a va-
riety of cases by communal assemblies, which discovered rather than made
them. According to this narrative, habits, which emerged spontaneously
among community members, became customs when a sufficient number of
individuals began considering them normative.
By the fourteenth, fifteenth, and sixteenth centuries, ius commune jurists
began writing down the so-called customary laws of their communities with
the aim of systematizing them. Eventually jurists suggested that the most
important function of customary law was that it could be used as an instru-
ment to resist royal jurisdiction. It could do so because it included constitu-
tional arrangements that restricted what governments could do.
These claims by Continental jurists involved a fabulous recreation of what
early medieval local law had been. If this law was dramatically different from
how ius commune jurists described it, it was also radically distinct from how
sixteenth-and seventeenth-century English lawyers imagined it. In both
cases, the newly proposed understanding was driven by a similar aim: to con-
trol, even modify, the normative order. By appealing to customs, what jurists
(and eventually rulers) sought to achieve was not to confirm the good old
laws but to change them. This was true in both England and the Continent
and, indeed, this interpretation that made law “customary” is likely to have
appeared in the Continent first.
There is ample evidence, for example, that the Norman kings who invaded
ngland followed t hese strategies that, under the guise of continuity, initi-
E
ated a process of change. Most noteworthy in this regard were the “Laws of
Edward the Confessor.” Th ese laws, which were said to reproduce the “laws
of the land” in writing in order to preserve them, assert that in 1070 the Nor-
mans decided to write down the existing norms by asking a group of local
jurors to declare what they included. Historians, however, conclude that this
description of how this legislation came about was completely fictional. In-
stead of being the result of public participation, the Laws of Edward w ere
probably authored in the twelfth century by a single jurist, contracted by
the king. Despite claims to the contrary, their aim was not to guarantee con-
tinuity but to capture only t hose laws that favored the Normans. Glanvil’s
and Bracton’s description of common law as customary might have responded
to similar impulses.4 Like their colleagues working on the Continent, whose
juridical culture they shared, Glanvil and Bracton most probably perceived
English law as “customary” not b ecause it was created by the community—
both Glanvil and Bracton clearly credited the king—but because it was
shared among royal councilors and legal professionals. The customs they de-
scribed, in short, w ere those created by the courts, not the community.
It is possible that the idea that common law was customary, in the sense
that it was created by the community and predated the Norman Conquest,
emerged in E ngland in the mid-fifteenth c entury. It can be traced back to
specific authors who suggested that the true lex terrae included the customs
of the land.5 From there to the conclusion that the English “had made
their own laws out of their wisdom and experience” was a short but mean-
ingful step.6
The Second Move: Making Common Law the Law of the Land
If common law had to change its nature to fit the narrative of continuous
confirmations of a customary law, of equal importance to the theory pro-
posed by seventeenth-century legal experts was the obligation to make
common law the law of the land. This move required classifying canon, local,
urban, and feudal law, even equity, e ither as inferior to common law or suf-
ficiently influenced by it to form part of its system. Or it proposed that
common law was authorized to oversee other jurisdictions. A fter all, it rep-
resented royal justice, and the king was superior to all other powers.
Thereafter, legal experts began arguing that common-law courts w ere the
most important courts of the land and that common law itself was the most
important legal system in existence. Coke referred to this point when, having
admitted that more than one hundred courts existed in England, each re-
sponding to a different set of rules and principles, he nevertheless concluded
that common law was the most important b ecause it was “the law of the
land” (lex terrae). He might have meant that this was the only law common
to the entire realm (which it was), but in the following years his words were
credited with a new meaning—literally, that common law was the only law
in the land.
This interpretation was followed by subsequent scholars. In the nineteenth
century, Frederic William Maitland (1850–1906), a notable lawyer, professor,
and legal historian, went so far as to conclude that by the end of the Middle
Ages most feudal courts had adopted the procedures of royal courts, as well as
borrowed substantive solutions from them. According to his understanding,
by that time feudal courts were but mere local projections of a general
common law. Reaching a somewhat similar conclusion, the English Eccle-
siastical Courts Commission stated in 1883 that the work of ecclesiastical
courts was “guided” but not “determined” by canon law. According to this
version, as early as the fourteenth century kings and barons had subjected
canon law to the “laws of England.” As a result, since that period English
customs had acted as a constitutional check of sorts, ensuring that canon
law, now identified as a foreign law, would not penetrate the island if its
instructions contradicted common law.
Questioning the Second Move: Was Common Law Superior?

The degree to which common law either was superior to or at least greatly
influenced all other jurisdictions in England is currently under debate. Some
historians conclude, for example, that most English peasants had no under-
standing of, need for, or access to royal courts, as they w ere mostly depen-
dent on feudal jurisdictions and their particu lar normative order. These
historians find no reason to assume that feudal courts were but mere local
“clones” of common-law courts. Instead they suggest that these seigneurial
instances, meant to regulate relations between lords and their vassals, were
mainly geared toward keeping other powers out and therefore had absolutely
no reason to emulate royal jurisdiction or allow royal norms and standards
to affect the rulings of their judges. Local regulations often forbade using
courts other than the feudal court, though some historians suggest that t hese
prohibitions are evidence that people were d oing just that.
Scholars also assert that if there was on occasion similarity between what
feudal courts determined and what common law mandated, it could well be
the case that, rather than one imitating the other, they responded to similar
social, economic, and political constraints. Furthermore, judges in feudal
courts sought to identify the most convenient and consensual solution to the
specific problems they were called to resolve. Their rulings were not moti-
vated by some preexisting system of rules, not even customs, but instead de-
pended on place, parties, and time. There w ere hundreds of feudal courts in
England, each of them dissimilar to the others. If there was no uniformity
within each court or across the many feudal courts, why assume that they
were all part of a common-law system? If influence flowed at all, it flowed
from feudal courts to common-law courts. A fter all, each time feudal or local
norms w ere upheld by royal courts, royal jurisdiction perhaps won additional
legitimacy, but so did local legal arrangements. These cases, in which the
declaration of witnesses or the presentation of collections of customs (identi-
fied as custumals) were integrated into royal jurisprudence, showed the endur-
ance and resilience of a local system of norms that dictated solutions different
from rather than similar to those proposed by the royal courts.
Because local norms maintained their power, during the early modern
period locals often struggled to identify what t hese norms were; they de-
stroyed evidence such as collections of customs or attempted to rewrite them.
Although they were not always successful, on many occasions they man-
aged to influence legal arrangements that w ere said to have existed from time
immemorial but could be entirely new. These strugg les w ere extremely
local and produced a radically diverse system of norms, yet for t hose who
upheld t hose norms, they w ere just as valid, perhaps even more so, than
common law.
Similarly, research on English ecclesiastical courts suggests that u ntil the
Reformation these courts followed canon law. A fter the English monarch
broke with Rome and instituted a national Church in E ngland, canon law
was presented as a foreign law imposed on the English by the pope. Yet it
continued to operate. The only immediate, noticeable change after the Ref-
ormation was the establishment of new appeal procedures that replaced the
traditional plea to the pope with a local instance. A separate English eccle-
siastical law never came into being, nor was the jurisdiction of the Church,
which continued distinct from the common-law courts, ever abolished.
As for equity, it is currently argued that it had begun converging with
common law in the sixteenth century, but that in the seventeenth century
while these debates took place it was still considered a separate system. In-
deed, it was separate enough to bring about the wrath of Parliament and
common-law courts or, on the contrary, to lead monarchs such as James
to instruct that equity should be superior to, rather than subjected to,
common law.
Common law, in short, might have been an important, even essential,
component of the English legal system, but until the seventeenth c entury, at
least, it never operated on its own. It was not superior to other jurisdictions,
and was not placed hierarchically at the top of the judicial system. Common-
law courts, for example, could not see appeals on other jurisdictions. Further-
more, t here is reason to believe that influence between the various parallel
systems that existed in England must have flown in all directions rather
than only (or even mainly) from common-law to other courts, leading histo-
rians to the conclusion that common law neither absorbed nor affected all
other jurisdictions.
The Third Move: The Ancient Constitution

Seventeenth-century legal experts argued that an important component
of so-called English customary law was the norms that governed the relation-
ship between individuals, the community, and the king. According to this
proposition, in a long succession of formal and ritual confirmations the
Norman kings promised to respect the existing Anglo-Saxon legal system.
These confirmations w ere now reinterpreted as including a solemn pact, or
an “ancient constitution.” This pact encompassed a royal promise to abide
by existing structures and laws and a communal agreement to be loyal to
and obey the monarch. Although this argument supported royal authority
in some ways—it included the duty of subjects to obey the monarch, and it
legitimized royal commands—it also limited what the king could do. If
the king failed to comply with his promise, he broke the pact, became a
tyrant, and conferred on his vassals the right (even the duty) to oppose
him. And because t hese arrangements w ere customary, the king could not
modify them.
The myth of continuous confirmations, however, did not say much about
the contents of the alleged pact. To identify what it included, seventeenth-
century legal experts who believed in the orality of customary law neverthe-
less looked for documentary evidence. They located many historical texts
that, according to them, contained elements central to this pact. Most em-
blematic among them was the Magna Carta (1215). From the seventeenth
century onward, the Magna Carta would come to symbolize the monarchy’s
promise to uphold the existing law and agree to limit its powers by providing
trial by peers, prohibiting arbitrary arrest, and securing the consent of the
kingdom for the levying of new taxation.
Questioning the Third Move: Why the Magna Carta?

The Magna Carta was a feudal charter. Written in Latin, it contained a peace
treaty or a compromise between the king and his barons at the end of a civil
uprising. Mainly centered on the barons’ desire to remedy what they per-
ceived as royal abuse, the Magna Carta did not represent the interests of “the
people.” Instead it referred to some of the most important aspects of feudal
relations such as the right to land, inheritance, debt, and taxation. Enacted
in a colonial situation in which both the king and the barons were Normans
and most of their subjects were Anglo-Saxon, the last thing the charter was
interested in was guaranteeing the rights of subordinates. It aimed instead
at ensuring the continued collaboration between the monarch and his barons
and freemen, who together conspired to maintain the subjugation of the local
population.
Worded as a royal response to a series of complaints, the Magna Carta
was long and casuistic. It included no declaration of principles and no enu-
meration of norms, customary or otherwise. When it was promulgated, and
even in the following centuries, no one pretended it had constitutional sig-
nificance or that there w ere remedies available when it was infringed. Rather
than enabling legal proceedings, it was considered a political document that
first barons and then Parliament could use to pressure the king.
Nevertheless, in the seventeenth century authors identified the Magna
Carta as the best proof of what the customary ancient constitution of E ngland
included. Ignoring most of the document and refusing to contextualize or
historicize it, these experts centered their attention on only a few paragraphs
that best suited their seventeenth-century needs. Th ese included chapter 39,
which declared that no f ree man s hall be captured or imprisoned except by

the lawful judgment of his peers or by the laws of the land. In this para-
graph, early modern legal experts found confirmation for the idea of jury
(trial by peers) and due process (adjudication according to the laws of the
land). They stated that t hese rights were granted not only to the barons but
to all Englishmen, whatever their status. Some went so far as to indicate that
this chapter constituted a precedent and justification for the habeas corpus
writ that protected individuals against arbitrary arrest. Of similar importance
was chapter 12, which said taxation could be levied “only by the common
counsel of our kingdom.”
Not only was this reading highly selective, it also introduced into the
Magna Carta ideas that mostly originated in the sixteenth and seventeenth
centuries. Initially the Magna Carta was not understood to include the
promise of jury t rials or habeas corpus, to mention just two examples. Nei-
ther is t here reason to believe seventeenth-century interpretations that saw
in the Magna Carta an instrument by which the king, facing the discontent
of the nobility, promised to limit his powers by restoring the laws of the land
and the liberties of his subjects.
Many historians have asked why and how the Magna Carta was chosen
to carry this enormous symbolic weight. They traced its rise to prominence
to the f ourteenth c entury and its growing fame to the sixteenth and sev-
enteenth centuries. Some suggested that b ecause it was such an odd and
confusing document, it was fairly easy to read its different parts out of con-
text. Others argued that it was chosen b ecause it was written in the formative
period of common law and b ecause it expressed the barons’ protest against
the establishment and expansion of royal jurisdiction. But most historians
believe that, above and beyond these considerations, the Magna Carta
was simply a perfect document to serve the purposes of seventeenth-century
actors. It was perfect because it was constantly mentioned in negotiations
between the king and the nobility and b ecause it was interpreted by dif
ferent acts of Parliament and confirmed by successive monarchs. It was
malleable and its understanding mutated constantly long before it was taken
up by seventeenth-century legal experts and made into a symbol of English
liberties.
Regardless of why the Magna Carta became so central to the narrative of
successive confirmations of a political pact, the final message was clear: If
England had an ancient constitution that was customary, the king was
obliged to respect it. These customary laws that framed the relations between
kings and their subjects now protected the lives and properties of all En
glishmen. They w ere an inheritance that the present generation must enjoy,
preserve intact, and pass on. That the Magna Carta included none of the
elements that were read into it no longer mattered.
Parliament as Guardian of Customary Law

ngland thus had a customary law that predated the Norman Conquest and
E
was subsequently upheld by the English monarchs as part of a pact between
them and their subjects. This pact included many arrangements fundamental
to the political constitution of the kingdom. But who was to ensure that the
pact was respected and followed?
In the seventeenth c entury, the English Parliament appropriated this task.
English customary law, it was now argued, was gradually revealed by judges
who, as they adjudicated conflicts, also declared what the law was. But judges
could not guard against infringement of this law, only Parliament could. Par-
liament was best suited for this task b ecause it was an assembly that repre-
sented the kingdom. Thereafter, Parliament, which had begun as a gathering
of individuals residing at court who undertook a wide range of activities
including responding to petitions, issuing o rders, and deciding on taxation,
was refashioned as a legislative body. It was now charged with introducing,
articulating, and passing laws meant to ensure the primacy of the existing
legal system, theoretically in collaboration with the king. Also asserted was
the idea that the king could no longer legislate on his own but must do so
in collaboration with Parliament.
The gradual affirmation of Parliament and its assertion of power w ere
evident, for example, in the transition from the Petition of Rights (1628) to
the Bill of Rights (1689). The former was a request submitted to Charles I
in exchange for Parliament’s assent to additional taxation. Formulated as a
plea, the petition noted royal agreement, which was presented as a grace.
The petition cited various authorities to demonstrate that certain rights and
liberties that had been enjoyed in the past—such as no taxation without
representation and no trial without jury or due process—were being
violated.
By 1689 (the Bill of Rights), political dynamics had dramatically shifted.
Rather than being a one-sided grant by the king like the Petition of Rights,
the Bill of Rights was a solemn proclamation by Parliament presented to

William and Mary upon their ascension to the throne. An ultimatum of
sorts, it placed Parliament at center stage, stating that Parliament was a le-
gitimate assembly legally representing the people (a question that was not at
all settled at that point). The bill censored the departing king (James II) for
behavior that v iolated the true, ancient, and indubitable laws and liberties
of the land, and it agreed to accept the new monarchs on condition that
they promise not to do the same. The liberties enumerated included the
traditional list (jury, due process, taxation), but also enumerated w ere many
rules that sought to protect Parliament from royal intervention. Because the
incoming monarchs agreed, Parliament declared them king and queen of
England. With the Bill of Rights, Parliament appropriated not only the au-
thority to guarantee the rights of Englishmen, but also the capacity to
choose monarchs and crown them. Thereafter, royal actions that contravened
these rights would be not only unjust but also illegal.
Some legal experts reacted to Parliament’s growing assertion of powers
by reaffirming the centrality of judges. Adhering fully to the idea that common
law was customary, one of the fictions they a dopted was that legislation
could not change the law. Statutory law passed by Parliament, as a result,
could only “discover” rather than create the law. It declared what the law was;
it did not make it. This fiction had important legal consequences. It implied
that all legislative acts must be interpreted as pronouncements meant, not
to change the law, but only to clarify it. Nonetheless, the growing powers of
Parliament in the eighteenth and nineteenth centuries did eventually lead
famous experts such as Dicey in his Introduction to the Study of the Law of the
Constitution (1885) to the conclusion that Parliament was sovereign, having
the right to make or unmake any law whatsoever, with no person or body
having the right to set aside such norms.7
Another method to guarantee the centrality of judges was the idea of
binding precedent. The notion that previous judicial decisions could e ither
illustrate the meaning of the law or justify a future ruling was present in
England as early as the thirteenth and fourteenth centuries and supported
the reporting and studying of case law. Yet this practice was not mandatory,
and judges could refuse to follow it. Over time, however, the tendency to
cite past cases substantially grew. Boosted by the printing press, which al-
lowed a greater dissemination of case law, an intensified involvement of
judges in decision making, and a growing enrollment in the Inns of Court,
this tendency led judges such as Edward Coke to make frequent use of
precedent, even suggesting that they should have an authority of their own.
Adhering to the idea that experts should trust their own art, in his opinion
in the famous Calvin case,8 Coke ruled that to determine what the law dic-
tated, one had to observe examples, precedents, and judgments rendered in
similar cases.
Nonetheless, it was not u ntil the eighteenth c entury that binding prece
dent was introduced in both common-law and equity courts, compelling
judges to follow the relevant decisions made in the past. A means to ensure
that judges’ identification of customary law would accumulate over time,
mandatory precedent also changed the nature of judicial decision making.
Rather than being ad hoc solutions, judicial decisions w ere now reconceptu-
alized as constructing a long chain of rulings that, over many generations,
declared and clarified the essence of common law. This transformation
authorized our present-day conception of common law as a judge-made
law, that is, a system whose principles can be deduced by studying cases.
Was England Exceptional?

The refashioning of local norms as customary law, the insistence that they
included a constitutional pact, and the attempts to use both to limit royal
authority were common to both England and the Continent. Also common
was the understanding that customs could work both to confirm royal power
(as in France) as much as to undermine it. Nonetheless, in the seventeenth
century English legal experts began insisting that their system was radically
different from (and superior to) all other European normative systems. This
superiority was anchored in the claim that Europe allegedly followed Roman
law (ius commune) whereas England had a genuine customary law of its own
that reflected the spirit of its people.
This portrait omitted ius commune jurists’ contributions to the creation
and institutionalization of common law (see Chapter 6). It also ignored the
role of university-trained professionals in the making of the English legal
system. True, by the fourteenth c entury most common-law judges were no
longer university graduates, yet university graduates continued to be ad-
mitted to the Inns and they were employed in the Chancery court, which
dispensed equity, and in ecclesiastical tribunals. English humanists who
applied philological and contextual analyses to the law were also pro-
foundly influential. Indeed, jurists and ideas coming from the Continent
were of such importance that much of the activity of sixteenth-and
seventeenth-century actors described in this chapter can be interpreted as a
response to this influence or at least as dialoguing with it. Sixteenth-and
seventeenth-century English actors may have gradually perceived the En
glish and Continental systems as distinct, but they were also aware of their
constant proximity and their potential permeability.
Nonetheless, despite t hese striking similarities, and despite the continued
use of French and Latin terms, expressions, and doctrines in E ngland, during
the early modern period the myth of English exceptionalism held strong.
It survives to this day, notwithstanding scholarly research that insists on
common roots and that suggests that if England took a different path,
this happened mainly in the early modern, not medieval times, and was
the result not so much of what Eng lish law actually was but of how it was
reimagined.
9
From Ius Gentium to Natural Law

making eur op ean law
universal i
During the early modern period, various European countries

began engaging in overseas expansion. First among them was Portugal,
whose sailors and merchants explored the western shores of Africa in the
fourteenth century. By the mid-fi fteenth century, the Portuguese had
tapped into important trade networks in gold and slaves and instituted a
profitable commercial exchange with local merchants. A short time l ater,
in 1487, Bartolomé Dias rounded the Cape of Good Hope; in 1492 an
expedition sponsored by Spain’s Catholic Monarchs and led by Co-
lumbus reached the Caribbea n; in 1497 Vasco de Gama landed in Calicut
(India); and in 1500 Pedro Álvares Cabral reached present-day Brazil.
These early expeditions w ere followed by subsequent voyages, eventually
leading to the extension of European hegemony to parts of Africa, Asia,
and the Americ as and ushering in what we now identify as early modern
colonialism.
These developments produced a huge variety of complex outcomes. They
radically transformed some parts of Africa, Asia, and the Americas, but they
also had enormous economic, political, and cultural consequences for Eu
rope. In this chapter I examine how they s haped European law. I argue that
the intense encounter with non-Europeans, as well as the need to s ettle ri-
valries among Europeans overseas, led to the renewed use of Roman law,
spurred discussions regarding natural law, and made European law assume
the trappings of universality.
152
From Ius Gentium to Natural Law 153
The Antecedents: Roman and Medieval Ius Gentium

As explained in Chapter 1, ancient Roman law recognized the existence of
norms that were common to all polities. These norms, reproduced in ius gen-
tium (literally, the law of nations, peoples, gentiles, or tribes), were univer-
sally applicable because, rather than being dependent on place and time, they
were said to be based on human reason and experience.
Romans appealed to ius gentium in their dealings with non-Roman citi-
zens. Already in ancient times, identification between ius gentium and natural
law was frequent. This identification was based on the assumption that what
was common to all communities regardless of their concrete historical cir-
cumstances was also in some way innate to h umans and therefore part of a
natural law. Yet if, in theory, to decide what ius gentium included jurists
would have to observe societies around them and, by comparing and con-
trasting their legal arrangements, arrive at a conclusion as to which norms
were shared by all, in practice Roman praetors charged with implementing
ius gentium (praetor peregrinus) did nothing of the sort. Instead they made
assumptions regarding what was rational and what was reasonable, con-
cluding that the rational and reasonable must be common to all polities.
Because by the first century bce Roman jurists tended to consider their
own legal system (ius civile) as embodying pure, atemporal, universal, and
permanent reason, they began identifying ius civile with ius gentium and both
with natural law. This move justified the imposition of Roman law on all
citizens of the empire. A fter all, if ius civile was not based on the authority
of a lawmaker or on the writings of a professional caste but instead was a
rational, superior mode of conducting affairs, there was no reason it could
not also be applied—indeed given as a privilege—to foreigners.
Assimilation of ius gentium with ius civile and both with natural law came
under attack a fter the Roman Empire converted to Christianity, b ecause the
center of the Christian normative system was not reason, but a God who was
both a creator and a lawgiver. This meant that natural law was now conceived
as a divinely mandated order. A product of God and a part of Creation, this
law was inscribed in the hearts of all men, and all men, w hether Christians or
not, could discover its principles by questioning their conscience.
Appearing as early as the first century bce and enshrined in the writings
of Saint Augustine (354–430), this vision of natural law was espoused by
many medieval scholars. Christian thinkers such as Thomas Aquinas (1225–

1274) argued that good and bad were not defined by human conventions,
nor were they the arbitrary product of h uman reason. Instead, t hese distinc-
tions were imprinted in man’s heart by God so that man can understand
divine mandates.
Although Christian natural law was by definition permanent, reasonable,
and just, its powers derived not from its internal goodness but from the au-
thority of its creator, God. Superior to all other normative orders, God’s
natural law could be used to criticize human institutions. Acting as a stan-
dard against which all legal systems could be measured, natural law could
even justify opposing one’s government—such disobedience being a religious
and thus a sacred duty.
European Expansion: Iberian Beginnings

Although many European polities and intellectuals had to address the
question of which law should apply overseas, the first country to face this
dilemma was Spain. Its primacy in this regard was tied to the early devel-
opment of settler colonialism, with Spaniards controlling large populations
of non-Europeans. As a result of this domination, Spain’s monarchs, offi-
cials, intellectuals, and subjects would ask by what right Spaniards extended
their jurisdiction overseas, which norms should apply to this venture, and
what they instructed.
These questions, which were asked almost as soon as Columbus returned
from his first voyage, had important moral and political implications, but
they also had significant legal dimensions. At stake was identifying rules that
would determine how Spaniards would interact with both Europeans and
non-Europeans overseas. Would European norms be extended across the
oceans? Could they be applied to relations between Spaniards and natives?
If they could not, which other norms could regulate these relations?
Initially Spaniards sought to justify their activities by obtaining a papal
license, which was issued in 1493 in the form of a bull. Titled “Inter Caetera,”
it stated that the Catholic Monarchs of Spain had already engaged in the
expansion of Christianity in Iberia, where they fought against the Muslims.1
It suggested that they w ere now willing to do the same in the territories that
had been discovered or that would be discovered across the seas. The 1493
bull concluded by giving Spaniards a monopoly that allowed only them to

expand to these territories in order to propagate Christianity. The monopoly
excluded other Europeans from d oing the same, setting a meridian that was
to divide Earth from pole to pole passing some 100 leagues from the Azores
and Cape Verde Islands. Territories west of this meridian would be included
in the monopoly, while territories to the east would be open to all.
As soon as it was proposed, this solution was criticized both inside and
outside Spain. Spanish courtiers, intellectuals, jurists, and theologians ar-
gued against the implication that the pope had authority outside Latin
Christendom and over territories and peoples who had never been under
Roman occupation or were affected by the Church’s missionary activities.
Others disagreed with the assumption that papal authority extended not
only to spiritual matters but also to secular issues such as jurisdiction over
people and lands. A third group lamented that the bull potentially re-
stricted Spanish privileges. Tying Spain’s presence in the territories to the
duty to convert, it limited Spaniards’ activities to conversion, and according
to some, if they ceased to pursue conversion, their rights would automati-
cally expire.
Because the solution offered by the bull was not fully satisfactory, the fol-
lowing year the Spanish monarchs negotiated a bilateral treaty with Por-
tugal, the only serious rival for expansion at that stage. This treaty (the Treaty
of Tordesillas), signed in 1494 and confirmed by the pope in 1506, largely
followed the arrangements included in the papal bull, but it moved the me-
ridian dividing Earth from 100 to 370 leagues west of Cape Verde, poten-
tially limiting territories under Spanish monopoly and giving Portugal a
greater zone of expansion.
This answer also proved unsatisfactory. As a treaty between two European
polities, t here was no reason it would be observed by other Europeans. Fur-
thermore, the treaty did not indicate what the relations between Europeans
and natives would be, and it did not explain why a European accord would
have validity over territories beyond the Continent.
Because of these misgivings, jurists suggested that the best way to regulate
relations between Europeans and their overseas subjects would be by refer-
ence to the legalities of conquest. They appealed to the Roman law doctrine
of “just war,” which distinguished between wars that were justified (and w ere
thus legal) and t hose that were not. This difference was important b ecause,
according to Roman law, only a justified war could legitimize sanctions

against the vanquished such as appropriating their land, suppressing their
rights and privileges, and even enslaving them.
According to early modern standards, to be justified a war had to be e ither
in self-defense or against an e nemy that was likely to attack. In the M iddle
Ages this theory was usually interpreted as legitimizing war against a familiar
foe. It legalized, for example, many of the wars Christian Europeans launched
against Muslims, because the latter w ere considered longtime rivals who were
permanently hostile to Christians. Yet the employment of a just war against
the indigenous peoples of newly “discovered” territories was plagued with
difficulties. Aside from the issue, already raised, as to how a European-based
law such as Roman law could be applied outside Europe to non-Europeans,
critics also asked whether native reactions to European presence merited
launching a just war. Natives were certainly not traditionally hostile to Chris-
tians, as the Muslims were, and it was hard to imagine how the invasion
of their lands by Spaniards could be portrayed as a defensive rather than
offensive attack.
To solve these issues and ensure that hostilities against natives could be
portrayed as just, Spaniards devised a new legal ritual aimed at justifying
their actions. Called “requirement” (requerimiento), it included a formula that
was to be read to the indigenous people and, if necessary, translated to them
before battle began. The formula included a brief summary of world history.
It began with the creation of the universe, continued through Adam and
Eve, the proliferation of men and their division into nations, the coming of
Christ, the institution of the papacy, and the papal bull giving Spaniards
the monopoly on converting natives. The requirement specified that to fa-
cilitate conversion, Spaniards also received the right to dominate lands and
peoples. The requirement ended by explaining to natives their duty to obey,
which included accepting with goodwill and without resistance their sub-
jection to Spain. It also spelled out what would happen if they did not. If
they “maliciously” refused what the bull mandated and the requirement spec-
ified, Spaniards would be authorized to enter their country forcibly, making
war against them, subjecting their persons, and taking away their proper-
ties and liberty.
The requirement sought to transform Indian resistance to the invasion of
their land into an act of legal disobedience that would validate the launching
of a just war. Bartolomé de las Casas (1484–1566), a Dominican friar working
in the Americas in the 1520s and 1530s, was said to have commented that
when he heard about the requirement, he did not know w hether to laugh
or cry. But however absurd the document might have been, we have ample
evidence that it was carried around by many conquistadors and indeed read
to the indigenous peoples before hostilities began.
The Rebirth of Ius Gentium

While Spaniards’ initial response to the legal aspects of colonialism was fairly
restricted in scope and imagination, in the 1530s and 1540s new theories
emerged. Attributed to a Dominican friar teaching at the University of
Salamanca, these theories eventually revolutionized the way Europeans dis-
cussed their rights and obligations. The scholar, Francisco Vitoria (ca.1486–
1546), belonged to an intellectual movement we identify today as the “Second
Scholastics” or “the School of Salamanca.” This movement sought to give
moral theology the status of an autonomous discipline, suggesting that the
duty of theologians was to propose solutions to the most pressing political
and moral questions of their time.
Vitoria’s best-k nown essay was probably written in 1539. Formally seeking
to answer the question of w hether c hildren of nonbelievers could be baptized
against their parents’ wishes, Vitoria set out to explore the legal order that
underpinned Spain’s presence in the Americas. He enumerated the seven tra-
ditional justifications that had been given for this presence and dismissed
them all. He explained that the Spanish king (Emperor Charles V) was not
lord of the entire world and therefore had no jurisdiction in the New World.
He affirmed that the pope was not a universal lord nor did he have power in
civil matters. A papal bull, as a result, could give Spaniards nothing. Vitoria
agreed that, by law, discovery might be a good basis for the acquisition of
rights, but he immediately explained that this could happen only when the
land discovered was truly vacant, and the Americas were not. Native refusal
to convert to Christianity and their mortal sins w ere two other reasons that
contemporaries invoked to justify Spanish domination, which Vitoria also
rejected as illegitimate. A voluntary choice exercised by natives who agreed
to subject themselves to Spain would be legally sufficient, but there was no
evidence that such a choice had been exercised in the Americas. The seventh
explanation Vitoria explored was that God gave Spaniards the Americas as
a special gift. One could not discuss such a hypothesis, Vitoria argued, b ecause
rather than based on law or reason it was anchored in faith. E ither one be-
lieved it or one did not.
Having discarded all t hese traditional justifications for Spaniards’ ex-
tending their jurisdiction to the Americas, Vitoria came up with a new
proposition. Following the teaching of Thomas Aquinas he suggested that,
in their condition as humans, both Spaniards and the native inhabitants of
the New World formed legitimately organized societies and both were there-
fore under obedience to natural law. This natural law, which he also called
the law of nations (ius gentium), was universal. It could apply to all h uman
communities whether their members knew about it or not, consented or not,
inhabited Europe or not, w ere Christian or not.
Natural law, Vitoria affirmed, recognized several fundamental freedoms.
Believing in the sociability of man, on the one hand, and as a Spaniard legally
experiencing t hese freedoms, on the other, Vitoria argued that men enjoyed
the freedom to communicate, travel, conduct commerce, and dwell wher-
ever they wanted to. This freedom allowed Spaniards to arrive, settle, and
trade in the Americas. It also sustained their liberty to tell the truth, which
as far as Vitoria was concerned included above all the duty to preach the
gospels and bring the message of the Christian God to natives. Th ese w ere
the freedoms Spaniards exercised, Vitoria concluded, when they sailed to
the Americas, traded with natives, established fortified settlements, and en-
deavored to convert the local population. B ecause Spaniards were autho-
rized by natural law to do all this, if the natives refused to allow it or reacted
with violence, they contravened natural law and could be legitimately at-
tacked. Vitoria also explained that natural law included other provisions
authorizing Spaniards, for example, to protect Indian converts to Chris
tianity, elect a Christian king to rule over them, defend natives against tyr-
anny, and help their friends and allies.
In the long run Vitoria’s analysis produced the same results as previous
explanations, namely, it authorized Spaniards to wage just war against na-
tives. Yet his approach was nevertheless revolutionary. It introduced the
idea that a natural ius gentium regulated relations between Europea ns and
natives. It imposed a system of rights and duties that did not require in-
tervention of a superior authority such as the pope or the emperor or agree-
ment among interested parties. The law of nations that Vitoria subscribed
to was derived directly from nature and applied automatically and equally
to all peoples. It could be discovered by observing h uman societies, but (fol-
lowing Aristotle and Aquinas) it was above all inscribed in man’s heart by
his creator and it was part of the rational understanding with which God
had endowed h umans.
The Colonial Ius Gentium

The ius gentium that sixteenth-century Europeans imagined was not based
on empirical research. Instead it was founded on deeply held beliefs regarding
what was just and what was reasonable. Thus, although Vitoria insisted that
the law of nations was created for the w hole universe and was appropriate
for all peoples, like Roman jurists did before him, he tended to consider
the norms of his place and time the most logical and thus universal.2 He
arrived at such inferences even in extreme cases, in which the norms he
defended were rarely followed even in Europe. One such example was Vi-
toria’s insistence that natural law recognized the freedom of immigration.
This freedom, which formed a basic right in Spain since as early as the
fifteenth century, was a particular Spanish arrangement that almost no other
European country followed.3 Nevertheless, because it made perfect sense for
Vitoria and because it formed part of his daily experience and suited his
beliefs, he had no doubt about giving it an important place in the emerging
law of nations he imagined.
Vitoria’s ideas w
ere essential in moving ius gentium further into the realm
of natural law and in making both universal. Rather than local law being
applied to foreigners as was the case in Rome, Vitoria imagined the law of
nations as an instrument defining relations between polities and among their
members. This new law of nations ruled among sovereign entities rather than
individuals. A precursor of t oday’s international law, it was mainly concerned
with the activities of public powers, not private individuals. Its ultimate jus-
tification was that it expressed norms Europeans considered natural and
thus universally valid. That is, instead of recognizing that these norms were
anchored in tradition, place, religion, or system, these norms w ere decon-
textualized and made to appear absolute.
The path opened by Vitoria was soon trod by other intellectuals. Following
Spanish lead, the Portuguese incorporated t hese discussions into their juris-
prudence, and the Dutch and English followed suit. In E ngland, Alberico
Gentili (1552–1608) referred to the law of nations as natural law in his essays
On the Law of War (1588–1589). In the Netherlands, Hugo Grotius (1583–1645)
did the same to advocate the freedom of the seas (1609) and to study the
laws of war and peace (1625). The British crown and British colonialists also
espoused this new language to refer to their commitments to natives and in
their relations with other European powers. As ius gentium penetrated
England, eventually English legal experts recognized the law of nations as
being part of common law.
The success of these new ideas was tied to the need to solve concrete ques-
tions, but it was also motivated by the search for norms that would be consen-
sual among Europeans who were now bitterly confronted not only politically
but also religiously. The breaking down of the Christian unity, the growing
number of reformed denominations, and the wars that ensued encouraged
the quest for a new normativity that could rule over relations not only between
Europeans and natives but also among rival Europeans themselves.
By the end of this process, most Europeans agreed that law regulated re-
lationships between them outside of Europe and with non-European na-
tives. They also agreed that this law, which they identified either as the law of
nations or as natural law (or both), included several unquestionable principles.
Initially Europeans searched for t hese principles in Scripture, tradition, or
Roman law, but eventually they came to justify them by reference to reason
and reason alone. They concluded that, because they were reasonable, the
rules they proposed were sufficiently self-evident that they no longer required
external validation.
The Reign of Self-Evident Truth

The reign of self-evident truth that required no proof is usually said to have
begun with Grotius. Grotius cited the work of previous authors, as well as
many sacred and Roman texts, but he also appealed to commonsense con-
clusions based on a reasonable analysis of the situations he examined. These
conclusions, he argued, were so natural that they could be understood by
all, Europeans and non-Europeans, lawyers and nonlawyers alike. Rather
than having been systemized from existing laws and regulations, Roman law
included, they could be deduced by observing society and nature and em-
ploying reason. Rather than being complex, they would be simple and
straightforward.
To explain how private property came to be, following the Bible, Grotius
reasoned that God gave the world to mankind collectively, so that it can sur-
vive and reproduce. Yet b ecause men began fighting, the need arose to di-
vide this common inheritance among them. This had led to the emergence
of private property and to the notion that what one has in his possession
should remain his. Similarly, to argue for the freedom of the seas, Grotius
first defined property as something that people could possess, and then he
demonstrated that the sea, because it could not be taken over and occupied,
could never be appropriated. The conclusion he reached was that Portuguese
claims for monopoly over sea routes from Europe to Asia were absurd and
that, as a result, the Dutch could establish their own trade in the region.
Grotius’s wish to cite authorities and yet also move to logical, common-
sense explanations that did not depend on these rules having been pro-
nounced before in reputable sources, was probably tied to the conditions of
the period. The Reformation and the proliferation of Protestant denomina-
tions forced Europea ns to search for a common language that would no
longer be based on religious precepts but instead would be organized around
shared experiences. The absence of an overreaching authoritative voice within
Europe, such as the popes and emperors once provided, diminished the fea-
sibility of depending on sovereign will to resolve issues between different
communities. European expansion further pushed scholars t oward secular-
ization because of the need to find a normative system that could be shared
with non-Europeans and non-Christians. But if the Reformation, the af-
firmation of states, and the expansion w ere vital to t hese processes of rein-
vention of natural law, so was the so-c alled seventeenth-century scientific
revolution, which led to the elaboration of new epistemologies suggesting
that true knowledge could be acquired only by means of observation. Having
first collected factual data, h
umans could then process it, striving to under-
stand what it meant by employing reason.
The most extreme example of how this new method was to affect scholars,
including jurists, was the work of the French philosop her René Descartes
(1596–1650). In his Meditations on First Philosophy (1641), Descartes ar-
gued that to reach truly logical conclusions, man had to forget all that he
knew. Adopting the policy of “systematic doubt,” Descartes called upon
contemporaries to examine even the most basic assumptions, including the
postulation that they existed. According to Descartes, only by getting rid
of the conventions that obscured h uman’s ability to reason and by setting
one’s mind f ree would humans be able to guarantee that their knowledge and
understanding of the world were truly based on facts and reason. On the
basis of a very primary and verified truth—the truth of his own existence—
Descartes would commence gradually rebuilding all other certainties.
Although Descartes described at length the effort h umans would have to
invest in overcoming their own prejudices, he was nevertheless convinced
that if they domesticated their body and their senses, h umans would be ca-
pable of true reason. This belief was shared by many of his contemporaries,
who were convinced not only that pure reason existed but that it was shared
by all h umans. If exercised correctly, it would lead them all to the same
conclusion.
By the late seventeenth century, scholars and jurists began applying this
new epistemology to their analysis of society. Developing philosophies that
we now identify as “Enlightened,” many argued that, like h umans, society
needed to abandon its veneration of tradition and instead return to simplicity
and nature, that is, to pure reason. Only after intellectuals understood what
nature dictated would it be possible for jurists to translate these findings into
a new, perfect normative order that would guarantee happiness.
Thus, if the search for order in overseas expansion was one motive to
pursue self-evident truths, another was the aim to reform Europe itself. In
order to accomplish this task, in the late seventeenth century political phi
losophers and jurists across the Continent set out to discover what nature
dictated. They hypothesized about how humans behaved before tradition and
history obscured their capacity to reason, and they attempted to reconstruct
humans’ primitive state before society was created. Fabricating in their minds
abstract individuals who had no past, present, or cultural traits, these scholars
imagined a natural man who was unchangeable, timeless, and universal. A
presocial being, this man subsisted before family and society came into ex-
istence. Because he was reasonable, however, his decision to enter into social
relations must be explained by reference to the advancement of his own goals
and the satisfaction of his basic needs.
Most scholars went along with this exercise of imagining a remote, hy
pothetical, presocial past, but they differed as to what w ere the terms man
agreed to when he entered society. According to Thomas Hobbes (1588–1679),
because the presocial state featured a permanent situation of anarchy and
war, when he entered society, man consented to surrender many of his natural
liberties in exchange for safety. According to John Locke (1632–1704), b ecause
the presocial state was fairly comfortable and orderly, when entering society
man agreed to very few concessions and preserved most of his natural rights
intact. Locke believed, not that man entered society out of fear, as Hobbes
suggested, but instead that he freely chose society with the aim of further
safeguarding and developing his rights. As a result of this analysis, while for
Hobbes the social contract included the duty to obey the state, for Locke it
was a means to protect rights as well as defend individual self-interest.
These debates, extremely serious yet with a completely fictional basis,
were mostly used by seventeenth-and eighteenth-century scholars to scru-
tinize their present-day society. Rather than being ideologically neutral, they
were profoundly political; they either justified or questioned the emerging
social, economic, and political structures. But regardless of the position they
chose to take, early modern scholars no longer invoked the power of God
or the mandates of tradition. Instead they referred to reason and reason alone.
At the center of their narrative was man, whom they portrayed as an indi-
vidual who acted out of self-interest. This individual was capable of making
informed decisions, and his decisions ended up constituting the social order.
The Road to Revolution

The new natural law that resulted from these discussions was rational and
individualistic. Departing from the assumption that man created society in
a deliberate and reasonable attempt to advance his interests, this new law,
most particularly as it developed in the eighteenth century, placed man and
his needs at the center of the normative order. Not only was society the
product of individuals and their decisions, but individuals were conceived
as persons with the capacity to govern themselves and freely determine their
future. Ruled by reason, they no longer needed to justify their activities by
reference to external authorities. Instead, each individual was, in theory, au-
thorized to employ his own reason to decide what was right and what wrong.
The conclusion that no external input was needed to reach a correct infer-
ence, and none was required to legitimize what had transpired or would
transpire, was clear, for example, in the claim that t here w
ere such things as
“self-evident truths” or “indisputable principles.”
Rational and individualistic, modern natural law was also radical. It al-
lowed contemporaries to voice a series of vindications that were justified by
reference to rights that w ere said to be natural and inalienable. Society, it
was now argued, was instituted only to protect these rights, and its main
task was to resolve conflicts between the concurring rights of its various
members. Thereafter, the normative order would be seen as a system exclu-

sively aimed at harmonizing the rights of different individuals, allowing their
free exercise as long as it did not interfere with the rights of o thers. Together
these messages placing reason, man, and rights at the center of the political
and legal system produced an explosion. They eventually led to extreme tur-
moil that would find expression in the American and French Revolutions
(described in Chapters 10 and 11) and would, according to many, introduce
a brave, new world.
Colonial debates, which began in Spain but then engulfed many other
European countries, w hether or not they w ere directly involved in expan-
sion, did not only affect overseas possessions nor was their influence restricted
to their consequences on indigenous p eoples. Instead, discussions regarding
the rights of Europeans across the seas and vis-à-vis non-European natives
greatly altered Europe and its law. Pushing Roman and medieval ius gen-
tium into the realm of natural law and making both universal, these discus-
sions informed the hypothesis, later accepted as fact, that some things w ere
natural b ecause they were reasonable, at least in the eyes of t hose proposing
them.
part five
Modernity
10
North American Developments
In 1776 thirteen British colonies in North America declared their inde

pendence and proceeded to form new republican governments by adopting
constitutions that replaced the existing colonial regime. In 1787 represen-
tatives of these newly founded states proposed a federal constitution, in
which the basic structures of their common government were detailed. In
1789 twelve amendments to the federal constitution were proposed. Of these,
the ten ratified by a sufficient number of states became known as the Bill of
Rights (1791).
Ever since these developments took place, historians have asked how they
could be explained. They surveyed the social, cultural, economic, intellec-
tual, and political circumstances that had allowed them to transpire, and
they examined their consequences. Most stressed the importance of a con-
stitutional disagreement that distanced policymakers in Britain from the
colonies. According to this interpretation, at the center of the debate was
the question of whether Parliament represented the colonies and whether,
therefore, its approval of taxation was sufficient to apply new duties on colonial
subjects. Also debated was the status of colonial assemblies and colonial gover-
nors and their authority to regulate local life. Colonial subjects, believing that
the behavior of the king and Parliament v iolated their ancient customs and
liberties, determined that this violation authorized them to rebel.
Having reached this conclusion, the colonists moved to constitute them-
selves as autonomous polities by declaring their independence and appointing
constituent assemblies to draw up new pacts between themselves and their
167
g overnment. How they proceeded and what it meant for the development of
European law are the subjects of this chapter, in which I ask which legal an-
tecedents authorized these developments and how what transpired affected
European law.
The Foundational Documents

The Declaration of Independence announced in 1776 the Thirteen Colonies’
right to dissolve the political ties that connected them to Britain. To justify
this measure, the declaration included a brief survey of how h uman socie
ties came into being. This narrative stated that all men were created equal
and had certain inalienable rights, among them the right to life, liberty, and
the pursuit of happiness. Governments originated in the consent of those
ruled, and their work was geared toward the protection of these rights. If
governments failed to accomplish this task, t hose who gave their accord could
alter or end their agreement, instituting a new government according to the
design that was most likely to ensure their safety and happiness. The decla-
ration also enumerated the “injuries and usurpations” inflicted by the king,
showing that Britain had violated the compact that bound the colonies to
the homeland. The declaration ended with the assertion that those acting
did so in the name and the authority of the “good people of t hese colonies.”
Following the declaration (though in some exceptional cases even before
it), the various colonies drew up constitutions. Some did so of their own ini-
tiative; o thers responded to the call of the Continental Congress (the as-
sembly of delegates representing the Thirteen Colonies) that instructed local
assemblies to adopt written constitutions in which they would declare their
colony f ree and independent. This was regarded as a necessary preliminary
step before the colonies could associate with one another. Most state consti-
tutions reproduced existing political arrangements. Redescribing traditional
structures by using a new, enlightened vocabulary, t hese constitutions of
course eliminated references to the king and dependency on England, but
many conserved much of the previous local legal and political system that,
according to contemporary perceptions, already functioned well. Eight states
added to their constitutions a declaration of principles.1 These declarations,
usually identified as bills of rights, listed both universal principles and specific
arrangements that originated in common law. According to those who advo-
cated their elaboration, such bills were necessary because “the people” invested
North American Developments 169
in their new governments all the powers they did not reserve for themselves.
It was thus essential that checks on government would be made explicit.
A fter a prolonged and heated debate, representatives of the newly founded
states a dopted a Constitution that defined common institutions and set rules
regarding relations between the states. Drafted in 1787, the Constitution
instituted a federal structure with an executive branch (president), a bicam-
eral legislative branch (Congress), and a judiciary. In the name of “we, the
people of the United States,” it mandated that the legislature would be
made of a Senate and a House of Representatives, whose members would
receive salaries and enjoy certain immunities. The executive power was given
to a president, whose powers were detailed. The Constitution also instituted
a Supreme Court with remunerated judges.
The first ten amendments to the federal Constitution (the Bill of Rights)
listed the protected rights that the government could not violate. Th ese in-
cluded freedom of religion, speech, assembly, and petition, the right to form
militias and bear and keep arms, the requirement that the government se-
cure consent for the lodging of soldiers, security against unreasonable searches
and seizures, several protections in the field of criminal law (no indictment
without g rand jury, no double jeopardy, no self-incrimination, guarantee of
due process, no cruel and unusual punishments), and the right to trial by jury
in both criminal and civil cases. The Bill of Rights also contained two
amendments that addressed general principles. The first stated that the rights
included in the bill were not exclusive and that other rights could be retained
by the people even though they were not enumerated (Ninth Amendment).
The second stated that powers not specifically delegated to the United States
or explicitly prohibited to the individual states were reserved for the states or
“the people.”
The Creation of New Polities

Many of the arrangements included in the Declaration of Independence,
in state constitutions and the federal Constitution, and the various
bills of rights, were informed by English legal and politic al traditions,
but others were completely new. The separation of powers, for example, had
been proposed by many authors—perhaps most famously by Montesquieu
(1689–1755) in his The Spirit of the Laws (1748)—but this was its first formal
implementation. The federal Constitution also instituted a new type of
polity that featured a division of l abor between federal and state govern-
ments and made the citizens of each state entitled to treatment as citizens
in all other states.
Although these innovations w ere important, what was particularly revo-
lutionary was not the constitutions’ contents but the transformation of law
itself. As narrated in Chapter 8, the English conceived of their constitution as
ancient. According to the narrative that emerged in the seventeenth c entury, it
depended on a pact that was medieval in origin. Having survived numerous
confirmations, this pact was part of a customary law that was said to be both
ancient and oral. A few emblematic documents such as the Magna Carta or
the (English) Bill of Rights of 1689 confirmed the existence of this pact, but
these documents did not create it, they only reproduced parts of it in written
form. The English constitution was extremely casuistic. Rather than including
an enumeration of principles, or a global vision of what the social order should
be, it contained a wide array of particular, ad hoc arrangements.
Under the English system, furthermore, individual rights were protected
by the courts, which provided remedies against their infringement, but there
were no legal checks on Parliament. Parliament was said to be sovereign and,
in theory, could pass legislation that infringed even the most basic rights.
The expectation was that this would not happen because the House of Com-
mons represented the people and was to guarantee their rights. A system of
checks and balances was also supposed to ensure that Parliament (both the
House of Commons and the House of Lords) would behave, but there was
nothing built into the English constitutional system other than self-restraint
(or the upcoming elections) to ensure that rights would be respected.
The Thirteen Colonies adopted a radically different constitutional ar-
rangement. Although sharing the belief in an ancient political pact that guar-
anteed their rights, they searched for a distinct solution. Mixing customary
arrangements with innovations that were justified by reason, they proceeded
to adopt a series of elements that would constitute a new pact (Constitution)
between them and their government. In other words, they asserted their
absolute power to do and undo society and its laws.
Alleging continuity with the English tradition—in their foundational
documents colonists accused the English monarch of breaking the pact that
they wished to preserve—in practice t hese colonists turned the English tra-
dition upside down. They made several important structural innovations.
First, they began by affirming in the Declaration of Independence their right
to constitute a new polity that would be based on a new social pact. They
then defined the new pact by elaborating a Constitution. Although the

Constitution contained some familiar elements, it no longer represented
a customary agreement that had evolved historically. Instead, it included a
program for government that was designed and planned according to
what contemporaries trusted would be most efficient. Including general princi
ples rather than a casuistic list of elements, this new pact was meant to be
comprehensive and enumerated all the most important legal arrangements.
Rather than trusting tradition, it represented a profound belief in human
reason and a faith in h uman capacity to rethink the social order in ways that
would improve the lot of humankind.
Second, contemporaries stated that the steps they took required no justi-
fication other than the suffering they had endured. Th ere was no need for
old documents, laws, doctrines, or judicial opinions that would prove their
preexistence or assent to their worth. Instead, the measures taken w ere sup-
2
ported only by “self-e vident” truths. The drafters of the Declaration of
Independence and of the state and federal constitutions appealed to the
“Supreme Judge of the world” and affirmed the “rectitude of their intentions”
to support their claims that their vision was correct. Th ere was no room for
questioning. The Laws of Nature entitled them, they claimed, to create their
own polity and adopt for its management the rules that best fit their inter-
ests. Identifying their traditional and customary rights also as natural rights
and acting in the name of the people, they sought to “form a more perfect
union, establish justice, insure domestic tranquility, provide for the common
defense, promote the general welfare, and secure the blessings of liberty” for
themselves and their posterity.3 Nothing else needed saying.
The third innovation introduced during this period was the adoption of
writing. Representatives of the new states prepared foundational documents
that drew up the rules for the new polities and listed their authority and
powers as well as the rights that should guide or limit their activities. This
move—the writing down—was also revolutionary. The ancient English
constitution was said to be oral. It was dispersed in many different sources,
some documentary, but most not. As for natural law, there was no officially
sanctioned recompilation of what it included, nor was it ever restated in a
legislative act. By the 1770s, philosop
hers, theologians, politicians, lawyers,
and jurists of course w ere writing extensively on what natural law was and
what it included, but none of these writings was prescriptive.
Fourth, the rights Americans proclaimed were also new; they were
no longer privileges or liberties granted by a monarch. Instead they were
something that each person owned by birthright and because nature so dic-
tated. A mix and match of traditional common-law entitlements and ab-
stract principles based on natural law, the Declarations of Rights (1776) of
Virginia and Pennsylvania, for example, stated that these rights were to
guide (rather than be the result of ) the formation of new structures. Worded
sometimes as reflecting truth (“all men are born equally free and indepen
dent”) but sometimes as conveying an aspiration (“elections ought to be
free”), the two declarations asserted that men have certain inherent natural
rights of which they cannot be deprived, such as life, liberty, property, hap-
piness, and safety; that all power is vested in the p
eople and that government
is or ought to be instituted for the common benefit, protection, and security
of the people, nation, or community and must adhere to justice, moderation,
temperance, frugality, and virtue. Both declarations also instituted a certain
freedom of worship and expression and upheld the right to fair trial.
Yet the task of reproducing not only traditional rights but also natural
law and self-evident principles in writing and then transforming them into
a legally binding document proved extremely dangerous. This was particu-
larly evident with regards to the Bill of Rights. Originally meant to serve as
a statement of principles, mostly expressing a set of standards against which
to measure the legitimacy of government and with which to educate citi-
zens and remind them of what needed protection, it took a while before the
bill was understood to convey legal prescriptions. Applied in the nineteenth
century to the federal government and only a fter World War II to state gov-
ernments, many questions had to be answered. Was the enumeration of
rights a recognition that t hose rights already (naturally) existed, or did it
transform those rights into legally binding commitments? And what hap-
pened to rights that were not included in the list? Did they cease to exist, or
was their force the same as always, despite their omission from this founda-
tional document? If nothing changed because of the writing down (because
natural rights depended on a higher external norm that predated the Bill of
Rights and existed independently of it), what was the purpose of the Bill
of Rights? If the Bill of Rights did make a difference, how could the natural
rights, which w ere not enumerated, not suffer from their exclusion? And what
about rights that did not yet exist but might come into being in the f uture?
Although the Ninth Amendment referred to this question by stating that
the enumeration was not meant to deny the existence of additional, unlisted,
fundamental rights, lawyers and scholars have since asked what to do with this
amendment.4 Was it proof that the writing down of rights was only a means to
facilitate their defense in a post-independence period, or was the inclusion of

certain rights but not o thers an indication that they w
ere of a greater impor-
tance? Could the legislature, the executive, and the judiciary add rights to the
list by using this amendment? Must these additional rights be part of a recog-
nized tradition of natural rights, or could they be completely new?
Because of this complexity, U.S. courts have almost universally avoided
making use of the Ninth Amendment. Instead they tend to justify the recog-
nition of new rights by reading them into existing clauses. They did this, for
example, with the right to privacy. Starting in the 1920s, the U.S. Supreme
Court began inferring this right from several other amendments such as the
First Amendment, which prohibits laws related to religious matters and guar-
antees freedom of speech (this was comprehended as including the privacy of
belief ), or the Fourth Amendment, which protects the “freedom from un-
reasonable searches and seizures” (interpreted as guarding the privacy of the
person, his possessions, and household). They also searched to ground the
right to privacy in the Fourteenth Amendment (added 1868) in its “liberty
clause,” which forbade states to deny any person the right to life, liberty, or
property.
The fifth and perhaps most important innovation introduced by the rep-
resentatives of the Thirteen Colonies / States was the determination that the
new constitutional arrangements belonged to a higher normative order above
and beyond ordinary laws. According to this vision, they not only repre-
sented a framework for governance, they also limited the power of law-
making. Because the Constitution was now part of a new, superior sphere
of legality, no law or governmental action could contravene it. Contrary to
England, where the ancient constitution was a part of common law invoked
mainly to place checks on the king, in America the Constitution would
be the highest form of law, higher than all other normative sources, and it
would also seek to limit the discretion of Congress. Whereas in England
the Parliament and the king were said to be sovereign, in America, the Con-
gress and the executive were not sovereign because they were limited by
what the Constitution dictated. The aim was not only to protect “the people”
against government (as in England), but also to protect them against the
decisions of majorities exercising their otherwise legitimate power to legis-
late at the state and federal levels.
The Thirteen Colonies’ claim to a right to constitute a new polity based
on a pact that was both traditional and new, the pretense that this right
for self-determination needed no justification, and the writing down of
foundational documents with a higher normative value than other laws

were all acts that, although innovative, could be explained by observing
who the former colonists w ere or wanted to be. Th
ese acts also depended on
the beliefs propagated by intellectuals; they w ere based on the drafters’ fa-
miliarity with the law; and they w ere the result of the colonial experience.
English Antecedents
To explain why the colonists chose to rebel and how they framed their new
government, most historians point to the great affinity between develop-
ments in seventeenth-century E ngland and the eighteenth-century colonies.
Facing a legitimacy crisis and royal absolutism, seventeenth-century English
opponents proceeded to undertake their own revolution. During this revo-
lution they stated that, from time immemorial, England had an ancient
constitution that defined a pact of protection and obedience between the
monarch and his vassals. This constitution placed checks on the king while
also guaranteeing the rights of his subjects. Seventeenth-century English ac-
tors found written proof of this compact in the Magna Carta and other en-
actments. The most noteworthy elements of this ancient constitution w ere the
rights to no taxation without representation, due process, and trial by jury.
Developments in the colonies followed a similar course. A legitimacy crisis
backed by claims that Parliament and monarch did not have the powers they
pretended to have led colonists to vindicate their ancient rights. Allegedly
in order to protect these rights, they broke ties with Britain and instituted a
government that would be limited by a constitution. The constitutional ar-
rangements they a dopted w ere different, and so w
ere the tools designed to
protect them, yet the method was similar, b ecause in both places the opposi-
tion a dopted the claim that the king could not rule by fiat or prerogative
but must obtain consent to his laws, which must obey fundamental rules.
Most historians judged this close affiliation between events in England
and events in the colonies as natural, even self-explanatory, b ecause it was
normal that colonies inhabited by British migrants and ruled by the British
would use a common-law framework both to rebel against the old and to
construct a new polity. But t hese conclusions regarding the naturalness of
the relations between English and colonial developments included several
assumptions whose veracity was not evident. Foremost among them was the
conviction that the legal system operating in colonial North America was
common law. This conviction, which is often referred to as the “transfer

theory” (common law having allegedly been transferred from E ngland to
the Americas), was once the consensual view, but it has been widely criti-
cized in recent years.
Historians who question the “transfer theory” point to several reasons
common law could not have been the legal system operating in the colo-
nies. They explain that common law consisted of a system of adjudication
that depended on the existence of royal courts (see Chapter 6). As a result,
where such courts w ere absent, as in the colonies, where only local (cus-
tomary) courts existed, common law could not have been practiced. This
opinion reproduces the conclusions of a series of early modern thinkers, among
them Edward Coke, the g reat reformer of common law. In 1628 Coke asserted
that common law “meddled with nothing that was done beyond the sea.” Spe-
cifically referring to the ancient constitution, Coke determined that it operated
only in E ngland. In the mid-eighteenth c entury, William Blackstone, author
of the popular Commentaries on the Laws of England and a celebrated lawyer
and professor of law, also agreed that common law had no authority in the
colonies.5 According to his argument, if colonial legal systems were somewhat
reminiscent of this law, this similarity was not proof of automatic application
of English law in the Americas. Instead, it was the result of colonists’ deliber-
ately copying some parts (but not o thers) of common law.
The reason both Coke and Blackstone could disagree with the transfer
theory was that both believed that common law did not consist of rules and
principles that any court could apply. Rather than a substantive law that ex-
isted everywhere in E ngland (as many erroneously tend to view it today),
common law for them was the sum total of very specific procedures that only
certain royal courts (common-law courts) could apply. Yet, though denying
that common law was transferred in bulk to the colonies, Coke nevertheless
determined that the ancient pact (the constitution) that established mutual
obligations between the monarch and his natural subjects persisted even
when t hese subjects migrated to other royal domains. As with the natives of
Scotland in England (see Chapter 6), the English who migrated to the colo-
nies did not sever their ties with the king, and neither could the king break
his obligation to respect their fundamental rights. Thus, although neither
common law nor the ancient constitution crossed the Atlantic, English mon-
archs were still obliged to respect the core liberties of their subjects abroad,
mainly property rights and their consent for taxation.
This interpretation was validated by colonial charters and letters patent

that usually guaranteed colonists the liberties, franchises, immunities, and
privileges of English subjects.6 But what eventually consolidated the rights
of Englishmen in the colonies was not what the king promised (or was forced
to accept) but the way in which common law itself had evolved. Reimagined
in the seventeenth c entury as the only law of importance ever in existence in
England, and comprehended no longer as the product of royal courts (as
it really was) but instead as a customary law that was the property of all En
glishmen (see Chapter 8), in its new trappings common law could easily be
implemented overseas. With common law now representing a set of princi
ples, that is, a substantive law and a repository of rights, it could be applied
by local colonial courts (though they w ere not royal common-law courts)
and be claimed by the subjects living in the Americas.
As a result of these developments, paradoxically, over time colonial law
gradually converged with rather than diverged from that of England. Th ese
tendencies were also enhanced by the growing presence of the state and the
greater role of colonial merchants and merchandise in imperial markets.
This portrait—which suggested that the colonies gradually “Anglicized”—
implies that Americans were never as English as in the decades immediately
preceding their independence. Thus, if the transfer theory could be chal-
lenged for the seventeenth and early eighteenth centuries, it is nevertheless
possible that by the end of the colonial era common law was indeed widely
present in the Americas.
But even if so, which common law? The colonies were a loose association
of autonomous bodies, each having a somewhat distinct legal regime. Mas
sachusetts in particular had a system that was so divergent from England’s
that it is questionable whether it was part of common law at all. This differ-
ence was not considered problematic as long as colonial legal arrangements
were not “repugnant” (that is, directly contradictory) to English law. The
principle of repugnancy allowed constant debates between authorities in Eu
rope and in the Americas regarding which differences between England and
the colonies could be tolerated and which not. It also enabled disagreement
as to which part of English law applied overseas and to what extent.
Adding to this complexity was the existence in E ngland of a g reat diversity
of laws and systems, with common law cohabiting with several hundred
local, feudal, and ecclesiastical courts, each implementing their own norma-
tive order. Given this background, there was no reason to believe that multi-
normativity was not reproduced in the colonies. And if most individuals in

England had hardly any contact with royal courts, as many historians now
argue, neither is there reason to assume that the Englishmen who crossed
the Atlantic were any different. Having mostly experienced local or feudal
law in England, these immigrants-made-colonists must have brought with
them familiarity with these systems rather than with common law.
The transfer theory was also challenged by historians who stressed that
many migrants to the colonies were not English. Either excluded from the
privileges of Englishmen (as w ere the Germans and the Dutch) or simply
unfamiliar with it (as w ere the Scots), t hese migrants brought with them their
own legal visions, whose influence on local law has not yet been sufficiently
studied. Equally neglected was the question of how the presence of Africans
(free or enslaved) and native Americans might have influenced legal devel-
opments. Common law, in short, might have been present in the colonies
by the end of the colonial period, but so w ere a g reat many other norms and
systems. Did they not make a difference?
As a result of these discussions it is possible that even if common law had
been introduced to the colonies at some stage, it certainly was not the only
legal system operating t here, nor was it even the most important. But it is
nonetheless possible that growing demand for rights in the late eighteenth
century led common law (which authorized such demands) to prominence.
This perhaps explains why at the time of independence the leading voices
in the colonies appealed to common law. They debated their options by analogy
to England, and they constructed their new polity by reference to English
traditions. Most of them even argued that they were compelled to rebel
because they were more faithful to common law than were Parliament and
monarch, whom they now accused of violating the customary arrangements.
Yet, t here was nothing automatic or natural about their reliance on common
law. It was instead the result of a long process, which also involved many
strategic decisions.
Enlightenment Roots
The Enlightenment was an intellectual movement that took hold in various
parts of Europe in the eighteenth c entury. As described in Chapter 9, in its
core was a firm belief in rationality as well as in h uman capacity to reform
the legal order. Following in the footsteps of earlier generations, enlightened
thinkers concurred that society came into being after individuals living in a
state of nature negotiated a “social pact.” Th ese negotiations involved rea-
sonable individuals who were moved by the wish to improve their condi-
tions. They therefore agreed to certain stipulations that exchanged benefits
with restrictions and duties. B ecause t hese individuals w
ere capable of un-
derstanding how society functioned, they could plan their activities. By em-
ploying reason, they could discover the laws of nature and apply them to
their institutions and laws. The Enlightenment, in other words, affirmed
human agency and insisted that h umans were rational beings who w ere con-
scious of their rights (and duties) and were willing to limit them only for a
very important and worthwhile cause.
Through debates as to which system would lead to the greatest happiness,
the Enlightenment sought to liberate men from relying on ancient traditions
and authorities. As Immanuel Kant beautifully put it in 1784, the Enlight-
enment was to mark the end of men’s dependence on knowledge obtained
by others and designate the move to think for oneself, relying only on one’s
own ability.7
Reverberating throughout Europe, t hese proposals found a warm recep-
tion on both sides of the Atlantic. In Europe they eventually produced what
we now identify as the French Revolution. In Anglo-A merica they led to the
colonists’ decision to part from their motherland as well as design new struc-
tures of government that would protect their rights more efficiently. Ap-
pealing to such principles first in the Declaration of Independence, which
included a summary of enlightened theories, it was in the federal Constitu-
tion of 1787 that the representatives of the new independent states spelled
out their program. This program, they declared, was not mandated from
above or dependent on tradition but instead came from a rational analysis
done by “we, the people.”
The Enlightenment allowed late eighteenth-century actors to believe that
they had the power to remake society by following both their experience
and their reason. It also endowed them with the conviction that these mea
sures (which, in reality, were extremely revolutionary) required no justifi-
cation. Presenting them as the reasoned outcome of a law of nature, late
eighteenth-century actors declared them to be self-evident truths. Their only
justification was the fictitious tale, philosophical rather than historical, about
how societies came to be, which was conveniently reproduced in the Dec-
laration of Independence.
These convictions, enumerated in the foundational documents of the

United States, were pan-European rather than particularly Eng lish or
American, and they would be again invoked during the French Revolution
(1789–1799), producing even more dazzling effects. The affinity between de-
velopments in the Thirteen Colonies and what was to happen in France a
few years later led many historians to ask who affected whom and to what
degree. Regardless of questions of genealogy, which are often impossible to
answer with certainty, it is nevertheless clear that despite differences in legal
traditions and local contexts, and despite producing a somewhat divergent
impact, both the Americans and the French ended up with written consti-
tutions that upheld a strict separation of powers and declared the existence
of a similar list of inalienable rights that needed no proof b ecause they w ere
self-evident. Perhaps more than anything else, this similarity suggests that
late eighteenth-century American developments should not be considered
from a local or even an English perspective. Instead they should be explained
also by observing what transpired elsewhere. For the same reason, although
what happened in the Thirteen Colonies took place in the Americ as, it
formed part of a European-wide movement and participated in, as well as
precipitated, the development of European law.
The Law of Nations Turned Natural Law

The framers of the Declaration of Independence and the Constitution di-
rectly appealed to the law of nature. Part and parcel of the Enlightenment’s
philosophical toolbox and omnipresent in the thinking of English scholars
(although less so in the work of lawyers), most particularly in the eighteenth
century, the law of nature had a long history that began with ius gentium
(ancient Roman law applied to foreigners), moved through divinely man-
dated law (in the Middle Ages), and in the late sixteenth and seventeenth
centuries was explained by reference to experience and reason. During the
early modern period, natural law was a repository of norms that governed
relations among Europeans as well as between them and non-Europeans.
Initially used to justify European actions overseas, it was also a powerful tool
with which to criticize existing structures and laws—casting them as being
unnatural would imply that they needed modification, even abrogation.
Typical of such perceptions was Emer de Vattel’s Droit des gens (1758),
in which Vattel suggested that nations are politic al bodies or societies of
men united to procure advantage and security. This association required

a constitution—a fundamental regulation determining the manner in
which public authority must be exercised.
The representatives of the Thirteenth Colonies-made-states made exten-
sive use of such theories. These theories allowed them to explain the breakup
with Britain (because what the king did was unnatural) and they justified
the constitution of a new polity (a development authorized by the law of
nations as well as by natural law). Yet natural law not only sanctioned the
assumption of sovereignty, it also allowed contemporary actors to confirm
that, as representatives of a legitimate polity, they could contract with other
powers that should recognize them as equals.
According to some scholars, this might have been the original aim of the
Declaration of Independence, which was not necessarily directed at the home
audience, or even at Britain, but instead at the “international community”
(to use an anachronism). The declaration began by confessing this point,
namely, the need to appeal to the “opinion of mankind,” explaining why
the colonies proceeded in the way they had. It ended affirming that the colo-
nies w
ere now ‘ “free and independent states” that could, as sovereign bodies,
“levy war, conclude peace, contract alliances, [and] establish commerce.” In
this way the former colonists sought to transform what was essentially a
local insurrection, perhaps a civil war between them and their govern-
ment, into an international conflict between two sovereign bodies. Precisely
to this end, the Declaration of Independence accused King George III not
only of acting unjustly against his subjects (violating their ancient customs
and liberties), and of acting unnaturally (violating natural law), but also of
violating the laws of war and the customs of commerce, which governed
relations between polities.
Federal and state constitutions also sought to convince foreign powers to
acknowledge the new states as well as their association with one another. Th ese
constitutions not only wished to give legitimacy to the new polities, they also
offered a model that, based on an ideology that was transnational rather
than local, would demonstrate how contemporary theories could be imple-
mented. They allowed for a European-wide discussion regarding how to per-
fect society and its institutions, and w ere considered by many a test case for
what could or should be done. Centering not on its antimonarchical or anti-
colonial aspects but instead on the structures of government and the rights
of man, the American example could thereafter be universalized.
The Colonial Background

The nature of the confrontation between colonists and the British govern-
ment also influenced the legal shape the new country would acquire. Com-
plaints against Parliament’s assertion of sovereignty led colonists to search
for a mechanism that would limit the powers of representative assemblies.
If the move to restrict Parliament by enacting a constitution was understand-
able, so was the wish for a written document that would transform what
otherwise belonged to an oral customary law (in E ngland) into a formal legal
arrangement (in the United States). The writing down promised greater
transparency and clarity, but it was also part of the colonial tradition, which
relied greatly on written material, with charters enumerating the rights of
subjects and many laws detailing what the normative order was like. By the
late eighteenth c entury, colonial charters were already seen as a sort of con-
stitution (a legislative governmental framework) that could be used as a de-
fensive mechanism against the misuse of power. They w ere also a means to
recognize rights, because they embodied a sort of covenant between colo-
nists and the king.
The foundational documents of the Unites States reflected these partic
ular conjunctures, needs, and traditions. The Bill of Rights was especially
indicative of this dependence; the topics it enumerated w ere perhaps objec-
tively important, and w ere definitely part of the English tradition, but their
inclusion in the Bill was directly related to the events that took place before
and during the War of Independence. Taxation without representation was
obviously one such case, but colonists and metropolitan authorities also de-
bated other issues, such as the quartering of troops, the right to have local
militias, and the promise of due process in local courts with juries and in
dependent judiciary, all of which made their way into the Bill of Rights while
other, not less important ones, did not.
The Legal Significance of These Developments

The Declaration of Independence, the federal and state constitutions, and
the bills of rights ushered in a new age in legal and political history. Since
their promulgation at the end of the eighteenth century, numerous other
countries proceeded to declare their independence by claiming the right to
constitute new polities after registering complaints against their former rulers.
Equally popular was the adoption of constitutions that were not dramati-
cally different from the American one. Th ese usually expounded a scheme
of government that, although often distinct from the one espoused by the
former Thirteen Colonies, nevertheless included the separation of powers as
well as, more recently, judicial review. Th ese constitutions w
ere understood
to embody a superior level of normativity that other laws or governmental
action could not violate.
Although this American contribution to European law was not completely
autochthonous—after all, it was based on English legal traditions, Euro
pean debates on natural law and the law of nations, and Enlightenment
philosophy—it is nevertheless clear that the representatives of the Thirteen
Colonies were the first to convert these ideals into formally sanctioned legal
structures. They w ere also the first to decide that the most basic elements of
collective life (the structures of government) would be decided by votes in
assemblies that allegedly reflected and refined the desires of “the people.”
The constitutions they imagined w ere the product of both tradition and
reason, but their ultimate goal was to ensure the happiness of all.
These developments set an example that others could emulate. The list of
countries that w ere directly or indirectly affected by them, that proceeded to
declare their independence or adopt constitutions, was massive. Among them
(the list is not exhaustive and contains anachronistic names) w ere Belgium,
Haiti, most former Spanish colonies in the Americas (Gran Colombia, Vene-
zuela, Argentina, Chile, Costa Rica, El Salvador, Guatemala, Honduras,
Mexico, Nicaragua, Peru, Bolivia, Uruguay, Ecu ador, Colombia, Para-
guay, and the Dominican Republic), Liberia, Hungary, New Zealand, Ger-
many, Italy, Japan, the former Czechoslovakia, and the former Rhodesia.
By the end of this process, American revolutionaries’ powerful message
regarding their rights indeed became the self-evident truth they had prema-
turely imagined. This truth—that communities have the right of self-
determination, that they can construct new polities, modify the conditions
of the social pact, design an effective government, institute a constitution
that would limit the actions of the legislative and the executive, and pro-
ceed to identify and defend their rights—are presently considered so con-
sensual that they no longer require justification.
11
The French Revolution
On July 14, 1789, an angry mob stormed the Bastille, a fortress on the
eastern side of Paris, in an episode that came to mark the beginning of the
French Revolution. Since then many scholars have attempted to decipher
how the Revolution came about and what its short-and long-term conse-
quences w ere. They have described how the king was forced to relinquish
much of his control, how peasants began attacking seigneurial properties,
how new constitutional arrangements were developed, and how King Louis
XVI was sentenced and executed. They have narrated how the Revolution
grew more radical and more violent over time and how t hose who resisted it
were persecuted. Symbolized by the invention of the guillotine, persecution
led to the execution of many, most particularly in a stormy era identified as
“the Terror.” A fter several constitutions and a period that featured extensive
violence and chaos, in 1799 Napoleon Bonaparte ascended to power. Some
scholars saw the coming of Napoleon as signaling the end of the Revolu-
tion. O thers saw it as leading to the spread of the Revolution’s main princi
ples throughout Europe.
In what follows, I concentrate on the legal significance of what transpired.
I argue that the French Revolution featured a radical transformation, perhaps
the most radical transformation that European law has ever experienced.
Turning existing traditions upside down or inside out—contrary to what
happened in the Thirteen Colonies, where most actors appealed to natural
law yet also wished to continue upholding many traditions—the French de-
clared the need for a complete overhaul of the legal and political system.
183
This would include not only constitutional changes (as in the Thirteen Col-
onies, where pre-independent law often continued intact despite the political
upheaval) but a modification of the entire legal system. Discarding customs
and existing structures, the declared aim was to create a new order, where
norms would no longer be inherited from the past. Instead they would herald
a f uture in which all decisions regarding both public and private law would
be mandated by natural law and reason, and guided by the w ill of the na-
tion. This vision, which was sometimes more radical than the actual legal
changes, transformed the French Revolution into an earthquake that allowed
for the emergence of law as we know it t oday.
The Making of a Revolution

ese radical political and legal transformations began in 1789, when mem-
Th
bers of the Estates General (the Parliament) declared their meeting a Na-
tional Assembly. This declaration implied that instead of a body divided by
estates (nobility, clergy, and commoners) and representing (in the case of
commoners) specific regional interests, as had been the case, the assembly
would now have only one chamber, which would represent all estates and
regions. It would speak on behalf of the nation, now conceived not as a body
made of corporations and o rders as it had been but as a society of citizens.
Following this declaration, the members of the Assembly announced that
they had powers to modify existing political and legal structures. They pro-
ceeded to abolish the feudal system and many of the privileges of the Church,
such as the right to collect tithes. They eliminated the sale of judicial and
municipal offices, declaring that all public functions w ere open to all candi-
dates according to merit. They also ended fiscal privileges that had spared
nobles and the clergy from important tax payments. In a series of decrees
(known as the “August decrees”), the members of the Assembly also declared
that, b ecause the u nion of all Frenchmen was more advantageous than the
particular privileges that some French provinces enjoyed, all provincial, dis-
trict, local, and urban legal particularities would cease to exist and a single
law would instead apply all over France.
The Assembly then moved to adopt the “Declaration of the Rights of
Man and the Citizen” (1789). This declaration proclaimed the existence of
inalienable rights, including equality, liberty, property, security against op-
pression, presumption of innocence, no taxation without parliamentary
The French Revolution 185
consent, and freedom of speech and the press. It listed a series of constitu-
tional elements, including the assertions that sovereignty resided in the na-
tion, legislation expressed the general will, and the armed forces were to
protect the common good rather than the king. The declaration also estab-
lished as a general principle that what was not prohibited by legislation was
allowed and that no one could be constrained from doing anything unless
legislation so mandated.
These legal arrangements w ere entirely new, yet the declaration pre-
sented them as requiring no explanation or justification other than that
they were “natural, inalienable and sacred . . . simple and incontestable
principles,” which the representatives of the French p eople “set forth in a
solemn declaration . . . under the auspices of the Supreme Being.”1 Like the
representatives of the Thirteen Colonies, the authors of the Declaration of
Rights appealed to self-evident truths, suggesting that the changes they in-
troduced were in reality a restoration. According to the preamble to the
declaration, it was precisely the ignorance, neglect, or contempt for t hese
self-evident truths that had led to the public calamities and corruption the
members of the Assembly sought to correct.
In 1790 the National Assembly abolished all ecclesiastical taxes, confis-
cated Church property, and forced the clergy to become state employees. The
assembly then proceeded in a very short time span to adopt several consti-
tutions. In what was to become an extremely volatile period of politic al
experimentation, with one constitution replacing another and each sub-
stantially modifying the structures of government, different revolutionary
groups and individuals sought to identify the structures that would best fit
their image of an ideal society.
In 1791 the National Assembly voted on the first new constitution, which
included many of the initial foundational changes. Its preamble stated that
the aim of the document was to abolish irrevocably institutions that under-
mined the liberty and equality of man. In the f uture t here would be no dis-
tinctions based on birth and no privileges other than the ones bestowed on
all Frenchmen. L abor would be liberated too—instead of being limited to
guild members, all employment would be made available without distinc-
tion other than virtue and talent. The aim was to guarantee the natural and
civic rights of all Frenchmen, including the right to hold jobs, a fair distri-
bution of taxation according to financial ability, equal punishment for equal
crimes, freedom of movement and protection from arrest, freedom of speech
and press, freedom of assembly, and freedom to address the authorities. The
1791 constitution protected the inviolability of property, stating that no
one could limit this right unless public security or the rights of third parties
were in jeopardy. It declared France a single indivisible polity and announced
that sovereignty, which was inalienable, resided in the nation. Ensuring the
separation of powers, the constitution instituted an executive (exercised by
the king), a legislative branch (composed of deputies elected by the people,)
and a judiciary (also elected). French citizens w ere divided into active citi-
zens who could vote b ecause they were males over 25 years old and paid a
certain amount of taxes and passive citizens who could not vote.
In yet another radical transformation, in 1792 France was reconstituted
as a republic, whose assembly was to be elected by universal male suffrage.
In 1793 Louis XVI was executed and a new constitution was adopted. Ac-
cording to this constitution, the National Assembly would be elected by all
male citizens and was to suggest laws that regional “primary assemblies”
would have to ratify. The National Assembly would appoint the executive
from lists of candidates proposed by these primary assemblies. Debates in
the National Assembly would be open to the public and would be decided
by the majority of members present. The 1793 constitution ended with sev-
eral clauses enumerating the main rights of Frenchmen, including equality,
liberty, security, property, f ree exercise of religion, the right to education and
public assistance, freedom of the press, and the right to hold popular assem-
blies as well as enjoy all the other rights of man. The constitution also guar-
anteed “respect” for “loyalty, courage, age, filial love, misfortune, and all
other virtues.”
Radical in its conception of popular sovereignty, the 1793 constitution was
ratified by popular referendum, yet its implementation was delayed and then
set aside indefinitely u
ntil peace would be achieved. In 1795 yet another
constitution was adopted. It sought to grant greater power to a five-person
executive called the Directorate as well as obtain control over the political
process while augmenting the protection of private property and the in-
violability of private residences, which could not be entered or searched
without an appropriate warrant. The 1795 constitution also forbade the for-
mation of corporations and associations that w ere contrary to public order,
and the creation of societies concerned with politic al questions. Politic al
rights, it stated, should be exercised only in primary and communal assem-
blies subject to the law. Any other unauthorized gathering would be consid-
ered an attack on the constitution and would immediately be dispersed. To

usher in this new age, the constitution proposed that “the French era” date
from September 22, 1792, the day of the establishment of the Republic. Ac-
cording to this new calendar, the 1795 constitution was therefore enacted in
year III.
A New Vision of the Law

Chaotic, piecemeal, and sometimes contradictory, these new legal arrange-
ments were often the result of compromise. They were adopted following
long debates between individuals and groups who often took to violence in
order to guarantee the submission (or elimination) of their opponents. Al-
though the solutions proposed could vary dramatically, the results obtained
were often less coherent than what was intended, and actual implementa-
tion left much to desire, it is nevertheless clear that many of the changes
proposed in France in the late 1780s and early 1790s were truly radical. Be-
yond the particularities of laws and constitutions, and despite the vicious
power struggle among factions, t hese developments all contributed to the
reformulation of what law was, where it came from, and what it was based
upon.
Paradoxically, this new conceptualization of law was fairly consensual
among rival factions. Evident, for example, in the Declaration of the Rights
of Man and Citizen, it stipulated that (1) sovereignty resided in the nation,
which expressed its general w ill by creating laws; (2) anything not prohib-
ited by legislation was allowed; and (3) no one could be constrained from
doing anything unless the law so prescribed.
Together, these revolutionary measures implied that legislation, guided
only by the w ill of the p
eople, was now the only legitimate normative source.
No longer could individuals and communities appeal to customs, doc-
trine, religious and moral duties, or even jurisprudence. Instead, either the
legislation sanctioned a certain arrangement, making it legal, or it did not, in
which case this arrangement did not exist. The legal order was now a clean
slate upon which it was possible to draw whatever one wanted as long as it
was reasonable, did not contradict natural law (whose meaning and exten-
sion could, of course, be a m atter of debate), and obeyed the general w ill.2
Thereafter, all laws in both the private and the public realm (to use an
anachronism) would become the product of willful and deliberate human
activity and would be enacted, not spontaneously within the community

(as customs were said to have been promulgated), but following reasonable
discussion and debate. Laws would no longer be mandated by tradition,
professional advice, or judicial activity, but would be a dopted as the need
arose by new actors we would come to identify as “politicians.” Because
proposed by reasonable nonprofessionals elected by the citizens, t hese laws
would be so simple and so straightforward that their contents could be
summarized in a textbook that every citizen could comprehend and every
family could own. This simplicity would justify eliminating the mediation
of professionals. There would be no longer a need for judges and lawyers
trained in law. Instead, the exercise of much of their former activities would
be delegated to reasonable men, who would require no special preparation
and would have no monopoly over their office. For the same reason, most of
the litigation could be redirected from formal courts to informal arbitration
focusing on reconciliation.
This new vision radically departed from previous arrangements. While
Old Regime law included a multiplicity of sources (customs, doctrine, juris-
prudence, divine mandate, and legislation), the new law ushered in by the
French Revolution validated only legislation, theoretically tossing out all
other normative sources. Whereas in the Old Regime law was the mono
poly of jurists, who were charged with both identifying and applying it, under
the new system it could be made, implemented, and understood by any rea-
sonable person. While in the Old Regime the main task of jurists and
judges was to discover and apply a preexisting law that was anchored in the
way things always were or ought to be (customs) or by reference to accumu-
lated professional know-how (ius commune), or divine will (canon law), the
measures a dopted during the French Revolution enabled, even advocated,
legal creation. The aim of the legal order would no longer be to safeguard
the status quo but instead to change and improve society. Paradoxically, these
revolutionary measures w ere advocated by jurists turned deputies who, po-
sitioning themselves as technical experts rather than as politicians, success-
fully pursued a program that could potentially eliminate their monopoly as
a group.
If the nature of the law itself changed, so did the community to which it
would be applied. During the Old Regime, t here was a pan-European legal
order in which an overreaching system (ius commune) coincided with ex-
tremely localized legal arrangements (ius proprium, now also identified as
customary law). The new French system now i magined instituting a national
law—there would be only one law in France, and this law would apply to all
Frenchmen equally. No longer would it be the case, as Voltaire (1694–1778)
had once argued, that when traveling through France, one changed laws
more often than horses.3
The normative order that emerged from the French Revolution therefore
established that laws would be made by the elected representatives of the na-
tion. Guided by reason and based on the assumption that contemporaries
could—indeed, on occasions must—intervene in the legal order, legislation
would seek to improve or even redesign society. It would apply only within
the territory of the state but it would apply to all citizens equally. All t hese
traits, which describe our present-day understanding of what law is, w ere
perhaps not born with, but certainly for the first time were legally instituted
with, the French Revolution.
Beyond its enormous contribution to the redefinition of the normative
order, the French Revolution also pioneered three other changes that were
fundamental to the emergence of legal modernity. The first was the unifica-
tion of the legal subject, allowing us to imagine identical individuals who
all carried the same rights and duties. The second was the unification of
various rights over things into “property rights” the way we know them t oday.
The third was the unification of power and the creation of an undivided
sovereignty.
The Unification of the Legal Subject

Breaking away from the preexisting axiom that men w ere dissimilar b ecause
distinguished by birth, occupation, residence, or religion, the various enact-
ments made during the French Revolution declared all men equal. In prac-
tice, this meant the abandonment of an old system that bestowed rights and
privileges to individuals according to who they were, replacing it with a new
regime that no longer acknowledged the appropriateness of distinctions in
estate, profession, or place of residence, declaring these either abolished or
irrelevant. The promise of equality, however, was not complete. Some dis-
tinctions survived. Among them w ere differentiations based on gender,
wealth, civic state (slavery or freedom), and, to some degree, religion.
The move to abolish distinctions in estate, profession, and place of resi-
dence required imagining a new type of person, an abstract individual who,
regardless of his or her distinct history and traits and despite having obvious
particularities, would be considered identical to all others. This new indi-
vidual would be decontextualized by way of a legal fiction that, in the name
of equality, would ignore all factors that made him or her particular or would
classify them as inconsequential.
If ignoring differences was one requirement, the need to piece together a
new legal subject was another. What this entailed can be best explained by
using an example. U nder the Old Regime, a nobleman who resided in a city
and was employed in the military held various legal personalities. As a no-
blemen, he enjoyed one legal regime, as a resident of a city, another and, as
a military man, yet a third. Each legal regime implied a different set of privi-
leges and duties. This diversity in law was maintained through the existence
of various jurisdictions. The nobles had their own authorities and tribunals
in which they adjudicated conflicts, and so did the city and the military.
These authorities and courts were responsible for enforcing the particular re-
gime that applied to the members of the group, one that sometimes was
bothersome but on most accounts was considered advantageous.
Wearing multiple hats—as in Gilbert and Sullivan’s The Mikado, where
Pooh-Bah was the first lord of the treasury, lord chief justice, commander
in chief, lord high admiral, master of the buckhounds, groom of the back-
stairs, archbishop, and lord mayor—our nobleman could alternatively
invoke his different legal personalities, but he could not combine their ele
ments. Either he was treated as a nobleman and received the rights that
applied to nobles and carried the duties of his estate, or he enjoyed the privi-
leges of his city and was under the protection of its authorities, or he ap-
pealed to the military jurisdiction. U nder the Old Regime this multiplicity
represented reality, not a comic or absurd situation.
The nearest example for such a situation today would be when the same
physical person (an individual) acts for a company (his or her first legal per-
sonality) or for him / herself as a private individual (his or her second legal
personality). If he / she is a trustee, he / she may have a third legal person-
ality when acting for the person or company, for which he / she is a trustee.
But what this person cannot do even today is combine his or her rights as
president of the company with his or her rights as a trustee or as a private
individual. As far as the law is concerned, although we all know that the very
same physical individual fulfills all these roles, he or she embodies three di-
verse legal personalities, and each action is ascribed to only one of his or her
personalities, as if the others did not exist.
Although some measure of multiplicity persists today, what was different

before the French Revolution was that, legally, t here was no single legal per-
sonality to match the private actions of individuals. In their private lives,
that is, not only when they acted for a corporation, as would be the case
today, most individuals embodied a multiplicity of persons: a nobleman, a
resident of a city, and a military man, to return to the previous example. To
create a single legal subject out of t hese various fragments required not only
imagining that different individuals w ere essentially the same (and thus
equal) but also devising a system that would combine their various person-
alities into one. Destroying the existing orders and jurisdictions and dis-
secting them into individual rights and duties (the right to own property, the
right to work, the right to reside in the city, the duty to pay taxes), revolu-
tionary enactments then proceeded to imagine an abstract individual and
attach to him / her all the traits worth protecting.
The Unification of Property

If the unification of the legal person was one project, the unification of prop-
erty was another. Under the Old Regime, most rights we now identify as
property rights did not belong to a single individual but instead w ere dis-
tributed among many. With regard to land rights, jurists distinguished, for
example, “direct dominion” (dominum directum), which included the right
to direct what would happen on the land, collect dues, and exercise authority,
from “useful dominion” (dominium utile), which included the right to use
the land and, mostly, keep the income it generated. Jurists also recognized
an abstract right that all monarchs had over all lands in France, a series of
communal rights that entitled members of the community or all Frenchmen
to use the land for certain ends, such as pasture or gleaning. The Church
also had rights to certain fees on the land, which were considered real rather
than personal obligations, and most lands w ere also u
nder additional impo-
sitions, monopolies, and servitudes. The hierarchy among these rights was
not always clear, leading to conflicts. Meanwhile, the fragmentary nature of
land rights led to a certain fossilization, making it difficult to sell or buy land.
Added to this complexity w ere multiple legal impositions that instructed how
the land could be used, what could be planted, what could be cleared, and
when cultivation was allowed. Land rights w ere also subject to local codes
that varied from place to place, region to region, and depending on the type
of land and how it was acquired.
One of the first goals of revolutionary legislation was to change this situ-
ation, which many perceived as both chaotic and extremely prejudicial. Law-
makers wished to distinguish between jurisdiction and property, that is, the
right to exercise power (such as the powers of lords in their seigniorial do-
main) and the right to own land. They also hoped to reform the land market
and transform peasants into small proprietors, improve the state of agricul-
ture, protect property against abuse, and appeal to principles of reason and
simplicity.
Embracing the idea that property rights should be as complete and free
as possible, French revolutionary legislation imagined a new, modern prop-
erty that would include all the entitlements previously divided among many
individuals. Thereafter there would be a sole owner with the right to direct,
use, and collect income. This owner would be f ree of state regulation and of
impositions by third parties, and his rights would not be limited u nless con-
siderations of public utility and the rights of others justified it. Property, as
the Declaration of the Rights of Man and Citizen proclaimed in article 14,
would be “natural and imprescriptible” as well as “sacred and inviolable.”
Or, as the French civil code of 1804 would eventually determine, property
would become “the right to enjoy and to dispose of things in the most ab-
solute manner provided that one does not make use of them in a manner
prohibited by laws or regulations.” 4
Unification of Power and Indivisible Sovereignty

No less important was revolutionary trust to unify into one and indivisible
sovereignty all pubic power, which in the Old Regime was distributed among
many individuals, officials, and entities. This unification was already pro-
posed by Jean Bodin (1530–1596). Responding to the chaos provoked by the
Wars of Religion (1562–1598) between Catholics and Protestants, Bodin ad-
vanced the theory that society needed to have a government that would dis-
play supreme command over all citizens. Rather than public power being
divided among many individuals (the king, seigniorial lords, the Church,
guilds, and so forth), t here would be one person (the king) who would ac-
cumulate all powers and would be placed in a position of clear superiority
to all other jurisdictions. He would be able to declare war and peace, hear
appeals in the last instance, nominate and remove officers, and impose and
collect taxes, but most importantly he would have the absolute power to
make and change the law without needing to obtain the consent of others.
Unlimited in his actions and free of constraints other than divine and natural
law (including the Law of Nations), sovereignty, Bodin argued, was a neces-
sary condition for the survival of all polities.
Although they w ere relatively novel, even scandalous, when proposed,
Bodin’s theories, which w ere also discussed by Grotius, Hobbes, Locke, and
Pufendorf, to mention just a few examples, were brought into fruition by
the French Revolution. One of the first moves of revolutionary legislation
was to insist on creating a sovereignty that would be indivisible. Gradually
eliminating the powers possessed by officeholders who purchased their of-
fices, by lords, and by the Church, it collected these pieces of jurisdiction
together to create a new type of public authority that would be charged with
all public power and would be placed hierarchically at the top. The consti-
tution of 1791 pointed to this by asserting that “sovereignty is one, indivis-
ible, unalienable and imprescriptible.”5
As with developments in the Thirteen Colonies, many of t hese ideas w ere
not French in origin nor did they find receptive audiences only in that
country. However, the particular preconditions in France and the way the
Revolution developed made arguments and goals that w ere also present else-
where exceptionally powerful there. To understand why this was the case, it
is essential to trace the effects of Enlightenment philosophy, the propensity
of French monarchs to claim and use legislative power, and the way the con-
frontation with the king took shape.
The Enlightenment
The intellectual movement known as the Enlightenment took hold in various
parts of Europe in the late seventeenth and the eighteenth c entury. Believing
that society is ruled by natural laws, late seventeenth-century thinkers sug-
gested that society was instituted by rational individuals who chose to live
together in an organized structure. These individuals bargained with one an-
other, consenting to cede certain things in exchange for receiving o thers.
Although t hese thinkers disagreed on what the conditions for the formation
of society were, they nevertheless conceded that societies were consciously
and purposely created by man and that, as a result, they w ere regulated by
a foundational social pact. The implication was that certain norms embedded
in this primordial pact could not be modified without refounding society.
By the eighteenth c entury, alongside t hese convictions came the belief that
uman society could improve if its organization and laws were more attuned
h
to nature. Thereafter, methods of inquiry applied to the hard sciences could
also serve to explain society. Like nature (and in its condition as part of na-
ture), society was subject to regular and uniform laws, which men could
understand by employing reason. Discovering t hese laws was essential b ecause
this knowledge allowed men to plan their activities and their societies by
forming appropriate institutions and devising rules to lead them to greater
happiness. And if men created the foundational social pact, they also could
change it by reaching a new agreement if circumstances so required. By the
eighteenth century, in other words, the original pact no longer simply re-
strained what people and governments could or could not do; it could also
become an instrument of change. Thereafter, people living together in a
polity were seen as having the power to make and unmake their association,
as well as modify the terms of their agreements.
Radical strains within enlightened thought suggested that the existing
social pact restricted rather than advanced human happiness. To redo so-
ciety, what was needed was a profound change, not cosmetic innovations.
To imagine a better f uture, it was necessary to destroy the past. The best
known among proponents of such radical moves was Jean-Jacques Rousseau
(1712–1778). In his Social Contract (1762) Rousseau concluded that society
corrupted rather than improved man, and he advocated its refoundation on
the basis of a better agreement. The new social contract he proposed would
not subject man to state, king, or government, as the present one did, but
instead would subject man only to the community of which he was a member.
According to Rousseau, this structure would ensure that all men would be
both equal and sovereign, and it would guarantee true happiness.
These visions, which embodied enlightened beliefs, might have also been
influenced by the constitutions and bills of rights that the representatives
of the rebellious Thirteen Colonies adopted in the 1770s and 1780s. These
documents—which some have described as a portfolio deliberately pre-
pared, copied, and translated in order to legitimize the uprising and rally
international support—were widely available in France. They w ere read and
discussed by crown officials and intellectuals, some of whom came to believe
that the events taking place in North America w ere the beginning of a trans-
formation that would spread across the civilized world. This transformation,
they hoped, would usher humanity into a new century, in which the experience
of the Thirteen Colonies would serve as the experimental grounds.
Although revolutionary and groundbreaking, many of the beliefs ad-

vanced by the Enlightenment of course had deeper roots. They were based
on seventeenth-century debates regarding the social contract, and they re-
lied on juridical discussions concerning sovereignty and property, to men-
tion just two examples. Jurists and intellectuals who pursued them were well
versed in past traditions and often acted not only against these traditions
but also in continuity with them. Their debates were geared t oward learning
what needed changing and what could remain intact, what could be modi-
fied and, often, how.
Local Conditions I: Legislation

As we have seen, during the fifteenth, sixteenth, and seventeenth centuries,
French monarchs gradually assumed the power to legislate. Under the guise
of continuity and pretending their intervention was a sign of respect toward
traditional rights, monarchs encouraged, sometimes even forced, campaigns
to write down the customary law of the various French regions. During t hese
campaigns, royal jurists selected which customs would be written down and
which forgotten. They also chose how customs would be worded, and which
customs, originally restricted in their geographical scope, would be ap-
plied throughout the realm. As a result, by the seventeenth century the
customary law of France had profoundly mutated. Rather than relying on
ancient practices or negotiated solutions as was originally the case, it was
made into a royally sanctioned written law that recorded only certain cus-
toms in particular ways.
While, formally, the writing down of customs did not change the norms
but only clarified and recorded them, beginning in the mid- sixteenth
century French kings began intensifying their intervention in the legal order.
New royal enactments modifying existing jurisdictions, affecting procedural
law, and redefining many institutions worked to change the French legal
system. Particularly famous in this regard were the mid-seventeenth-century
reforms undertaken u nder Louis XIV. During his reign, committees of
jurists drew up general ordinances that refashioned civil and criminal pro-
cedure and regulated many other aspects of commercial life and navigation.
Louis XIV also introduced the study of French law into local universities
and encouraged jurists to write textbooks. Royal legislative efforts continued
into the eighteenth c entury and w
ere particularly clear in areas of private
law such as donations and inheritance.
According to royal jurists, t hese interventions were necessary b ecause

French law was far too chaotic, far too difficult, and far too impractical. It
required systematization, as well as scrutiny as to which remnants of the past
were suitable for present conditions and which not. Despite the immensity
of t hese measures, however, royal jurists did not pretend to overhaul the
system; instead they viewed their work as intervening and changing what
was necessary to modify according to contemporary criteria of what was just
and what efficient.
This goal, which was juridically and politically motivated, was also sup-
ported by emerging philosophies. Bodin (1530–1596) and t hose following him
suggested that public power had to be concentrated in one person (the king),
who should exercise his faculties by making laws. For Bodin as for many of
his contemporaries, law continued to be justified by a theologically based
truth (veritas), but it was now in the hands of monarchs and depended on
their will (voluntas). If sovereignty was one element in the puzzle, another
was theories of “reason of state” that demanded that rulers actively intervene
to ensure the well-being of their kingdoms even at the expense of taking
measures that otherwise would be immoral or illegal. The greater good, in
short, justified contravening the ordinary way of d oing things. Thereafter,
royal intervention in the normative order became an obligation rather than
a privilege.
By the eighteenth c entury, this intervention was almost routine. If it pro-
voked opposition, it also became a habit, instilling the idea that legislation
was an effective way to transform reality. As a result of these developments,
by the late eighteenth century France had a legal system that gave legislation
a relatively central role. The country also had a strong political tradition that
justified sovereignty (understood, paradoxically, as the power to act out-
side the law, among other things, by creating new norms) and theories that
demanded that government not only guarantee the status quo but proceed
to ensure greater happiness.
Local Conditions II: The Role of French Parlements

While royal practice and enlightened ideas furnished contemporaries with
new ways of conceiving the legal order, just as important were the particular
circumstances in France on the eve of the Revolution. As we have seen, the
centuries that predated the Revolution witnessed growing royal activism,
mainly expressed through intervention in the legal order. Resistance to t hese

tendencies, which were interpreted as attempts by the kings to institute them-
selves as absolute monarchs, was mostly channeled through the work of French
parlements. These w ere not political assemblies as the English translation
(Parliament) would indicate. Instead, they w ere royal courts that repre-
sented the king locally. As overseers of law in Paris (the Parlement of Paris)
and the provinces (provincial parlements), these courts received all royal
orders (ordinances, royal letters, edicts, treaties, and the like) for their area
and registered them on their rolls before the o rders w ere published and
obeyed.
Although initially this was a relatively innocent formal bureaucratic prac-
tice that informed judges of what the king instructed, during the early
modern period the parlements began using registration to place checks on
royal will. Their magistrates argued that they had the right to remonstrate
against decrees and could refuse registration u ntil they w
ere heard or the
necessary amendments w ere made. Although in theory decrees w ere valid
whether the parlement registered them or not, French jurists often consid-
ered registration a de facto ratification.
The most common pretext to complain and delay the registration of royal
decrees was that they violated royal legislation or provincial norms that were
deemed fundamental. The parlements, it was argued, were guardians of
the law and it was their duty to remind the king of his obligation not to vio-
late the established legal principles and the fundamental laws. Responding
to such protests, most kings ordered the parlements to register the decrees
and threatened magistrates with punishment. By the sixteenth c entury, French
monarchs also replied by personally attending the meeting of the parlement,
a ceremony (lit de justice) that commanded respect and obedience in ways
that written orders did not.
Although the relations between the parlements and the French monarchs
changed over time, on the eve of the French Revolution the magistrates of
the various parlements and the royal administration were locked in a power
struggle. The king, acting as an absolute sovereign, attempted to levy new
taxes and change state structures, and the parlements responded that he must
obey the fundamental laws of the country, which the magistrates claimed
to defend. As in seventeenth-century E ngland, eighteenth-century French
magistrates asserted that France had basic legal arrangements that functioned
as a constitution that the monarch could not alter. Particularly adamant
regarding this point were the magistrates of the Parlement of Paris, which
in 1753 declared that t here was a contract between the king and his subjects
according to which if the subjects obeyed the king, he had to obey the law.
The struggle over registration of royal decrees by the parlements allowed
some members of the French elite to resist the expansion of royal preroga-
tives under the guise of obedience to the normative order and defense of tra-
ditional liberties. Particularly active in the 1770s and 1780s, the Parisian
Parlement insisted that royal actions could not contravene not only the fun-
damental laws of the kingdom but also the “rights of the nation,” which the
Parlement was charged with protecting. The radicalization of the conflict led
the monarch to reform the parlements (in 1771) and abolish them (in 1788).
The role that parlements appropriated in the name of the provinces and
the nation was clearly summarized on May 3, 1788, one year before the Rev-
olution began. In The Declaration of Fundamental Laws, the magistrates of
the Paris Parlement expressed their conviction that France had a customary
ancient constitution that the king must uphold. According to their under-
standing, the most fundamental norms included in that constitution were
succession to the crown by a male heir according to primogeniture, the right
of the nation to grant taxation freely as decided by its representatives in
the Estates General (that is, no taxation without parliamentary consent),
obedience to the customs and rights of the provinces, the irrevocability of
magistrates (who were not nominated by the king but instead purchased or
inherited their offices), and magistrates’ right to verify the king’s legislative
acts and register them only if they conformed to the “basic laws of the prov-
ince” and the “fundamental laws of the state.” Also enumerated in the 1788
declaration w ere the rights of citizens to be summoned only before their
“natural judges” and to see a magistrate immediately a fter their arrest (a
right somewhat akin to habeas corpus).
The parlements w ere extremely successful at curbing royal power, yet by
the time the Revolution took place they w ere greatly discredited. Identified
as bastions of provincialism and manned by jurists many of whom were no-
blemen who had purchased or inherited their offices, the parlements were
criticized and ridiculed rather than admired. The Parlement of Paris was par-
ticularly censured for taking what was considered a conservative stand in
favor of continuity, as embodied, for example, in its demand to call for a
meeting of the Estates General in its old form, which gave the clergy and
nobility (most parlement members belonging to the nobility) an advantage
over the commoners (the Third Estate). The Parlement, in short, was no
longer considered a channel for advancing demands but instead was seen as
a petty institution that mostly protected the interests of its members.
Although parlements were eventually seen as undesirable, the lesson they
taught remained intact. Law was (or could be) a formidable tool to limit the
pretensions to absolutism. Following this lesson, the various revolutionary
factions and individuals who searched for a new social pact sought to iden-
tify legal mechanisms that would curb executive claims to powers. They did
so by instituting a National Assembly with legislative powers, elected by the
people and for the people. Paradoxically, another important lesson they
learned was the failure of the monarchy to win its b attle against the parle-
ments. Judges, contemporaries understood, had tremendous powers to limit
what governments could do. As a result, they must be deprived of any law-
making capacities and transformed into passive implementers of laws decided
upon and perhaps even interpreted elsewhere. On both accounts, these les-
sons indicated the need to clearly separate the powers of the executive, the
legislative, and the judiciary.
First Dilemma: A National System for a Universal Audience?

The revolutionary measures taken in France in the late 1780s and in the 1790s
were on some levels profoundly contradictory. Seeking to empower the na-
tion and affirm its sovereignty as well as its ability to modify the legal order,
they also appealed to a larger community, including all humans, and to a
natural law that was said to be universal. Thus, although the law created by
the general w ill of the National Assembly was to apply only within France,
it was nevertheless theoretically based on principles such as reason that were
common to all humanity.
The emergence of a specifically national law marked the end of a unified
European legal system, indeed the end of a ius commune that applied
throughout the Continent. Instead of the old commonality based on tradi-
tion, experience, and Christianity, what was now proposed was a new com-
monality anchored in reason and natural law. This move was made possible
by the belief that, rather than being dependent on cultural assumptions, as
it is currently viewed, human reason was one and the same everywhere, al-
ways. This implied that, although it was nationally created and nationally
bound, because it was inspired by reason and reason alone the law enacted
by the general will of the French could potentially be valid for other coun-
tries and constituencies. Not only could this law be exported, it must be,
because h uman happiness depended on the expansion of reason and on all
societies obeying it.
The universality of this message would eventually justify the revolutionary
wars as well as Napoleon’s efforts to implement at least some of the revolu-
tionary legislation across Europe, but it was present even in the early years.
Typical in this regard was the 1789 adoption of the Declaration of the Rights
of Man and Citizen. Protecting citizens, that is, members of the French
political community, but also man in general, the declaration created an
instrument that would be relevant both to “we the p eople” (as the represen-
tatives of the Thirteen Colonies had done) and humanity at large. It enumer-
ated rights that w ere general and forward-looking, including the right to
freedom and equality, liberty, property, security, and resistance to oppres-
sion. Also listed were some of the structures of good government, which
were to guarantee t hose rights everywhere.
As happened with the U.S. Bill of Rights, much of what was enumerated
in the French declaration was a direct result of the political confrontations
that unfolded in the 1770s, 1780s, and 1790s. The declaration focused on af-
firming the equality of all men, which for French contemporaries implied
the end of the particular privileges of the nobility and the clergy. Also cen-
tral to the declaration was protection against a royal government that, ac-
cording to contemporary allegations, pretended to be sovereign when it was
not, arrested people without cause, assumed the culpability of enemies, and
constantly changed the punishments that could be inflicted. Safeguarding
freedom of speech, ensuring that the armed forces would be used only to
protect rather than to attack the common good, the demand that all taxa-
tion be authorized by consent, and guaranteeing judicial freedom w ere all
also important.
Although explained by the particularities of the moment, the French dec-
laration pretended to announce principles that were general and timeless,
that is, ahistorical and unchangeable. To ensure its global applicability, the
language used was extremely abstract. It decontextualized rights and discon-
nected them from the particularities of place, time, or legal tradition. The first
article of the declaration, for example, stipulated that man is born free and
should remain free. The second stated that the aim of every political associa-
tion is the maintenance of the natural rights of man, mainly liberty, property,
security, and resistance to oppression. The fourth determined that liberty
consists of being able to do anything that does not harm others. Subsequent
articles declared that laws could forbid only t hose actions that are harmful
to society and that there is a presumption of innocence.
This abstract language reflected the belief that the rights enumerated w ere
indeed common to all men and all societies whatever their particular nature
might be, but it was also a useful tool. The more abstract a description,
the more potentially inclusive and the more open to a variety of interpreta-
tions it was. Returning to the first article, which stated that all men w ere
born free, this abstract language acted as a safety valve of sorts. It allowed
experts writing then and since to ask what was included in the category
“men.” Did it, for example, include women? Did it include children? Were
all men included or only those who w ere reasonable (however reason was
defined)? W ere slaves included? Each author and period gave t hese questions
a distinct solution. In the long run, this abstract language facilitated the ad-
aptation of this declaration to the requirements of a constantly changing
society, in which it was easier to achieve agreement on principles than on
what they meant and how they w ere to be implemented.
Second Dilemma: The Status of Natural Law

If law was created by the representatives of the sovereign p eople and it was
nationally bound, and what was not prohibited expressively by law was
allowed, how could natural law, in which revolutionaries also believed, dic-
tate anything? Or, inversely, how could the National Assembly be truly
sovereign if its legislative activities w
ere to be limited by natural law, as the
Declaration of the Rights of Man and Citizen, for example, proclaimed?
To solve these dilemmas, eighteenth-century French lawmakers sought
to reproduce in legislative acts what they considered to be the main man-
dates of natural law. The Declaration of the Rights of Man and Citizen was
one such act. It included both a recognition of preexisting norms as well as
the intent to give these norms a new character by recreating them legally
through their formal adoption by the National Assembly. Th ese two com-
plimentary dimensions explained why the declaration both affirmed the
superiority of the “natural, inalienable and sacred rights of man” and enu-
merated them. The aim was not only to remind the audience what they were.
Instead, by identifying rights in legislation, the French sought to give these
rights normative value in a system that recognized no other legal source but
legislation.
However, this procedure offered an imperfect solution to the question of

how to safeguard natural rights. The declaration might have transformed
these rights into valid norms, but it was not powerful enough to restrict or
limit the sovereignty of the National Assembly, which could still legislate in
ways that would contravene these rights. To ensure the protection of rights,
legislative and constitutional texts appealed above all to legislators’ con-
science. The 1791 constitution entrusted guardianship of rights to the “fidelity”
of the legislative body, the king, and the judges, and to the “vigilance” of
fathers, wives and mothers, young citizens, and all Frenchmen. The 1793
constitution mandated that lists of rights would be reproduced on large
tablets placed in the halls of the legislative body and in public places. In 1795,
guardianship of the constitution and rights was again “entrusted” to the
fidelity of the legislature, the executive, administrators, judges, fathers, wives,
mothers, young citizens, and all Frenchman.6
A Revolutionary Moment?
In England, the Thirteen Colonies, and France, resistance to monarchy led to
the invocation of an ancient constitution that the monarch was accused of
betraying, and the subsequent affirmation of parliamentary powers. In all
three places, contemporaries claimed to be acting as guardians of both law
and rights. Yet what this law was, and where these rights were located, was
distinct in each case. Rights went from being traditional privileges that w ere
owned by community members b ecause the king so promised (England), to
rational entitlements that should pertain to members but also all h umans ac-
cording to the law of nature (the Thirteen Colonies and France). Law also
changed in the process as it passed from customary and inheritable arrange-
ments (England and the Thirteen Colonies) to new solutions that, seeking to
guarantee the greatest happiness possible, w
ere theoretically based on investi-
gating both nature and society and concluding what was reasonable and what
just (France and to a lesser degree the Thirteen Colonies).
Regardless of these differences, what was most striking about the revolu-
tions that swept England, the Thirteen Colonies, and France was not only
what they achieved but the diverse attitudes that accompanied them. Despite
the enormity of what was proposed, seventeenth-century English actors chose
to present their revolution as a continuity. The representatives of the Thir-
teen Colonies, who also innovated, insisted on the superiority of their partic
ular traditions, which they sought to uphold, while also invoking the dic-
tates of natural law as if both things w
ere one and the same. Disregarding all
continuities between past and present (even when they were noticeable),
most French actors stated that they favored a radical break.
Despite these images, events in England and the Thirteen Colonies were
clearly revolutionary, and in France the aspiration to refound the social pact
and begin a new age was not always obtained. Some measures, such as the
institution of a legislative assembly or the adoption of trial by jury, were truly
revolutionary, yet others w ere much less radical or were only partially imple-
mented. The desire to do away with all the privileges of the nobility and with
all professional guilds, to mention just two cases, did not fully prosper, as
some nobles continued to receive payments due to privileges that w ere feudal
in origin, and some guilds maintained their professional monopolies. Partly
due to the need for political compromise, partly because returning to a blank
slate was impossible, as happened in the English and the American revolutions,
the French Revolution also allowed for both continuity and change.
Although a complete overhaul of the system was never achieved in France,
the legal transformations resulting from the French Revolution w ere never-
theless dramatic. While in England a royal system of courts was refashioned
as the customary law of the land, and in the Thirteen Colonies constitutional
structures w ere radically affected even if law itself was not, in France a legal
system based on ius commune, customs, and royal legislation came to rely
mostly on legislation by the National Assembly. Also in France, a normative
universe dedicated to preserving the status quo was redesigned intention-
ally to introduce change.
As a result of t hese innovations, and independently of where we live, most
of us are to some degree or another heirs to the French Revolution. Devel-
opments in the Thirteen Colonies allowed p eople to imagine the right to
constitute polities and decide on their structure, and they envisioned con-
stitutions as superior laws that limited the sovereignty of Parliament. Mean-
while, developments in France led to the formation of a new type of legal
system, based on the power of legislation created in a representative assembly
by the w ill of the p eople and guided by reason. This system, which produced
what most of us t oday identify as “law,” was nationally bound and was de-
signed to introduce change.
part six
The Nineteenth Century

12
Codifying the Laws of Europe

making eur op ean law
universal ii
In the nineteenth c entury most European countries experienced

codification fever. Starting with France and concluding with Germany, by
the end of the c entury the laws of most European polities, E
ngland being the
exception, w ere to some degree codified. Following the French Revolution,
the central role assigned to legislation enabled jurists and politicians across
Europe to substantially modify the normative order by enacting codes de-
signed to replace most or all other legal arrangements. During this period,
two basic models for codification emerged, the first originating in France
and the other in Germany. The French code appealed to reason and searched
for simplicity; the German code invoked tradition and was highly tech-
nical. Despite their differences the codes were also very similar, and both
were imitated around the globe, driving yet another universalization of Eu
ropean law.
Nineteenth-Century France—From Revolution Within

to War Abroad
The French Revolution introduced a new understanding of what law was and
where it came from. According to this understanding, legislation was the
only legitimate normative source, and it was to originate in the decisions of
a sovereign National Assembly. Its aim was to create a new, improved so-
ciety by inventing new, improved laws based on reason and w ill. Other,
no less important aims w
ere the creation of a single national law out of the
207
multiplicity of local arrangements, and a new universality based on reason

and rights rather than on tradition and Christianity.
The French Revolution met with extreme hostility both inside and out-
side France, which led to radicalization and chaos. From 1792 to 1802 in a
series of wars, various coa litions that included in different configurations
Prussia, Austria, Russia, Britain, Spain, Portugal, Sweden, the Netherlands,
several Italian and German polities (to use an anachronism), and the Ot-
toman Empire confronted the new French revolutionary government. It was
during this period that Napoleon Bonaparte, a highly successful military
commander, emerged as a leader, becoming consul in 1799, consul for life
in 1802, and emperor in 1804.
Napoleon strove to restore order inside France but he also took it upon
himself to win over France’s enemies and spread the tenets of the French
Revolution beyond French borders. Until his unsuccessful invasion of Russia
(1812) Napoleon seemed invincible, but it was not u ntil 1815 that he was fi
nally defeated.
Initial French success resulted in important legal changes involving the
preparation and subsequent diffusion in Europe of legal codes that were said
to embody the spirit of the French Revolution as well as reproduce some of
its tenets. Th
ese codes w ere first applied in France, but soon a fter they w
ere
also implemented in territories u nder French occupation or influence, and
eventually they w ere used or copied around the globe.
Napoleonic Codification
From as early as 1790, French jurists suggested that because revolutionary
law was theoretically based on reason, it could be easily systematized, al-
lowing for the creation of a single yet holistic legal text that, applied all over
France, would guarantee the reign of liberty, equality, and fraternity. The
ideal text would be clear, concise, and accessible, its comprehension requiring
no expert knowledge or preparation. It would consist of a guidebook that
would be kept in every h ousehold to be used by rational individuals to plan
their activities. The text would also educate citizens as to their rights and
duties.
The hope was to create a code that would be substantially different from
previous codes that were elaborated in Europe in the late eighteenth c entury,
such as the Feudal Code of Venice (1780), the Leopoldine Code of Tuscany
Codifying the Laws of Europe 209
(1786), the various codes elaborated in Austria, and the General Code for
the Prussian States promulgated 1794. While previous codes aimed to com-
pile, simplify, and systemize existing norms, the new code proposed by
French jurists was meant to innovate. It was to introduce a new, complete,
and definitive legal order that would replace all that existed before and that
would be based not on tradition but on the will of the people, as well as on
reason.
Various commissions were appointed to elaborate drafts of such a text,
yet the projects they authored w
ere rejected by the National Assembly, mostly on
the grounds that they were e ither too long and complicated, insufficiently
conceptualized, and overly anchored in past traditions or, on the contrary,
excessively short and vague. It was only after Napoleon ascended to power
that members of a new commission proposed a text that a legislative body
controlled by Napoleon promulgated in 1804 as Le code civil des français,
better known as the Code Napoléon. The text covered private law and in-
cluded 2,281 articles dealing with the law of persons and property.
The Napoleonic Code was not all that it was supposed to be. Although
containing some of the most important innovations introduced by revo-
lutionary legislation, such as equality before the law, protection of private
property, secularization of marriage, legalization of divorce, and freedom of
religion, the code also closely adhered to Old Regime structures in many
other domains. With a mixture of Roman, customary, and revolutionary
law, rather than departing from a clean slate, which was the stated inten-
tion, in practice it was an amalgam of both old and new.
If the code contained many Old Regime norms, it also was not as easy to
read and understand as expected. In order to reproduce all of private law in
a short text, the commission elaborating the code made use of general princi
ples and often adopted extremely abstract language, which diminished
intelligibility and precision. The hope that the code would eliminate depen
dency on lawyers and legally trained judges was thus frustrated. Instead, even
after the promulgation of the code, law continued to be the exclusive domain
of experts who were familiar with legal texts and cognizant of their possible
meanings.
Jean-Étienne Portalis (1746–1807), a member of the drafting committee,
was aware of these shortcomings, as w ere other contemporary jurists and sub-
sequent historians. He seemed convinced that however much one would
try, it would be impossible to produce a code that would cover everything
and require no interpretation; neither would it be possible to reproduce the

complexities of law in a short and simple text. What was possible, instead,
was to state the law as a coherent set of principles that could be compre-
hended (and extended, when needed) by employing reason.
Despite these shortcomings, the Napoleonic Code was nevertheless per-
fectly positioned to produce a legal revolution. The law promulgating the code
instructed as much, ordering that after its enactment all Roman law doctrines,
general ordinances, local customs, statutes, and regulations would cease to
apply in those m
atters covered by the code. In line with revolutionary legisla-
tion, the law also instructed that the code would be applicable throughout
French territory and enforced on all those residing t here, regardless of who
they were.
Other drastic measures were hidden in articles 4 and 5. Article 4 de-
termined that a judge who refused to adjudicate a case, alleging silence,
obscurity, or insufficiency of the law, would be deemed guilty of denying
justice. Article 5 instructed that judges w ere forbidden to issue general pro-
nouncements that might be perceived as legislative. Together t hese mea
sures sought to guarantee the supremacy of the code. They determined that,
by definition, it was complete and conclusive, containing all answers to all
possible questions. A
fter its enactment t here would be no legal void (la-
cuna) because the code admitted none. This was why judges could not
legitimately conclude that the code was silent, nor could they create new
solutions by way of general pronouncements. Article 5, which prohibited
such creation, also sought to protect the separation of powers by prohib-
iting judges from engaging in the making of rules.
From One Code to Many

Following the enactment of the Civil Code, other codes made their appear-
ance. The Code of Civil Procedure (enacted in 1806) dealt with process
before the courts as well as the execution of court orders. The Code of
Commerce that came into being the following year (1807) covered com-
merce in general, as well as maritime law, bankruptcy, and mercantile
jurisdiction. The Code of Criminal Procedure (enacted in 1808) and the
Criminal Code (1810) came next.1
These codes reproduced many of the advantages and shortcomings of the
Civil Code. Although they were meant to change everything, they both
enshrined the basic principles of the French Revolution as well as allowed

continuity. Their main contribution was not the adoption of new solutions
(which often they did not) but the refashioning of the law itself. Converting
traditional, customary, royal, or Roman law arrangements into legislative en-
actments, the codes also accentuated the division of law into branches such
as private law, commercial law, and criminal law. Their clear separation of
substantive law (as in the civil and criminal codes, which defined what was
the reasonable norm) and procedural law (as in the codes of civil or crim-
inal procedure that mandated how reasonableness could be attested and
proved) was also noteworthy.
Making the French Codes Universal

In the decades following their promulgation, the French codes, most par-
ticularly the Civil Code, had enormous resonance throughout Europe and
the Americas, and to a lesser degree also in Asia and Africa.2 Historians
attribute this influence to several factors. Napoleon, who perceived himself
as undertaking a “civilizing mission,” applied French codes in territories
under French occupation, such as northern Italy, Belgium, the Netherlands,
Luxembourg, Monaco, and several German polities. In other areas, where
he lacked political or military hegemony, he used persuasion and urged local
leaders to consider the code for adoption. This took place in several German
states, in Swiss cantons, and in Poland. But above and beyond what Napo-
leon himself aspired to achieve, as the nineteenth century advanced, many
members of elite groups around the globe came to view the French codes,
most particularly the Civil Code, as useful instruments. Some hoped to unify
the various laws of their country into a single national system; o thers con-
sidered the code fitting for the demands of modern economic, social, and
political conditions. As a symbol for a relatively accessible law that embodied
many of the aspirations of the emerging middle classes, such as legal equality
and the protection of property, the various French codes (or versions thereof )
continued being adopted long after Napoleon was defeated on the military
and political battlefields.
Like the French Revolution itself, the universalization of French post-
revolutionary codes proposed both the reign of national laws made by the
will of the people and a horizon of new commonality based on reason.
Codes embodied a legal system particu lar to a polity and they were used
to nationalize a series of divergent local laws, yet they also, paradoxically,

were pan-European and universal in orientation. They encouraged “legal
transplantation”—the borrowing of laws from one system and country to the
next—borrowing that was not restricted to structures, procedures, and
terms, but often included substantial solutions that, in the process of being
nationalized by their inclusion in a code, w ere also universalized through
their adoption by many different countries.
German Codification: The Second Model

In 1896, almost one hundred years a fter the promulgation of the French Civil
Code, the Germans enacted their own code, the Bürgerliches Gesetzbuch,
better known as the BGB. German codifiers had the opportunity to learn
from the mistakes of previous codifications, but they also operated under
radically distinct circumstances. Unlike the French codes, which w ere in-
spired by the Enlightenment and the Revolution and heralded universal
reason (even if they w ere often the product of tradition), the German code
was influenced by Romantic and nationalistic visions that sought to codify
and modernize the past.
Most historians trace the origin of the BGB to a group of individuals be-
longing to a “German Historical School” organized around a manifesto
published in 1814 by Friedrich Karl von Savigny (1779–1861). In the mani-
festo, “Vocation of Our Age for Legislation and Jurisprudence,” von Savigny
responded to a suggestion made by another scholar (A. F. J. Thibaut) that
Germany adopt a code similar to the French Civil Code. Law, von Savigny
argued, was not a pure construct of reason but instead the product of tradi-
tion. It expressed the history, language, culture, and national consciousness
(Volksgeist) of society, and it grew as a result of silent operating forces, not
the arbitrary will of a lawgiver. Customary in orientation, it was the task of
jurists, not legislators, to cohere it into a code, and to do so, jurists had to
better understand the national legal history.
Most members of the German Historical School opposed the supremacy
of reason and the subsequent claim that reasonable laws could be universal,
but they disagreed regarding the role of Roman law in German legal his-
tory. Was it an alien system whose bad influence limited the growth of local
law and therefore had to be purged for the system to be authentic, or was it,
like Christianity, a superstructure that, lacking nationality, was a common
European heritage also shared by Germans? Th ose adhering to the first in-
terpretation were thereafter identified as “Germanists.” Th ose who supported
the second vision were classified as “Romanists.”
Having positioned themselves against Roman law, Germanists proceeded
to discover and reconstruct the so-called authentic, medieval, Germanic
traditions that predated the arrival of Roman law and that, according to
them, were responsible for the emergence of present-day structures.3 Many
Germanists identified t hese older traditions with non-erudite, popular law.
Among t hose participating in this quest to recover customary practices were
the Brothers Grimm. Best known as collectors and publishers of folk tales,
such as Cinderella, Hansel and Gretel, and Snow White, Wilhelm (1786–1859)
and Jacob (1785–1863) Grimm w ere jurists who studied with Savigny. As part
of their interest in rescuing a genuinely German past, they set off to the coun-
tryside to record popular traditions. Their efforts resulted in the famous
collection known as the Tales of the B rothers Grimm, but also in lesser-known
yet extremely important compilations of local legal customs.
While Germanists wished to rescue tradition, Romanists, von Savigny
among them, sought to understand the interaction between German and
Roman law. They studied Roman law in order to understand the concepts and
principles that helped fifteenth-and sixteenth-century German jurists orga
nize and systematize local law. This method, known as the Pandect-Science,
led Romanist jurists to insist that what Roman law did to German law in
the fifteenth c entury could be done again in the nineteenth c entury. By using
Roman law rather than pure logic, jurists could again systematize and orga
nize German law without being unfaithful to it. For German Romanists,
Roman law was not a foreign legal system. Instead it was a repository of
methods and instruments that would enable them to describe the existing
law with precision and consistency. The study of Roman law was thus a means
for constructing a truly German yet rational, modern, and bureaucratic law
that was fit for the demands of the nineteenth c entury.
To understand the meaning of possession, for example, Romanists turned
to Roman remedies that protected it, as well as the defenses that litigants
could invoke. Examining additional sources such as edicts, formulas, legisla-
tion, the opinion of jurists, and the texts of the Corpus Iuris Civilis, Roman-
ists came up with the basic rules for possession, which stated that posses-
sion depended on one’s having control over the t hing as well as having the
intention to hold it as an owner in good faith.
According to some critics, Pandectists ended up betraying their own

agenda. They became obsessed with categories, concepts, and abstract prop-
ositions that, according to them, w ere derived from Roman law but in fact,
according to their detractors, were based on their wish to find a few general
principles that would rule over absolutely everything. Critics concluded that
Romanists ended up proposing a law that, rather than being based on the
particular traditions of Germany, was an abstract logical construction pro-
foundly divorced from any social, religious, political, cultural, or economic
considerations. Some critics even considered it a system of legal mathemat-
ical calculation. Romanists also were accused of anachronism for writing
modern notions, such as the centrality of the individual and his w ill, into
Roman law, which lacked them.
Attempts at codifying the law, which had been continuous in the various
German states, intensified with the unification of 1871. As part of the state-
building processes and accompanied by rising nationalism, between 1874 and
1887 a committee of academics, practitioners, and government officials de-
liberated on how to prepare a national code for the new, unified German
state. Inspired by the Historical School, the committee aimed to use existing
compilations, as well as Roman and customary law, to unify the various legal
systems of the diverse territories.4 To undertake this mission, each member
of the committee was to write one part of the code. A fter seven years, the
committee met to discuss the results. Six years of debates followed. Eventu-
ally the committee published a proposal, sending copies to universities,
judges, and scholars. Newspapers w ere also asked to collaborate with this
enterprise by printing parts of the proposal and making space for the de-
bates that might ensue.
The proposal provoked heated contestation. Although some critics
objected to codification in general, most criticized the text for failing to ac-
curately represent German law. For some the draft was excessively Roman
and insufficiently German. For others its language was far too complex and
abstract, indeed so removed from ordinary language that most Germans
would fail to understand it. As one of the commentators is said to have re-
marked, for the proposal of the code to be understood, it had to be trans-
lated into ordinary German.
Given these negative comments, a second committee, working between
1890 and 1895, extensively revised the first draft. The text it produced, the
BGB, was given statutory force without much debate in 1896. The new code
included five parts: an introduction, followed by books dealing with prop-

erty, obligations, family law, and succession. The introduction included gen-
eral provisions regarding the law of persons, the classification of t hings and
juridical acts, prescription, and the like. Th
ese provisions governed the other
parts of the code and complemented their instructions.
The BGB had some 2,385 sections. It introduced many innovations, most
importantly in contract law, but it did not cover all areas of private law; for
example, commercial law remained mostly outside the code, though it was
considered to be influenced by some of the code’s basic principles.
Commentators remark that the BGB depended heavily on Roman law.
Its arrangement was Roman and some fields, such as obligations, w ere
extremely Romanized. Other fields, such as family law, w ere anchored in
Germanic traditions. The language remained very technical, conceptual,
and opaque.
French and German Codification Compared

Despite aspiring to some of the same objectives, the French and the German
civil codes w ere almost complete opposites. Both sought to systematize the
law and write it down so to guarantee legal certainty, but they did so in radi-
cally distinct ways. The French code was said to break with the past and be
based on natural universal reason that nonprofessional legislators could em-
ploy. It was meant to be simple and easy to use. The German code, on the
contrary, was the product of past traditions, which were compiled by jurists
who employed a sophisticated juridical science that made its interpretation
a difficult art requiring ample knowledge. The French code was meant to
democratize the law and allow citizens to know what their rights and obli-
gations were (even if it failed); the BGB was instead a monument to the con-
stant necessity for the mediation of legal experts. Rather than transferring
power to the legislature, it ensured a central role to jurists and universities,
where juridical doctrine could be elaborated and debated. Unlike the French
code, which eliminated all other normative sources and was meant to usher
in a new, revolutionary age, the BGB was not designed to replace the pre-
vious law. On the contrary, at least in theory, it codified it. And although
both codes sought to unify the legal regime by transforming a series of local
regional systems into a single national order, the French code was more
successful at achieving this goal, as the BGB left ample room for local
arrangements by recognizing the need to conserve them in regulations re-

garding mines, w aters, fish and game, property relations between individuals
and the state, public property, religious societies, and insurance.
Despite these differences, the French and German civil codes were also
similar in many ways. Both sought to restate the law systematically and con-
cisely by using general, abstract language. Both codes relied heavily on ius
commune, the previous legal tradition, although the French code did not
openly acknowledge this. Ideologically, both obeyed the mandate of a modern
society for a sharp separation of powers and consecrated the protection of
private property, the liberty of contracts, and legal equality. As happened
also in France, in Germany the promulgation of the BGB also ushered in a
period of additional codification, with the development, for example, of a
fiscal code, a commercial code, a criminal code, a code of criminal procedure,
a code of administrative court procedure, and a code of civil procedure.
Eventually historians would point out that, despite its alleged inspiration
in Germanic legal traditions, the BGB was understood by many as a uni-
versal, rather than national, code. Becoming a second model for what civil
codification could look like, the BGB would be imitated around the globe,
most particularly in Europe and Asia.5 In some places it was reproduced
almost in its entirety; in other places local legislatures omitted some parts;
but nowhere w ere its solutions understood as being specifically Germanic.
The growing international importance and standing of the BGB enhanced
the reputation of German jurists—demonstrating that, even in the late nine-
teenth century, Roman law could still act as a unifying agent. As far as
nineteenth-century observers were concerned, it was indeed like Goethe’s
diving duck.6
13
Codifying Common Law
In a lecture at University College, London, in November 1926,

Maurice Amos (1872–1940), a British lawyer, judge, and professor of law,
suggested that codification was one of the “great activities and vehicles of
civilization.”1 Trying to explain to his compatriots what it meant and what
it could achieve, he proposed a hypothetical case. Imagine, he said, that the
Duke of Wellington, the foremost British military commander during the
Napoleonic wars, had seized power in England in the early nineteenth
century. Imagine that, a fter he did, he asked celebrated legal experts to
prepare a civil code based on Blackstone’s Commentaries. Imagine that this
code had absolutely no references to religion or feudalism. Imagine that
this Wellington Code would then be applied not only in E ngland but also
in Scotland. Imagine that after its enactment, all previous customs and
statutes ceased to exist. This scenario, Amos declared, should give the En
glish a fair idea of what Napoleon had accomplished by creating a code that
unified, laicized, democratized, and simplified French civil law. It should
also explain to them why the French model was so widely imitated around
the globe, while the English system was followed only in countries that are
or w
ere directly subjected to it.
Amos was one of many admirers of codification in E ngland. Wrong or
right, correct in his appreciations or completely mistaken, he spent time and
ink explaining to his compatriots why codification was good and what it
could do for them. Although in the nineteenth and early twentieth centu-
ries enthusiasts like him w ere not lacking among common-law experts, it is
217
nevertheless true that most English and American legal professionals turned
their back on codification. Suggesting that it was both unnecessary and
unwise, or favoring a different type of codification more appropriate to
common-law countries, they engaged in heated debates regarding the ques-
tion w
hether codification was a suitable tool for reforming the law.
English Response to Codification

At the turn of the nineteenth c entury, English law was divided into two main
parts: statutory law, which included legislation passed by Parliament, and
common law, which allegedly encompassed customary law made by judges.
Statutory law could be found in a huge variety of acts and statutes that, after
being promulgated, w ere published and conserved in the archives. Common
law could be located in the Yearbooks (1263–1535) or their more modern re-
placement, the Law Reports. From the mid-sixteenth c entury u ntil 1865,
when they became institutionalized, Law Reports were authored by private
individuals, some (like Edward Coke’s) winning more followers than o thers.
Covering what had transpired in the courts, both the Yearbooks and the Re-
ports w ere the best source for studying the development of common-law
concepts, methods, and doctrines as well as tracing precedents. Published
in different editions and by many individuals, not only w ere these sources
of diverse quality, but there was no general index that would help one
navigate through them. As a result, many lawyers w ere reduced to using
secondary literature, such as abridgments, to discover which past cases and
rulings might be applicable to their case and what they stated.
In short, in order to know what the law dictated, it was necessary to con-
sult both the legislation and case law, which was an extremely arduous task.
Because the underlying assumption was that legislation and common law
cohered rather than contradicted one another, it was also essential for lawyers
to secure an interpretation that upheld them both. L egal practice, including
maxims, principles, presumptions, and doctrines, held by legal professionals,
both lawyers and judges, also introduced into this mix additional elements
that w
ere considered mandatory.
From the sixteenth century onward, many in England lamented this com-
plexity, some demanding the production of an orderly code or the collection
of all statutory and case law in a single body. Following such demands,
Francis Bacon (1561–1626) and Matthew Hale (1609–1676), two of E ngland’s
Codifying Common Law 219
foremost seventeenth-century legal authorities, envisioned a compilation of

the laws of England that would include three parts: a first book encompassing
legal institutions, legal maxims, and a legal dictionary; a second book reed-
iting the Yearbooks; and a third book reproducing statutory law.
It was not u ntil 1833, however, that a significant move toward codifica-
tion took place in E ngland, when a committee to reconsider criminal law (a
field that, contrary to many others, heavily relied on legislation and thus was
more amenable to codification) was appointed by Parliament. The committee
was given the task of preparing a code including all statutes, enactments,
and common-law principles regarding crimes and their punishment. Yet
attempts to pass the committee’s proposals for reform and its recommenda-
tions for codification in Parliament failed. New proposals for a criminal code
in 1878, 1879, and 1880 also did not have sufficient backing.
Attempts at codifying other areas of the law met with similar results. In
1860 the government announced a project to compile and revise English
statute law and create a digest of case law with a view to combining both in
a single text. The committee appointed in 1866 was dissolved fourteen years
later, its main contribution being a series of drafts that became textbooks
on the different branches of English law.
Eventually, instead of codifying their laws, what the English did was adopt
other means to simplify their system. Most important among these w ere the
consolidation acts (laws) passed by Parliament that collected various pieces
of statutory law. Usually covering a particular legal field, consolidation acts
sought to reproduce and describe this field exhaustively in a single text that
would be promulgated by Parliament. Some parliamentary legislation even
sought to go beyond consolidation by combining both statutory and case
law; such legislation was sometimes known as “codifying statutes.” The Bills
of Exchange Act (1882), for example, consolidated seventeen statutes in a
single text but also summarized the jurisprudence of some 2,600 law cases
scattered in over three hundred volumes of Law Reports.
Although presented as a technical solution intended not to change the
law but only to facilitate its knowledge, consolidation acts and codifying stat-
utes were rarely a simple recording of preexisting norms. Instead they al-
lowed selection as well as reordering according to a predefined and selective
agenda. According to many observers, they actually changed the law. By
making it easier to navigate the legal system, they also propelled new de-
bates. A fter they w
ere completed, it was no longer clear w hether the original
decisions or the acts and statutes were more authoritative. Was their power
dependent on their common-law origins (the judicial decision that declared
their existence), their initial enactment by Parliament, or their reenactment
in an act or a codifying statute that now declared them valid?
Eventually lawyers who wanted to understand the law referred most fre-
quently to treatises written by lawyers, judges, and university professors. Be-
ginning with William Blackstone and his Commentaries on the Laws of
England (1765–1769) and continuing with other notable scholars, such as
Frederick Pollock (1945–1937), who authored various treaties on the laws of
contract, partnership, and torts as well as The History of English Law before
the Time of Edward I (1895), English legal experts set out to arrange English
law systematically according to general categories. Describing and, to a de-
gree, rationalizing the law, they enumerated and summarized principles,
listed precedents, and prepared indexes. Dividing writs according to their
subject m
atter (contract, torts, guardianship, as in the case of Pollock), they
often used Roman law principles to describe what the writs instituted.
Although t hese books had no binding force, they became a common, some-
times even authoritative, point of reference that both lawyers and nonlawyers
used, and that judges also followed.
The English Position Explained

The traditional explanation for why codification was not a dopted in E ngland
was that it was both unnecessary and unwise. According to this vision, coun-
tries that adopted codification did so because they had no choice. Their
legal situation was catastrophic and their system complex, bulky, contradic-
tory, and inaccessible. Divided into a multiplicity of local regimes, many of
these countries had no national law nor w ere their laws adequate to the needs
of the nineteenth-century nation-state. L egal development was stalled,
requiring the urgent intervention of legislators. All these conditions w ere
absent in E ngland, where legal growth continued and where a national, or-
derly, and modern legal system already existed.
Even if this description had been correct (it certainly was not), in recent
years historians have pointed out that what was most opposed to codifica-
tion was the very distinct English take on what law was and how it should
be created. As described in Chapter 12, Continental codification, most par-
ticularly in its French variant, styled codes as the beginning of a new age.
They w ere to replace tradition with new enactments that, even if they re-
produced past solutions (which they often did), would be promulgated by
the nation’s representatives in Parliament because they w ere reasonable.
Thereafter the norms’ validity would depend not on tradition but on their
having been promulgated by an assembly that represented the will of the
people and that was sovereign and could change the law. Codes were sup-
posed to be comprehensive statements of the law and replace all previous
enactments. Using general abstract principles, codes were to be interpreted
according to their logical meaning, not past experience, jurisprudence, or
doctrine. U nder this system, judges theoretically were to exercise absolutely
no discretion. All they could do was implement a law that, by definition,
had a single reasonable interpretation. No general pronouncements creating
new norms were tolerated.
The basic assumption of most English lawyers regarding what law was
and where it came from was radically distinct from what is described above.
By the nineteenth century, most English lawyers believed that the English
legal system was based on common law, which was a customary law that
grew organically within the community. Tied to the particular conditions
of England, it was anchored in experience, not reason. B ecause it naturally
sprang from societal interactions, it was concrete and casuistic rather than
abstract and general, inductive rather than deductive. It consisted of an enu-
meration of cases that reproduced and explained what judges had decided
in the past. L awyers’ task was to compare cases and, highlighting similari-
ties or distinctions, find a fair solution. While judges were central to legal
creation, legislators were not. Although legislators represented “the people,”
their duty was to uphold rather than make the law. They w ere to ensure that
the traditional rights of Englishmen w ere respected, and they could do so
by legislating as long as they did not attempt to innovate. English legal ex-
perts also tended to believe that their system was superior to all o thers
because, legislation was formal and inflexible, whereby a customary law made
by judges allowed for constant updating and better defended the rights and
liberties of individuals. The English system, in short, guaranteed freedom,
which the Continental systems, most particularly the French, did not. Many
Englishmen also rejected association with ideas that could be identified as
French, most particularly those originating in the French Revolution.
These characteristics of common law as understood by nineteenth-century
Eng lish lawyers made recourse to codification extremely difficult. The
common law these actors imagined left relatively little room for legislation
and certainly left none for enactments designed to overhaul the existing
order. This common law also made it difficult to formulate abstract and gen-
eral propositions, or to adopt reason rather than experience as a guide. It is
therefore not surprising that some English lawyers concluded that it was
“naïve to think that the common law could be codified without undergoing
a sea change.”2 Common-law lawyers also rejected the claim that codifica-
tion made the law more coherent and more secure. Identifying judges as
the best legal experts, many distrusted Parliament’s ability to reproduce or
create law effectively. Some also claimed that Continental codes were a
failure. Enormous effort was required to elaborate them, but they did not
obtain the desired results. They did not create a truly new system, nor w ere
they particularly easy to use.
Despite such claims, codification did find enthusiasts in England. Mau-
rice Amos was one, but the most famous proponent of codification in
England was Jeremy Bentham (1748–1832). Founder of a school known as
utilitarianism, in his Introduction to the Principles of Morals and Legislation
(1789) Bentham argued that the purpose of society is to produce the greatest
happiness for the greatest number of people. Human beings, he observed, are
moved by natural and rational self-interest. A law such as common law,
based on oral customs and controlled by judges, cannot guarantee this end.
What is required instead is legal security and clarity, and this can be best
achieved by combining empiricism with rational analysis.
Bentham advocated the elaboration of codes that would be promulgated
by the legislature and that would be comprehensive (with no gaps), exclusive
(what was not included would not be part of the law), systematic, and simple.
From as early as the 1810s, Bentham was also engaged in developing a con-
stitutional code that, taking into consideration h uman nature and h uman
reason, would be potentially appropriate to any nation or government.
During the nineteenth century England remained largely immune to
codification, but several codes w
ere nevertheless elaborated in British India.
L ater applied to other Eng lish colonies, these included a code of civil
procedure (1859), a penal code (1860), and code of penal procedure (1861).
Historians have explained that this divergence between metropolitan and
colonial developments—England rejecting codification and India em-
bracing it—made perfect sense. Many English lawyers believed codification
was an extreme remedy in legal systems that were chaotic. This description,
which they wrongly or rightly applied to nineteenth-century Continental

Europe, fit colonial situations, in which a multiplicity of indigenous laws that
English legal experts found hard to understand, coexisted alongside colo-
nial legislation. Viewing codification as an imperial endeavor, t hese actors
also suggested that it could be a means to “civilize” natives by implementing
a new, rational legal system. It enabled the importation of an abbreviated
version of English law into the colonies, which were often portrayed as lacking
an appropriate legal system of their own or having too many. The undemo
cratic environment overseas also facilitated codifiers’ task because t here
was no serious public debate regarding the pros and cons of such reform
measures.
Codification in the United States

Most historians agree that in the 1820s and 1830s, legislators, governors, and
lawyers across the United States asked w hether codification was good or bad,
necessary or useless. In some territories and states, proposals to adopt codes
were entertained, and committees were appointed to study their desirability
or even prepare drafts. Yet, most of these initiatives did not prosper, in part
because the basic operating assumption of most interlocutors was that common
law could not be codified. As a result, debates regarding codification were
often understood to include a much larger discussion on whether the United
States should keep or abandon its adherence to common law. Those who advo-
cated codification w ere usually seen as favoring the abandonment of common
law. Those who opposed it were understood to support the continuation of the
existing legal system. Despite this general stalemate, both Louisiana and
New York (and a series of states imitating New York), did proceed to codify
their laws.
Louisiana
General surveys of American codification tend to assume that the adoption
of codes in Louisiana was self-explanatory. Given its French heritage, they
argue, it was only natural that the territory of Orleans (the name Louisiana
had before it became a state) chose to codify its civil laws by elaborating a
Civil Digest (1808). It was equally natural that, after Louisiana became a state
(1812), it enacted a fully fledged Civil Code (1825). These measures expressed
local residents’ adhesion to their French colonial past and their rejection of
federal efforts to introduce common law into their territory. This rejection
also found expression in the vote of the Territorial Legislature in 1806 to
maintain the existing legal system, and in the 1812 state constitution, which
denied the Assembly the power to adopt a different legal system.
If allegiance to tradition was one reason for the adoption of codes in Lou-
isiana, another was the allegedly messy legal situation. According to most
scholars, codification was needed in Louisiana b ecause local law was par-
tially French and partially Spanish and most of it was not available in
English translation. Chaotic and incomprehensible (at least to outsiders), it
required a short restatement in codes that would also translate local norms
into English.
Yet to argue that what happened in Louisiana was natural is to under-
mine the importance of what had transpired. The decisions taken by locals
in 1806 (to maintain the previous legal system), 1808 (to adopt a digest), 1812
(to deny the Territorial Legislature the power to adopt a different system),
and 1825 (to adopt a civil code) were more than a stubborn insistence on tra-
dition. They involved conscious and strategic moves allowing local actors
not so much to conserve the existing system as to engage in its reinvention.
These actors intensified rather than gradually abandoned their dependence
on French law, while also progressively sidetracking their Spanish heritage.
How and why this happened remains largely a mystery. In 1806, asked
what their law was, the local authorities identified as their own the Justinian
Corpus Iuris Civilis, the writing of ius commune jurists, and various Spanish
compilations and ordinances. Although they did not mention French law at
all, the Civil Digest proposed in 1808 had elements of both Spanish and
French law and it was arranged according to the Code Napoléon. This de-
parture from strict adherence to Spanish law was noted by some of the judges
who applied the digest. Th ese judges, who tended to interpret it as a mere
restatement of Spanish law, refused to take into account the French elements
that it included. The judges also rejected the idea that the digest would re-
place existing law and felt at liberty to use uncodified Spanish law when it
was convenient or needed.
Continuing dependence on sources other than the digest, most of which
were available only in Spanish, led to the decision to replace the digest by a
code. Yet the code adopted in 1825 was not a simple amplification of the
digest. Instead, although again including elements of both Spanish and
French law, the French elements w ere substantially more dominant than
the Spanish. The strong affiliation with French law—in part an invented
tradition—was clear, for example, in article 3521, which stated that, after its
promulgation, all preceding Spanish, Roman, and French law as well as all
legislative enactments adopted by local legislators would be repealed. The
code further mandated that precodification law could not be invoked in the
courts under any circumstances.
Rather than “naturally” following its traditional law, Louisiana therefore
underwent a transformation that made it less Spanish and more French over
time. From this perspective, the Gallicization of Louisiana’s law was as much
a result of its incorporation into the United States as it was of its colonial
past. As a means that locals a dopted to halt the penetration of common law,
there was nothing inevitable about these developments, in which the past as
well as the present, and visions of the f uture, played equal roles.
The Louisiana story is further complicated by the fact that adherence to
Continental law covered only parts of civil law. In other parts, as well as in
criminal, evidentiary, and commercial law, common law reigned without
much contestation. Here as elsewhere, attempts to codify these fields mostly
failed. Despite the success at passing the civil code, the Louisiana legisla-
ture rejected drafts of a penal code and a code of penal procedure. The civil
procedure code adopted in 1823 had elements of both Continental and
common law and, according to some, was interpreted by judges as reflecting
English rather than Continental norms. All t hese developments suggest that
there was more to the Louisiana story than what met the eye.
New York
The New York codification story usually begins in 1846 when state legisla-
tors decided to revise, reform, simplify, and abridge the law. The following
year David Dudley Field was appointed to head the codifying committee.
Field planned five codes for New York: a political code (with rules regarding
government), civil and a criminal procedure codes, and penal and civil codes.
Field, who was said to be inspired by the French experience, hoped to create
codes that would be brief and synthetic and that would eliminate archaic
regulation. Considering both common and statutory law, he also sought to
identify general principles from which all other legal solutions could be
deduced.
Although the codes Field prepared w ere revolutionary—one observer sug-

gesting that the code of civil procedure was a death sentence for common-law
pleading—the code of civil procedure (1848), the code of criminal procedure
(1881), and the penal code (1882) w ere a dopted by the New York legislature
without much opposition. Yet Field’s proposal for a civil code met with strong
enough resistance to lead to its abandonment a fter being subjected to veto by
the governor on multiple occasions. Why the other codes w ere easily accepted
and this one rejected is unclear, but t here is reason to believe that most l awyers
and legislators felt more strongly about private law than about procedural or
criminal law and adopted a more conservative attitude with regard to re-
forming private law. It is also possible that the civil code was rejected b ecause
of its strong resemblance to the Napoleonic Code and the instruction that
after its promulgation it would replace rather than add to or clarify all previous
legal arrangements.
Whatever the reasons for the rejection of the civil code w
ere, what was most
surprising about the New York story was not what happened in that state but
what transpired elsewhere. The New York code of civil procedure, passed in
1848, was adopted wholesale in Missouri the following year (1849) and, in the
next few decades, in twenty-one additional states and territories.3 The draft of
the civil code that the New York legislature rejected met with similar success
and was adopted with only minimal changes in the Dakotas (1866), which
also adopted the New York penal code. California followed, adopting in
1872 all five New York codes, and so did Idaho, Montana, and Colorado.
Scholars conclude that the adoption of the New York codes elsewhere
should be comprehended as implementing a shock treatment or a desperate
remedy to chaotic legal situations. Believing that codes were a better fit for
frontier territories than for developed regions, these scholars argue that the
willingness of states and territories to adopt the New York codes can be ex-
plained by the lack of dense legal traditions in those parts of the country. As
in colonial India, in these areas codification allowed for the adoption of a
superior normative system where none existed or where those that existed
were severely flawed. Embodying also a “civilizing mission,” the New York
codes domesticated the new North American territories by using the purport-
edly mature deliberations of New York lawyers and legislators. If codification
was an option in New York, in the American West it was a necessity.
This account, which reproduced many of the biases English legal experts
also expressed, neglected to analyze the legal situation that predated the bor-
rowing of the New York codes, assuming rather than verifying that it re-
quired a radical reform. One f actor particularly forgotten was that many of
the states and territories that enacted the New York codes were in the midst
of sometimes heated debates over which legal system they should adopt. Cal-
ifornia, for example, was a former Spanish and Mexican territory; the Da-
kotas, Montana, and Idaho as well as most of the midwestern states, were a
French possession and large parts of their territories w ere u
nder the control
of indigenous tribes that followed their own legal systems. Were their ex-
isting laws so inadequate? Did the bias of common-law lawyers classify them
as such or did locals feel the need for reform? Who exactly decided on this
adoption and why?
In the 1770s the Continental Congress meeting in Philadelphia declared
that the new territories northwest of the Ohio River would be subject to
common law. During the nineteenth century, American authorities who
assumed control over former French, Spanish, or indigenous territories
adopted a similar approach, generally believing that one of their most ur-
gent tasks was to replace the previous legal system(s) with common law. These
officials portrayed replacement as necessary and pressing because, according
to them, all other legal systems (which they now paradoxically classified as
foreign despite being local) were arbitrary to the point that they were not
systems at all. Attempts to introduce legal change, however, often met with
resistance. Research on upper Louisiana (present-day Missouri) has demon-
strated, for example, that residents did not share these pejorative visions of
their law and instead believed their system to be orderly and just.
In California, where a sizable and stable community of Spanish and Mex-
ican residents predated the arrival of Anglo immigrants from the East, many
demanded the continuation of the Spanish legal system. Others debated the
possibility of creating a mixed normative order that would include the English
law of evidence, English commercial law, and English penal law, yet civil
and procedural codes of Spanish and French inspiration. In 1850, nonetheless,
a committee mainly manned by common-law experts recommended the
wholesale adoption of common law.
Similar debates took place at the Congress of the Republic of Texas in
1836. Eventually legislators t here formally a dopted common law for civil
disputes as well as criminal offenses, yet local courts continued to use
the Spanish civil procedure, which they considered a better fit for local
conditions. This practice was formally sanctioned in 1840, when the local
legislature declared that the adoption of common law did not include the
common-law system of pleading.
There is no convincing explanation as to why common law succeeded in
replacing previous systems. Neither do we have sufficient knowledge of how
this process took place and how locals reacted. Most historians point to the
prejudice of common-law lawyers turned U.S. officials who assumed that
common law was civilized and all other systems were not. Historians also
mention power relations that favored Anglo immigrants from the East over
established residents, and explain that the Anglos preferred common law
because it allowed them to dispossess natives, w hether indigenous, Spanish,
or French.
The growing hegemony of common law perhaps explains why the New
York codes found reception elsewhere. Rather than curing chaos or civilizing
a defective normative world, the New York codes w ere mostly welcomed in
territories that, having had a different legal tradition (or various traditions),
were now transitioning to common law. Rather than being a remedy, the
codes w ere an instrument for imposing a new law, and rather than being
contradictory to common law in spirit and design—as most assumed codes
were—they were a strategic and useful device by which to impose it.
Without Codes but with Legislation

Louisiana and New York provide two tales about codification in the United
States in the nineteenth c entury. A third story takes a different path that
highlights the growing importance of legislation in the United States in the
nineteenth and twentieth centuries. According to this story, American law
was traditionally more accepting of legislation than the English common
law. Much of the colonial legal order was based on written instructions
by metropolitan and colonial authorities; and local assemblies in Virginia,
Massachusetts, and Georgia, for example, considered themselves authorized
to legislate as well as compile and reform the law. This tradition—which made
legislation central—was only strengthened a fter independence as Americans
sought to detach their legal system from E ngland’s, and as they came under
the influence of democratizing impulses that trusted local assemblies more
than judges. Americans also appealed to legislation in order to create their
states and their federation, which came into being after they adopted con-
stitutions in which legislatures were instituted. All these features aligned to
create a legal system in which—despite allegiance to common law—there

was a permanent preference for official, written rules explicitly promulgated
by appropriate institutions over unwritten customary laws.
As a result, even though during the nineteenth c entury codification was
largely rejected across the United States, most states nevertheless massively
turned to legislation to clarify and solidify their existing systems as well as
introduce innovations. During this period many legal professionals, acting
on their own initiative, took a lead in these developments, preparing drafts
that they encouraged the legislatures to enact formally.
Particularly noteworthy in this regard were efforts to unify American law.
Motivated by growing interstate immigration, commerce, and collaboration,
and propelled by the accelerated mobility allowed by highways and modern
transportation, in 1892 a group of eminent lawyers, judges, and law profes-
sors founded the National Conference of Commissioners on Uniform State
Law. Supported by the American Bar Association, members of the Confer-
ence elaborated a series of individual acts, which they proposed to all states
for their endorsement. Examples of such acts were the Negotiable Instru-
ments Law (1882) and the Uniform Sales Act and the Law of Warehouse Re-
ceipts (both dated 1906).
In 1923 the American Law Institute was founded with the explicit aim of
undertaking the simplification of the U.S. legal system. In 1944 the members
of the Institute in collaboration with the National Conference of Commis-
sioners on Uniform State Laws (now called the Uniform Law Commission)
formally agreed to work toward the elaboration of a Uniform Commercial
Code. Published in 1951 and revised in 1962, the Code covered issues such as
sales, leases, negotiable instruments, letters of credit, and investment securities.
In the years following its elaboration, it was adopted, more or less faithfully, by
all fifty states, as well as by the District of Columbia, the U.S. Virgin Islands,
and Puerto Rico.
Although the Uniform Commercial Code produced a certain unification
across the United States, it was different from Continental codes because
it allowed some variations among states, which w ere allowed to choose between
several options, and because it was not intended to replace all previous norma-
tive sources. Furthermore, according to some scholars, rather than pre-
scribing solutions, the uniform code mostly indicated issues that needed
consideration, suggested questions that judges should ask, and included a
catalogue of possible remedies, also listing the possible conditions for re-
ceiving them. Contrary to Continental codes, in short, the Uniform Com-

mercial Code allowed, indeed encouraged, wide judicial discretion. It refused
to prescribe how each case should be resolved but instead indicated what the
judge ought to take into consideration and which methods he or she should
follow in order to reach a just decision. In other words, the code supplied a
roadmap rather than a destination.
Epilogue
a market, a community,
and a u nion
In 1951, France, West Germany, Italy, the Netherlands, Belgium, and Lux-
embourg formed the European Coal and Steel Community (ECSC). The aim
was to place management of these important natural resources u nder common
control so as to encourage economic growth and interstate collaboration. Five
years later in a series of treaties signed in Rome (1957), the six countries
proceeded to establish the European Atomic Energy Community (Euratom)
and the European Economic Community (EEC; also known as the Common
Market). With a much wider scope than the ECSC, the EEC set some basic
rules that were to facilitate trade relations, such as abolishing tariffs between
the states and setting common trade and agricultural policies.1
These developments w ere focused on economic growth, but the intention
of t hose involved was also to enable greater political u nion. This was the
European response to both the horrors of the Second World War and the
intensification of the Cold War. To facilitate this task, the institutional
structures created in the 1950s for the three organizations (ECSC, Euratom,
and the EEC) were unified in 1967, thereafter forming a single institutional
configuration called the European Community (EC).2 This configuration
was given an executive, a legislature, and a judiciary branch that included a
commission located in Brussels (executive), a parliament that resided in Stras-
bourg and collaborated with a legislative council (of ministers of member
states), and a court of justice, which sat in Luxembourg. The community also
had an assembly (the European Council) that included all heads of member
states, who met regularly to discuss European policies.3
231
In the years following these developments, the European Community ex-

panded at a spectacular rate; over the years 1973 to 1986 the United Kingdom,
Ireland, Denmark, Greece, Spain, and Portugal joined. This expansion en-
tailed tensions between t hose who saw the advantages of forming a free trade
area and a customs union and those who had more federalist aspirations;
and t hose who w ere concerned about the concentration of power in a supra-
national executive, and therefore the loss of national sovereignty, and those
who preferred pooling resources and enhancing political integration in order
to achieve certain aims. Although these tensions w ere to become permanent,
by the 1980s proponents of integration seemed to have the upper hand. In a
gradual and piecemeal process extending from the 1980s to the present, the
Community moved from its initial design as an international organization
that promoted interstate collaboration to a new structure that, according to
many observers, constitutes a state or a quasi-state.
To achieve this gradual transition, in 1986 the member states of the Eu
ropean Community signed yet another treaty (the Single European Act) that,
advancing the goals set in 1957, a dopted additional steps t oward the creation
of a true single economic market. Most important among those steps was
the transition from unanimit y to qualified majority voting in a number of
areas, a move that essentially eliminated the veto power of national govern-
ments. By signing the Single European Act, member states also committed
themselves to a timetable for their economic merger and defined some of
the ways in which this merger would take place. The 1986 treaty set a
calendar to extend collaboration among member states to fields such as the
environment, social policies, education, health, consumer protection, and
foreign affairs. The European Parliament, now directly elected by citizens,
was given a larger role.
In 1985 five of the ten member states signed the Schengen Agreement. Al-
though set up outside and independently of the structures of the European
Community, the agreement advanced the agenda of t hose who wished for a
closer u nion. It suppressed internal border control among the signing par-
ties and instituted a single external border where immigration checks and
visa and asylum policies would be shared.4 Incorporated in 1997 (in the Treaty
of Amsterdam) into European agreements, from 1999 the Schengen principles
became part of European law. During that same period, several nonmember
countries, such as Norway, Iceland, Liechtenstein, and Switzerland, chose
to join Schengen, agreeing to suppress their borders with countries of the
Epilogue 233
European Community. Meanwhile, three European community members

(the United Kingdom, Ireland, and Denmark) decided to implement only
parts of Schengen, whereas several o thers (Bulgaria, Cyprus, Croatia, and
Romania) were excluded from some or all of its benefits.
In 1992 the twelve member states signed the Maastricht Treaty, which
set in motion the measures necessary to guarantee the free movement of
capital, labor, services, and goods between them. Among these measures
was common European citizenship, which allowed all citizens of member
states to circulate and reside freely anywhere in the community. Another
important measure was greater coordination of economic policies and the
subjection of member states to financial and budgetary discipline. Maas-
tricht also included provisions regarding common policies in areas such as
health, safety at work, social protection, and criminal justice, and it affirmed
the identity of the community on the international scene, giving it powers
in internal and external security.
Reflecting t hese changes, in 1993 the European Community was renamed
the European Union. By 2013 the Union comprised twenty-eight countries,
the biggest expansion having taken place in 2004, when ten new members
joined.5 In 2002 the new European currency, the euro, became official in
the twelve countries known as the Eurozone and a central European bank
was established in Frankfurt.6 Efforts to adopt a constitution for Europe,
however, were unsuccessful b ecause in 2005 in a public referendum the
Dutch and the French refused to ratify the Constitutional Treaty. Although
the treaty was rejected, many of its core institutional provisions w ere incor-
porated into the legal structure of the Union by yet another treaty (the Treaty
of Lisbon, also known as the Reform Treaty) signed in 2007. Among other
things, the Treaty of Lisbon reformed the powers of the European Parlia-
ment and voting in the Council of Ministers, ratified the European Charter
of Fundamental Rights, making it legally binding, consolidated the legal per-
sonality of the Union, and provided procedures by which a member state
could withdraw from the Union.
Europeans continue to disagree about how wide the Union should be (who
should be included) and how deep (what kinds of powers it should have).
Some even express disillusionment with what the Union has achieved and
have articulated demands, or even voted, to see their country leave it. Moti-
vated by growing concerns regarding the loss of national sovereignty, eco-
nomic instability, and migration, such reactions give voice to local anxieties
but they also echo concerns existing elsewhere. Despite these disagreements
and the unknown future that lies ahead, from a legal point of view the for-
mation of the European Union was incredibly important, as it was responsible
for the rebirth of a new common European law, indeed a new, modern ius
commune.
The New European Law: Normative Sources

Economic collaboration, political integration, and the development of cen-
tral institutions led to the emergence of a new European law created through
the various treaties among member states (the acquis, literally, “what has been
acquired,” which must be accepted by new members), the legislation passed
by the Council in collaboration with the European Parliament, and the reg-
ulations and directives proposed by the European Commission (the execu-
tive) and a dopted by the Council and the Parliament.
If treaties among states and legislation were important normative sources
of this new, emerging European law, no less vital was the jurisprudence of
the European Court of Justice in Luxembourg.7 The European Court of Jus-
tice (ECJ) was created in 1958 out of the merger of the separate courts of the
European Coal and Steel Community, the European Economic Commu-
nity, and the European Atomic Energy Community. Its judges are elected
for renewable six-year terms by joint agreement of the governments of the
member states. In theory, all states need to agree on all nominees; in prac-
tice, as the court has one judge per member state, most national governments
promote their national candidates and automatically endorse those of other
countries.
The European Court of Justice (now called the Court of Justice of the
European Union) is charged with authoritatively interpreting European law
in cases in which member states and / or European institutions disagree about
its meaning, extension, or application. The court is also to rule on questions
referred to it by member states’ courts regarding the appropriate interpreta-
tion and scope of European law. It has the power to check European and
member states’ institutions, ensuring that they obey the law. In its decisions
the Court, whose rulings cannot be appealed (t here is no appeal instance),
is to take into consideration the treaties signed by members states and
legislation passed by European bodies. It is also to consider unwritten,
supplementary sources of law such as the general principles said to be shared
Epilogue 235
by all member states, as well as legal customs. These are usually interpreted
as including notions such as the rule of law, adherence to public interna-
tional law, and respect for fundamental rights.
Initially granted fairly limited powers, over the years the European Court
of Justice emerged as a principal promoter of European law and European
integration. In what was to become one of its most important decisions,
in 1963 its judges ruled that European law could be directly applicable in
member states’ territories without requiring local reception or reenactment
(Van Gend en Loos v. Nederlandse Administratie Belastingen). In another key
decision dated 1964 (Costa v. ENEL) the court held that European law had
primacy over national law. Thereafter, and acting as a constitutional court
of sorts and exercising a faculty somewhat akin to judicial review, the Euro
pean Court of Justice determined that national laws that were incompatible
with European law could be deemed inapplicable. It instructed all courts of
member states to implement this decision, setting aside any provisions of
national law that conflicted with European rules. The Court of Justice also
guided European institutions and members states on how European law
should be interpreted, adopting, among other things, the rule that national
laws, even t hose preceding the formation of European law, should be inter-
preted as consistent rather than conflicting with European law.
Initially the decisions granting European law immediate applicability in
the territory of member states and a superior position vis-à-vis national law
were greatly criticized. However, over time member states’ national courts
acquiesced and adhered to t hese doctrines. Their acceptance, which was
gradual and is still contested on occasions and is conditional on o thers, truly
revolutionized European law. It allowed European law to become operative
on the national level, and it empowered private litigants to monitor state
compliance with it. Thereafter, European citizens could invoke European
law in their national courts while they litigated with one another and with
organs and institutions of their own state.
National courts’ application of European law eventually became so rou-
tinized and so pronounced that many scholars now argue that every national
court in the Union is also a European court of justice in the sense that it
applies and interprets (and thus also makes) European law. The guardian-
ship of European law by national courts ensures the rule of law within the
European Union and guarantees the subjection of national governments
to their European legal obligations. Yet national courts’ involvement in the
interpretation and enforcement of European law has often generated impor

tant tensions. It placed national courts in opposition to what their govern-
ment or Parliament desired when they passed laws that did not perfectly
cohere with or ignored European normativity. It also placed lower courts in
opposition to higher or constitutional courts, the former challenging the
monopoly of the latter in declaring certain laws or actions unconstitutional.
As a result of these developments, many now argue that de facto, even if
not de jure, the European Union lost its original character as an interna-
tional body and became a quasi-federal state with a quasi-federal constitu-
tion (European law) to which all member states are now subject. Another
important result was the Europeanization of national law. Though scholars
disagree on how to measure Europeanization, according to some estimates
as much as 15 to 45 percent of national legislation across Europe is currently
influenced by European law. This influence was already clear as early as 1992
when, with 22,445 European regulations, 1,675 directives, 1,198 agreements
and protocols, 185 recommendations of the Commission or the Council, 291
Council resolutions, and 678 communications (as counted by the French
Conseil d’État), European law became “the largest source of new law, with
54 percent of all new French law originating in Brussels.”8 It is currently es-
timated that, to incorporate European law into their national legal order,
new member states are expected to implement approximately 100,000 pages
of legislation. And as the number of cases in the European Court of Justice
rises—it now reviews some 1,500 cases a year—the court not only sets
common standards that are the basis of a new legal order, it also constantly
broadens its activities to fields such as environmental, social, and h uman
rights law. The court also works to integrate into European law the instruc-
tions of the European Union Charter of Fundamental Rights, the European
Convention of Human Rights, and new European and international stan-
dards and traditions.9
The New European Law: An Idiosyncratic System

What is particularly striking about these developments is the degree to which
they transformed the law. The initial treaties that founded European insti-
tutions w
ere intended to institute some measure of economic collaboration,
yet the way they were interpreted greatly transformed them. Discussions
regarding what t hese treaties meant and what they covered and authorized
Epilogue 237
confronted actors with diverse agendas and interests. Th ese actors e ither
wished to enhance the institutionalization of Europe and expand its powers,
or wished to halt it. Although all of them might have employed a language
that was politic al, the tools they used were legal. Th
ese tools allowed the
creation of a European legal system that, having originated in international
treaties and statutory law (enacted by the European Parliament and the
Council) and having been mandated among sovereign powers, came to pen-
etrate into national spaces and depend heavily on judge-made law. This
penetration and the judge-made law that enabled it were generated by de-
mands for remedies from European citizens; such demands fuel the work of
European and national courts and allow them both to examine compliance
with European law and to introduce new norms. A mix and match between
Continental and common-law traditions, between international and national
law, the new European order is therefore an odd creature that does not sub-
scribe clearly to a single genealogy or trajectory.
Scholars disagree about why t hese important transformations (from in-
ternational to domestic, and from legislation to judge-made law) happened.
Some suggest that the powers taken on by the European Court of Justice w ere
not foreseen in the original treaties that founded the European Community.
These powers were the outcome of a vision shared by a group of lawyers
working in European institutions and the judges sitting on the European
Court of Justice. Starting in the 1970s t hese individuals intentionally and
energetically supported European integration. Seeking to fill important
voids in the 1957 Treaties of Rome, they invented an efficient mechanism
to force compliance on national governments by recruiting the help of their
citizens.
But even if the European Commission and the European Court of Jus-
tice strategically used judicial review to expand their powers and accelerate
European integration, it is still unclear why national courts collaborated.
A fter all, by adhering to the interpretation of the European Court of Jus-
tice, national courts played an important political and social role in pro-
moting integration.
Many historians suggest that the transformation of European law into a
superior, constitutional-like law was not foretold, but o thers insist that seeds
of these developments were already planted in the founding treaties. Rather
than being forced into this situation, according to this interpretation, national
governments acquiesced to the growing powers of Europe, e ither because
t hese developments w ere favorable to them or b ecause politically it was too

costly to resist them.
Despite these disagreements, most analysts coincide in concluding that
structural issues rather than substantive law drove t hese processes to frui-
tion. In other words, what made European law authoritative was not a
declaration of principles or the signing of yet another treaty but a practical
mechanism, proposed by the European court, that pushed European law
into primacy by allowing different actors to call upon it to protect their own
interests and desires.
The European law that resulted was both domestic and international, both
written and oral, both statutory and based on case law. Perceived as a system
propelling “integration through law,” it gradually transformed what was
initially an international organization into a quasi-state with a quasi-
constitution. Given these characteristics, some historians imagine European
law to be similar to a digital operating system. Like Windows, European law
operates in the background. Many users might mistakenly ignore its impor-
tance and its effects, but even if they do, this law is nevertheless both
constantly present and extremely powerful.
How Could This Happen?

ese developments (the creation of the European Community and the Eu
Th
ropean Union, the primacy of European law made of both legislation and
judge-made law, and the transformation of an international organization into
a quasi-state with a quasi-constitution) took place some 150 years a fter Eu
ropean law was said to have been nationalized. The legal systems that emerged
in Europe after the French Revolution broke away from a ius commune that
acknowledged wide differences in local practices yet recognized the impor-
tance of a shared normative framework that united all Europea ns. They
proposed to replace commonness with distinctiveness, creating separate
national systems. On the Continent, these new systems identified law
with legislation and they mandated that legislation would be enacted by a
sovereign assembly of elected representatives.
Giving up or moderating these postrevolutionary premises and returning
to a common law, which also admitted the power of jurists and judges, was
not a simple affair. Neither was the concession of national sovereignty, or
the idea that norms emanating from external European institutions could
Epilogue 239
be automatically applicable locally. If each country had its own norms, willed
by its p eople, how could a shared European law emerge? If most Continental
countries recognized legislation and codification as exclusive normative
sources, how could judge-made law be enforceable? Was the emergence of
European law the end of the legacy of the French Revolution? And how
should common-law lawyers react to a system that was neither national nor
customary nor based on judge-made law?
Some historians have suggested that the wish for greater collaboration
among the countries joining the Community / Union reminded at least some
Europeans of their common past. It allowed them to point to a period when
many Europeans had shared not only a common law (ius commune) but also
a common religious creed and a belief in the primacy of natural law. If, once
upon a time, a shared ius commune could bring together thousands of dis-
tinct local arrangements by offering overreaching principles, conceptual cat-
egories, methods of analysis, and shared norms, why could the same not
happen now? If a common metaculture allowed Europeans in the past to
perceive themselves as members of a single civilization, why would the case be
different in the present? Cannot a contemporary European juridical science
provide mechanisms to structure a legal system that admits of both diver-
gence and convergence?
While many scholars have sought to discover, under what some have
identified as the bewildering and idiosyncratic mass of casuistry and deeply
entrenched legal nationalism, the common legal foundation of Europe, others
have concentrated on the present. They argue that despite divergent histo-
ries, constitutional arrangements, and legal technologies, most Europeans are
now in basic agreement regarding the most essential values and goals. This
agreement, which mainly operates on the philosophical level, nevertheless has
significant legal consequences b ecause substantial coincidence exists among
specific solutions that the diverse European countries have given to similar
questions. Driven also by economic considerations, the gradual unification
of law across Europe took place long before the formal political and economic
project of commonness was proposed. B ecause differences in needs and de-
sires w
ere becoming smaller across Europe, the laws of the different European
countries progressively and naturally converged despite the preeminence of
national legislation.
Thus, while the European Court of Justice was busy naming and recog-
nizing the general principles of European law, European scholars sought to
identify the basic legal tenets that most European countries shared. Most
famous among these attempts was the draft of a Common Frame of Refer-
ence (DCFR) by a committee appointed by the European Commission. The
committee was charged with identifying as well as sometimes creating a
framework of common rules that European and national legislators, courts,
and individuals could adopt in legislation, interpretation, or commercial
activity. The committee’s work gradually covered areas such as marketing
relations, service contracts, sales law, lease of goods, unjustified enrichment,
and transfer of property. Somewhat similarly, the Common Core of Euro
pean Private Law project, established in 1993 at the University of Trent (Italy),
aimed to identify commonalities in member states’ private law, including
contracts, torts, and property. Participants in the projects described their
quest as “a promising hunt for analogies hidden by formal differences” linked
to no political agenda and seeking no particular outcome.10
Although many of t hese efforts at harmonization w ere encouraged or even
supported by the institutions of the European Union and by various member
states, attempts to elaborate a common European civil code, which in 1989
the European Parliament declared was desirable, have thus far failed. Those
who lament this failure believe the code is necessary because it would en-
hance collaboration and integration across Europe. For t hose who criticized
the efforts at enacting a code, it was preferable to allow for legal convergence
to happen gradually and naturally rather than to impose it through legis-
lation. A few point out that even if legislation were the correct vehicle to
introduce changes, it is unclear whether codification is preferable to a re-
statement. Some suggest that the best way to achieve conversion would be
through the creation of a new European common legal science, not additional
European legislation. Arguing that the making of rules should be transparent
and as apolitical as possible, yet another group seeks to identify procedures
that would guarantee that the new European civil code, if enacted, would
focus on obtaining a greater social good. Finally, some scholars question the
constitutionality of a European civil code altogether, arguing that the Euro
pean Community lacks competence to move in this direction.
Even though many European jurists believe in the inevitability of either
a natural or an imposed convergence, o thers affirm that even in cases in
which specific solutions are deemed comparable, it is vital to remember that
multiple legal systems operate in Europe. Particularly important in this
regard is the distinction between Continental Europe, which followed ius
Epilogue 241
commune, and E ngland, which had its own common law. The distinction
between these two systems, it has been argued, is truly insurmountable.
Legal epistemologies m atter more than the specific solutions that each of
these systems adopted. On the epistemological level, Continental and English
law are recognizably distinct, with different approaches to what law is, who
made it, and how it could change. Whereas Continental systems focus on
reason, common law is anchored in experience; whereas Continental systems
give primacy to legislation, common law prefers judge-made law.
To such claims, those favoring integration respond by arguing that the
stark differences between Continental and common law are mostly fictional.
Theoretically, Continental law might restrict judges, forcing them to follow
the letter of the law while ignoring all other possible inputs from doctrine
or jurisprudence. Yet, in practice, Continental judges have huge discretion
in their interpretation of the law; they often incorporate doctrinal assess-
ments and precedents into their thinking and hand down decisions that
change rather than interpret the law. Similarly, theoretically common law
might allow judges to innovate, yet in practice it now relies heavily on par-
liamentary legislation as well as precedent. Furthermore, some areas of
Continental law, such as administrative law, depend greatly on judge-made
law. Meanwhile, some areas of common law, such as criminal law, are based
on legislation.
Insisting that theoretical distinctions should not be taken too seriously,
that they are stereotypes rather than reflections of reality, and that these
distinctions mainly reproduce ideological positions, not empirical analysis,
these jurists also point out that there are important ways in which both
systems have been gradually converging even conceptually, evolving into a
middle ground. This convergence has abolished (or at least minimized) many
of the differences between the Continental and the English systems, not only
on the level of concrete solutions (which are often identical) but also with
regard to how they view legislation and judge-made law, now seen in both
systems as complementary rather than opposites. Indeed, the best proof for
such a peaceful coexistence is European law itself. Rather than working
against one another, in the case of European law, these distinct normative
sources (legislation and judge-made law) together have created a new order
that is neither Continental nor English, neither traditional nor completely
modern, but instead constantly reinventing itself as it adapts to new circum-
stances, conditions, and constraints.
Europe in a Globalized World

Scholars of European law have also noted that many of the challenges facing
the European Union were not particular to Europe. Instead they w ere em-
bedded in the way modern law developed in a globalized world. Moves to
harmonize the law w ere noticeable, for example, in the United States, where
growing interstate commerce led many people to desire the unification of
law across the country. To achieve this goal, jurists gathered to draw up and
propose model codes, which they hoped would be adopted by most states.
Since 1892 the National Conference of Commissioners on Uniform State
Laws has proposed a g reat variety of such codes. Alongside the American Law
Institute, beginning in 1944 the members of the commission also elaborated a
Uniform Commercial Code. Published in 1951, the code was a dopted, more or
less faithfully, by all fifty states, as well as by the District of Columbia, the
U.S. Virgin Islands, and Puerto Rico.
Moves to unify the law w ere also pursued by international bodies such as
the International Institute for the Unification of Private Law (UNIDROIT),
which was established in 1926 as an auxiliary organ of the League of Nations
and in 1940 became an independent intergovernmental organization.
UNIDROIT aims to modernize, harmonize, and coordinate private and
commercial law across the globe. It currently has sixty-three member states,
and its experts have prepared dozens of proposals for international conven-
tions, model laws, and legal regulations and guides.
While harmonization, unification, and modernization of the law across
the globe are goals that many now pursue, concerns regarding the changing
nature of law itself are also evident on a global scale. These concerns focus
on several issues. The first centers on the delegation of lawmaking from leg-
islatures to state bureaucracies. This delegation allows the transfer of impor
tant regulatory functions to unelected officials who, as employees of state
commissions, bureaus, agencies, ministries, and programs, not only execute
orders but also adjudicate conflicts and enact new rules. Th ese officials de-
cide cases, build up bodies of precedent, and elaborate internal regulations
regarding procedure and substantive law.
Equally new is the demise of state monopolies over regulation b ecause of
norm-making by transnational bodies such as commercial companies, sports
associations, Internet g iants, and intergovernmental organizations, or the
growing diversity within national boundaries that challenges the hegemonic
Epilogue 243
narrative by suggesting alternative jurisdictions that cater to particular mi-

norities, religious denominations, and so forth.
These tendencies lead jurists across the globe to ask how, under these
circumstances, national systems can cope with norm-making and conflict
adjudication. How can they deal with the internationalization of the law?
Alternatively, how can t hese nonstate systems be controlled, integrated, and
legitimized? Is legal unification at all possible? Can t here be agreement on
law among participants who are culturally diverse and whose traditions are
so distinct? Are these agreements necessary at all, or can a progressive glo-
balization be managed in ways other than legal harmonization? Are we, in
short, facing the end of the regulatory power of representatives of the nation
voting in Parliament? Are we facing the beginning of a new age, in which the
will of the people still dominates but in new ways? Could democracy be en-
sured not by citizens’ votes but by open competition among multiple bodies
and interests?
The need to find efficient answers to new challenges is thus matched by
the wish to come up with a new paradigm that would replace the old imagi-
nary of a society made of undifferentiated equal citizens linked by an ab-
stract social contract and expressing their desires by electing representatives
to a Parliament. The new paradigm, instead, would recognize the power of
groups and group solidarity as well as the persistence of inequalities and dif-
ferences by unmaking the metaphors proposed by the French Revolution.
In this new reality of extreme legal pluralism, where the juridical order of
the nation-state coincides with a multiplicity of other normative orders,
should not jurists center their efforts on proposing methods to imagine a
new legal universe for a new society?
Notes
1. Roman Law
1. Goethe was said to have referred to the “enduring life of Roman law, which,
like a diving duck, hides itself from time to time, but is never quite lost, al-
ways coming up again alive.” Johann Wolfgang von Goethe, Conversations of
Goethe with Eckermann and Soret, trans. John Oxenford, 389–390 (London:
George Bell, 1875), conversation that took place on April 6, 1829.
2. Historians of Roman law have long disagreed w hether pontifices only gave
authoritative responses regarding the law that other officials implemented or
whether they also applied it as judges. Some have suggested a compromise
that made the pontifices sometimes legal experts, sometime judges, depending
on the case.
3. While this is the standard narrative, some historians have asked w hether this
portrayal is accurate or w hether it was largely invented by later Romans on
whose testimonies we depend to reconstruct what transpired during the ar-
chaic period.
4. Initially there were only two praetors, but their number grew over time. Rather
than being members of an institution, each praetor worked independently.
Eventually praetors were also nominated in Roman settlements outside
Rome, such as Sicily and Hispania. Praetors were identified as “urban” a fter
the introduction in 242 bce of a new type of praetor (praetor peregrinus) who
oversaw cases involving non-Roman citizens.
5. Historians disagree as to when and why the division of the process into two
parts took place. They point out that references to iudex already existed in
245
246 Notes to Pages 18–39
the Twelve Tables, though it is unclear that the work of this individual was
necessarily preceded by the work of an official similar to the praetor.
6. On the status of foreigners under Roman law, see below.
7. Papinian was a famous jurist who was also an imperial official. Among his
most celebrated works are thirty-seven books of questions (Quaestiones) and
nineteen books of responsa, as well as several treatises.
8. This was the definition of jurisprudence in the Institute, the second-century
ce manual for students authored by Gaius. It was reproduced in the Justinian
so-called sixth-century Corpus Iuris Civilis.
9. Roman provincial governors, who oversaw conflicts in the provinces between
Romans and non-Romans, also participated in the elaboration of ius gentium.
10. This name was given in the sixteenth century to the three books described below,
and often also to the Novellae, a fourth book including new imperial legisla-
tion. Though widely known as such, this title is nevertheless anachronistic.
11. Because the Digest included excerpts, historians often warn against trusting
it too much. The excerpts did not clarify the context in which the opinion
was given, and they w ere often fragmentary. Scholars of Roman law also sug-
gest that the opinions included dated from different periods and that the
Digest deliberately underrepresented disagreement among them.
12. As w ill be explained in Chapter 5, not all of the so-called Corpus Iuris Civilis
survived, forcing jurists to endeavor to reconstruct it from a multiplicity of
fragments. As for the validity of the Corpus in the Eastern empire, historians
have asserted that its diffusion there was also somewhat limited and that in
many places it did not in practice replace the preexisting local law.
2. The Creation of Latin Christendom
1. Christianity also expanded in the Hellenistic east. Although it is not the main
subject of this book, which follows only Latin Christendom, what happened
in the East w ill be briefly mentioned at the end of the chapter.
2. Christianity would eventually be open not only to the Israelites but also to
all others willing to enter the covenant. This development is usually attrib-
uted to the teaching of Paul, one of the apostles.
3. The Council of Carthage selected the twenty-seven books that would make
the New Testament alongside the forty-six books of the Old Testament. This
selection was confirmed by the Council of Trent (1545–1563), which redefined
Christian dogma in the wake of the Protestant Reformation.
4. This was the original definition of what Catholicism meant before the Prot-
estant Reformation. By calling the Church “Catholic” (that is, universal), it
adopted the convention that there was only one belief within the Church.
Notes to Pages 41–75 247
5. John Van Engen, “Christening the Romans,” Traditio 52 (1997): 1–45, at 4.

6. Thomas Hobbes. Leviathan, chap. 47, discussing the powers of the pope.
7. In recent years, another narrative of the “formation of Europe” has been pro-
posed. Criticizing the above-mentioned analysis for disregarding other ideo-
logical frameworks operating in Europe at that time, such as Judaism and
Islam, the new narrative also suggests that Christianization and Romaniza-
tion were not uniquely European phenomena, because efforts at conversion
were initially stronger and more persistent in Asia and Africa than in Europe.
Undertaken by the Eastern Greek Church, t hese efforts disseminated a Hel-
lenized Roman law whose presence might have persisted even under Islam.
8. On Byzantine, Eastern law, see Chapter 1.
3. An Age with No Jurists?
1. This period was characterized as “an age with no jurists” by Manlio Bellomo
in his The Common Legal Past of Europe, 1000–1800 (Washington, DC: Cath-
olic University of America Press, 1995), 34.
2. See Chapter 5.
3. See Chapter 4.
4. Although the abandonment of ordeal seemed to have greatly influenced the
use of juries in criminal cases, its effect on civil cases is unclear.
4. Lords, Emperors, and Popes around the Year 1000
1. Historians have disagreed w hether feudalism reached everywhere in Europe

and whether its effects were similar across time and place. The answer to this
question was important because scholars assumed that it could account for
Europe’s distinct patterns of development. In 1929, for example, Ortega y
Gasset, the foremost Spanish philosopher of the time, pointed to the lack of
feudal experience to explain why Spain was “different.”
2. See Chapter 3.
3. Since the late nineteenth century, historians have suggested that although the
decree was included in the papal registry that corresponded to the year 1075,
it might have been authored at a later date not by Gregory himself but in-
stead by Cardinal Deusdedit, one of his collaborators.
5. The Birth of a European Ius Commune
1. Ius commune was a term originally used to designate the parts of canon law
that w
ere common to all Christians. However, it eventually referred to the
combination of Roman, feudal, and canon law that controlled European law
from the twelfth to the nineteenth centuries (if not beyond).
2. See Chapter 1.
3. This task of reconstructing the Corpus has usually been associated with one
person (Irnerius), one city (Bologna), and one period (the second half of the
eleventh century). This image, however, is somewhat misleading, as we know
that more than a single person in a single location was involved. Some scholars
have even expressed doubts whether Irnerius himself was part of this enter-
prise, or only his students.
4. I refer here to what would later be known as the noblesse de robe, the nobility
of those wearing the clothes (robes) associated with a law degree, as distin-
guished from the noblesse d’ épée (sword), which was based on descent and
(theoretically) military achievements.
5. Rogerius, “Questions on the Institutes,” in University of Chicago Readings in
Western Civilization, vol. 4: Medieval Europe, ed. Julius Kirshner and Karl F.
Morrison (Chicago: University of Chicago Press, 1986), 215–218. According to
some, this text was not gloss proper but instead a questio, that is, a different
form of juristic engagement that sought to answer a particular question.
6. We know very little about Gratian and his work. Historians currently debate
whether he authored the entire compilation or only part of it. They all agree,
however, that even if he was the author, he did not do this work alone, and
that he also heavily relied on compilations proposed by previous scholars.
7. The Corpus Iuris Canonici was the body of Church law that, to a large de-
gree, was followed u ntil 1917.
8. See Chapter 3.
9. Directum was the antecedent of the Italian diritto, the French droit, the Spanish
derecho, and the Portuguese direito. It also gave birth to the idea of the right
(versus the wrong) direction or simply of being correct.
10. Historians usually count among the present-day European countries that w ere
affected by ius commune Italy, France, Spain, Portugal, Germany, Belgium,
The Netherlands, Switzerland, Iceland, Slovakia, the Czech Republic, Hun-
gary, Austria, Romania, Poland, Denmark, Norway, and Sweden. Most also
include England, at least to some degree: see Chapter 6.
11. This was what the Ordenamiento de Alcalá (1348) and the Leyes de Toro (1505)
attempted to do.
6. The Birth of an English Common Law
1. The laws of king Aethelberth, enacted 602–603 ce.

2. The Laws of Alfred (871–899 ce).
3. Although the Norman invasion is habitually referred to as an “invasion” or a

“conquest,” William, duke of Normandy, had a legal claim to the English
throne and indeed presented himself as the rightful heir.
4. The Laws of Henry I (Leges Henrici Primi) and of Edward the Confessor (Leges
Edwardi Confessoris), which w ere drawn up by Norman monarchs, w ere al-
legedly aimed at accomplishing this task.
5. Even in the sixteenth century, however, plans to adopt an independent code
that would ensure the separation of an English ecclesiastical law from a Eu
ropean canon law never materialized. The result was the continuing validity
of at least parts of canon law in England.
6. Frederick Pollock, Oxford Lectures and Other Discourses (London: Macmillan,
1890), 75–88, quotation at 88.
7. Historians have debated what this restriction meant and how it was applied.
They disagree whether most medieval villagers were f ree, many suggesting that
they w ere not. O
thers dismiss this question altogether, pointing out that the
status of individuals who requested the king’s protection was rarely investigated.
8. Among these courts was the court of Common Pleas, which was eventually
located in Westminster, and the King’s Bench, which accompanied the king
on his travels.
9. Administrative writs were also used by Anglo-Saxon kings, but their exten-
sion and meaning were somewhat distinct.
10. In the twelfth and thirteenth centuries royal courts mostly used Latin, and
therefore, rather than being identified as “common law,” this system initially
was designated as the communi iure or commune regni ius.
11. “Ashby vs. White and O thers,” in Thomas and Bellots Leading Cases in Con-
stitutional Law (with Introduction and Notes), ed. E. Slade (London: Sweet and
Maxwell, 1934), 47.
12. Ius commune jurists identified this right to process as servare ordinem iuris.
13. The Magna Carta will be discussed in greater detail in Chapter 8.
14. Heneage Finch Nottingham (Earl of ), Lord Nottingham’s Manual of Chan-
cery Practice and Prolegomena of Chancery and Equity, ed. D. E. C. Yale (Homes
Beach, FL: Wm. W. Gaunt, 1965), 194, cited in Dennis R. Klinck. “Lord Not-
tingham and the Conscience of Equity,” Journal of the History of Ideas 67,
no. 1 (2006): 123–147, at 125.
15. There were, of course, important differences between ancient Rome and
England. Perhaps the most important structurally was that whereas medieval
England allowed for the coexistence of multiple courts (royal, feudal, local)
to which subjects could bring their conflicts, each one using its very distinct
legal system, Rome did not. Also, in England, lawyers and legal experts never
acquired the importance they had in Rome.
16. Charles Donahue, “Ius Commune, Canon law, and Common Law in
England,” Tulane Law Review 66 (1991–1992): 1745–1780, at 1748.
7. Crisis and Reaffirmation of Ius Commune
1. Fifth-century St. Vincent of Lérins is credited for having coined this fiction.
This was the original meaning of Catholicism before the Protestant Refor-
mation, when this term became associated instead with the part of the Church
that remained under papal authority in order to distinguish it from the other
part that did not.
2. Paradoxically, the school began in Italy and its first proponent (Andreas
Alciatus) was Italian, but many of its adherents (such as Guillaume Budé,
Jacques Cujas, and François Hotman) were French and its most important
centers of creation (Orleans and Bourges) w ere in France.
3. The Dutch method of law (usus modernus Pandectarum) might have combined
mos gallicus and mos italicus. This method was mostly a product of the seven-
teenth and eighteenth centuries and was geared t oward finding practical so-
lutions to everyday situations. Its practitioners were willing to generalize and
draw principles as Italian scholars did, yet they cared about the historical evo-
lution of law and admitted the omnipresence of contradictions between dif
ferent solutions, as French legal humanists did.
8. Crisis and Reinvention of Common Law
1. See Chapter 6.
2. William Blackstone, Commentaries on the Laws of E ngland (Oxford: Clar-
endon Press, 1765–1769), introduction, third section, 65.
3. Mark Kishlansky, A Monarchy Transformed: Britain, 1603–1714 (London: Pen-
guin, 1996), 37.
4. Glanvil was said to have authored the Tractatus de legibus e consuetudinibus
regni Angliae (ca.1187–1189) while Bracton was said to have authored De leg-
ibus et consuetudinibus Angliae (ca. 1220s–1250s). Both books are considered
the most important early essays describing common law (see Chapter 6).
5. Among such authors were John Fortecue, Christopher St. German, Anthony
Fitzherbert, and Robert Brooke.
6. John David in his Iris Reports (1613), as cited in Alan Cromartie, “The Idea of
Common Law as Custom,” in The Nature of Customary Law, ed. Amanda
Perreu-Saussine and James Bernard Murphy (Cambridge: Cambridge Uni-
versity Press, 2007), 203–227 at 214.
7. Only in the twentieth century did judges clearly affirm that the prominence
of legislation limited their activities b ecause they could not apply or develop
the common law in ways that were inconsistent with the law as laid down in
statutes (acts of Parliament).
8. See Chapter 6.
9. From Ius Gentium to Natural Law
1. This was an indirect reference to the historical process identified as the “Re-
conquest” (reconquista). It suggested that from the eleventh to the fifteenth
century, the Christian kingdoms of Iberia fought Muslim occupiers in
order to reconstitute the political structures that existed before the Muslims
invaded the peninsula in 711. This ideological reading of the past, however,
has been discredited by most historians, who no longer present the Muslims
as invaders nor the Christians as pursuing a religious agenda meant at
recuperation.
2. This was not the only possible conclusion. Michel de Montaigne (1533–1592), for
example, suggested that what was natural for some, might not be natural for
others. He expressed these views in his famous essay On Cannibals (ca. 1577),
which appeared as chapter 30 in his book of essays, available in multiple editions
and also online at https://w ww.gutenberg.org/files/3600/3600-h/3600-h.htm.
3. Tamar Herzog, Defining Nations: Immigrants and Citizens in Early Modern
Spain and Spanish America (New Haven: Yale University Press, 2003).
10. North American Developments
1. The states that added a Bill of Rights to their constitutions w ere Virginia,
Pennsylvania, Maryland, Delaware, North Carolina, Vermont, Massachu
setts, and New Hampshire. Other states, though not including a separate
Bill of Rights, did mention or enumerate rights in their constitutions.
2. The following citations are from the Declaration of Independence.
3. Preamble to the Constitution of the United States.
4. “The enumeration in the Constitution, of certain rights, s hall not be construed
to deny or disparage others retained by the people.”
5. William Blackstone, Commentaries on the Laws of E ngland (Oxford: John
Hatchard and Son, 1822 [1765–1769]), 105.
6. Historians currently debate whether these clauses in colonial charters gave
colonists rights overseas or only bestowed on them the right to be treated as
subjects if and when they returned to E ngland.
7. Immanuel Kant, “What Is the Enlightenment?,” Lonigsberg, Prussia, Sep-

tember 30, 1784, available, for example, at http://legacy.fordham.edu/halsall
/mod/kant-whatis.asp.
11. The French Revolution
1. Preamble of the 1789 French Declaration of the Rights of Man and Citizen.
2. As mentioned in Chapter 10, natural law was uncodified. It was a notion that
many philosophers, jurists, theologians, and other intellectuals accepted, but
they disagreed on what it included. Rather than an enumeration of norms or
a system of specific solutions, natural law was a frame of reference.
3. “It is said that there are 144 customs in France that have the power of law:
these laws are almost all different. A man who travels in this country changes
law almost as many times as he changes h orses.” Voltaire, “Courtisans let-
trés: Coutoumes,” in Oeuvres complètes de Voltaire, vol. 7: Dictionnaire phi-
losophique I (Paris: Chez Furne, 1835).
4. The French Civil Code, art. 544. On the French civil code, see Chapter 12.
5. Title 3, art. 1.
6. Only in 1958 would the French state introduce a version of judicial review that
allowed the magistrates of a special body (Conseil Constitutionnel) to review
the constitutionality of laws prior to their promulgation. In 2010 t hese ar-
rangements were extended to allow litigants to invoke unconstitutionality
during ordinary proceedings at the court, which would suspend its delibera-
tions and send the constitutional issue to the Conseil for its decision.
12. Codifying the Laws of Europe
1. Though codes would continue to be enacted in France (presently there are

some fifty codes), those a dopted a fter the Napoleonic period would be iden-
tified as “administrative” rather than “ideological.”
2. The list of countries influenced by Napoleonic codification included various
Italian city-states (before the Italian unification), Belgium, the Netherlands,
Luxembourg, parts of Germany (before its unification in 1871), Austria, Swit-
zerland, Poland, Greece, Romania, Spain, Portugal, Louisiana, Quebec, Domin-
ican Republic, Bolivia, Peru, Chile, Uruguay, Argentina, Mexico, Nicaragua,
Guatemala, Honduras, El Salvador, Venezuela, Turkey, Egypt, and Lebanon.
3. Germanists’ perception that Roman and German law w ere opposites rather
than complementary was resuscitated in 1920 when the Nazi party called for
the replacement of Roman law (identified with a materialistic world order)
with a “genuine” (and “good”) German law.
4. Before the BGB, as many as thirty diverse legal systems might have operated
in Germanic territories, using at least three legal languages (Latin, German,
and French). Some regions followed local codes, o thers were under French
control u
ntil 1871 and thus followed the French Civil Code, and yet o thers
observed Roman, canon, or customary law.
5. The countries that were said to have been influenced by the BGB included
Greece, Austria, Switzerland, Portugal, Italy, the Netherlands, the former
Czechoslovak ia, the former Yugoslavia, Hungary, Estonia, Latvia, Ukraine,
Japan, Brazil, Mexico, Peru, Taiwan, South K orea, Thailand, and, for a while,
China.
6. See Chapter 1, note 1.
13. Codifying Common Law
1. Maurice Amos, “The Code Napoleon and the Modern World,” Journal of Com-
parative Legislation and International Law 10, no. 4 (1928): 222–236, at 222.
2. H. R. Hahlo, “Codifying the Common Law: Protracted Gestation,” Modern
Law Review 38, no. 1 (1975): 23–30, at 23.
3. These states and territories included California, Iowa, Minnesota, Indiana,
Ohio, Washington Territory, Nebraska, Wisconsin, Kansas, Nevada, Dakotas,
Idaho, Arizona, Montana, North Carolina, Wyoming, South Carolina, Utah,
Colorado, Oklahoma, and New Mexico.
Epilogue
1. The 1950s also featured failed attempts to create a European Defense Com-
munity (EDC) and a European Political Community (EPC).
2. The treaty that instituted this single structure, known as the Merger Treaty,
was signed in Brussels in 1965 but came into effect in 1967. Because the treaty
merged three entities (the ECSC, the EEC, and Euratom), the more appro-
priate name for the new structure was “European Communities” in plural. Yet
most people referred to this complex structure as the European Community
(in singular).
3. From its initiation, the European Community had two councils. One, the
Council of the European Community (later, of the European Union) is a
meeting of the national ministers of member states. In this forum, ministers
vote on legislation proposed by the European Commission on matters related
to their particu lar ministry. For example, the Agricultural and Fisheries
Council is the meeting of the ministers of agriculture and it votes on legisla-
tion on matters of agriculture; the Foreign Affairs Council unites the national
ministers of foreign affairs and votes on legislation on t hese issues; and so

forth. The European Council, on the contrary, is a meeting of the heads of
state. It sets the politic al agenda and discusses the major issues facing the
Community / Union, but it does not have legislative functions.
4. The five countries that signed the Schengen Agreement were Belgium, France,
Luxembourg, Netherlands, and (West) Germany. Their association constituted
an area known as the “Schengen area.”
5. As of 2013, the European Union included Austria, Belgium, Bulgaria, Cro-
atia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Neth-
erlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and
the UK.
6. Originally, Eurozone countries included Austria, Belgium, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, and
Spain. Currently, however, the Eurozone embraces nineteen member states
after the addition of Cyprus, Estonia, Latvia, Lithuania, Malta, Slovakia, and
Slovenia.
7. http://w ww.europarl.europa.eu/atyourservice/en/d isplayFtu.html?f tuId
=FTU_1.3.9.html includes a description of the court, as does http://europa
.eu/about-eu/institutions-bodies/court-justice/index_en.htm. The Court itself
has a useful website allowing to track its jurisprudence: http://curia.europa
.eu/jcms/jcms/j_6/.
8. Karen J. Alter, Establishing the Supremacy of European Law: The Making of an
International Rule of Law in Europe (Oxford: Oxford University Press, 2003), 15.
9. Proclaimed by the European Council in 2000, initially the charter of funda-
mental rights was not legally binding. However, in 2009 it was formally in-
tegrated into European law. Information on the charter can be found at
http://ec.europa.eu/justice/fundamental-rights/charter/index _en.htm.
10. Ugo Mattei and Mauro Bussani, “The Trento Common Core Project,” a pre
sentation delivered in the first general meeting, July 6, 1995, available at
http://w ww.common-core.org/node/8.
Further Reading
Introduction
Ecklund, John E. The Origins of Western Law from Athens to the Code of
Napoleon. Clark, NJ: Talbot, 2014.
Grossi, Paolo. A History of European Law. Translated by Laurence Hooper.
Chichester, UK: Wiley-Blackwell, 2010.
Hespanha, Antonio Manuel. A cultura jurídica europeia: Síntese de un milénio.
Coimbra, Portugal: Almedina, 2012.
Kelly, J. M. A Short History of Western Legal Theory. New York: Oxford Univer-
sity Press, 1992.
Lesaffer, Randall. European Legal History: A Cultural and Political Perspective.
Cambridge: Cambridge University Press, 2009.
Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal
Systems of Europe and Latin America. 3rd ed. Stanford, CA: Stanford
University Press, 2007.
Mousourakis, George. Roman Law and the Origins of the Civil Law Tradition.
Cham, Switzerland: Springer, 2015.
Robinson, O. F., T. D. Fergus, and V. M. Gordon. Eur opean L egal
History: Sources and Institutions. 2nd ed. London: Butterworths,
1994.
Schioppa, Antonio Padoa. Storia del diritto in Europa: Dal medioevo all’età
contemporanea. Bologna: Il Mulino, 2007.
Van Caenegem, R. C. An Historical Introduction to Private Law. Translated by
D. E. L Johnston. Cambridge: Cambridge University Press, 1992.
255
256 Further Reading
Chapter 1
Ando, Clifford. Law, Language, and Empire in the Roman Tradition. Philadel-
phia: University of Pennsylvania Press, 2011.
Blume, Fred H., trans. “Annotated Justinian Code.” University of Wyoming
George W. Hopper Law Library. http://uwyo.edu/lawlib/blume-justinian.
Crawford, M. H., ed. Roman Statutes. London: Institute of Classical Studies, 1996.
Crook, John Anthony. Law and Life of Rome. London: Thames and Hudson,
1967.
du Plessis, Paul J. Studying Roman Law. London: Bristol Classical Press, 2012.
du Plessis, Paul J., Clifford Ando, and G. Tuori, eds. The Oxford Handbook of
Roman Law. Oxford: Oxford University Press, 2016.
Frier, Bruce W. The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina.
Princeton, NJ: Princeton University Press, 1985.
Frier, Bruce W., ed., and Fred H. Blume, trans. The Codex of Justinian: A New
Annotated Translation. Cambridge: Cambridge University Press, 2016.
Gordon, W. M., and O. F. Robinson, trans. The Institutes of Gaius. Ithaca, NY:
Cornell University Press, 1988.
Honoré, Tony. Justinian’s Digest: Character and Compilation. Oxford: Oxford
Johnston, David. The Cambridge Companion to Roman Law. Cambridge:
Cambridge University Press, 2015.
———. Roman Law in Context. Cambridge: Cambridge University Press, 1999.
Jolowicz, H. F., and Barry Nicholas. Historical Introduction to the Study of
Roman Law. 3rd ed. Cambridge: Cambridge University Press, 1972.
Krueger, Paul. Justinian’s Institutes. Translated by Peter Birks and Grant
McLeod. Ithaca, NY: Cornell University Press, 1987.
Krueger, Paul, Theodor Mommsen, Rudolf Schoell, and Wilhelm Kroll, eds.
Corpus Iuris Civilis. 3 vols. Berlin: Weidmann, 1928.
Kunkel, Wolfgang. An Introduction to Roman L egal and Constitutional History.
Translated by J. M. Kelly. Oxford: Clarendon Press, 1966.
Lambiris, Michael. The Historical Context of Roman Law. North Ryde, Aus-
tralia: LBC Information Services, 1997.
Metzger, Ernest. Litigation in Roman Law. Oxford: Oxford University Press,
2005.
———. “An Outline of Roman Civil Procedure.” Roman Legal Tradition 9
(2013): 1–30.
Mousourakis, George. Roman Law and the Origins of the Civil Law Tradition.
Cham, Switzerland: Springer, 2015.
Further Reading 257
Nicholas, Barry. An Introduction to Roman Law. Oxford: Clarendon Press, 1962.

Pharr, Clyde, trans. The Theodosian Code and Novels and the Sirmondian
Constitutions. Princeton, NJ: Princeton University Press, 1952.
Robinson, O. F. The Sources of Roman Law: Problems and Methods for Ancient
Historians. London: Routledge, 1997.
Schiavone, Aldo. The Invention of Law in the West. Translated by Jeremy Carden
and Antony Shugaar. Cambridge, MA: Harvard University Press, 2012.
Schiller, A. Arthur. Roman Law: Mechanisms of Development. The Hague:
Mouton, 1978.
Stein, Peter. Roman Law in European History. Cambridge: Cambridge Univer-
sity Press, 1999.
Waelkens, Laurent. Amne Adverso: Roman L egal Heritage in European Culture.
Leuven, Belgium: Leuven University Press, 2015.
Watson, Alan, ed. The Digest of Justinian. Philadelphia: University of Pennsyl-
vania Press, 1985.
———. Law Making in the L ater Roman Republic. Oxford: Clarendon Press,
1974.
———. The Spirit of the Roman Law. Athens, GA: University of Georgia Press,
1995.
Chapter 2
Ando, Clifford. The M atter of the Gods: Religion and the Roman Empire. Berkeley:
University of California Press, 2009.
Bartlett, Robert. The Making of Europe: Conquest, Colonization and Cultural
Change, 950–1350. Princeton, NJ: Princeton University Press, 1993.
Biondi, Biondo. Il diritto romano cristiano. 3 vols. Milan: Giuffrè, 1952–1954.
Brown, Peter. The Rise of Western Christendom: Triumph and Diversity, A.D.
200–1000. Cambridge, MA: Wiley-Blackwell, 1995.
Fletcher, Richard. The Conversion of Europe: From Paganism to Christianity,
371–1386 AD. London: HarperCollins, 1997.
Freeman, Charles. A New History of Early Christianity. New Haven, CT: Yale
Grubbs, Judith Evans. Law and F amily in Late Antiquity: The Emperor Constan-
tine’s Marriage Legislation. Oxford: Oxford University Press, 1995.
Heather, Peter. Empires and Barbarians: The Fall of Rome and the Birth of
Europe. Oxford: Oxford University Press, 2010.
Humfress, Caroline. Orthodoxy and the Courts in Late Antiquity. Oxford:
Oxford University Press, 2007.
258 Further Reading
Lenski, Noel. “Constantine and Slavery: Libertas and the Fusion of Roman and
Christian Values.” Atti dell’Accademia Romanistica Costantiniana 18 (2012):
235–260.
MacCormack, Sabine. “Sin, Citizenship, and Salvation of the Souls: The Impact
of Christian Priorities on Late-Roman and Post-Roman Society.” Compara-
tive Studies in Society and History 39, no. 4 (1997): 644–673.
MacMullen, Ramsay. “What Difference Did Christianity Make?” Historia:
Zeitschrift für Alte Geschichte 35, no. 3 (1986): 322–343.
Salzman, Michele Renee. “The Evidence for the Conversion of the Roman Empire
to Christianity in Book 16 of the ‘Theodosian Code.’ ” Historia: Zeitschrift
für Alte Geschichte 42, no. 3 (1993): 362–378.
Thompson, John A. F. The Western Church in the Middle Ages. London: Arnold,
1998.
Vuolanto, Ville. “Children and the Memory of Parents in the Late Roman
World.” In Children, Memory, and Family Identity in Roman Culture, edited by
Véronique Dasen and Thomas Späth, 173–192. Oxford: Oxford University
Press, 2010.
Chapter 3
Bartlett, Robert. Trial by Fire and W

ater: The Medieval Judicial Ordeal. Oxford:
Clarendon Press, 1986.
Collins, Roger. “Literacy and the Laity in Early Mediaeval Spain.” In The Uses
of Literacy in Early Medieval Europe, edited by Rosamond McKitterick,
109–133. Cambridge: Cambridge University Press, 1990.
Davies, Wendy. “Local Participation and L egal Ritual in Early Medieval
Law Courts.” In The Moral World of the Law, edited by Peter Coss,
Davies, Wendy, and Paul Fouracre, eds. The Settlement of Disputes in Early
Medieval Europe. Cambridge: Cambridge University Press, 1986.
Davis, Jennifer R. Charlemagne’s Practice of Empire. Cambridge: Cambridge
Grossi, Paolo. L’Ordine giuridico medievale. Rome: Laterza, 1995.
Humfress, Caroline. Orthodoxy and the Courts in Late Antiquity. Oxford: Oxford
Jasper, Detlev, and Horst Fuhrmann. Papal Letters in the Early Middle Ages.
Washington, DC: Catholic University of America Press, 2001.
Kéry, Lotte. Canonical Collections of the Early M
iddle Ages (ca. 400–1140): A
Bibliographical Guide to the Manuscripts and Literature. Washington, DC:
Catholic University of America Press, 1999.
Further Reading 259
Lesaffer, Randall. European Legal History: A Cultural and Political Perspective.

Logan, F. Donald. A History of the Church in the Middle Ages. 2nd ed. London:
Routledge, 2013.
Lupoi, Maurizio. The Origins of the European L egal Order. Translated by Adrian
Belton. Cambridge: Cambridge University Press, 2000.
Masschaele, James. Jury, State, and Society in Medieval England. New York:
Palgrave Macmillan, 2008.
McKitterick, Rosamond, ed. The Uses of Literacy in Early Medieval Europe.
Oliver, Lisi. The Body L egal in Barbarian Law. Toronto: University of Toronto
Press, 2011.
Radding, Charles M., and Antonio Ciaralli. The Corpus Iuris Civilis in the
Middle Ages: Manuscripts and Transmission from the Sixth Century to the
Juristic Revival. Leiden: Brill, 2007.
Reynolds, Susan. Kingdoms and Communities in Western Europe, 900–1300.
2nd ed. Oxford: Clarendon Press, 1997.
Rio, Alice. Legal Practice and the Written Word in the Early Middle Ages: Frankish
Formulae, c. 500–1000. Cambridge: Cambridge University Press, 2009.
Waelkens, Laurent. Amne Adverso: Roman L egal Heritage in European Culture.
Leuven, Belgium: Leuven University Press, 2015.
Walters, Dafydd. “From Benedict to Gratian: The Code in Medieval Ecclesias-
tical Authors.” In The Theodosian Code: Studies in the Imperial Law of Late
Antiquity, 2nd ed., edited by Jill Harries and Ian Wood, 200–216. London:
Bristol Classical Press, 2010.
Whitman, James Q. The Origins of Reasonable Doubt: Theological Roots of the
Criminal Trial. New Haven, CT: Yale University Press, 2008.
Chapter 4
Berman, Harold J. Law and Revolution: The Formation of the Western L egal
Tradition. Cambridge, MA: Harvard University Press, 1983.
Bisson, Thomas N. The Crisis of the Twelfth Century: Power, Lordship, and the
Origins of European Government. Princeton, NJ: Princeton University Press,
2009.
Bloch, Marc. Feudal Society. Translated by L. A. Manyon. Chicago: University
of Chicago Press, 1961.
Blumenthal, Uta-Renate. The Investiture Controversy: Church and Monarchy
from the Ninth to the Twelfth Century. Philadelphia: University of Pennsyl-
vania Press, 1988.
260 Further Reading
Brown, Elizabeth A. R. “The Tyranny of a Construct: Feudalism and Histo-

rians of Medieval Europe.” American Historical Review 79, no. 4 (1974):
1063–1088.
Cook, William R., and Ronald B. Herzman. The Medieval World View: An
Introduction. 2nd ed. Oxford: Oxford University Press, 2004.
Davis, Kathleen. “Sovereign Subjects, Feudal Law, and the Writing of History.”
Journal of Medieval and Early Modern Studies 36, no. 2 (2006): 223–261.
“Dictatus Papae (Gregory VII), Letter of Gregory VII to Henry IV, Henry IV’s
Position and Renunciation of Gregory VII by the German Bishops (Synod
of Worms),” and “The Concordat of Worms.” In University of Chicago
Readings in Western Civilization, vol. 4: Medieval Europe, edited by Julius
Kirshner and Karl F. Morrison, 142–150, 169–170. Chicago: University of
Chicago Press, 1986.
Ganshof, François Louis. Feudalism. Translated by Philip Grierson. London:
Longmans, 1952.
Logan, F. Donald. A History of the Church in the Middle Ages. London: Rout-
ledge, 2013.
“Lords, Vassals and Tenants in the Norman Summa de Legibus (1258).” In
University of Chicago Readings in Western Civilization, vol. 4: Medieval
Europe, edited by Julius Kirshner and Karl F. Morrison, 68–76. Chicago:
University of Chicago Press, 1986.
Reynolds, Susan. Fiefs and Vassals: The Medieval Evidence Reinterpreted.
Oxford: Oxford University Press, 1994.
Tierney, Brian, ed. The Crisis of Church and State, 1050–1300. Englewood Cliffs,
NJ: Prentice-Hall, 1964.
Chapter 5
Ascheri, Mario. The Laws of Late Medieval Italy (1000–1500): Foundations for a
European Legal System. Leiden: Brill, 2013.
Bartolus de Saxoferrato. Tractatus Tyberiadis seu de fluminibus, bks. 1–3: De
alluvione, de insula, de alveo; Tractatus de insigniis et armis. Turin: Bottega
d’Erasmo, 1964. Available in abbreviated form at http://lafogonera.blogspot
.com.es/2007/11/de-insula-brtolo-de-sassoferrato-1313.html.
Bellomo, Manlio. The Common L egal Past of Europe, 1000–1800. Washington,
DC: Catholic University of America Press, 1995.
Brundage, James A. Medieval Canon Law. London: Longman, 1995.
Cairns, John W., and Paul J. du Plessis, eds. The Creation of the Ius Commune:
From Casus to Regula. Edinburgh: Edinburgh University Press, 2010.
Further Reading 261
Conte, Emanuele. “Consuetudine, Coutume, gewohnheit and Ius Commune:

An Introduction.” Rechtsgeschichte / Legal History 24 (2016): 234–243.
Coopens, Chris. “The Teaching of Law in the University of Paris in the First
Quarter of the 13th C entury.” Rivista internazionale di diritto comune 10
(1999): 139–173.
Gallagher, Clarence. Canon Law and the Christian Community: The Role of Law
in the Church according to the Summa Aurea of Cardinal Hostiensis. Rome:
Università Gregoriana, 1978.
Gratian. The Treatise on Laws (Decretum DD. 1–20) with the Ordinary Gloss.
Translated by Augustine Thompson and James Gordley. Washington, DC:
Catholic University of America Press, 1993.
Grossi, Paolo. L’Ordine giuridico medievale. Rome: Laterza, 1995.
Hartmann, Wilfried, and Kenneth Pennington, eds. The History of Medieval
Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals
of Pope Gregory IX. Washington, DC: Catholic University of America Press,
2008.
Haskins, Charles Homer. The Renaissance of the Twelfth Century. Cambridge,
MA: Harvard University Press, 1927.
Helmholz, R. H. The Spirit of Classical Canon Law. Athens, GA: University of
Georgia Press, 1996.
Herzog, Tamar. Defining Nations: Immigrants and Citizens in Early Modern
Spain and Spanish America. New Haven, CT: Yale University Press, 2003.
———. Frontiers of Possession: Spain and Portugal in Europe and the Americas.
Cambridge, MA: Harvard University Press, 2015.
Ibbetson, David. “English Law and the European Ius Commune, 1450–1650.”
Cambridge Year Book of European Legal Studies 8 (2006): 115–132.
Larson, Atria A., trans. Gratian’s Tractatus de Penitentia: A New Latin Edition
with English Translation. Washington, DC: Catholic University of America
Press, 2016.
Le Goff, Jacques. Intellectuals in the Middle Ages. Translated by Teresa Lavender
Fagan. Oxford: Blackwell, 1993.
Müller, Wolfgang P., and Mary E. Sommar, eds. Medieval Church Law and the
Origins of the Western L egal Tradition: A Tribute to Kenneth Pennington.
Washington, DC: Catholic University of America Press, 2006.
Peters, Edward. Inquisition. New York: Free Press, 1988.
Rogerious, “Questions on the Institutes.” In University of Chicago Readings in
Western Civilization, vol. 4: Medieval Europe, edited by Julius Kirshner
and Karl F. Morrison, 215–218. Chicago: University of Chicago Press,
1986.
262 Further Reading
Scott, Samuel Parsons, trans., and Robert I. Burns, ed. Las Siete Partidas.
Philadelphia: University of Pennsylvania Press, 2001.
Vinogradoff, Paul. Roman Law in Medieval Europe. Oxford: Clarendon Press, 1929.
Winroth, Anders. The Making of Gratian’s Decretum. Cambridge: Cambridge
Chapter 6
Baker, John. An Introduction to English Legal History. Oxford: Oxford Univer-

sity Press, 2003.
———. The Oxford History of the Laws of E ngland: 1483–1558. Oxford: Oxford
Bracton, Henry de. On the Laws and Customs of E ngland (De legibus et
consuetudinibus Angliae). Translated by Samuel E Thorne. Buffalo, NY:
W. S. Hein, 1997.
Brand, Paul. “Chancery, the Justices and the Making of New Writs in
Thirteenth-Century England.” In Law and L egal Process: Substantive Law
and Procedure in English Legal History, edited by Matthew Dyson and
David Ibbetson, 17–33. Cambridge: Cambridge University Press, 2013.
———. Kings, Barons and Justices: The Making and Enforcement of Legislation in
Thirteenth-Century England. Cambridge: Cambridge University Press, 2003.
Carpenter, David, trans. Magna Carta. London: Penguin Books, 2015.
Clanchy, M. T. From Memory to Written Record: E ngland 1066–1307. 2nd ed.
Oxford: Blackwell, 1993.
Dawson, John P. The Oracles of the Law. Ann Arbor: University of Michigan
Law School, 1968.
Doe, Norman. Fundamental Authority in Late Medieval English Law. Cam-
bridge: Cambridge University Press, 1990.
Donahue, Charles. “Ius Commune, Canon law, and Common Law in
England.” Tulane Law Review 66, no. 6 (1992): 1745–1780.
Fleming, Robin. Britain a fter Rome: The Fall and Rise, 400–1070. London: Allen
Lane, 2010.
Glanvill, Ranulf de. The Treatise on the Laws and Customs of the Realm of
England Commonly Called Glanvill. Edited and translated by G. D. G.
Hall. Oxford: Clarendon Press, 1993.
Goodman, Ellen. The Origins of the Western Legal Tradition from Thales to the
Tudors. Annandale, Australia: Federation Press, 1995.
Harding, Alan. Medieval Law and the Foundations of the State. Oxford: Oxford
Further Reading 263
Helmholz, R. H. The Ius Commune in England: Four Studies. Oxford: Oxford

———. The Oxford History of the Laws of E ngland, vol. 1: The Canon Law and
Ecclesiastical Jurisdiction from 597 to the 1640s. Oxford: Oxford University
Press, 2004.
Hudson, John. “Magna Carta, the Ius Commune, and English Common Law.”
In Magna Carta and the E ngland of King John, edited by Janet S. Loengard,
99–119. Woodbridge, UK: Boydell Press, 2010.
———. The Oxford History of the Laws of E ngland, vol. 2: 871–1216. Oxford:
Hulsebosch, Daniel J. “The Ancient Constitution and the Expanding Empire:
Sir Edward Coke’s British Jurisprudence.” Law and History Review 21, no. 3
(2003): 439–482.
Hyams, Paul R. “What Did Edwardian Villagers Understand by ‘Law’?” In
Medieval Society and the Manor Court, edited by Zvi Razi and Richard
Smith, 69–102. Oxford: Oxford University Press, 1996.
Ibbetson, David J. “Case Law and Judicial Precedent in Mediaeval and
Early-Modern England.” In Auctoritates: Xania R.C. van Caenegem oblata; De
auteurs van de rechtsontwikkeling, edited by S. Dauchy, J. Monballyu, and
A. Wijffels, 55–68. Brussels: Wetenschappelijk Comité voor Rechtsgeschie-
denis, 1997.
———. “Juge et jury dans le common law.” In Le juge et le jugement dans les
traditions juridiques européennes: Études d’ histoire comparée, edited by
Robert Jacob, 89–105. Paris: LGDJ, 1996.
Kamali, Elizabeth Papp, and Thomas A. Green. “A Crossroads in Criminal
Procedure: The Assumptions Underlying E ngland’s Adoption of Trial by
Jury for Crime.” In Essays in Honour of Paul Brand, edited by Travis Baker.
Farnham, UK: Ashgate, 2017.
Kelly, Susan. “Anglo Saxon Lay Society and the Written Word.” In The Uses of
Literacy in Early Medieval Europe, edited by Rosamond McKitterick, 36–62.
Kim, Keechang. Aliens in Medieval Law: The Origins of Modern Citizenship.
Korporowicz, Lukasz Jan. “Roman Law in Roman Britain: An Introductory
Survey.” Journal of L egal History 33, no. 2 (2012): 133–150.
Lewis, Andrew. “ ‘What Marcellus Says Is Against You’: Roman Law and
Common Law.” In The Roman Law Tradition, edited by A. D. E. Lewis
and D. J. Ibbetson, 199–208. Cambridge: Cambridge University Press,
1994.
264 Further Reading
Liebermann, Felix, ed. Die Gesetze der Angelsachsen. 4 vols. Halle, Germany:
Max Niemeyer, 1903–1916.
McSweeney, Thomas. “English Judges and Roman Jurists: The Civilian
Learning b ehind England’s First Case Law.” Temple Law Review 84, no. 4
(2012): 827–862.
Milsom, S. F. C. Historical Foundations of the Common Law. 2nd ed. London:
Butterworths, 1981.
Musson, Anthony. Medieval Law in Context: The Growth of L egal Consciousness
from Magna Carta to the Peasant’s Revolt. Manchester, UK: Manchester
Plucknett, Theodore F. T. A Concise History of the Common Law. 5th ed. Boston:
Little, Brown and Co., 1956.
———. Statutes and Their Interpretation in the First Half of the Fourteenth
Century. Cambridge: Cambridge University Press, 1922.
Pollock, Frederick. Oxford Lectures and Other Discourses. London: Macmillan,
1890.
Pollock, Frederick, and Frederic William Maitland. The History of English Law
before the Time of Edward I. 2nd ed. Cambridge: Cambridge University
Press, 1899.
Price, Polly J. “Natural Law and Birthright Citizenship in Calvin’s Case (1608).”
Yale Journal of Law & the Humanities 9, no. 1 (1997): 73–145.
Richardson, H. G., and G. O. Sayles. Law and Legislation from Aethelberht to
Magna Carta. Edinburgh: Edinburgh University Press, 1966.
Seipp, David J. “Jurors, Evidences, and the Tempest of 1499.” In “The Dearest
Birthright of the P eople of E ngland”: The Jury in the History of the Common
Law, edited by John W. Cairns and Grant McLeod, 75–92. Oxford: Hart,
2002.
———, comp. “Medieval English Legal History: An Index and Paraphrase of
Printed Year Book Reports, 1268–1535.” http://w ww.bu.edu/law/faculty
-scholarship/legal-history-the-year-books.
———. “The Reception of Canon Law and Civil Law in the Common Law
Courts before 1600.” Oxford Journal of Legal Studies 13, no. 3 (1993):
388–420.
Stanojevic, Obrad. “Roman Law and Common Law: A Different Point of
View.” Loyola Law Review 36, no. 2 (1990): 269–274.
Van Caenegem, R. C. The Birth of English Common Law. Cambridge: Cam-
bridge University Press, 1973.
Watson, Alan. “Roman Law and English Law: Two Patterns of Legal Develop-
ment.” Loyola Law Review 36, no. 2 (1990): 247–268.
Further Reading 265
Wormald, Patrick. The Making of English Law: King Alfred to the Twelfth
Century. Oxford: Blackwell, 1999.
Chapter 7
Dawson, John P. “The Codification of the French Customs.” Michigan Law

Review 38, no. 6 (1940): 765–800.
Decock, W. Theologians and Contract Law: The Moral Transformation of Ius
Commune (ca.1500–1650). Leiden: Brill / Nijhoff, 2012.
Grinberg, Martine. “La rédaction des coutumes et les droits seigneuriaux.”
Annales: Histoire, Sciences Sociales 52, no. 5 (1997): 1017–1038.
Hotman, François. Francogallia. Edited by Ralph E. Giesey and translated by
J. H. M. Salmon. Cambridge: Cambridge University Press, 1972.
Pitkin, Barbara. “Calvin’s Mosaic Harmony: Biblical Exegesis and Early
Modern L egal History.” Sixteenth Century Journal 41, no. 2 (2010):
441–466.
Strauss, Gerald. Law, Resistance, and the State: The Opposition to Roman Law in
Reformation Germany. Princeton, NJ: Princeton University Press, 1986.
Teuscher, Simon. Lords’ Rights and Peasant Stories: Writing and the Formation of
Tradition in the Later M
iddle Ages. Translated by Philip Grace. Philadel-
Toch, Michael. “Asking the Way and Telling the Law: Speech in Medieval
Germany.” Journal of Interdisciplinary History 16, no. 4 (1986): 667–682.
Witte, John. Law and Protestantism: The L egal Teachings of the Lutheran
Reformation. Cambridge: Cambridge University Press 2002.
Chapter 8
Aroney, Nicholas. “Law, Revolution and Religion: Harold Berman’s Interpreta-

tion of the English Revolution.” Journal of Markets and Morality 8, no. 2
(2005): 355–385.
Berman, Harold J. Law and Revolution, II: The Impact of the Protestant Reforma-
tions on the Western L
egal Tradition. Cambridge, MA: Belknap Press of
Harvard University Press, 2003.
“Bill of Rights.” Reproduced in The Roots of the Bill of Rights, 5 vols., compiled
by Bernard Schwartz, 1:41–46. New York: Chelsea House, 1971.
Blackstone, William. Commentaries on the Laws of England. Oxford: Clarendon
Press, 1765–1769.
266 Further Reading
Bonfield, Lloyd. “The Nature of Customary Law in the Manor Courts of

Medieval England.” Comparative Studies in Society and History 31, no. 3
(1989): 514–534.
———. “What Did English Villagers Mean by ‘Customary Law’?” In Medieval
Society and the Manor Court, edited by Zvi Razi and Richard Smith,
103–116. Oxford: Oxford University Press, 1996.
Brooks, Christopher, and Kevin Sharpe. “History, English Law and the
Renaissance.” Past & Present 72 (1976): 133–142.
Carpenter, David, trans. Magna Carta. London: Penguin Books, 2015.
Clanchy, M. T. From Memory to Written Record, England 1066–1307. 2nd ed.
Oxford: Blackwell, 1993.
———. “Remembering the Past and the Good Old Law.” History 55 (1970):
165–176.
Cromartie, Alan. The Constitutionalist Revolution: An Essay on the History of
England, 1450–1642. Cambridge: Cambridge University Press, 2006.
———. “The Idea of Common Law as Custom.” In The Nature of Customary
Law, edited by Amanda Perreu-Saussine and James Bernard Murphy,
Garnett, George. “ ‘To ould fields’: Law and History in the Prefaces to Sir
Edward Coke’s Reports.” Journal of L egal History 34, no. 3 (2013): 245–284.
Haskins, George L. The Growth of English Representative Government. Philadel-
Helmholz, R. H. Roman Canon Law in Reformation E ngland. Cambridge:
Holt, J. C. Magna Carta. 3rd ed. Cambridge: Cambridge University Press, 2015.
Hyams, Paul R. “What Did Edwardian Villagers Understand by ‘Law’?” In
Medieval Society and the Manor Court, edited by Zvi Razi and Richard
Smith, 69–102. Oxford: Oxford University Press, 1996.
Ibbetson, D. J. “The Arguments in Calvin’s Case (1608).” In Studies in Canon
Law and Common Law in Honor of R. H. Helmholz, edited by Troy L.
Harris, 213–230. Berkeley: Robbins Collection, 2015.
———. “Report and Record in Early-Modern Common Law: Sample Re-
ports.” In Case Law in the Making: The Techniques and Methods of Judicial
Records and Law Reports, 2 vols., edited by Alain Wijffels, 2:27–52. Berlin:
Duncker und Humblot, 1997.
Kelley, Donald R. “History, English Law and the Renaissance.” Past & Present
65, no. 1 (1974): 24–51.
Levak, Brian P. The Civil L awyers in E
ngland, 1603–1641: A Political Study.
Oxford: Clarendon Press, 1973.
Further Reading 267
Lewis, Andrew. “ ‘What Marcellus Says Is Against You’: Roman Law and
Common Law.” In The Roman Law Tradition, edited by A. D. E. Lewis and
D. J. Ibbetson, 199–208. Cambridge: Cambridge University Press, 1994.
“The Magna Carta Project.” http://magnacartaresearch.org.
Maitland, Frederic William. English Law and the Renaissance (The Rede Lecture
for 1901). Cambridge: Cambridge University Press, 1901.
———. Select Pleas in the Manorial and Other Seigniorial Courts. London: B.
Quaritch, 1889.
“Petition of Rights.” Reproduced in The Roots of the Bill of Rights, 5 vols.,
compiled by Bernard Schwartz, 1:19–21. New York: Chelsea House, 1971.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law: English Historical
Thought in the Seventeenth Century. Cambridge: Cambridge University
Press, 1957.
Rodgers, C. P. “Humanism, History and the Common Law.” Journal of L egal
History 6, no. 2 (1985): 129–156.
Sherman, Charles P. “A Brief History of Medieval Roman Canon Law in
England.” University of Pennsylvania Law Review and American Law Register
68, no. 2 (1920): 233–258.
Smith, David Chan. Sir Edward Coke and the Reformation of the Laws: Religion,
Politics and Jurisprudence, 1578–1616. Cambridge: Cambridge University
Press, 2014.
Tubbs, J. W. The Common Law Mind: Medieval and Early Modern Conceptions.
Baltimore: Johns Hopkins University Press, 2000.
Williams, Ian. “ ‘He Creditted More the Printed Booke’: Common L awyer’s
Receptivity to Print, c. 1500–1640.” Law and History Review 28, no. 1 (2010):
39–70.
———. “The Tudor Genesis of Edward Coke’s Immemorial Common Law.”
Sixteenth Century Journal 43, no. 1 (2012): 103–123.
Wood, Andy. The Memory of the P eople: Custom and Popular Senses of the Past in
Early Modern England. Cambridge: Cambridge University Press, 2013.
Wormald, Patrick. The Making of English Law: King Alfred to the Twelfth
Century. Oxford: Blackwell, 1999.
Chapter 9
Arneil, Barbara. John Locke and America: The Defense of English Colonialism.
Oxford: Clarendon Press, 1996.
Brett, Annabel S. Changes of State: Nature and the Limits of the City in Early
Modern Natural Law. Princeton, NJ: Princeton University Press, 2011.
268 Further Reading
The Bull Inter Caetera. Reproduced in Sources Relating to the History of the Law
of Nations, 3 vols., edited by Wilhelm G. Grewe, 2:68–70. Berlin: De
Gruyter, 1988.
Cavallar, Georg. “Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of
European Colonialism and Exploitation or True Cosmopolitans,” Journal of
the History of International Law 10, no. 2 (2008): 181–209.
Daston, Lorraine, and Michael Stolleis, eds. Natural Law and Laws of Nature in
Early Modern Europe: Jurisprudence, Theology, Moral and Natural Philosophy.
Farnham, UK: Ashgate, 2008.
d’Entrèves, A. P. Natural Law: An Introduction to Legal Philosophy. London:
Hutchinson and Co., 1951.
Fitzmaurice, Andrew. Sovereignty, Property and Empire, 1500–2000. Cambridge:
Grotius, Hugo. The Freedom of the Seas or the Right Which Belongs to the Dutch
to Take Part in the East Indian Trade, 1609. Translated by Ralph van Deman
Magoffin and edited by James Scott Brown. New York: Oxford University
Press, 1916.
———. On the Law of War and Peace, 1625. Translated by A. C. Campbell.
London: Boothroyd, 1814.
Herzog, Tamar. Defining Nations: Immigrants and Citizens in Early Modern
Spain and Spanish America. New Haven, CT: Yale University Press, 2003.
———. “Did European Law Turn American? Territory, Property and Rights in
an Atlantic World.” In New Horizons in Spanish Colonial Law: Contribu-
tions to Transnational Early Modern Legal History, edited by Thomas Duve
and Heikki Pihlajamäki, 75–95. Frankfurt: Max Planck Institute for
European Legal History, 2015.
Kingsbury, Benedict, and Benjamin Straumann, eds. The Roman Foundations of
the Law of Nations: Alberico Gentili and the Justice of Empire. Oxford:
Locke, John. Two Treatises of Government. London: Awnsham Churchill,
1698.
MacMillan, Ken. Sovereignty and Possession in the English New World: The Legal
Foundations of Empire, 1576–1640. Cambridge: Cambridge University Press,
2006.
Marcoci, Giuseppe. L’ invenzione di un imperio: Politica e cultura nel mondo
portoghese (1450–1600). Rome: Caroci Editore, 2011.
Pagden, Anthony. The Burdens of Empire: 1539 to the Present. New York:
Parry, J. H. The Age of Reconnaissance. Cleveland: World Publishing Co., 1963.
Further Reading 269
Pufendorf, Samuel von. Of the Law of Nature and Nations. 2nd ed. Translated
by Basil Kennett and William Percivale. Oxford: Printed by L. Lichfield for
A. and J. Churchil, 1710.
The Requirement. Reproduced in Fontes Historiae Iuris Gentium: Quellen
zur Geschichte des Völkerrechts / Sources Relating to the History of the Law
of Nations, 3 vols., edited by Wilhelm G. Grewe, 2:103–109. Berlin: De
Gruyter, 1988.
Rommen, Heinrich A. The Natural Law: A Study in Legal and Social History and
Philosophy, 1936. Translated by Thomas R. Hanley. Indianapolis: Liberty
Fund, 1998.
Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cam-
Tully, James. A Discourse on Property: John Locke and His Adversaries. Cam-
Vattel, Emer de. The Law of Nations or the Principles of Natural Law Applied to
the Conduct and to the Affairs of Nations and of Sovereigns, 1758. Translated
by Charles G. Fenwick. Washington, DC: Carnegie Institute of Wash-
ington, 1916.
Vitoria, Francisco de. Political Writings. Edited by Anthony Pagden and Jeremy
Lawrance. Cambridge: Cambridge University Press, 1991.
Chapter 10
Armitage, David. The Declaration of Independence: A Global History. Cam-

bridge, MA: Harvard University Press, 2007.
Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge,
MA: Belknap Press of Harvard University Press, 1967.
———. “Political Experience and Enlightenment Ideas in Eighteenth-Century
America.” American Historical Review 67, no. 2 (1962): 339–351.
Bailyn, Bernard, and Philip D. Morgan, eds. Strangers within the Realm:
Cultural Margins of the First British Empire. Chapel Hill: University of
North Carolina Press, 1991.
Benton, Lauren, and Kathryn Walker. “Law for Empire: The Common Law in
Colonial America and the Problem of Legal Diversity.” Chicago-Kent Law
Review 89, no. 3 (2014): 937–956.
Bilder, Mary Sarah. The Transatlantic Constitution: Colonial Legal Culture and
the Empire. Cambridge, MA: Harvard University Press, 2004.
Billias, George A. American Constitutionalism Heard around the World, 1776–1989:
A Global Perspective. New York: NYU Press, 2009.
270 Further Reading
Billings, Warren M. “The Transfer of English Law to Virginia, 1606–50.” In The

Westward Enterprise: English Activities in Ireland, the Atlantic, and America,
1480–1650, edited by K. R. Andrews, N. P. Canny, and P. E. H. Hair,
215–244. Liverpool: Liverpool University Press, 1978.
Brown, Elizabeth G. “The Views of a Michigan Territorial Jurist on the
Common Law.” American Journal of Legal History 15, no. 4 (1971): 307–316.
Clark, David S., “Comparative Law in Colonial British America.” American
Journal of Comparative Law 59, no. 3 (2011): 637–674.
Dinan, John J. Keeping the P eople’s Liberties: Legislators, Citizens, and Judges as
Guardians of Rights. Lawrence: University of Kansas Press, 1998.
Dunham, William Huse. “A Transatlantic View of the British Constitution
1760–1776.” In Legal History Studies 1972: Papers Presented to the L egal
History Conference, Aberystwyth 18–21 July 1972, edited by Dafydd Jenkins,
50–63. Cardiff: University of Wales Press, 1975.
Golove, David M., and Daniel J. Hulsebosch. “A Civilized Nation: The Early
American Constitution, the Law of Nations, and the Pursuit of Interna-
tional Recognition.” NYU Law Review 85, no. 4 (2010): 932–1066.
Grafton, John, ed. The Declaration of Independence and Other Great Documents
of American History, 1775–1865. Mineola, NY: Dover, 2000.
Greene, Jack P., ed. Exclusionary Empire: English Liberty Overseas, 1600–1900.
Hart, James S., and Richard J. Ross. “The Ancient Constitution in the Old
World and the New.” In The World of John Winthrop: Essays on England and
New England, 1588–1649, edited by Francis J. Bremer and Lynn A. Botelho,
237–289. Boston: Massachusetts Historical Society, 2005.
Hulsebosch, Daniel J. “The Ancient Constitution and the Expanding Empire:
Sir Edward Coke’s British Jurisprudence.” Law and History Review 21, no. 3
(2003): 439–482.
———. Constituting Empire: New York and the Transformation of Constitution-
alism in the Atlantic World, 1664–1830. Chapel Hill: University of North
Carolina Press, 2005.
———. “The Revolutionary Portfolio: Constitution-Making and the Wider
World in the American Revolution.” Suffolk University Law Review 47
(2014): 759–822.
Ibbetson, D. J. “Natural Law and Common Law.” Edinburgh Law Review 5,
no. 1 (2001): 4–20.
Konig, David Thomas. “Regionalism in Early American Law.” In The
Cambridge History of Law in America, edited by Michael Grossberg and
Christopher Tomlins, 144–177. Cambridge: Cambridge University Press,
2008.
Further Reading 271
Nelson, William E. The Common Law in Colonial America. 3 vols. Oxford:

Oxford University Press, 2008–2016.
Rakove, Jack N., ed. Annotated U.S. Constitution and Declaration of Independence.
Cambridge, MA: Belknap Press of Harvard University Press, 2009.
———. Declaring Rights: A Brief history with Documents. Boston: Bedford
Books, 1998.
———. Original Meanings: Politics and Ideas in the Making of the Constitution.
New York: Knopf, 1996.
Reid, John Phillip. The Ancient Constitution and the Origins of Anglo-American
Liberty. DeKalb: Northern Illinois University Press, 2005.
Roeber, A. G. Palatines, Liberty, and Property: German Lutherans in Colonial
British America. Baltimore: Johns Hopkins University Press, 1993.
Tomlins, Christopher L. Freedom Bound: Law, L abor and Civic Identity in
Colonizing Early America, 1580–1865. Cambridge: Cambridge University
Press, 2010.
Tomlins, Christopher L., and Bruce H. Mann, eds. The Many Legalities of Early
America. Chapel Hill: University of North Carolina Press, 2001.
Whitman, James Q. “Why Did the Revolutionary L awyers Confuse Custom
and Reason?” University of Chicago Law Review 58, no. 4 (1991):
1321–1368.
Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel
Hill: University of North Carolina Press, 1969.
Chapter 11
Aucoin, Louis M. “Judicial Review in France: Access of the Individual under

French and European Community Law in the Aftermath of France’s
Rejection of Bicentennial Reform.” Boston College International and
Comparative Law Review 15, no. 2: 443–469.
Blaufarb, Rafe. The G
reat Demarcation: The French Revolution and the Invention
of Modern Property. New York: Oxford University Press, 2016.
Censer, Jack R., and Lynn Hunt. Liberty, Equality, Fraternity: Exploring the
French Revolution. University Park: Pennsylvania State University Press,
2001.
Cole, John R. Between the Queen and the Cabby: Olympe de Gouges’s Rights of
Women. Montreal: McGill-Queen’s University Press, 2011.
Cox, Marvin R., ed. The Place of the French Revolution in History. Boston:
Houghton Mifflin, 1998.
Edelstein, Dan. The Terror of Natural Right: Republicanism, the Cult of Nature,
and the French Revolution. Chicago: University of Chicago Press, 2009.
272 Further Reading
Hancock, Ralph C., and L. Gary Lambert, eds. The Legacy of the French
Revolution. Lanham, MD: Rowman and Littlefield, 1996.
Hardman, John, ed. The French Revolution Sourcebook. London: Arnold, 1999.
Hulsebosch, Daniel, J. “The Revolutionary Portfolio: Constitution-Making and
the Wider World in the American Revolution.” Suffolk University Law
Review 47 (2014): 759–822.
Hunt, Lynn, ed. and trans. The French Revolution and Human Rights: A Brief
Documentary History. Boston: Bedford Books, 1996.
Jones, Colin. The G reat Nation: France from Louis XV to Napoleon, 1715–1799.
New York: Columbia University Press, 2002.
Polasky, Janet. “The Legacy of the French Revolution.” In The Transformation of
Modern France: Essays in Honor of Gordon Wright, edited by William B.
Cohen. Boston: Houghton Mifflin, 1997.
Rousseau, Jean-Jacques. The Social Contract or Principles of Political Right, 1762.
Translated by H. J. Tozer. Hertfordshire, UK: Wordsworth Editions, 1998.
Royer, Jean-Pierre, et al. Histoire de la justice en France du XVIIIe siècle à nos
jours. Paris: Presses Universitaires de France, 1995.
Schama, Simon. Citizens: A Chronicle of the French Revolution. New York:
Alfred A. Knopf, 1989.
Seligmann, Edmond. La justice en France pendant la Révolution (1789–92). Paris:
Plon-Nourrit, 1901.
Sewell, William H. A Rhetoric of Bourgeois Revolution: The Abbé Sieyes and What
Is the Third Estate? Durham, NC: Duke University Press, 1994.
Stewart, John Hall. A Documentary Survey of the French Revolution. New York:
Macmillan, 1951.
Van Kley, Dale, ed. The French Idea of Freedom: The Old Regime and the
Declaration of Rights of 1789. Stanford, CA: Stanford University Press, 1994.
Woloch, Isser. The New Regime: Transformations of the French Civic Order,
1789–1820’s. New York: W. W. Norton, 1994.
Chapter 12
Bellomo, Manlio. The Common L egal Past of Europe 1000–1800. Washington,

DC: Catholic University of America Press, 1995.
Blaufarb, Rafe. Napoleon, Symbol for an Age: A Brief History with Documents.
Boston: Bedford Press of St. Martins Press, 2008.
Code Napoléon or the French Civil Code. London: William Benning, 1827.
Dilcher, Gerhard. “The Germanists and the Historical School of Law: German
Legal Science between Romanticism, Realism, and Rationalization.”
Rechtsgeschichte— Legal History 24 (2016): 20–72.
Further Reading 273
Foster, Nigel, and Satish Sule. German L egal System and Laws. 4th ed. Oxford:
Freund, Ernst. “The New German Civil Code.” Harvard Law Review 13, no. 8
(1900): 627–637.
German Civil Code, English-language edition provided by Langenscheidt
Translation Service. http://w ww.gesetze-im-internet.de/englisch_bgb
/englisch _bgb.html.
Gordley, James “Myths of the French Civil Code.” American Journal of Com-
parative Law 42, no. 3 (1994): 459–505.
Halpérin, Jean-Louis. “Le droit privé de la Révolution: Héritage législatif et
héritage idéologique.” Annales historiques de la Révolution française 328
(2002): 135–151.
John, Michael. Politics and the Law in Late Nineteenth-Century Germany: The
Origins of the Civil Code. Oxford: Clarendon Press, 1989.
Kozolchyk, Boris. Comparative Commercial Contracts: Law, Culture and
Economic Development. St. Paul, MN: West Academic, 2014.
Kroppenberg, Inge, and Nicolaus Linder. “Coding the Nation: Codification
History from a (Post-)Global Perspective.” In Entanglements in Legal
History: Conceptual Approaches, edited by Thomas Duve, 67–99. Frankfurt:
Max Planck Institute for European Legal History.
Levasseur, Alain A. “Code Napoleon or Code Portalis?” Tulane Law Review 43,
no.4 (1969): 762–774.
Martin, Xavier. Mythologie du Code Napoléon: Aux soubassements de la France
moderne. Bouère, France: Éditions Dominique Martin Morin, 2003.
Schwartz, Bernard, ed. The Code Napoleon and the Common-Law World: The
Sesquicentennial Lectures Delivered at the Law Center of New York University,
December 13–15, 1954. New York: NYU Press, 1956.
Smithers, William W. “The German Civil Code (Das Bürgerliche Gesetzbuch):
Sources—Preparation—Adoption.” American Law Register 50 no. 12 (1902):
685–717.
Vanderlinden, Jacques. Le Concept de code en Europe occidentale du XIIIe au
XIXe siècle: Essais de définition. Brussels: Université Libre de Bruxelles, 1967.
von Savigny, Friedrich Karl. Of the Vocation of Our Age for Legislation and
Jurisprudence, 1814. Translated by Abraham Hayward. London: Littlewood,
1831.
Whitman, James Q. The Legacy of Roman Law in the German Romantic Era:
Historical Vision and Legal Change. Princeton, NJ: Princeton University
Press, 1990.
Wieacker, Franz. A History of Private Law in Europe with Particular Reference to
Germany, 1952. Translated by Tony Weir. Oxford: Clarendon Press, 1995.
274 Further Reading
Chapter 13
Banner, Stuart. “Written Law and Unwritten Norms in Colonial St. Louis.”
Law and History Review 14, no. 1 (1996): 33–40.
Batiza, Rodolfo. “The Louisiana Civil Code of 1808: Its Actual Sources and
Present Relevance.” Tulane Law Review 46, no. 4 (1971).
Billings, Warren M. “The Transfer of English Law to Virginia, 1606–50.” In The
Westward Enterprise: English Activities in Ireland, the Atlantic, and America,
1480–1650, edited by K. R. Andrews, N. P. Canny, and P. E. H. Hair,
215–244. Liverpool: Liverpool University Press, 1978.
Brown, Elizabeth Gaspar. “Legal Systems in Conflict: Orleans Territory,
1804–1812.” American Journal of Legal History 1, no. 1 (1957): 35–75.
Cook, Charles M. The American Codification Movement: A Study of Antebellum
Legal Reform. Westport, CT: Greenwood Press, 1981.
Curtis, Christopher M. “Codification in V irginia: Conway Robinson, John
Mercer Patton, and the Politics of Law Reform.” Virginia Magazine of
History and Biography 117, no. 2 (2009): 140–180.
Evans, Beverly D. “The Code Napoleon.” Georgia Historical Quarterly 6, no. 1
(1922): 28–34.
Farmer, Lindsay. “Reconstructing the English Codification Debate: The
Criminal Law Commissioners, 1833–45.” Law and History Review 18, no. 2
(2000): 397–426.
Fisch, William B. “The Dakota Civil Code: More Notes for an Uncelebrated
Centennial.” North Dakota Law Review 45 (1968): 9–55.
Herman, Shael. “The Fate and the F uture of Codification in America.” Amer-
ican Journal of Legal History 40, no. 4 (1996): 407–437.
Kilbourne, Richard Holcombe. A History of the Louisiana Civil Code: The
Formative Years, 1803–1839. Baton Rouge: Louisiana State University,
1987.
Kolsky, Elizabeth. “Codification and the Rule of Colonial Difference: Criminal
Procedure in British India.” Law and History Review 23, no. 3 (2005):
631–683.
Langum, David J. Law and Community on the Mexican California Frontier:
Anglo-American Expatriates and the Clash of L egal Traditions, 1821–1846.
Norman: University of Oklahoma Press, 1987.
Masferrer, Aniceto. “Defense of the Common Law against Postbellum Amer-
ican Codification: Reasonable and Fallacious Argumentation.” American
Journal of L
egal History 50, no. 4 (2008–2010): 355–430.
McKnight. Joseph W. “The Spanish Legacy to Texas Law.” American Journal of
Legal History 3, no. 3–4 (1959): 222–241, 299–323.
Further Reading 275
Miller, Perry. “The Common Law and Codification in Jacksonian Americ a.”
Proceedings of the American Philosophical Society 103, no. 3 (1959):
463–468.
Morriss, Andrew. “Codification and Right Answers.” Chicago-Kent Law Review
74, no. 2 (1999): 355–391.
Morrow, Clarence J. “Louisiana Blueprint: Civilian Codification and L egal
Method for State and Nation.” Tulane Law Review 17, no. 3 (1943):
351–415.
Palmer, Vernon Valentine. “The French Connection and the Spanish Percep-
tion: Historical Debates and Contemporary Evaluation of French Influence
on Louisiana Civil Law.” Louisiana Law Review 63, no. 4 (2003): 1067–1126.
Parise, Agustín. “Codification of the Law in Louisiana: Early Nineteenth-
Century Oscillation between Continental European and Common Law
Systems.” Tulane European and Civil Law Forum 27 (2012): 133–164.
Reinmann, Mathias. “The Historical School against Codification: Savigny,
Carter, and the Defeat of the New York Civil Code.” American Journal of
Comparative Law 37, no. 1 (1989): 95–119.
Ross, William E. “History of Virginia Codification.” Virginia Law Register 11,
no. 2 (1905): 79–101.
Schwartz, Bernard, ed. The Code Napoleon and the Common Law World: The
Sesquicentennial Lectures Delivered at the Law Center of New York University,
December 13–15, 1954. New York: NYU Press, 1956.
Weiss, Gunther A. “The Enchantment of Codification in the Common Law
World.” Yale Journal of International Law 25, no. 2 (2000): 435–532.
Wheeler, Charles B. “The Code Napoleon and Its Framers.” American Bar
Association Journal 10, no. 3 (1924): 202–206.
Witt, John Fabian. “The King and the Dean: Melvin Belli, Roscoe Pound and
the Common Law Nation.” In Patriots and Cosmopolitans: Hidden Histories
of American Law, 211–278. Cambridge MA: Harvard University Press, 2007.
Young, Edwin W. “The Adoption of the Common Law in California.” Amer-
ican Journal of Legal History 4, no. 4 (1960): 355–363.
Epilogue
Alter, Karen J. Establishing the Supremacy of European Law: The Making of an

International Rule of Law in Europe. Oxford: Oxford University Press, 2003.
Borchardt, Klaus-Dieter. The ABC of European Union Law. Luxembourg:
Publications Office of the European Union, 2010.
Cappelleti, Mauro. “Is the European Court of Justice ‘Running Wild’?”
European Law Review 12, no. 1 (1987): 3–17.
276 Further Reading
Claes, Monica. The National Court’s Mandate in the European Constitution.

Oxford: Hart, 2006.
Davies, Bill. Resisting the European Court of Justice: West Germany’s Confronta-
tion with European Law, 1949–1979. Cambridge: Cambridge University
Press, 2012.
Davies, Bill, and Morten Rasmussen. “Towards a New History of European
Law.” Contemporary European History 21, no. 3 (2012): 305–318.
Duve, Thomas. “Global Legal History: A Methodological Approach.” Max
Planck Institute for European Legal History: Research Paper Series,
no. 2016-04 (May 20, 2016). http://ssrn.com/abstract=2 781104.
European Convention. “Draft Treaty Establishing a Constitution for Europe,”
July 18, 2003. http://eur-lex.europa.eu/legal-content/EN/T XT/?uri
=CELEX:52003XX0718(01).
European Market, Community, Union treaties, legislation, directives and
case-law can be consulted online at https://europa.eu /european-u nion
/law_en.
Freda, Dolores. “ ‘Law Reporting’ in Europe in the Early-Modern Period: Two
Experiences in Comparison.” Journal of L egal History 30, no. 3 (2009):
263–278.
Grossi, Paolo. “Il messaggio giuridico dell’Europa e la sua vitalità: Ieri, oggi,
domani.” Contratto e impresa / Europa 2 (2013): 681–695.
Hartkamp, Arthur, et al., eds. Towards a European Civil Code. 4th ed. Ni-
jmegen, The Netherlands: Kluwer Law International, 2010.
Hyland, Richard. “Codification and the American Discussion about How
Judges Decide Cases.” In Codifying Contract Law: International and
Consumer Law Perspectives, edited by Mary Keyes and Therese Wilson,
205–218. Farnham, UK: Ashgate, 2014.
Koch, Henning, et al., eds. Europe: The New L egal Realism: Essays in Honour of
Hjalte Rasmussen. Copenhagen: Djøf, 2010.
Koopmans, Thijmen. “Towards a New ‘Ius Commune.’ ” In The Common Law
of Europe and the Future of Legal Education, edited by Bruno de Witte and
Caroline Forder, 43–51. Deventer, The Netherlands: Kluwer Law Interna-
tional, 1992.
Legrand, Pierre. “Against a European Civil Code.” Modern Law Review 60,
no. 1 (1997): 44–63.
Lundmark, Thomas. Charting the Divide between Common and Civil Law.
Mamadouh, Virginie. “Establishing a Constitution for Europe during Euro
pean Union Enlargement? Visions of ‘Europe’ in the Referenda Campaigns
Further Reading 277
in France and the Netherlands.” Journal of Cultural Geography 26, no. 3

(2009): 305–326.
Mashaw, Jerry L. Creating the Administrative Constitution: The Lost One Hundred
Years of American Administrative Law. New Haven, CT: Yale University
Press, 2012.
Mattei, Ugo, and Luca G. Pes. “Civil Law and Common Law: Toward Conver-
gence?” In The Oxford Handbook of Law and Politics, edited by Keith E.
Whittington, R. Daniel Kelemen, and Gregory A. Caldeira, 267–280. Oxford:
Mattli, Walter, and Anne-Marie Slaughter. “Law and Politics in the European
Union: A Reply to Garett.” International Organization 49, no. 1 (1995):
183–190.
Palmowski, Jan. “The Europeanization of the Nation State.” Journal of Con
temporary History 46, no. 3 (2011): 631–657.
Pescatore, Pierre. The Law of Integration: Emergence of a New Phenomenon in
International Relations Based on the Experience of the European Communities.
Leiden: A. W. Sijthoff, 1974.
Rasmussen, Hjalte. “Between Self-Restraint and Activism: A Judicial Policy for
the European Court.” European Law Review 13, no. 1 (1988): 28–38.
———. On Law and Policy in the European Court of Justice: A Comparative
Study in Judicial Policymaking. Dordrecht: Martinus Nijhoff, 1986.
Stein, Eric. “Lawyers, Judges, and the Making of a Transnational Constitu-
tion.” American Journal of International Law 75, no. 1 (1981): 1–27.
Sweet, Alec Stone. Governing with Judges: Constitutional Politics in Europe.
———. The Judicial Construction of Europe. Oxford: Oxford University Press,
2004.
Töller, Annette Elisabeth. “Measuring and Comparing the Europeanization of
National Legislation: A Research Note.” Journal of Common Market Studies
48, no. 2 (2010): 417–444.
Ugland, Trygve. “ ‘Designer’ Europeanization: Lessons from Jean Monnet.”
European Legacy 14, no. 2 (2009): 149–161.
Vanke, Jeffrey. “The Treaty of Rome and Europeanism.” Journal of the Historical
Society 7, no. 4 (2007): 443–474.
Vauchez, Antoine. L’union par le droit: L’ invention d’un programme institu-
tionnel pour l’Europe. Paris: Presses de la Fondation nationale des sciences
politiques, 2013.
Weiler, J. H. H. “Community, Member States and European Integration: Is the
Law Relevant?” Journal of Common Market Studies 21, no. 1 (1982): 39–56.
278 Further Reading
———. “The Community System: the Dual Character of Supranationalism.”

Yearbook of European Law 1, no. 1 (1981): 267–306.
———. “The Reformation of European Constitutionalism.” Journal of
Common Market Studies 35, no. 1 (1997): 97–131.
———. “The Transformation of Europe.” Yale Law Journal 100, no. 8 (1991):
2403–2483.
Zimmermann, Reinhard. Roman Law, Contemporary Law, European Law: The
Civilian Tradition T oday. Oxford: Oxford University Press, 2001.
Acknowledgments
More than with any other of my works in the past, I am conscious that this book
was made possible by the generosity, friendship, and collegiality of numerous
individuals who agreed to read, patiently and closely, the various chapters and
gave me extremely wise, practical, informed, and detailed advice. I would not
have dared to publish it without their help. Sincere, heartfelt, and deep kudos
are due to Clifford Ando, David Bell, Charles Donahue, Andrew Fitzmaurice,
Ruby Gropas, Daniel Hulsebosch, Richard Hyland, Elizabeth Kamali, Dennis P.
Kehoe, Amalia Kessler, Bruce Mann, Tom McGinn, Miguel Moura e Silva, Vlad
Perju, Jack N. Rakove, Richard J. Ross, and Simon Teuscher. Special thanks to
David J. Seipp, who not only read my text but also answered my multiple ques-
tions. I am particularly indebted to António Manuel Hespanha, who, since my
graduate-student days in Paris and over the last twenty-five years, has been an
informal mentor and a true friend. There are endless ways in which Hespanha’s
scholarship has informed, affected, and intersected with mine. This book is but
one. I am also grateful to the Radcliffe Institute for Advanced Study at Harvard
University, which has allowed me to have the time and resources to write this
book. Last but not least, I would like to thank Yuval Erlich for all these years,
which have transformed my life into a wonderful ongoing adventure. Patiently
hearing too much about the past and lightly laughing over my obsessions, during
the last thirty years, besides being my husband and best friend, Yuval has be-
come my closest and most attentive reader. Each time I write a book I promise to
him that it w
ill be my last. Maybe this time I will comply.
279
Index
Alfonso X of Castile, 88 bishops, in Christian Church, 42, 48, 50;

alimony, 37 assemblies of, 38, 49; fashioned a fter
American Law Institute, 229, 242 Roman consuls, 40; feudalism and,
American Revolution, 164, 167–177, 181 68–69; Investiture Conflict and,
Amos, Maurice, 217, 222 67–68, 77
Ancient constitution. See Constitution, Blackstone, William, 139–140, 175, 217, 220
England Bodin, Jean, 192–193, 196
Anglican Church, 131, 144 Bracton (Bratton), Henry of, 105, 142, 250n4
Anti-Tribonian (Hotman), 125 Budé, Guillaume, 250n2 (ch. 7)
Antonine Constitution, 28 Bürgerliches Gesetzbuch (BGB), 212,
appeals, 104, 144 214–216, 253nn4–5
Assize of Clarendon (1166), 102, 111 Byzantine Empire (Eastern Roman
assize of mort d’ancestor, 101–102 Empire), 13, 30, 32–33, 43, 59
Augustine, St., 39, 40, 153
Augustus, Emperor, 13, 20, 23 Calixtus II, Pope, 70
Austria, 67, 80, 208, 248n10, 254nn5–6 Calvin, John, 124
“Calvin’s Case,” 106–107, 150
Bacon, Francis, 217–218 canon law, 61, 75, 84–85, 105, 253nn2–3
Bartolus of Saxoferrato, 83–84 (Epilogue); combined with Germanic
Belgium, 67, 80, 182; in ECSC and EEC, and Roman law, 48, 57, 58, 59, 101;
231; in Eurozone, 254n6; French law ecclesiastical courts and, 143, 144;
codes in, 211; ius commune in, 248n10; emergence of, 47, 48–51; enduring
in “Schengen area,” 254n5 presence of Roman law and, 51–52; in
Bentham, Jeremy, 222 England, 93, 94, 95, 113; equity and,
Bill of Rights, American (1791), 167, 172, 109, 132; humanists and, 122; ius
181, 200, 251n1 (ch. 10) commune and, 91, 247n1 (ch. 5); in Old
Bill of Rights, English (1689), 133, Regime France, 188; of Orthodox
148–149, 170 Church, 43; Protestant Reformation
Bills of Exchange Act (1882), 219 and, 123; Scholastic method and, 84
281
282 Index
Caracalla, Emperor, 27 217–222; in English colonies, 222–223;

Carolingian Empire, 67 in France, 207–211; in Germany,
cathedral schools, 79–80 212–215; in Louisiana, 223–225; in New
Catholic Church, Protestant Reformation York, 225–226; in the United States,
and, 119, 122, 123, 131, 250n1 (ch. 7) 223–230; universalization of French
causes of action (legis actiones), 15, 17 codes, 211–212; in the Western
Chancery, royal, 133, 139; equity and, 109, territories, 226–228
110; university graduates employed in, cognitio (investigation), 20, 85
150; writs and, 97, 99, 100, 101 Coke, Edward, 132, 137, 138, 140, 143;
Charlemagne, 49, 58–59, 62, 67, 68 ancient constitution and, 175; Law
Charles I, King, 132, 135, 148 Reports and, 218; precedent used by,
Christianity, 3, 7, 34–35, 122, 199, 208; 150
Catholic Church in revolutionary colonialism, 3, 152, 154–160
France, 184, 185, 191, 193; Christianiza- Colville, Robert, 106
tion of Roman law, 35–37; Church as Commentaries on the Law of E ngland
Roman institution, 40–41; Church (Blackstone), 139, 175, 217, 220
f athers, 84; consolidation of the commentum, 83
Church, 63; in England, 93; European common law, English, 56, 66, 133; “ancient
expansion and, 155; feudalism and, 72; constitution” and, 145–146, 175;
Germanic tribes and, 53; Hellenistic centrality of procedure in, 102–104;
culture and, 37; heresy and, 39, 54; codification of, 217–218, 221–223;
Judaic roots of, 35, 246n2; “Recon- customary status of, 141–142; in
quest” against Muslims in Spain, 154, dialogue with Continental law, 5–6;
251n1 (ch. 9); Roman Empire converted due process and, 2; England as
to, 8, 36, 39, 48, 153; Romanization of exceptional case, 112–115, 150–151;
the Church, 37–39; spread of Roman- equity and, 132, 145; functioning of,
ized Christianity a fter Roman Empire, 106–108; independent from the king,
41–43, 247n7; vision of God as 137–141; institutionalization of, 110;
lawmaker, 35 ius commune contrasted to, 94, 101; as
cities, 81, 84; decline of feudalism and, judge-made law, 241; juridical response
86; “free cities,” 66, 71; ius commune to early modern crisis, 136; as law of the
and, 90 land, 142–143; in North America,
citizenship, Roman, 27–28, 29, 30, 48; 174–175, 227–228; professionals of the
Christianity and, 34; extended law, 104–106; questioning of royal
throughout Roman Empire, 126; justice and, 134–135; reinvention of, 115,
naturalization, 90 137; Roman law as basis of, 7; royal
civil law (Continental law), 5–6, 217, legislation and, 110–112; status in
223–225, 241 relation to other jurisdictions in
civitas (community of citizens), 26 England, 143–145; “transfer theory”
Clement III, Antipope, 70 and, 175, 176, 177; writs and, 97,
Clementinae, 85 101–102
Codex Gregorianus, 25, 31 community, 2, 16, 26, 27, 28, 39, 48, 58,
Codex Hermogenianus, 31 60, 64, 68, 89, 119, 120, 122, 123, 126,
Codex Theodosianus, 31 130, 188, 199; English common law and,
codification: comparing French and 139, 145; law spontaneously created by,
German codes, 215–216; in England, 4, 5, 127, 140, 142, 188, 221
Index 283
compositio, 53 Declaration of Independence (1776), 168,

Concordia Discordantium Canonum, 170, 171, 172; Enlightenment and, 178;
84–85 natural law and, 179, 180
consilia, 83 Declaration of the Rights of Man and the
Constantine, Emperor, 23, 37, 38, 50 Citizen (1789), 184–185, 187, 192, 200,
Constitution, England, 136, 141, 143, 201
145–148, 174 Decretales (Liber Extra), 85
Constitution, France, 185–187, 198, decretals, false, 49–51
202 Decretum, 84–85
Constitution, U.S., 167–171, 173; De legibus et consuetudinibus Angliae
Enlightenment and, 178; natural (attrib. Henry of Bracton), 105, 250n4
law and, 179 Descartes, René, 161–162
Continental law. See civil law Dias, Bartolomé, 152
(Continental law) Dicey, Albert Venn, 149
contract law, 31, 215 dicta (brief annotations), 85
contracts, 16, 22, 29, 216, 220 Dictatus Papae, 69–70, 247n3 (ch. 4)
conversion, 39, 42, 62, 155 Digest (Pandects), 31–32, 77, 78, 95, 121
Corpus Iuris Canonici, 85, 248n7 Diocletian, Emperor, 25, 30
Corpus Iuris Civilis, 30–32, 51, 77, 246n8, distinctio, 78
246n12; afterlife of, 32–33; canon law dominum directum, 86
and, 85; codification of law and, 224; dominum utile, 86
compilations of local law and, 128; “donation of Constantine,” 50
Digest (Pandects), 31–32, 246n11; in Droit des gens (Vattel), 179–180
England, 95, 105; feudal law and, 86; due process, 2, 103, 149, 174
German Romanists and, 213; humanist
criticism of, 121, 125; legal revolution in ecclesiastical courts, 56, 86, 97, 99, 100,
medieval Europe and, 76; reconstruc- 134; canon law and, 95, 143, 144;
tion of, 77, 248n3 cognitio (investigation) and, 85; English
Costa v. ENEL (1964), 235 common law and, 143, 176; ius
Council of Carthage, 38, 246n3 commune and, 113
“court hand” annotation, 134 edicts (edictum), 19, 26
criminal justice, 55–56 Edward I, King, 95, 109
criminal law, 25, 219, 241 Edward the Confessor, Laws of, 142
Cromwell, Oliver, 132 emperors, German, 65, 67, 83, 119;
customary law, 126–130, 181, 218; Investiture Conflict and, 77; universi-
Anglo-Saxon, 137, 145; in France, ties and, 80
124–126, 128, 129, 189, 195; in German emperors, Roman, 20, 23, 24; Christian
territories, 128; Magna Carta and, conversion promoted by, 39–40;
146–148; merged with Roman law, 29; Christianity and, 37, 38, 49; jurists and,
Parliament as guardian of, 148–150. 88; legislation against heresy, 39; pagan,
See also common law, English 38; schools of law and, 79
customs (mos), 15, 125–126; ius commune England, 3, 7, 93–94, 159, 202; French
and, 126–128; monarchies and writing Revolution opposed by, 208; ius
down of, 128–129; political utility of, commune in, 248n10; law under early
129–130 Normans, 94–95, 249n4; Norman
custumals (collections of customs), 144 Conquest (1066), 94, 136, 138, 142, 148;
284 Index
England (continued) feudalism, 62–63, 86–87, 247n1 (ch. 4);

Protestant Reformation in, 131; abolished in France, 184; conventional
responses to European codifications of portrait of, 63–65; covenant between
law, 218–223; superimposition of royal lords and vassals, 71; demise of, 75; in
jurisdiction in, 95–97; universities England, 95–96, 97–98; Magna Carta
in, 80 and, 1, 2; as multilayered system,
Enlightenment, 177–179, 193–195, 212 65–66; questioned by historians, 66–67
equity, 109–110, 112, 114, 115, 132, 134; feudal law, 75, 85–87, 89; in England, 113;
English common law and, 132, 145; humanists and, 122; ius commune and, 91
equity courts, 110, 150 Field, David Dudley, 225–226
Estates General (French Parliament), 184, Forum Iudicum, 52, 54
198 France, 42, 47, 124, 150, 235n2 (ch. 7); in
Etymologiae (Isidore of Seville), 51 Carolingian Empire, 67; codification of
European Atomic Energy Community law in, 207, 208–211, 215–216, 252n1 (ch.
(Euratom), 231, 234, 253n2 (Epilogue) 12); customs (mos) of, 125–126, 129; in
European Charter of Fundamental ECSC and EEC, 231; in Eurozone,
Rights, 233, 236 254n6; in Frankish empire, 59; ius
European Coal and Steel Community commune in, 248n10; Old Regime, 188,
(ECSC), 231, 253n2 (Epilogue) 190, 191, 192, 209; Roman law in Gaul,
European Community (EC), 231–233, 237, 51; in “Schengen area,” 254n5; universi-
238, 253nn2–3 (Epilogue) ties in, 80; Wars of Religion, 192
European Council, 231, 234, 236, 237, Francogallia (Hotman), 125
254n9 French language, 105, 134
European Court of Justice (ECJ), French Revolution, 164, 178, 179, 183–184,
234–236, 237, 239 221, 238, 243; codification of law and,
European Economic Community (EEC), 211; contradictory aspects of, 199–201;
231, 253n2 (Epilogue) Enlightenment and, 193–195; European
European law (historical evolution): law and legacy of, 239; legislation and
American contribution to, 182; global local conditions, 195–196; new vision of
influence of, 2, 9; in globalized world, law and, 187–189; radical political and
242–243; reconstruction of ancient legal transformations of, 184–187, 203;
texts and, 77, 248n3; secular-religious role of parlements and, 196–199; status
distinction and, 71–72; study of law of natural law and, 201–202; unifica-
in Europe, 76–77; universality and, tion of legal subject and, 189–191;
152 unification of property and, 191–192;
European law (EU law): as idiosyncratic unification of sovereignty and, 192–193;
system, 236–238; normative sources of wars arising from, 207–208
new European law, 234–236
European Union (EU), 6, 9, 233–234, 236, Gaius (Roman jurist), 23, 30, 41, 246n8
240, 254n6 Gentili, Alberico, 159
Eurozone, 233, 254n6 German Historical School, 212, 214
Germanic law, 48, 52–54, 57, 58, 75; in
family law, 16, 25, 54, 215 England, 93, 113; ius commune and, 89,
feudal courts, 97, 99, 100, 113, 134, 144; 91, 101; moderni of Pavia and, 61
English common law and, 176; Libri Germany, 42, 47, 124, 182; in Carolingian
Feudorum and, 86 Empire, 67; codification of law in, 207,
Index 285
212–216; customary law in, 128; in intent, in legal interactions, 82

ECSC and EEC, 231; in Eurozone, “Inter Caetera” (papal bull, 1493), 154–155
254n6; in Frankish empire, 59; ius International Institute for the Unification
commune in, 114, 248n10; “Reception” of Private Law (UNIDROIT), 242
of Roman law in, 128; in “Schengen international law, 3, 159, 235
area,” 254n5; universities in, 80 Introduction to the Principles of Morals and
Glanvil, Ranulf de, 104, 142, 250n4 Legislation (Bentham), 222
glossa (glosses), 81, 82, 95, 248n5 Introduction to the Study of the Law of the
Goethe, Johann Wolfgang, 13–14, 216, Constitution (Dicey), 149
245n1 Investiture Conflict, 68–71, 72, 77
good faith (bona fides), 21, 27 Isidore Mercator, 50
Gratian, 84, 85, 248n6 Isidore of Seville, 51
Greek language, 32, 37, 38, 43 Islam and Muslims, 62, 154, 156, 247n7,
Gregory I, Pope, 41 251n1 (ch. 9)
Gregory VII, Pope, 69, 70, 77, 247n3 Italy, 47, 76, 83, 94; in Carolingian
(ch. 4) Empire, 67; in Eurozone, 254n6;
Grimm, Wilhelm and Jacob, 213 Frankish empire and, 59; French law
Grotius, Hugo, 159–161, 193 codes in, 211; ius commune in, 90,
guardianship, 22, 110, 113, 220 248n10; study of law in Pavia, 61;
universities in, 80
habeas corpus (“have the body”), writ of, iuris consultus, 21
102, 147, 198 ius civile (law of the civitas), 15, 20, 26, 27,
Hadrian, 19, 25 29, 153
Hale, Matthew, 217–218 ius commune (common law), 7–8, 55, 75,
Henry II, King, 96, 104, 110, 111 91–92, 105, 203, 231; canon law and, 91,
Henry IV, Emperor, 70, 77 247n1 (ch. 5); codification of law and,
heresy, 39 224; customary law and, 141; customs
History of English Law before the Time of and, 126–128; end of Europ ean
Edward I, The (Pollock), 220 Christian unity and, 199; Eng lish
Hobbes, Thomas, 41, 162, 193 common law and, 94, 101, 112–115, 150;
homage, 63–64 humanist criticism of, 120–121; medieval
Hotman, François, 125–126, 130, 235n2 study of law and, 87–88; new European
(ch. 7) law and, 239; as new juridical science,
humanism, legal, 120–121, 122, 150–151, 89–91; in Old Regime France, 188;
235n3 (ch. 7); customary law and, 130; Protestant Reformation and status of,
Protestant Reformation and, 123–124 123–124; single community as premise
of, 119; spread of, 88–89, 248n10
Iberia: beginnings of European expansion ius gentium (law of nations), 26–27,
and, 154–157; Roman law in, 29, 52, 54 153–154, 164, 246n9; colonialism and,
inheritance, 16, 22, 40, 86, 108, 195 159–160; natural law and, 179; rebirth
Inn of Chancery, 106 of, 157–159
Inns of Court, 106, 112, 149 ius honorarium, 20
Institutes (Gaius), 23, 30, 33, 246n8; Corpus ius proprium, 89–90, 113, 188–189
Iuris Civilis and, 31; “Divine Institutes”
of Christian Church and, 41; study of James I, King, 106–107, 131–132, 139
law in medieval Europe and, 77, 81–83 James II, King, 132–133, 135, 149
286 Index
Jews and Judaism, 35, 54 Liber pauperum (Vacarius), 95

John XII, Pope, 67 Liber Sextus, 85
judges, 5, 56, 220, 238; customary law Libri Feudorum, 86
made by, 218, 221; due process and, 2; local courts, 97, 99, 100, 103, 176
in E ngland versus the Continent, local law, 48, 57, 59, 60, 61, 71, 75;
114–115; English common law and, 103; Charlemagne and, 58; in colonial
in French Revolution, 188, 196–199, 201; North America, 177; in England, 113;
iudex in Roman law, 17, 18, 20, 52, 115, ius commune and, 84, 89, 91; reimagined
245n5; precedent and, 149–150 by French humanists, 124–125; writing
juries, 56–57, 111, 114, 169, 174, 203 down of customs and, 128
jurisdiction, territorial, 84 Locke, John, 162–163, 193
jurisprudence, 88, 115, 122 Louisiana, codification of law in, 223–225
jurists, 5, 88, 130, 151, 162, 238, 243; Louis XVI, King, 183, 186
codification of law and, 207, 209; Luther, Martin, 122, 123
experts in early medieval law, 60–61; Luxembourg, 67, 211, 231, 254n5
French royal jurists, 196; humanist
criticism of, 120–121; medieval, 7, 55, Magna Carta, 1–2, 5, 108, 170, 174;
79, 83, 92, 124; Roman, 21–25, 28, 41, customary law and, 146–148; as feudal
78, 126, 153 document, 1, 146; mythical status of, 1–2
jus ecclesiasticum (ecclestiastical law), 94, Maitland, Frederic William, 143
249n5 marriage, 7, 37, 84, 209
Justinian, Emperor, 30–31, 40, 51, 77 Meditations on First Philosophy
just war, 155–156, 158 (Descartes), 161
Middle Ages, early, 3, 8, 29, 33, 64, 139;
Lanfranc, 95 conflict resolution in, 126; European
Lateran Council, Fourth, 55 migrations in, 52, 62; fragmentation of
Latin Christendom, 35, 101, 119, 155, 246n1 Western Roman Empire and, 41;
Latin language, 32, 51, 105, 134; Chris fragmented yet unified world of, 57–58;
tianity and, 38, 41; in medieval jurists absent from, 61
universities, 80 Middle Ages, late, 6, 91, 103, 143
Law of Citations, 23 monarchies, 75, 81, 86, 95–97
Law of nations, 9, 153, 179, 180, 182, 193. Montaigne, Michel de, 251n2 (ch. 9)
See also ius gentium, colonialism and Montesquieu, Baron de, 169
Law of Warehouse Receipts (1906), 229 More, Thomas, 110
Law Reports, 218, 219 mortgages, 110
lectura, 83 mos gallicus (French manner), 121–122,
legal presumptions (praesumptio iuris), 124, 235n3 (ch. 7)
6–7, 22 mos italicus (Italian manner), 121, 235n3
legislation, 54, 241 (ch. 7)
Leo III, Pope, 67
Lex Gothica, 54 Napoleon Bonaparte, 183, 200, 208, 209,
Lex Romana Visigothorum (Breviary of 211
Alaric), 29–30 Napoleonic Code, 208–210, 217, 224, 226,
lex terrae (“law of the land”), 142, 143 252n2 (ch. 12)
Lex Visigothorum, 52 National Assembly, of France, 184, 185,
Liber iudiciorum, 54 186, 199, 203; legislation of, 207;
Index 287
Napoleonic Code and, 209; natural law Parliament, European, 232, 233, 234, 237,
and, 201, 202 240
National Conference of Commissioners partnership, 22, 110, 220
on Uniform State Law, 229, 242 peasants, 66, 71, 91
natural law, 8, 152, 172; age of revolution “personal law,” 52, 54
and, 163–164, 171; French Revolution Petition of Rights (1628), 148
and, 187, 199, 201–202, 252n2 (ch. 11); pleading, 98–99, 102, 103, 106, 114, 228
ius gentium (law of nations) and, Poland, 42, 80, 211, 248n10
153–154, 158, 159–160, 179–180; ius Pollock, Frederick, 220
naturale in Roman law, 27; as reign of pontifices (priests), 15, 17, 245n2
self-evident truth, 159–163 popes / papacy, 42, 49, 69, 77, 79, 119;
natural rights, 162–163, 200, 202 desire for primacy, 76; false papal
Negotiable Instruments Law (1882), 229 decrees, 49–50; “Inter Caetera” bull
Netherlands, 42, 124, 159–160; in (1493), 154–155, 156; ordo iudiciarius and,
Carolingian Empire, 67; in ECSC and 85; universities and, 80
EEC, 231; in Eurozone, 254n6; in Portalis, Jean-Étienne, 209–210
Frankish empire, 59; French law codes Portugal, 80, 152, 155; in European
in, 211; French Revolution opposed by, Community, 232; in Eurozone, 254n6;
208; ius commune in, 248n10; in French Revolution opposed by, 208; ius
“Schengen area,” 254n5 commune in, 248n10
New York, codification of law in, 223, praetors, 16–17, 20, 25, 115; Christian
225–228 bishops fashioned a fter, 40; edicts and,
nobility, types of, 81, 248n4 19, 26; jurists and, 21; legal actions as
“formulas” and, 18; praetor peregrinus,
obligations, 22, 23, 54, 60, 65, 215 27, 153, 245n4
omission (failure to do the right t hing), 82 precedent, 149–150
“On Christian Liberty” (Luther), 123 Proculians, 24
On the Law of War (Gentili), 159 property law, 31, 111
orality / oral traditions, 15, 52, 54, 130, 146 property rights, 83, 84, 175, 189
oratio principis, 25 Protestant Reformation, 95, 119,
ordeal, 55, 56, 85, 247n4 (ch. 3) 246nn3–4; in England, 131, 144;
ordo iudiciarius (inquisitorial process), humanism and, 123–124; ius commune
56, 85 ruptured by, 122–123; reinvention of
Orthodox Christian Church, 32, 247n7 natural law and, 161
public law, 76
Pandect-Science, 213, 214 Pufendorf, Samuel von, 193
Papinian, 23, 246n7
parlement, France, 197–199 Quadripartitus, 94
Parliament, English, 107, 111, 133, 135, 145,
173; American colonies and, 167, 174, reason, 8, 23, 163, 199, 201, 208, 241
181, 203; codification of law and, 219, “reason of state,” 196
220, 221, 222; common law and, 177; remedies, 54, 93, 94; in common law and
constitutional system and, 170; English equity, 98, 99, 100, 101–102, 108, 109,
civil war and, 132; as guardian of 112, 115, 132, 230, 237; in Roman law 14,
customary law, 148–150; Magna Carta 15, 17, 19–20
and, 146; statutory law and, 218 Renaissance, 75, 120
288 Index
responses (responsa), 16 royal legislation and, 111; small number

requirement (requerimiento), 156, 157 of judges and cases, 113
res publica (state), 53 royal law, 88, 89, 130
rhetoric, 79, 120 Rudolf, duke of Swabia, 70
Rogerius, 81–82 Rule of St. Benedict, 51
Roman Empire, 7, 87, 119; conversion to
Christianity, 8, 36, 39, 48, 153; England Sabinians, 24
as part of, 93; fall of, 13; fragmentation Salic laws (Pactus Legis Salicae), 53–54
of Western empire, 31, 32, 40, 41, 48, Savigny, Friedrich Karl von, 212, 213
62; schools of law in, 79 Schengen Agreement, 232–233, 254n4
Roman law, 34, 47, 75, 220; ancient Scholasticism, 76, 78–79, 81, 87, 105;
courts, 13–16; antiqui of Pavia and, 61; canon law and, 84; humanist criticism
in Byzantine Empire, 32–33; canon law of, 121
and enduring presence of, 51–52; School of Salamanca, 157
Christianity and, 3, 35–37, 38; citizen- Scotland, 80, 131, 175
ship and, 90; combined with Germanic self-evident truth, 8, 160–163, 171–172,
and canon law, 48, 57, 58, 59, 101; 178–179, 182, 185
customary law and, 128, 129; encounters sexual conduct, regulation of, 37
with non-Europeans and, 152; in Siete Partidas, 88
England, 93, 94, 95, 113; English Single European Act (1986), 232
common law compared with, 115, slavery, 37, 189
249n15; equity and, 109, 132; evolution Social Contract (Rousseau), 194
of new procedures in, 20; extension Spain, 7, 47, 59, 159, 164; absence of
throughout the empire, 27–30; in feudalism in, 247n1 (ch. 4); beginnings
German legal history, 212–216, 252n3 of European expansion and, 154–157;
(ch. 12); Hellenistic culture and, 30, in Eu r op ean Community, 232; in
247n7; ius commune and, 91; ius Eurozone, 254n6; French Revolution
gentium and, 153; jurists and, 21–25; opposed by, 208; independence of
“just war” doctrine, 155–156; legal American colonies of, 182; ius commune
actions as “formulas,” 18–20; legal in, 248n10; universities in, 80;
humanists and contextualization of, Visigothic, 52
120–121; legislation, 25–26; Napoleonic Spirit of the Laws, The (Montesquieu), 169
Code and, 210; persistence through Statute of Frauds (1677), 111
European history, 13–14, 245n1; Statute of Uses (1536), 111
presumptions and, 6–7; rebirth in Statute of Wills (1540), 111
medieval Italian universities, 72, 139; statutory law, 111, 218
rise of civil litigation, 16–18; Scholastic studium generale, 80
method and, 78, 84; secularization of succession, 25, 40, 54
law, 13 summae, 82–83
Roman Republic, 25, 87 Switzerland, 47, 67, 232, 248n10
Rousseau, Jean-Jacques, 194 Sylvester I, Pope, 50
royal courts, 97, 99, 100, 103, 109, 249n8,
249n10; common law as product of, taxation, 90, 149; consent for, 175, 200;
176; French parlements, 196–199; Magna Carta and, 146, 147; Statute of
multiplicity of jurisdictions and, 134; Uses (1536) and, 111; without representa
reinvention of common law and, 138; tion, 148, 174, 181, 198
Index 289
tenure rights, over land, 64 Uniform Commercial Code, 229–230

Texas, Republic of, 227–228 Uniform Sales Act (1906), 229
Theodosian Code, 30 United Kingdom (UK), 232
Theodosius I, 34 United States, 3, 181, 223–230
Theodosius II, 25 universities, 80–81
Thibaut, A. F. J., 212 usufruct, 64
things, law of, 23
Thirteen Colonies, 168, 182, 202–203; Vacarius, 95
constitutional arrangements and, Van Gend en Loos v. Nederlandse
170, 173; French Revolution and, Administratie Belastingen (1963), 235
179, 183–184, 185, 193, 194, 200. Vattel, Emer de, 179–180
See also American Revolution; Visigoths, 29, 30, 52, 54
United States Vitoria, Francisco, 157–158, 159
Thomas Aquinas, 154, 158, 159
Tordesillas, Treaty of, 155 welfare, 37
torts, 16, 220 William and Mary, kingship of, 132–133, 149
Tractatus de legibus e consuetudinibus regni William the Conqueror, 95, 249n3
Angliae (attrib. Ranulf de Glanvil), writs, 97–99, 108, 109, 133, 249n9; English
104–105, 250n4 common law and, 101–102, 137, 138;
transfer theory, 175–177 functioning of, 99–100; institutional-
Treaties of Rome (1957), 231, 237 ization of, 100–101
trial by jury, 111, 169, 174, 203
Twelve Tables, 15–16, 246n5 Yearbooks (1263–1535), 218, 219

A Short History of European Law - The Last Two and A Half - Tamar Herzog - 2018 - Harvard University Press - 9780674981744 - Anna's Archive

Uploaded by

Copyright:

Available Formats

A Short History of European Law - The Last Two and A Half - Tamar Herzog - 2018 - Harvard University Press - 9780674981744 - Anna's Archive

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

A Short History of European Law - The Last Two and A Half - Tamar Herzog - 2018 - Harvard University Press - 9780674981744 - Anna's Archive

Uploaded by

Copyright:

Available Formats

A Short History of Eu­ro­pean Law

A Short History of Eu­ro­pean Law

Library of Congress Cataloging-­in-­Publication Data

Names: Herzog, Tamar, author.

Jacket design: Tim Jones

Introduction: The Making of Law in Eu­rope 1

part one ​Ancient Times

part two ​The Early ­Middle Ages

part four ​The Early Modern Period

part six ​The Nineteenth ­Century

Epilogue: A Market, a Community, and a Union 231

A few years ago, an undergraduate student reported to me with excite-

dramatically in the M ­ iddle Ages. The advent and propagation of Chris­

Denaturalizing our present-­day ­legal systems, it demonstrates that we reached

inconsequential ­whether law was attributed to communal creation (as in cus-

distinct. My own experience as a l­awyer trained in a universe that used

world that in real­ity comprised hundreds of thousands of local arrange-

Precisely b­ ecause I was looking to describe the most fundamental­devel-

unique to Goethe or the nineteenth c­ entury in which he lived. It is currently

Ancient Courts and Divine Judgment

acquired additional powers allowing them sometimes to compel litigants to

arranging the quotations found in the writings of subsequent jurists. It is

The Rise of Civil Litigation

of conflicts.4 Initially praetors mostly followed existing procedures, ensuring

This development was gradual. It prob­ably began as a procedure specifi-

A Growing List of Formulas

The Emergence of New Procedures

The Contribution of Jurists

Employing ­t hese procedures, Roman jurists elaborated many essential

marizing impor­tant cases, and recording court decisions. O ­ thers produced

Jurists and the Law

However, to justify their growing legislative powers they often disguised

The Extension of Roman Law throughout the Empire

greatly transformed Roman law. By recognizing as legitimate (Roman) cus-

The Corpus Iuris Civilis

The Afterlife of the Corpus Iuris Civilis

Despite this growing divergence, prac­ti­tion­ers in the East constantly as-

The Creation of Latin Christendom

In the first c ­ entury ce an impor­tant agent appeared on the horizon

The New Religion

The Christianization of Roman Law?

The Romanization of the Church

Over time, imperial intervention grew exponentially. Subsequent em-

economic limitations, such as prohibiting their rites, ending state subsidies

The Church as a Roman Institution

Christianization and Romanization ­after Rome

While this was happening in much of southern, western, central, and

The Early ­Middle Ages

An Age with No Jurists?

The approximately five hundred years between the demise of

In approximately the year 800, a combination of local, Germanic, Roman,

Early Canon Law

declarations on points of law. Mixing au­then­tic material with newly in­

The Continuing Presence of Rome

g­ reat diversity of transactions. In cities of Roman origin, Roman law also

The Germanic Ele­ment

secular and ecclesiastical authorities enhanced ­these tendencies, by de-

preparation or logical deliberation. Instead, they depended on the fact that

The Result: A Fragmented Yet Unified World

A Short History of European Law

Library of Congress Cataloging-in-Publication Data

Introduction: The Making of Law in Europe 1

part one Ancient Times

part two The Early Middle Ages

part four The Early Modern Period

part six The Nineteenth Century

dramatically in the M iddle Ages. The advent and propagation of Chris

Denaturalizing our present-day legal systems, it demonstrates that we reached

inconsequential whether law was attributed to communal creation (as in cus-

distinct. My own experience as a lawyer trained in a universe that used

world that in reality comprised hundreds of thousands of local arrange-

Precisely b ecause I was looking to describe the most fundamentaldevel-

unique to Goethe or the nineteenth c entury in which he lived. It is currently

This development was gradual. It probably began as a procedure specifi-

Employing t hese procedures, Roman jurists elaborated many essential

marizing important cases, and recording court decisions. O thers produced

Despite this growing divergence, practitioners in the East constantly as-

In the first c entury ce an important agent appeared on the horizon

Christianization and Romanization after Rome

The Early Middle Ages

declarations on points of law. Mixing authentic material with newly in

g reat diversity of transactions. In cities of Roman origin, Roman law also

The Germanic Element

secular and ecclesiastical authorities enhanced these tendencies, by de-

plaintiff or defendant formally repeat their version of what had transpired,

Were There No Jurists?

The year 1000 carries an enormous weight in the European imagina-

of handing over the staff (scepter) to the chosen bishop in acknowledgment

ecause ecclesiastical lordships w

And European Legal History?

The Birth of a European Ius Commune

The twelfth c entury is considered a pivotal moment in European

The Study of Law in Europe

This was a revolutionary conclusion because, contrary to property rights,

dalism is distorted would suggest that the reason twelfth-century scholars

andle juridical questions. W hether permissible or not, recognized by kings

of a ius commune, the particular, local, manifestation of an ultimate and

The Birth of an English Common Law

seventh, and eighth centuries, Anglo-Saxon donations and testaments often

Law under the Early Normans

successive kings intervened in the legal order by enacting important statutes

Was England Exceptional?

Legal Humanists and the Contextualization of Roman Law

A fter humanists were satisfied that they had reconstructed an accurate

tered by a single shared ius commune. By the mid-sixteenth c entury the

these campaigns called for a meeting of the representatives of the three

A Last Word on the Political Utility of Customs

In the sixteenth c entury, E ngland experienced a particularly viru-

Parliament, in the following years the struggle against James’s pretensions