Private law is concerned with individual men and women whose relations, one hopes, will be harmonious; otherwise the courts intervene and settle their disputes peacefully and authoritatively. Since this extensive and pervading body of law regulates our daily lives, we may well pose the question as to how and when it was created. If we all happened to live under one and the same civil code, conceived and rapidly penned by Napoleon, the answer would be wonderfully simple. Legal history unfortunately is not that straight-forward: one complication is that the law of our present-day western world consists of two quite different systems, English Common Law and continental civil law, also called the law of the Roman-Germanic family. How these legal systems, both of European origin, came into being, went through various stages of development and always remained alien to each other is one of the themes of the present Introduction, where the continental lawyer may learn something about his own heritage but also about events across the Channel, and vice versa. At a time when British judges sit with their continental brethren in European courts of law, this may be especially welcome. National legal histories are readily available, and so are works on Roman and canon law – my Introduction is, of course, largely based on them – but studies that transcend national frontiers and attempt to weave the historic threads of common and civil law into one fabric are still rare. This may go some way towards justifying the present survey, which is the fruit of my teaching in the Law Faculties of the Universities of Ghent and – during the academic year 1984–85 – of Cambridge.

THE QUESTION

80 The preceding chapters have said a good deal about the various sources of law, especially statute, case law (which is often closely associated with custom) and scholarship (which can be regarded as the creator of natural law). What is needed now is a systematic examination of the role and significance of each of these three great creative forces. What are the merits of each source? What social forces make use of which source? The aim of the chapter is to demonstrate historically that the use of these sources is not random or accidental; they are the basic options open to society when faced with the phenomenon of law. And if law is an instrument of social control, then it matters who controls the sources of law; this fundamental question is far more important than technical or scholarly problems. The origins of legislation and case law are very different: but with what interest groups in society are they associated? And what views of society are expressed by legislator, judge and scholar?

ADVANTAGES AND DISADVANTAGES

81 Each of the three sources of law and legal development has its own advantages and disadvantages. Legislation has the advantage of being able to set out clear rules, and the authority necessary to ensure that they are respected. It is true that case law and scholarship have sometimes gone to extreme lengths to adapt, or even through interpretation to nullify, statutes which they considered outdated or unjust.

FRANCE

74 The years from 1789 to 1804 had been troubled but also very creative: suddenly every thing – even the boldest and most improbable innovations – seemed possible. The Napoleonic codes brought this brief period to an end and inaugurated a century of stability. From a legal point of view, it was also a century of sterility. The codes now existed; they suited the mentality and the interests of the citizens, and there was no reason to question them. Judges had only to respect them and apply them strictly; authors had merely to interpret the articles of the codes faithfully. It was out of the question now for case law or scholarship to attempt to innovate or play a creative role. Law had merged with statute, the statute was the work not of professors or magistrates, who had no mandate to act in the name of the nation, but of the legislator, the sole representative of the sovereign people.

During the Revolution the universities of the ancien régime, and their law faculties in particular, had been abolished. Some years later, schools of law were founded again, and in 1808 university teaching of law recommenced, although on a very different basis. The new system provided for a single Imperial University comprising twelve faculties of law, which were of identical standing and were under the direction of a central administration. Teaching and the subjects taught were strictly supervised by five inspectors-general. In 1809 a vice-rector was actually appointed in order to oversee the dean of the Paris faculty. This system was not operated in its full rigour, but it did for long influence the French university world profoundly.

INTRODUCTION

84 There are two kinds of factor in legal history. The main legal traditions and methods of formation of the law are one kind of factor which has affected the development of law in Europe. This is the sense in which T. F. T. Plucknett used the term in discussing the theme of ‘some factors in legal history’, where he dealt with five elements: Roman law, canon law, custom, legislation, and precedent. All these can be called ‘technical’ factors, since they are sources of law in the strict sense, sources of the rules formulated and laid down by lawyers. There are other kinds of factor, however, which may be called ‘social’; they encompass broad political, socio-economic and intellectual developments and disputes. These affect society as a whole, and through it the law. Although it is plain that social factors do have an impact on the evolution of law, their influence is much harder to trace than that of technical factors, which can sometimes be identified in the sources themselves, for instance when a text states expressly that a rule is adopted from Roman law or refers to the ratio scripta; or where the part played by a particular source is easily identified because – to take the example of Roman law again – the terminology has clearly been lifted from the Corpus iuris.

The situation is more complicated if a Roman legal principle is found in a medieval text, but the text does not make use of the Roman terminology.

CHARACTERISTICS

61 This short period was exceptionally important. It saw the abolition of old legal traditions, the short-lived triumph of natural law, and the more lasting emergence of a belief in codes. The period began around the middle of the eighteenth century, when criticism of Roman law and the rise of natural law began to be reflected in important codifications. By the beginning of the nineteenth century it had already ended; natural law had lost its power to inspire, and was overshadowed by positivism and the Historical School of law. None the less the legacy of this relatively brief period was lasting: faith in codes persists (albeit less fervently) to this day, and their practical importance is still considerable. In the space of a few decades, concepts and institutions which had taken shape gradually over the centuries were abolished and replaced. This was the result of a policy guided by new principles and new structures, some of which are still employed.

THE ENLIGHTENMENT

62 The renewal of the law has to be seen in the context of the Enlightenment, a European-wide movement which took a critical attitude towards the ideas and the society of the ancien régime in general. There was criticism especially of the following points. First, of inequality before the law, which was entrenched by the political system of Estates, with its fiscal privileges for the orders of nobility and clergy, and limited access to public office. Second, of the restraints on people and property: serfdom still existed, while various feudal and corporatist restrictions dampened down economic activity.

CHARACTER OF THE PERIOD

21 At the end of the eleventh century, western European society finally left behind the archaic feudal and agrarian structures which had characterized the early Middle Ages. Important advances were made in the course of this transformation of the West. The sovereign nation state became the dominant form of political organization, and its symbol was the absolute monarch of early modern times. The society of the late Middle Ages, in which the various social orders had managed to obtain a share of power by means of a system of representative ‘estates’, was no more than a passing phase in the evolution of the state, as was the political independence of the great cities at that time. The emergence of national authorities was at the expense of the empire, and it obstructed German attempts to restore the universal power of the Roman empire. The same development also meant that the power of feudal lords diminished to the same degree that central governments asserted and reinforced themselves.

The organization of the church had a similar centralist tendency. Here power was concentrated at a supra-national level, and allowed a bureaucratic and hierarchical church to take shape under the direction of the papacy.

The closed and essentially agricultural manorial economy was replaced by a market economy. This was sustained by the development of international commerce and industry, an intense circulation of capital, and the development of a banking system: in other words, a renewal and transformation of economic activity in general, assisted by the rise of numerous cities. In spite of the dampening effects associated with corporatism and mercantilism, free enterprise was the driving force of the new economy.

THE CHARACTER OF THE PERIOD

11 The Roman empire had been the political form of the ancient Mediterranean civilization of southern and western Europe, North Africa and Asia Minor. When it fell, three new civilizations grew up: the Graeco-Christian Byzantine empire (in which the ancient Roman empire scarcely survived); the Arab-Islamic world; and the Latin-Christian West, made up of the old Roman population and the Germanic peoples who had just settled there. In western Europe, imperial authority had declined in the fifth century, and the old Roman state had been divided among several Germanic tribal kingdoms. In the centuries which followed, the Frankish kings of the Carolingian dynasty, the Germanic kings of the Saxon dynasty and their successors all made attempts to restore the previous supranational authority of Rome. But these were without exception in vain.

The differences between the new Roman-Germanic society of the West and the ancient world were not just political. The upheavals which had brought about the fall of the Roman state had also affected the economy. In the western societies of the early Middle Ages, urbanization and the circulation of money had hardly begun, and agriculture remained more or less at subsistence level. The new culture of the West was different too. It was dominated by the Roman church and the Latin language; it did borrow from the remnants of Antiquity, but it simplified them drastically. The early Middle Ages, which were a primitive period in European history, lasted until about 1100. At that point a new movement radically transformed society and allowed it to attain the level of the two other great cultures, Byzantium and Islam.

This chapter is concerned with steps taken by Canada, Australia, and New Zealand, successfully completed only in the last few years, to end their constitutional ties with the United Kingdom Parliament and Government, to examine the present legal foundations of the Constitutions of those countries, and to see what has happened to the notion of ‘the Crown’.

In Canada, Australia, and New Zealand, many academics in fields of law, politics, and history have had difficulty in answering a frequently asked question from foreign scholars: ‘When did your country obtain its independence from Britain?’ At times the courts have also adverted to that question and have been just as perplexed. The difficulty is that, unlike the case with other Commonwealth countries, one cannot point to an occasion when one flag was lowered and another raised at midnight amid sentiments of joy and nostalgia.

In a desperate effort to find some exact date for the event, the Balfour Declaration of 1926 or the Statute of Westminster of 1931 are seized on as roughly approximating independence days. Yet in 1939 and 1940 the Governments of Australia and New Zealand assumed that they were automatically at war with Germany and Italy when Britain was at war. Amendments to the British North America Act were made by, and could only be made by, the United Kingdom Parliament at various times up to and including 1982.

Nineteenth-century and early twentieth-century complacency regarding individual rights in Britain, and a certain contempt for countries that had a need for entrenched constitutional rights, were reflected in the ‘old Dominions’. The common law, British justice, and remedies such as habeas corpus and the prerogative writs, were regarded as of more worth in protecting the individual than elaborate and exotic lists of abstract rights in foreign countries.

While certain rights of this nature appeared in the Australian Constitution, they certainly didn't amount to a fully fledged Bill of Rights, and in any case most of them were binding only on the federal as distinct from the State Governments. Perhaps the general attitude in all these countries could be summed up in the remark made by a former Australian Chief Justice, Sir Harry Gibbs, that ‘If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.’

Faith in majoritarian democracy was firmly established in all four countries by the early twentieth century. This reinforced the legal principle of the supremacy of Parliament. The obedience paid by the courts to what was sometimes called ‘the will of Parliament’ was politically justified on the basis of democratic principle, reflecting Dicey's distinction between the ‘legal sovereign’ (Parliament) and the ‘political sovereign’ (the electorate).

The British Parliament has been the creator of many federal systems, some of which failed and some of which were successful. Those of Canada and Australia have been longterm successes. The Canadian system has operated over 120 years and that of Australia for nearly ninety years. In the world, only the United States and Swiss federal systems can boast of similar or greater longevity. Yet traditionally the British have had a considerable disdain for federalism. Again Dicey must be mentioned as a prominent influence in furthering this attitude. He referred, in 1915, to a then new but brief interest in converting the United Kingdom into a federal state. He said this object was a ‘delusion’ which was ‘absolutely foreign to the historical and, so to speak, instinctive policy of English constitutionalists’.

The Royal Commission on the (British) Constitution in their report in 1973 concluded that the demands of modern government and the inevitable financial strength of central federal Governments had undermined regional sovereignty in all federations. Indeed they said that ‘what is actually in operation is not true federalism’. They admitted that this picture did not fit Canada, where Provincial sovereignty was strong. In any case, the Commissioners were of the view that a formal division of powers slowed down desirable changes or could prevent them altogether.

If amazement is the mother of science, the continental lawyer's amazement when he is confronted with the English common law must be one of the most powerful factors in the scientific study of the law (to which, after all, the Goodhart professorship is devoted). I shall therefore begin with the presentation of ten legal institutions which exemplify the different approach by English and continental law and, in the course of so doing, present some historical explanations or at least considerations. Many more examples could have been selected, but, whether under the influence of the decimal system or because of reminiscences of the decalogue, ten seemed a fair and not absolutely fortuitous number. As befits a legal historian, I shall be concerned with the historic or classic common law without, however, ignoring altogether various recent changes that seem to be narrowing the gap between the common law and the ‘Roman-Germanic family’.

Some readers may themselves be amazed at this amazement: is it not natural that every country has its own laws? In the United States every state enjoys and even guards its own laws, and in some cases even a code of laws! To this the reply can be made that the difference between England and the rest of Europe (including to a large extent even Scotland) goes much deeper than the differences among the continental countries and the states in North America: it is the whole approach to the law and the very way of legal thinking which is different, and not just the laws on divorce or the maximum speed on the highways.

So far the past, and the questions when and why common law and civil law originated, and when and why judges, legislators or scholars dominated the legal scene, have been discussed. It has not been asked which of these approaches was the best – in other words, the discussion has not gone beyond value-free propositions. Many historians believe that this is only as it should be: the historian's task is to describe and, if possible, to explain what happened, not to tell his reader what lessons he should draw from the past. There are, indeed, innumerable books and articles describing the organisation of governments and courts in a multitude of countries and periods, but although they enter into the most minute details, the reader may be sure he will not be told how good that particular government was for the people concerned. That is a philosophical question, a subjective political decision and that is taboo in scholarly historical work. Although it is not difficult to see many good reasons for this attitude, it is a legitimate desire on the part of the layman that the historian, who presumably knows the past best, should also try to answer some questions about the lessons to be drawn from mankind's experiences. It is well known that the Historical School has been reproached by leading jurists with being ‘ultimately barren, because it could not consistently put any aim before men for which they should strive’ and that ‘in effect the historical method comes to the justification of what is, by simply asserting that it is’.