Influence of Roman Law to Common Law in England Wales Paper Example

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Wesleyan University
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Roman law is a term used to refer to the body of legislation that was used to govern the city of Rome and would later be adopted by the Roman Empire. Over the centuries, Roman law has grown to become a major influence in the legal affairs of countries throughout the world as seen in the case of Europe and the North American continent. Nations throughout the world have been directly and indirectly impacted by the concepts of Roman law. It should be noted that Roman law is a system of law that was developed over a period of more than a thousand years of jurisprudence. The development of Roman law also took place in different phases with major landmark legal events being comprised of things like the Corpus Juris Civilis. Much of Europe was receptive to the various aspects of Roman law which are also attributed to the work of the universities that were based in Northern Italy. The period of revival that took place as European nations studied various aspects of Roman law allowed them to have a common stock of legal ideas as well as the grammar of legal thought.

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However, England as a whole is seen to have resisted much of the Roman laws influence as seen in the way the Common Law has continued to influence its jurisdiction. However, the analysis shows that common law has to a considerable extent been influenced by Roman law. As it is seen in the current state of events, there are two major legal systems in continental Europe. The first is the Common law of England, which has been influenced to an extent by the Roman law. The other is the Civil law of continental Europe which was shaped largely by the revival of the Roman law.

The Common law in England Wales has been affected by various aspects of the Roman law to varying lengths. About the text-writers, much of the Common Law in Wales remains true to the principles and language of the Common Law. Work that was done as early as the 12th century reveals that despite the knowledge of the development of Civil law, the laws were still established in the purity of the Common law. However, there are examples of text-writers who have primarily relied on Roman law principles to develop the body of law that is characteristic of Common law. Bracton is an example of a writer who incorporated in many passages laws and ideas that did not have a particular reference as to their origin. However, they were altered in appropriate phases to reflect the variations that existed in English law. Other writers such as Cowell, the Cambridge civilian were particularly concerned with the similarities that existed in laws that governed Incorporations. On the other hand, he also confessed that although there was a great similarity between these two legal systems with regards to Incorporations, Civil laws did not carry authority in Common law courts. In addition to substantive borrowings from the Roman law, Bracton has also exhibited a structural similarity to the structure of law that existed in Justinians Institutes. It has been noted that in some of his books, the material is aptly divided into the law of persons, things, and actions. Much later, Hale relied on his knowledge of Civil law in the attempt to improve method and order of the Common Law. Indeed, Blackstone was also a follower of Hales methodology which was highly reliant on the Justinianic model with the divisions seen in the Commentaries clearly reflecting this reality. For many years, the civilian influence has continually nourished the jurisprudence in England Wales and is seen in the views of scholars such as Austin.

England Wales has also had to rely on the Civil law in cases where there is a lack of precedent in the Common law. There have been numerous occasions in which the English Courts have made references to the workings of the Roman law. One instance in which this is seen is evidenced by the early acceptance of the principle of stare decisis. The principle is one that has become a household name in the Courts of Common Law. Oliver noted that the inability to trace the origins of such rules and its close association with Roman ancestry shows that a law could be accepted without worrying about its origins. The basis of a decision in this instance does not influence the authority of a principle in operation. In many instances of Common law, Roman law has been utilized based on its persuasive value. Tidal CJ noted that Roman law could be used as the evidence that points to the soundness of a conclusion of matter. It is most helpful in instances where there is a lack of a direct authority in the Common law. A huge part of this is because, as mentioned before, Roman law has been used to a great extent by many countries in Continental Europe. However, it has been noted that the ability of Civil law to heavily influence Common law is likely to decrease as people progress into the future because of the tendency of the higher ranks in the judicial system to consider the Common law and the judgments of other Common law courts as possessing the ultimate appeal especially when there is silence in some aspects of the law. The English law of bailments is also strongly influenced by the Roman law and is evidenced in Coggs v. Bernard. Lord Holt relies on the principles dictated by Bracton who is known to have utilized substance and matter of the Roman law.

Another sector of the England Wales judicial system to have been highly impacted by the work of the Roman law is the Chancery. The Chancery proved to be the most willing to accept the Civil law directly, and this is explained by the personnel that comprises the Chancery. Up to 1530, close to 160 ecclesiastics operated as chancellors with only a few lay appointments being made in the service of the post. As a result, the training, as well as the experience of the chancellors, encouraged the courts to adopt the Roman law in the Chancery. Additionally, personnel such as Masters of the Chancery, and the Clerks de prima forma were civilians, and they served to advise the Chancellor. Prerogative courts were composed of ecclesiastical personnel, and this also resulted in the expression of the Roman law in these courts.

One thing that scholars of the law note are that the mere existence of similarities does not necessarily establish a discerned area of influence. For example, the existence of similarities between the functions of the Chancellor and the Praetor does not mean that Roman law has been an influence on Common law. For this reason, it has been suggested that any direct influence must either be rejected or made uncertain due to the lack of clear-cut evidence. Some of the affected areas include similarities that exist between Praetorian supervision of guardians and the Chancerys jurisdiction over infants, the jurisdictions of the Chancellor and the Praetor over lunatics and idiots, fraud, and partnership law. However, there are situations in which one can find the direct influence of Roman law with regards to the Chancery. In matters to do with foreclosure, mortgage, and the equity of redemption, the Common law in England Wales has evidence of Civil law. Additionally, the construction of wills in the Chancery is seen to have followed Ecclesiastical Courts as Common law, and the Chancery did not have any original jurisdiction in such matters. Regardless of this, the Common law has still managed to remain true to its identity in some aspects of the Chancery as seen in the case of specific performance in which there is no Roman law or doctrine that is comparable to it.

With regards to Ecclesiastical courts, they handled most aspects of matrimonial as well as testamentary matters before the 19th-century statutory reforms. Roman law has had a clear influence on the functioning of these courts. To understand the functioning of Ecclesiastical courts, one has to look at the workings of Canon law. Canon law was influential in the introduction of Roman law into England Wales with the modus operandi being that these courts would also utilize the Roman law as a director with regards to matters such as the exposition and determination involving legacies and wills. Whenever the Canon law was silent on such matters, the Roman law became a point of influence. As such, the matrimonial jurisdiction was established by marriage being a religious sacrament. On the other hand, Blackstone notes that while the procedural matters regarding issues such as matrimony were regulated largely by Canon and Civil Laws, the substantive law of the latter was of limited value in the expression of Common law in England Wales. Many of the Christian ideas could manage to have their presence felt in the Corpus Iuris to a limited extent. For this reason, the origins of the modern law can only be found in the later corpus in the Canon law. On another scale, Roman law has had a significant influence on the laws of succession in England and Wales. One of the reasons for this phenomenon is that succession law is not an issue that is recognized as being a religious matter at its core. As such, the Ecclesiastical courts relied on the scheme of distribution found in Roman law to distribute deceased estates on intestacy. In addition to this, this influence survived the measures designed to codify matters regarding intestate succession as laid out by the Statute of Distribution 1670. For this reason, much of the present law regarding succession in England and Wales bears a striking resemblance with the laws that had been laid out by Justinian. However, there are still elements that reveal a difference in these two legal systems as seen in the position of spouses. Testate succession was under the jurisdiction of Ecclesiastical courts in probate which saw them utilize various aspects of Roman laws in the construction of wills and this modus operandi was transferred over to the Chancery when it assumed jurisdiction over such matters. At the same time, the Ecclesiastical courts were also crucial players in the introduction of the doctrine of donatio mortis causa which refers to the non-testamentary gift given in contemplation of death. It is a doctrine that was directly derived from the Roman law. It has been noted in the Institutes that this doctrine is a major anomaly when it comes to Common law. Part of the thinking is that this doctrine is not consistent with the law that targets the making of a gift as well as the laws that govern the manner in which property is transferred through a testamentary disposition as seen in the case of Public Trustee v Bussell (1993). As such, it makes one see that the influence of Roman law with regards to these branches of law was only significant to the extent that there was a perceived absence of Canon law. It must be noted that Roman law did not form part of the Common law in England and Wales.

Another branch of Common law that has been influenced by Roman law is that concerned with Admiralty and the Law Merchant. According to Scrutton, the foundations of Admiralty law can be categorized into two main elements the Civil law and the subsequent customary and written rules that were adopted to keep up with the commercial developments. The Roman influence in its Civil law affected the procedural law through the work of the cleric's ho ere appointed to be judges of the Court earlier in its history. Another source of influence and much significant source is reflected in the content that could be found in the Law Merchant of the Roman law which the Court duly applied. In essence, the Law Merchant was comprised of the customs of the merchants who hailed from seafaring nations and, for that reason, required a uniform law that had the ability to govern the commercial transactions of traders regardless of their nationhood or respective jurisdiction. The variations in local laws which had gi...

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