A Brief Synopsis on the Historical Precursors to Civil & Common LawOct 09, 2022
Note: I had originally intended this to be one full-length article but later decided against it since the history of common law and civil law is (unfortunately) not an overly exciting topic for most. Instead, I will publish this in a series of blog posts divided by subtopic to hopefully make it a little more readable and palatable.
Most nations today follow one of two major legal traditions--common law or civil law. Common Law, which developed in England throughout the Middle Ages, refers to a system of law that is not “codified” [kod-uh-fahyd] and has no comprehensive statutory or codified rules. Instead, it is based on precedents or prior rulings made by judges. A judge or jury establishes the facts in the case and the judge then renders a decision based on those facts, which may or may not be based on a prior decision. These decisions are written and stored in court records. Therefore, judges have a significant role in the development of the law.
Civil Law, on the other hand, which developed throughout continental Europe at the same time, is codified, meaning the law is organized and arranged into an orderly and formal code and divided into substantive law and procedural law. A judge’s role is to determine the facts and apply the appropriate legal provisions outlined in the code, making the judge’s role in shaping the law much less important, since the judge is not who develops the law but simply applies it.
The Code of Hammurabi is the best known of the original codified laws, which dates to Babylonia as far back as 1755 BCE, although civil law as we know it derives from the Roman Republic, which established the Ius Civile, also known as the 12 Tables – a series of tomes that included the rights and obligations of all Roman citizens. This code of laws would become the basis for Roman jurisprudence for the next thousand years.
In approximately 529 AD, the Roman emperor Justinian issued a new body of laws. The Justinian Code or Corpus Juris Civilis refers to a systemic reform and recompilation of laws, imperial rulings and decrees, and excerpts from important writings by renowned jurists throughout the preceding millennia based on the 12 Tables. If you are already familiar with Roman history, you will most likely note that the Justinian Code was promulgated roughly 50 years after the so-called “fall” of the Western Roman Empire, which historians have pinpointed as occurring in 476 CE with the sack of Rome and deposing of the last Roman Emperor. Rome had been previously divided into two sections—east and west—in the late third century with an eastern capital having been established by Constantine in Byzantium, renamed Constantinople (today Istanbul) in 330 CE. The Justinian Code would be the foundation of Roman law and local laws throughout Europe for several centuries to come in both the east and west.
In order to gain an appreciation of the situation faced by the Roman Empire during the fifth century, I feel it is necessary to first point out that at its height, the Roman Empire extended from what is now England and all throughout Western and Eastern Europe, to the Middle East, and into Northern Africa. Rome achieved this expansion mostly through war and conquest, and it adopted a policy of absorbing conquered territories and peoples into its empire by granting them full or partial Roman citizenship. Expansion also gave Rome new and renewed sources of revenue and natural borders to protect itself from invaders.
Notwithstanding Rome’s dominant army, it would eventually halt its expansion efforts, mostly because the cost of warfare and maintaining the empire grew too cumbersome. As you can see in the map on the preceding page, despite its having established natural borders to the west and south, Rome still had to defend its borders from marauding barbarians to the north (Germania) and the Persian empire to the east (now Iran), which would ultimately prove to be its downfall.
Although the history between the many barbaric tribes and its other enemies is extremely long and arduous to explain here, it is sufficient to point out that Rome had a long, extensive, and mostly bloody history with these barbaric communities. What’s more, Germanic tribes are who would eventually overtake and rule almost all former Roman territories in the future.
As we can easily see from the map below, by the start of the sixth century, shortly after the collapse of the west, several different barbaric tribes had established kingdoms in former Roman territories or parts thereof: the Franks and Burgundians had established control of what was Gaul, the Ostrogoths controlled Italy, Sicily, and other neighboring areas, the Vandals controlled Carthage and other parts of Northern Africa, while the Visigoths ruled over most of Spain. Meanwhile, The Saxons, Angles, Britons, Scots, and Picts had begun to rule over Great Britain.
Although historians have dated the fall of the Western Roman Empire in the late Fifth Century, this does not mean that Roman law and customs were ignored or died out once the last Roman emperor was deposed. In fact, Roman law, culture, and other traditions would continue to be recognized by later Germanic rulers and have a profound influence on future social, cultural, and legal traditions throughout many different Germanic kingdoms.
The next thousand years are what historians refer to as the Middle Ages, Dark Ages, or Medieval Times, which, using exceedingly rough estimates, span from the fifth century with the decline and fall of the Western Roman Empire to the start of the Renaissance and the Age of Enlightenment in the fifteenth and sixteenth centuries. An analysis of this period reveals the slow yet painstaking transformation from the remains of Roman society and government to what we now know as modern Western Europe, accomplished through countless battles, conflicts, wars, migrations, treaties, armistices, and other events between and among the various Germanic and other barbarian kingdoms. This time period is also marked by several other developments, including feudalism, the rise and spread of Christianity throughout all of Europe and the Eastern Roman Empire, the spread of Islam, which would invade and rule over most of Spain for several centuries, the development of the Holy Roman Empire, whose most notable ruler was Charlemagne, among many thousands of other fascinating events and people who left their mark on human history. While these one thousand years of history do have either a direct or indirect effect on the development of civil and common law, we unfortunately cannot discuss all of it. However, there are two phenomena that had a significant influence on the eventual split of common and civil law and the independent development of each, and both most me discussed in more detail to fully grasp why and how they evolved the way they did: feudalism and Christianity.
Next Blog Post: Feudalism
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