How European is the ‘European’ Legal Tradition?
Modern European law still presents the image of an intriguing mixture of diversity and unity. Thus, the continental legal systems are usually subdivided into the Germanic and Romanistic legal families.
131 Moreover, a number of systems have to be located somewhere between these two legal families, particularly the Dutch and Italian ones. But even the systems belonging to the Germanic legal family display significant difflang=EN-US>erences in style and substance. The Austrian and the German Civil Codes date from different periods of European legal development and are marked by different intellectual currents. Of the Swiss Civil Code it has been said that it received its characteristic mark ‘largely from the special conditions of Switzerland and the traditions of that country’s legal life’.132 Nonetheless, it can hardly be disputed that all legal systems belonging to the Romanistic and Germanic legal families are sufficiently similar to describe them as different manifestations of one legal tradition.133 The English term chosen for that tradition is ‘civil law’ (or ‘civilian tradition’), which refers, historically, to Roman law.134 But are we really entitled to speak of a European tradition? As far as the states of central and eastern Europe are concerned, the question probably has to be answered in the affirmative.135 Up to the period of the World Wars of the twentieth century, they belonged to the cultural sphere of the ius commune. In some of them (most notably Hungary and Poland), the continued teaching of Roman law during the days of the rule of socialism maintained a connection with the west.136 And since then we can see a process of re-integration ‘by way of a renovation of private law guided by comparative scholarship’.137 Lawyers in nineteenth-century Tsarist Russia had also availed themselves of the doctrines and methods of Roman law in order to cope with the social and legal challenges that traditional Russian law was unable adequately to deal with. Like lawyers in many other countries, they were particularly inspired by the legal development in Germany that was shaped by Savigny and the Historical School.138 Turkey in 1926 took over Swiss private law and thus ‘conclusively left the Islamic legal family’.139 The Nordic legal systems are also predominantly regarded as part of the civilian tradition, in spite of having developed their own style in a number of respects.140The central argument often advanced against the recognition of a genuinely European legal tradition is the existence of the English common law which, so it is said, has developed in noble isolation from Europe141 and is therefore fundamentally different.142 But the idea of the common law as an entirely autochthonous achievement of the English genius is a myth. In reality England was never completely cut off from continental legal culture; there was a constant intellectual contact that has left its imprint on English law.143 Even in its origin it was an Anglo- Norman feudal law of a pattern typical of medieval Europe.144 For many centuries, Latin and French remained the languages of English law. The Catholic Church brought its Canon law,145 and international trade brought the lex mercatoria. In Oxford and Cambridge, two of the oldest European universities, Roman law was taught and studied on the model established in Bologna. From Scotland too Roman legal ideas filtered into English law; Scotland in the early modern period had become a far-flung province of the ius commune with particularly close relations to French and Dutch universities.146 Modern English contract law has been decisively shaped by massive borrowings from authors such as Pothier, Domat, Grotius, Pufendorf, Burlamaqui, and Thibaut.147 Of course, in many cases the inspiration provided by Roman law has led to entirely un-Roman results. But that was true also of the continental legal systems.
Thus, in the best known of the cases concerning King Edward VII’s coronation procession - which had to be postponed because the King had contracted peritonitis - we read: ‘The real question in this case is the extent of the application in English law of the principle of the Roman law which has been adopted and acted on in many English decisions.’148 The principle referred to is that of debitor speciei liberatur casuali interitu rei (the debtor is released from his obligation to perform when such performance becomes impossible and the impossibility is not attributable to his fault).149 From about the middle of the nineteenth century onwards, the English courts had started to read that rule into the contractual agreement of the parties.150 In the process they used a device also originating in Roman law: the implication of a tacit (resolutive) condition.151 The foundations were thus laid for the doctrine of frustration of contract. Functionally, this corresponds to the continental doctrine of clausula rebus sic stantibus, which was also assembled with elements taken from Roman law, although as such it was unknown to Roman law.152 But this is merely an example. Wherever one looks, one will find ‘legal institutions, procedures, values, concepts and rules that English law shares with other Western legal systems’.153 Hardly anything is sacred. Even the Magna Carta, ‘the most basic statement of English customary law and constitutional principlelang=EN-US style='font-size:11.0pt; line-height:115%;font-family:"Arial",sans-serif'>’, was partly shaped by influences coming from the ius commune. 154A person who does not merely confine his attention to the specific solutions to be found in the sources of Roman law, but also takes account of the flexibility of the civilian tradition and of its capacity for growth and productive assimilation, will be able to acknowledge that it has also shaped the English common law.155 Of course, it is also marked (as are the continental systems) by countless peculiarities and idiosyncrasies.
But it is clear today that these idiosyncrasies are increasingly being worn away, on both sides of the Channel. Basil Markesinis refers to a gradual convergence,156 James Gordley to an outdated distinction between civil law and common law.157 That applies on the level of substantive law as much as with regard to basic issues such as legal methodology.158In addition, it must be kept in mind that many other parts of the world have been affected in one way or another by the European legal tradition. The United States inherited English common law,159 as have most of the other territories once belonging to the British Empire. The Latin American countries received French, Spanish, Italian, and German law.160 Japanese and (South) Korean law have been significantly shaped by German law;1 1 Quebec has to a large degree retained its French heritage;162 Roman-Dutch law prevails in South Africa;163 and so forth. If all this is taken into account, one may still say today, as Rudolf von Jhering did some 150 years ago:
The historical significance and mission of Rome, in a nutshell, is to overcome the limitations of the principle of nationality through the idea of universality... The special significance of Roman law for the modern world does not consist in the fact that, for some time, it was applied in practice as a source of law... but that it has brought about an intellectual revolution which has decisively shaped our entire legal thinking. Roman law has thus become, just as Christianity, a constituent cultural feature of the modern world.164