The Development of National Legal Systems

(1) Why Did National Legal Systems Develop?

The picture we have seen is of a transnational legal culture, with lawyers trained to think first in terms of a ius commune transcending national borders, and only then in terms of particular laws of particular places.

In part, the change was a result of factors ceasing to apply, which had pro­moted Reception. Where political fragmentation and weak central authority had encouraged Reception, strengthening of central authorities allowed the develop­ment of national court systems. Similarly, insofar as canon law was a vehicle for Reception, its unifying potential was reduced when the authority of the Roman Catholic Church was ended in those countries that embraced the Protestant Ref­ormation.^[319] When authority over areas falling within Church jurisdiction passed to national authorities, it was inevitable that the law would come to develop on national lines.

At the same time, though, there were intellectual trends that ran counter to universalising ideas. One such was the school of thought known as Legal Humanism, active particularly in the sixteenth and early seventeenth centuries.

It must be said that Legal Humanism had limited immediate impact on legal practice, albeit it perhaps had greater impact in legal education. Even in the universities, though, it did not have the field to itself. For example, the German usus modernus Pandectarum (‘modern usage of the Pandeds''¹ of the seventeenth and early eighteenth centuries was focused on the application of the sources to practi­cal problems. Still, it was indicative of intellectual trends of the period. There is, it has been said:

no difficulty in finding in the work of the legal humanists the seeds of much that later changed the face of legal science. As so often in the history of legal thought, it took centuries for their ideas to bear fruit, but when they did so, legal science was reborn.^{[321] [322]}

Another important school of thought was that of Natural Law.

The Natural Law jurists' emphasis on rationality also lent itself to thoughts of codification, the idea that it was desirable to present the law in the form of a rationally ordered code. Bavaria and Prussia, for example, both introduced codes of private law in the eighteenth century. The French Code civil of 1804 has already been mentioned. The German Bürgerliches Gesetzbuch (BGB) came into force in 1900. German codification was delayed by the fact that Germany was not unified until 1871, but also by debates on the form that codification should take, between Germanists and Romanists of the German Historical school. The former emphasised the role of Germanic tradition, the latter the ius commune element. In our time, though, the great majority of countries that experienced Reception now have their own codes of private law.

The intellectual unity of the ius commune was thus broken. This should not be taken to mean, however, that its influence has come to an end. Even though modern lawyers now think primarily in national terms, the national legal systems in which they work are still rooted in the ius commune. The national codes of the eighteenth and nineteenth centuries were not a clean break with the past, but were based on existing law. For this reason, a lawyer from one of these legal systems will find much that is familiar in other such systems and still has much to gain from study of the Roman legal tradition.^[323] This is why scholars of compara­tive law are able to group these legal systems together as a single legal family, the ‘Civil Law' family.

(2) The Mixed Systems: Civil Law and Common Law

In some places where the ius commune had been received, or to which it had spread through European colonisation, a further development occurred that is of con­siderable interest from the Scots lawyer's point of view, for reasons we shall see below. This was the emergence of the mixed legal systems, in which elements of both Civil Law and Common Law appear.

Let us consider one of the main examples of this, the law of South Africa. European occupation here began in 1652, when the Dutch East India Company established a permanent settlement at the Cape of Good Hope, as a stopping-off point between Europe and East Asia. As such, the law of the developing colony was the amalgam of ius commune and local law that developed in the Netherlands, and which is known as Roman-Dutch law.^[324] However, the colony was seized by the British in 1795 and, although the Dutch managed to recover and hold it from 1803 to 1805, British rule was formally recognised at the Congress of Vienna in 1815. South Africa was granted Dominion status within the British Empire in 1910, but has been a de facto independent state since then. During the period of British rule, however, South Africa's ius commune-derived legal system experienced considerable English influence.^[325]

This process has left the legal system of South Africa as what comparative lawyers call a ‘mixed legal system'. The same is true of the law of Sri Lanka,^[326] Louisiana^[327] and Quebec,^[328] which experienced a similar historical process. As we shall see below, Scots law is another example. In these places, a system of law with a historical Roman foundation has subsequently received English rules and con­cepts. The process tends to pan out in strikingly similar ways in the different mixed systems. Some areas are very little affected by the mixing process. Property law, for example, tends to remain very strongly based on fundamentally Roman principles. Other areas are more strongly influenced by English law, such as commercial law.

D.