Saturday, January 5, 2019

Does European Law Have a History?

Historians have routinely divided European Legal history into many pieces. They distinguished an English from a Continental law and they often proceeded to describe national legal spheres even in periods, which pre-dated the emergence of nation-states. It was as if, once legal systems were nationalized in the late eighteenth century and in the nineteenth century, it was no longer possible to imagine a legal history that pre-dated the nation state or that, even after nation-states were formed, continued to be shared by the different European countries.  

In my most recent work (“A Short History of European Law: The Last Two and a Half Millennia,” Harvard U Press, 2018) I sought to identify a common European legal tradition that also embraced England and that filtered outside Europe because of European colonialism and because of processes of adaptation, translation, and transplantation. Rather than tracing the evolution of specific arrangements, I wanted to understand what law was: how it emerged, how it gained validity, and who controlled these processes. In other words, I was after the operating system(s), not the specific solutions it (they) enabled formulating.

Having surveyed two and a half millennia (from the Roman empire to the present-day), my most salient conclusion was that the development of law in Europe was both surprisingly consistent and astonishingly unpredictable. Take for example, Roman law. Roman law, Goethe once said, was like a diving duck. Whether you saw it or not, it was always there. Goethe was unquestionably correct when he pointed out to the enduring legacies of Roman law, which were widely shared across the Continent, but he was wrong to imagine it as a single duck. Classical Roman law was radically distinct from how Medieval jurists, allegedly reviving it, read it, and it had even less in common with what 19th century German jurists imagined it to be. If it was a diving duck, it constantly changed colors and shapes to the point that it was no longer clear which type of duck it was and whether it was a duck at all. The endurance of Roman law, in other words, was less illuminating of continuity than it was revealing of change.

The same thing was true of the Magna Carta, to mention yet another emblematic example. The Magna Carta was a thirteenth-century feudal charter meant to guarantee peace among lords. However, centuries after it was enacted, it was given a new meaning and a new role. What counted for this radical transformation was not only, not even mainly, the identity of those reading the document, but the contexts in which they operated. Therefore, if we wanted to understand how law evolved over time, we would need to reconstruct the contexts (the operating systems) in which specific documents, doctrines, or institutions were implemented.

Listening to what actors stated was rarely sufficient. Jurists who invoked Roman law pretended to obey its rationale and instructions. So did the early modern English lawyers who invoked the Magna Carta. Yet, their pretense for continuity did not mask the profound changes they introduced. While claims for continuity could mask change, claims for change could mask continuities.  This was evident when late-eighteenth and early nineteenth-century French revolutionaries presented their system as entirely new, but it was also clear in the work of European jurists who purportedly wished to purge local law from the (evil) influence of Roman law yet nonetheless employed Romanist methodology. European legal development, in short, could be told as a story of actors both adopting and rejecting the past, both copying and re-writing it, both positioning for and against it. In the process, what the past meant, which parts of it were relevant, and how they could be used became essential as different individuals, groups, and institutions fought to discover, but also invent, the rules that would govern their relationships.

These processes were common across Europe. In the late Classical period and the high middle ages, the influence of Roman law and Roman traditions expanded outside the boundaries of the empire as a byproduct of the spread of Christianity and the creation of Latin Christendom. By that stage, however, Roman law was already very different from what it had been because it was infused with Christian ideals. Mixing with new elements continued with the Germanification of Roman law and the Romanization of Germanic laws. Roman, Canon, and Germanic laws all operated conjointly in the Middle Ages, alongside the extreme fragmentation of the legal regime. The eleventh, twelfth, and thirteenth-centuries witnessed a colossal effort to unite hundreds of local arrangements in a systematic ius commune (in the Continent), or common law (in England). This effort resulted in moments of greater or lesser cohesion but, above all, it unleashed a fierce struggle over the right to pronounce, make, implement, or unite, the law.

The advent of the modern state and stronger monarchical orders (as well as the opposition they generated), intensified these struggles. It also led to a serious questioning whether a common European law indeed existed and, if so, what was its nature. During these debates, many pointed to the obvious: that law was always contextual and, to some degree or the other, local. Particularism, such as embodied by the idea of a local customary, and then national law, however, never extinguished a horizon of commonality, only that commonality itself changed. Instead of placing Europe or Christianity at the center as had been the case during the Middle Ages, in the early modern period it progressively referenced a common humanity with a common rationality. This allowed Europeans to again refashion their system as universal by arguing that it united all humans regardless of their extreme dissimilarities.  These developments justified the imposition on occasions, the expansion in others, of European law overseas. They were responsible for severe Eurocentrism, but they also radically transformed European law. If what was common to Europeans was also common to all peoples and places, what was specifically European (and eventually national) in this law? Would European law become but a local version of a more general law that was in the process of being globalized?