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?
