Sunday, January 13, 2019

English Exceptionalism Revisited II – The Continental Strawman

In English Exceptionalism Revisited, published previously on this blog, I argued for the need to reexamine the convention that English law was different from Continental law. I suggested that claims for English exceptionalism are often based on privileging the history of common law over the history of other jurisdictions and legal systems that co-existed in England. In this second part, I would like to examine yet another issue: how narratives of English exceptionalism use Continental law as a strawman. Because of considerations of space, I focus my attention on the claim that common law was different because (contrary to Continental law) it included an immemorial customary law. This claim became central to English legal thinking in the late sixteenth and the seventeenth centuries, but it also persists to-date. It is based, inter alia, on the (silent) assumption that Continental law was not an immemorial customary law, but instead a system based on scholarly debates, legislation, and Roman law.

Historians of Continental law would disagree. In their telling, customs were a central element also in the continent. From as early as classical Roman law and into the nineteenth century, Continental jurists habitually identified local law as customary. They suggested that it was a legitimate expression of a legal diversity that allowed for different local solutions despite the existence of an overreaching common core uniting all Romans (first), Christians (second) and Europeans (third). Jurists’ main role was to explain how this was possible, that is, how thousands of local legal arrangements (“customs”) could nevertheless form part of a single global system. This was what Roman jurists did, but it was also what medieval jurists accomplished as they slowly elaborated a system that, while validating local laws, also created a ius commune (a common law, a system that scholars of England identify as “Roman” or “Civil” precisely in order not to call it common law as Continental jurists would).

The effort to harmonize local and global were criticized by some sixteenth-century jurists. These jurists, known as legal Humanists, insisted on identifying an authentic local customary law that would stand in opposition to (rather than in harmony with) the common framework.  Because they believed that customary law could counter monarchical pretensions at absolutism, these jurists turned to identify what this law included. Thereafter, the main question they asked was not if customs existed and were important (of course they were) but who would be charged with identifying them. In France, where this struggle was particularly strong, the kings succeeded to have the upper hand. They gained control over the identification of customs by instituting committees that purportedly “wrote down” the customary laws of France but that, in reality, greatly modified them according to royal desire as well as tied them to royal validation.   

Because it was difficult to prove that certain practices were customary, late medieval and early modern Continental jurists adopted the convention that customs were, by definition, immemorial. In their telling, immemoriality was a category of proof, not a historical fact. It embodied a presumption identified as juris et de jure that, contrary to all other presumptions, admitted no proof to the contrary. As far as these jurists were concerned, at stake was not the distinction between what could be remembered and what had been forgotten, but a policy decision regarding what should be proved and what could be assumed without proper proof. This decision hinged on evaluating what society wished to protect (local law) and how much (as strongly as possible). It represented, perhaps better than anything else, the important place of customs in Continental juridical elaboration.

English sixteenth- and seventeenth-century descriptions of common law as immemorial customary law were thus part of a much larger European conversation. This conversation initiated in the Roman empire but continued throughout the Middle Ages and into modernity. Nonetheless, in the late sixteenth and in the seventeenth century, English lawyers insisted that their system was radically different, and they expressed fear of “foreign” influence. They suggested that Europe followed Roman law, while England had a genuine customary law of its own, which reflected the spirit of its people.  This portrait omitted the important contribution of ius commune jurists to the formation and institutionalization of common law, including ideas regarding customs and immemoriality. It assumed English lawyers were ignorant of developments in Europe (all evidence to the contrary) and it constructed a Continental strawman, against which England was compared. The result was often, to paraphrase the words of Chris Wickham, a “cultural solipsism” that led scholars to believe in exceptionality where not much of it existed.