Sutherland Article Prize to Weil & Handler

At this year's meeting of the ASLH, the Sutherland Article Prize (for the best article on English legal history published in the previous year) was awarded to Patrick Weil (Centre for the Social  HIstory of the 20th century at the University of Paris) and Nicholas Handler (Paul Weiss) for their article “Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain’s First Denaturalization Regime.” It appeared in Volume 36, no. 2 of the Law & History Review (May 2018).

The citation from the prize committee:

Denaturalization, a policy which deprives subjects of their citizenship, originated in the United States (1906). Adopted by Britain via the Nationality and Status of Aliens Acts of 1914 and 1918, it fell out of use after the Second World War but remained on the statute books. While the power to revoke citizenship was not used at all between 1973 and 2000, in the past decade the Home Office has demonstrated a new willingness to apply the law, revoking the citizenship of ‘at least 373 individuals’ in that period. Weil and Handler’s article explores the history of denaturalization, considering both its decline and recent resurgence. They argue that a provision of the BNSA Act of 1918 created a system of judicial review for decisions made within the Home Office that limited and eventually extinguished the powers of that office where denaturalization was concerned. Legislative changes in 2002 replaced the committee-based review, which had served to protect individual rights, with a ‘significantly more deferential’ and often secretive form of oversight. Original in terms of both its primary sources and argument, Weil and Handler’s article also offers an intriguing take on the broader issue of national belonging which has garnered so much attention in recent years in Anglo-American scholarship.

The committee also awarded an Honorable Mention -- to Elizabeth Papp Kamali (Harvard University) for “Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law,” which appeared in Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Leiden: Brill, 2018).

The members of this year's Sutherland Article Prize Committee were: Rebecca Probert (Chair) (University of Exeter); Paul Halliday (University of Virginia); Michael Lobban (London School of Economics, University of London); Allyson May (University of Western Ontario); and P.G. McHugh (University of Cambridge). We thank them for their service and offer our congratulations to all the winners!
-- Karen Tani

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.

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 19^th 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?