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.
