A Short History of European Law PDF

5 The Birth of a European Ius Commune THE TWELFTH CENTURY is considered a pivotal moment in European history. The demise of feudalism (where it existed) and the rising power of monarchies were accompanied by economic prosperity and a demographic boom. With the growth of production and the em...

5 The Birth of a European Ius Commune THE TWELFTH CENTURY is considered a pivotal moment in European history. The demise of feudalism (where it existed) and the rising power of monarchies were accompanied by economic prosperity and a demographic boom. With the growth of production and the emergence of new commercial routes and centers, the urban network was greatly enlarged and immigration intensified. New towns were established and depopulated centers were revitalized. As monarchical powers expanded, so did royal entourages, and as towns grew in size and importance, so did their administration. Historians have long considered this period a true “Renaissance.” They suggest that it was accompanied by a spectacular expansion in artistic, scientific, and intellectual production that also profoundly affected European law. The point of departure was a highly fragmented system that varied according to place, group, and subject matter. The point of arrival was the birth of a new constellation that was potentially common to all Romanized Christians and would thereafter be identified as their ius commune, literally, their common law.1 As we have seen, around the year 1000, law was fragmented, geographically confined, and dependent on local, Roman, Germanic, and canon law, as well as feudal legislation. These various normative regimes mutually influenced one another, but rules could differ dramatically from one village to the next. The new circumstances of the twelfth century led to the search for a novel normative order. In contrast to law based on local regulation, differing from place to place, newly emerging communities that had no previous legal traditions, the intensification of relations between communities and with non- European trading partners, and the growth of immigration required a different type of law that would bridge such differences. The need for reform was also felt in other spheres, such as public law, which was insufficiently developed to support the needs of emerging municipal bodies and royal administration. Here, too, a new legal order had to be imagined. With economic prosperity and intensified support to learning, a larger segment of society could (and found it useful to) dedicate itself to intellectual pursuits. Propelled by the political, social, cultural, and economic conditions and backed by municipal and royal authorities as well as by the Church, all seeking to solidify and augment their powers, a novel method to approach normativity began appearing in Europe, gradually yet dramatically changing its legal landscape. This innovative method was introduced in northern Italy, yet it quickly spread to other parts, where it remained in force until the nineteenth century, perhaps beyond. How and why this happened and how European law changed as a result is the subject of this chapter. The Study of Law in Europe The legal revolution that took place in Europe in the twelfth and thirteenth centuries was shaped by three interlocking elements: the discovery and reconstitution of ancient Roman texts (mainly the Corpus Iuris Civilis), the adoption of a new method to analyze them (Scholasticism), and the invention of a new environment in which to do so (learning centers, which grew into universities). Historians have long debated which preceded what. Did the new method lead to the formation of new intellectual environments, or did the new environments encourage the formation of new methods? Was everything initiated by the discovery of ancient texts, or were texts sought after because they now mattered in new ways? Whatever the exact genealogy and causality might have been, scholars agree that the combination of new sources, new methodology, and new intellectual environment produced a profound transformation. This transformation was not only intellectual but also social and political. It was driven by the growing prominence of kings who sought to justify their extending powers, by new municipal corporations and agents who wished to do the same, by papal desires for primacy; and by the intensification of commerce and learning. With new economic resources to support individuals dedicated to scholarship, the new European normative order not only assisted the pretensions of kings, popes, municipal officials, and urbanites, it also produced new professionals, the intellectuals, who made a living by teaching, advising, and writing books. Reconstructing Ancient Texts Scholars in Europe knew for centuries about the existence of the sixth- century compilations of Roman law ordered by Emperor Justinian.2 Fragments of these compilations circulated in different parts of the Continent, but none of the available copies was considered trustworthy or complete. An abbreviated version of the Code (imperial legislation) was available, and so were parts of the Institutes (the manual for students), but the Digest (the volumes containing juridical opinions) was not. Toward the end of the eleventh century, a copy of the Digest reached Bologna, in northern Italy. There are many accounts about how and why it miraculously materialized and who was responsible. It is currently agreed, however, that whoever the person was, the so-called discovery of the Digest was probably tied to the Investiture Conflict—the struggle between the German Emperor Henry IV and Pope Gregory VII regarding emperors’ powers to elect bishops (see Chapter 4). Because during this conflict both sides, wishing to justify their positions, appealed to Roman law, both actively searched for new fragments of that law that would back their claims. It is thus possible that the “rediscovery” of the Digest during this period of conflict involved no true unearthing but instead could be explained as a strategic move by those who had known about its existence but now sought to capitalize on it in new ways. Following the rediscovery of the Digest, several individuals began reconstructing the legal compilations undertaken by Justinian.3 This effort included collecting different segments that were known as well as seeking new ones. Once sufficient material had been accumulated, the different parts were put together in what was believed to have been the original design. This done, scholars trusted that for the first time in centuries they had access to a correct and full copy of the Justinian corpus, which they believed accurately represented Roman law. The Method Satisfied with the text they had reconstructed, scholars began studying it. The methodology they employed was innovative. Identified as Scholasticism, it was based on the assumption (taken as a certainty) that Roman texts were imbued with a hidden harmony. The obligation of readers was to prove that such was the case by offering an interpretation that synchronized the different parts and enabled the reconstruction of a coherent message. Most scholars following the Scholastic method began with a philological analysis of the texts, their terminology, order, and phrasing. Shaping their observations as a dialogue, they asked questions and debated the answers. This dialectical thinking and exposition was mainly geared toward comparing passages to one another. Working under the assumption that the various parts were not contradictory, scholars employed logical arguments in order to demonstrate that such was the case. One of their favorite techniques was the distinctio. Analyzing two fragments that seemed similar yet pointed to different solutions, these scholars proceeded to demonstrate that although the fragments appeared identical, they were in fact profoundly distinct. Because they were different, the solutions offered could be diverse without there being a contradiction. Hence, what appeared at first glance as a contradiction was instead part of a coherent system in which all the different pieces pointed to the same rationale. By following this method, scholars hoped to reveal the criteria that guided Roman jurists and the techniques that organized their reasoning. Their aim was not to uncover the particular solutions Roman jurists adopted but instead to extract the rule (regula) that explained their consistency. By putting together what they learned from individual examples and cases, these scholars hoped to understand what they considered to be the inner core, the basic essence, of Roman law. The adoption of the Scholastic method converted the Digest, which was unknown and hardly used in Europe up to this point, into a particularly attractive source of Roman law. Reproducing the opinions of different jurists, the Digest included an exceptional number of disagreements and contradictions. It therefore was an excellent source allowing scholars to make distinctions and elaborate terminology, concepts, and criteria. Because Scholastic analysis used textual exegesis that paid close attention to the specific terms Roman texts employed, their order, and their meaning, it was essential for scholars to ascertain that the documents they examined were accurate. If they were not, then their discussion of them would be based on false evidence and would not lead to the ultimate truth. Thus, as the discovery and reconstruction of ancient texts led to their study, their study led to additional effort to ensure the accuracy of the texts. Textual reconstruction and textual exegesis, in short, mutually supported one another. From the twelfth to the sixteenth century (considered the formative period of this new European legal science), scholars (now identified as jurists) debated the principles, terminology, and structures of Roman law. Though they were trying to explain ancient texts, their endeavor did not revive the ancient law of Rome, but instead reinvented it. Medieval jurists came up with new ways to assess, analyze, and relate to legal questions. Their interpretations were perhaps anchored in a prestigious Roman past, but, in reality, and as would be forcefully argued in the fifteenth and sixteenth centuries (see Chapter 7), they were entirely new. The Environment The individuals engaged in these debates mainly taught or studied in the various study centers and universities that appeared in Europe in the late medieval period. Whether universities formed part of a longer tradition or were a completely new phenomenon is a matter of debate. In late antiquity, there were schools in which instruction was given to students, usually in order to prepare them for a particular professional task. These schools taught grammar, dialectics (the art of reasoning), rhetoric (the art of exposition), arithmetic (the study of numbers), geometry (the study of figures), astronomy, and music. From as early as the first century CE if not earlier, Rome also featured schools where students of law congregated. These began as informal gatherings, but by the early fifth century they were sufficiently institutionalized that emperors could limit the study of law exclusively to them. In the sixth century, monastic schools began appearing all over Europe. First emerging spontaneously and then encouraged by popes and emperors, these schools taught poetry, astronomy, and mathematics but were mostly focused on understanding the Scriptures. In some places, rhetoric and Roman law might have been studied, too. By the late eighth and ninth centuries, monastic schools were joined by episcopal or cathedral schools, which covered similar subjects but were mostly located in the large urban centers that began appearing throughout Europe.  Twelfth- and thirteenth-century study centers and universities were therefore both old and new. Appearing in several European cities where demographic growth, economic prosperity, and urban revival were particularly strong, they drew crowds that came to listen to masters lecture. The congregation of a large number of masters in certain locations, as well as urban regulations favoring it, brought several of these new learning sites into prominence. Paris, Bologna, Toulouse, and Oxford became famous among students and teachers because of the excellence of teaching but also because of the scope of what was being taught. Designated as studium generale—places where it was possible to study (almost) everything, including theology, medicine, and law—these centers were transformed into “universities” after they were legally recognized as corporations. One of the most important characteristics of the new learning centers was that they were truly pan-European. Teachers and students came from all over Europe and they circulated from one university to the next. The teaching language was Latin, and most of the universities employed a similar curriculum and method. Popes and emperors, who fashioned themselves as global figures, typically encouraged the founding of these centers, although their enthusiasm sometimes met with opposition from local authorities, who resented the arrival of many foreign teachers and students who were habitually poor, unfamiliar, and—in the eyes of many—not particularly productive. The new learning centers were also criticized occasionally by local bishops who previously had controlled all education in their dioceses and gave licenses to teach. Despite this (often fierce) opposition, universities prospered. By the mid-fifteenth century, some sixty cities in present-day Italy, France, Spain, Portugal, England, Scotland, the Czech Republic, Austria, Germany, Belgium, Croatia, Hungary, and Poland had a university. Universities were greenhouses for the creation of a group of scholars who shared not only a way of life and a profession but also ideas and ways of thinking. They produced the “intellectual,” a new sociological figure whose main occupation was to study or teach. With the birth of states and with growing municipal powers, many intellectuals would come to occupy important public offices. Thereafter, studying at the university would open new career opportunities to individuals who could afford to invest time and money in their intellectual preparation. Studying would also become a mechanism allowing the advancement of the middle classes (to use an anachronism). It would enable the emergence of a new type of nobility whose prestige was no longer linked to soldiering or bloodline but instead was based on intellectual achievements.4 Among these new intellectuals, some would come to be identified as jurists, individuals dedicated to the study of law. Recognized as experts in this particular domain, by the twelfth, thirteenth, and fourteenth centuries jurists who studied in universities became particularly coveted councilors. They were acknowledged as professionals who could advise on juridical matters, plead for the parties, and help the expanding administration of cities and monarchies. Depending on time and location, their mediation would eventually become a prerequisite in all legal interactions. How the New System Operated The combination of new sources, methodology, and environment created a novel system of law. Until the mid-thirteenth century, discussions in universities mainly focused on the reading and comprehension of ancient texts. Though these discussions were mostly oral, we do have written fragments of how this was done. These fragments mainly contain glossa. A gloss was a brief annotation between the lines or on the margin of a text that explained its terminology, content, principles, and main points, asked questions, and compared this segment to a word, sentence, or paragraph that appeared elsewhere. Faithful to the Scholastic method, the authors of glosses (known as glossators) tried to harmonize the different fragments by demonstrating that what seemed to be a contradiction or lack of coherence was not. The gloss explained the text, but it was also used as an index to facilitate cross-references. Most importantly, it allowed medieval jurists to develop a specialized terminology, invent new categories, and suggest new ways of thinking about the law. A short gloss attributed to Rogerius, a scholar who taught in Bologna in the twelfth century, exemplified this method.5 Analyzing the Institutes (the sixth-century manual for law students), Rogerius observed that it defined “justice” as the “the constant and perpetual desire to give to each man his due right.” Asking why the Institutes mentioned “desire” rather than requiring an actual implementation, Rogerius concluded that this was not an oversight but instead a purposeful choice. It was meant to explain to law students that even if the goal of dispensing justice was not reached, the intention to do so was sufficient to qualify the action as just. By adopting this explanation, Rogerius established the importance of “intent” in legal interactions. He suggested that what you did and what resulted from your action was important, but no less essential was the state of mind (intention) that accompanied your act. Next Rogerius observed that, according to the Institutes, justice contained three central mandates: to live justly, not to injure others, and to render to each his own (ensure that each person received the treatment he or she deserved). Asking why there were three rather than one single mandate and how each differed, Rogerius concluded that the first precept (“to live justly”) referred to crimes against oneself (sins). The second and third precepts (“not to injure another” and “render to each his own”) dealt, on the contrary, with crimes against other people. He explained that because crimes against other individuals were more frequent and more severe, they were prohibited twice. Yet their doubling did not diminish the fact that in reality there were two ways in which one could hurt other people. “Not to injure another” (the first of the two precepts) pointed to “commission” whereby to “render each one his due” (the second of the two precepts) pointed to “omission.” By studying only a few sentences of the Institutes and by observing repetitions as well as the choice of words, Rogerius thus justified some of the most basic categories we still employ today. He demonstrated the importance of intent, and he clarified the distinction between performing a wrongful act and failing to do the right thing (commission and omission). None of these observations was truly necessary in order to understand the Roman text, yet the analysis of this text gave Rogerius an opportunity to imagine a new way to categorize legal phenomena. Starting in the late twelfth century, some scholars began collecting legal questions and publishing them. These documents, reflecting intellectual engagement with actual practice rather than with theory, usually centered on real or hypothetical cases that jurists had to solve and presented points for consideration and discussion. Also common were collections of glosses in large bodies known as apparatus, some of which contained as many as 100,000 fragments. Other types of publications were the summae, which discussed the contents of an entire book such as the Institutes (the student manual) and the commentum or lectura, which reproduced lectures given by a law professor. From the fourteenth century on, scholars began demonstrating a greater degree of freedom, focusing their attention less on the texts themselves than on the doctrine they sought to develop. Their main goal was the practical applicability of the legal principles that could be drawn from Roman texts, and they were less concerned than previous jurists with being faithful to the original source. Typically, fourteenth-century scholars often based their analyses not on the Roman texts themselves but on the glosses of preceding jurists. During this period scholars also began giving consilia. Somewhat similar to ancient Roman juridical activity, consilia were written opinions on matters of the law. They were authored by jurists at the request of interested parties who had sought their advice on how to plan their activities or how to solve certain situations. Demonstrating the originality of medieval jurists, these answers creatively applied theoretical debates developed in universities to everyday situations. Dealing with juridical questions either hypothetically or post factum, jurists often acted as hired guns whose role it was to find the solution that best fit their clients. Nonetheless, their responses became an important source of law. Well argued and well expressed, many of these juridical opinions were followed as if they were authoritative statements of what the law dictated. A particularly remarkable figure during this period was Bartolus of Saxoferrato (1313–1357). An extremely prolific jurist, teacher, and judge, Bartolus published treatises on a great variety of topics, wrote commentaries, and engaged in giving counsel. He wrote on some of the most important issues of his time, such as the power of German emperors over parts of Italy, conflicts between different jurisdictions, citizenship, and dowries. Typical of his work were his treatises on the legal consequences of changes in the course of rivers upon property rights and jurisdiction. Although rivers were useful dividers, Bartolus argued, natural changes in their course were constant. It was therefore essential that jurists reflect on how these changes affected rights. He concluded that rivers could add or remove land and that this had consequences for riverbank owners, whose property rights could be enlarged or diminished as a result. Bartolus also determined that if these alterations in the course of rivers were sufficiently slow to produce new customs and new ways of relating to the modified landscape, the territorial jurisdiction of riverine communities could also increase or be reduced. This was a revolutionary conclusion because, contrary to property rights, which most jurists agreed could constantly mutate, before Bartolus’s time territorial jurisdiction was thought to be permanent and unalterable. In his answer, Bartolus not only invented a new rule (jurisdiction can change), he also created a new vision of what territorial jurisdiction was. This vision, which comprehended territorial jurisdiction not as naturally given but instead as dependent on how individuals and communities related to space, allowed him to give an efficient response to the challenges that his contemporaries faced, among them the growth of cities and states and the constant redefinition of their boundaries. The idea proposed by Bartolus that both property rights and territorial jurisdiction were created and could be modified by human activity was so powerful and so convenient that it soon became recognized as the established norm. Canon Law Scholars have long debated whether discussions in universities began by studying Roman texts or canon law texts or whether both things coincided. Questions of chronology aside, it is clear that the same methodology (Scholasticism) and the same concerns expressed with regard to Roman law were also applied to the study of canon law. Here too, the first task scholars faced was the reconstruction of the corpus of that law, which was dispersed in a variety of sources and collections, some more global and authoritative than others (see Chapter 3). In the twelfth century, a successful compilation was proposed by Gratian. Gratian (who may have also used the work of previous scholars) collected, examined, selected, and systematized the different sources of canon law (the Bible, legislation and decisions of Church councils, papal decisions, and the writings of the Church fathers and early saints).6 Arranging this material logically in three parts, he enumerated the sources, described Church hierarchy, and listed the rules regulating the hierarchy’s activities. Also included were instructions regarding judicial procedure, Church property, the religious orders, marriage, sins, repentance, and penance. Matters of doctrine and matters of law were intermingled throughout the work, but the latter predominated. This compilation (Concordia Discordantium Canonum, literally the harmony of discordant canons, later known as the Decretum) was unofficial. Yet it was considered so reliable that it ended up being followed as if it had been formally endorsed. Other compilations of canon law followed, most important among them the thirteenth-century Decretales (also identified as Liber Extra because it included what was left out of the five books of the Decretum) and Liber Sextus and the fourteenth-century Clementinae. By the early sixteenth century, these compilations together received the name Corpus Iuris Canonici in order to distinguish them, yet make them parallel to, the Justinian Corpus Iuris Civilis.7 As with the study of Roman law, after scholars were convinced they had recovered a genuine body of Church law, they began centuries of analysis, exegesis, and study. Gratian was the first to do so, adding to his compilation brief annotations (dicta) that addressed and explained apparent contradictions with the aim of harmonizing the whole. Other scholars soon followed. Applying the Scholastic method and constantly conversing with their colleagues studying Roman law, canon-law jurists ended up glossing, commenting, and writing treatises on canon law. They developed vocabularies, extracted principles, and systematized the juridical thinking of the Church. As a result of these similarities in method and places of creation, over time canon and Roman law tended to fuse to such a degree that it was sometimes hard to distinguish between them. Typical of this amalgamation was the development of Romano-canonical court procedures (ordo iudiciarius) in the twelfth and thirteenth centuries.8 A means to replace the ordeal after it was deauthorized by the Church, this procedure, inspired in Roman cognitio, was first adopted by popes and ecclesiastical courts and then taken up by secular jurisdictions, including royal, feudal, and municipal courts. Developed due to ecclesiastical impetus, it was propelled by Romanist and canonist jurists who taught at the various European universities. Heavily inspired by the Justinian Corpus Iuris Civilis, it was also greatly affected by canon law, mainly through its continuing regulation and elaboration by papal decretals. Feudal Law Alongside Roman and canon law, scholars also turned their attention to feudal institutions. Starting in the twelfth century they suggested that a “feudal law” had existed in Europe as early as the eighth century. This law governed relations between lords and their vassals as well as between the various lords. It identified lords and their duties and defined how individuals became vassals and what they owed to their masters. Feudal law also dealt with the jurisdiction of lords over their vassals, feudal courts, and conflicting claims of various lords over the same individuals or lands. It focused on issues typical to feudalism such as access to and use of land, as well as inheritance. The genealogy of how this field of inquiry came into being is quite similar to what we know of Roman and canon law, and it is probable that it emerged contemporaneously. Already in the eleventh century, some scholars had begun discussing feudal law, yet juridical interest in that law began in earnest only with the publication in the mid-twelfth century of an authoritative text, the Libri Feudorum. This text, compiled in present-day Italy, collected decisions from so-called feudal courts, as well as feudal customs, legislation, and juridical writing. By the thirteenth century the literature on feudalism had expanded so dramatically that there were now experts (feudists) dedicated to writing commentaries on these laws. The erudite literature on feudalism introduced the study of feudal law to universities. The result was the gradual Romanization of feudal law, which was discussed, analyzed, and understood by using Roman terminology, categories, and ways of reasoning. The fusion between the two fields was so complete that, in practice, they merged. One indication of this was that by the thirteenth century, for example, several scholars appended parts of the Libri Feudorum to their copies of the Corpus Iuris Civilis and glossed them together. Another was the influence of Roman law on discussions regarding feudal law—for example, allowing feudal jurists to apply the Roman idea of dominum to explain the relations between lords and vassals. They suggested that lords had dominium directum of the land (allowing them to direct what would happen on it, collect dues, and exercise authority) and vassals had dominium utile (giving them the right to use the land). Why twelfth-century scholars cared about feudalism sufficiently to turn their attention to it is one of the least studied questions. As described in Chapter 4, by the time scholars began thinking about feudalism, it was already declining everywhere. Remnants of what it had been persisted in different parts of Europe in various intensities, but the powers of lords, as well as the number of unfree individuals, gradually diminished as monarchies, the economy, and cities grew. Historians who argue that our vision of feudalism is distorted would suggest that the reason twelfth-century scholars cared about it was relatively simple: they reimagined the feudal past for their own purposes, which was why we should not trust their interpretations. Looking back to feudalism allowed twelfth-century jurists to develop doctrines dealing with relations between lords, kings, and their subjects, the meaning and extension of jurisdiction, and land rights, all of which were very important at that time precisely because feudalism was dying. It also enabled jurists to conceptualize public authority as the outcome of a pact between rulers and ruled that included mutual obligations. According to this theory, subjects could legitimately rebel against monarchs who, by not respecting the pact, became tyrants. In feudalism, in short, these scholars identified elements that could serve not only to explain the past but also to structure and control their own twelfth- and thirteenth-century societies. Ius Commune The study of Roman, canon, and feudal law in medieval study centers and universities by scholars who reconstructed texts and then applied the new Scholastic method to them revolutionized European normativity. It created innovative ways to think about, analyze, and discuss the legal order. Scholars of course continued to disagree with one another, but they did so using common terminologies, concepts, arguments, and techniques. The complex system of knowledge, organization, and interpretation that resulted included solutions to particular legal problems, such as who had the right to use land or who was a citizen of which community. But above all it proposed a new vision according to which, despite wide variations in the concrete answers proposed in different parts of Europe, juridical thought was not particular to a place, a society, or a time. Instead, it was based on reason. This implied that the new juridical method could have a universal vocation and embody, as it came to be known, a ius commune—a law potentially common to all. Thereafter, following the guidance of ius commune became identified as rectum or directum; that is, the right way of doing things.9 Comprising centuries of juridical opinions, this new legal constellation, now referred to as ius commune, was clearly different from classical Roman law, that is, from the law that regulated life in ancient (both republican and imperial) Rome. Said to be inspired by that ancient law, it was nevertheless entirely new in scope, method, intention, and solutions. It did share with Rome, however, the idea that jurists were at the forefront of juridical creation and that jurisprudence, the science of law, was the most important normative source.  Spreading Ius Commune Replicated in universities across Europe and propelled by the constant movement of intellectuals from one city to the next and their employment by municipal, royal, and imperial governments as well as by Church authorities, and eventually by the relative abundance and wide circulation of printed material, the new juridical science expanded throughout Europe. Some European territories were affected earlier than others, some were affected more intensely, but by the sixteenth century at the latest, some version of ius commune was present almost everywhere.10 This process of dissemination was initially backed by secular rulers and municipal authorities who believed that the new science would solidify their powers and justify their growing demands for superiority. Following this strategy, in the thirteenth century King Alfonso X of Castile officially incorporated the new juridical method into Castilian law. He ordered his advisors to recompile its doctrines alongside canon and local law, producing a collection now known as the Siete Partidas because it has seven parts. Considered radical when it was enacted because of its dependence on juridical scholarly discussions, it was not until the fifteenth century (after ius commune penetrated into Castile through other channels, mainly the founding of universities and the circulation of jurists) that the Partidas became central to the Castilian legal system. By that stage, however, Castilian kings were already wary of ius commune and were no longer as enthusiastic about its penetration, which they could not control. As ancient Roman emperors had attempted to do with their own jurists, successive Castilian monarchs endeavored to limit the effects of ius commune. They established a hierarchy of legal sources, according to which royal laws would be at the top, followed by customs (fueros), and only then the Siete Partidas.11 They also decided that new ius commune doctrines could not be adopted without their consent. These efforts, however, were largely unsuccessful. By that stage, the legal method proposed by ius commune was considered the most logical way to handle juridical questions. Whether permissible or not, recognized by kings or not, by that time it had become a repository of solutions that no jurist or lawyer could afford to ignore. The New Juridical Science and Preexisting Law Until fairly recently historians tended to think about ius commune as a substantive law that mainly included concrete solutions to particular problems. As a result, many suggested that it stood in opposition to preexisting local, municipal, royal, or canon law, which it sought to replace. According to this narrative, after ius commune expanded throughout Europe, authorities, jurists, and locals had to choose between following ius commune or remaining faithful to their legal traditions, as obeying both was impossible. This interpretation, which dominated the field for many years, has been largely discarded. Instead it is now proposed that the new method developed in universities did not necessarily replace the previous legal system but it came on top of it, suggesting new ways to organize, explain, and systematize the preexisting normative order. According to this interpretation, preexisting laws and ius commune peacefully coexisted. This could happen because indigenous local law, legislation (where it existed), and native variants of canon and feudal law were all identified by ius commune jurists as including a ius proprium (a law proper to a specific community or place). The task that jurists who were trained in ius commune undertook was not to remove the ius proprium but instead to synchronize local arrangements (which continued to vary dramatically from one place to the next) by reinterpreting them in ways that would not be contradictory to the new ius commune. Jurists achieved this by arguing that ius proprium gave concrete solutions to specific problems, but both the problems and the solutions should be analyzed, interpreted, and decided according to the methods developed by ius commune. Furthermore, in cases in which local law gave no answer, in its capacity as a “general law” (lex omnium generalis) ius commune could intervene, suggesting solutions. Ius commune, in short, would supply the terms, concepts, procedures, and techniques of analysis that jurists would employ whether they debated local, Germanic, canon, municipal, feudal, or royal law. Meanwhile, ius proprium would be understood as the local expression of a ius commune, the particular, local, manifestation of an ultimate and shared technique. Because European kings and municipal authorities called upon jurists to help them regulate their kingdoms and cities, over time the influence of ius commune became so pervasive that it greatly modified the ius proprium. Jurists not only offered advice and proposed legislation, they also compiled, collected, and arranged the existing law. As they documented institutions, processes, and regulations, they refashioned them according to their criteria and understanding. They incorporated, synchronized, and systematized the normative order to such a degree that by the end of this process it was no longer recognizable. By that time, rather than explaining ancient texts, what ius commune jurists mostly did was to intervene in the legal order. Answering questions, counseling, and surveying as well as chronicling certain practices, they radically transformed the preexisting law. An example of how jurists proceeded to do the above can be found in juridical discussions of naturalization. The local laws of various Italian communes allowed for naturalization under certain conditions. Roman law also had instructions regarding the transformation of foreigners into citizens. By studying both, ius commune jurists invented a theory that explained what naturalization was and what it required. This theory held that individuals’ adhesion to communities was normally tied to birth and descent. It was therefore by nature that certain people belonged to a polity. For naturalization to transpire, foreigners needed to change their nature. This change in nature could occur if sufficient time had elapsed since the foreigner arrived at the locality and if he could demonstrate that this prolonged residence had influenced him. Starting from these premises, jurists listed the conditions for naturalization and the type of proofs that were required, as well as how these could be substituted by legal presumptions. They also concluded that the different practices followed by the various Italian communities were but local manifestations of this common rule. Observing how they operated, some historians concluded that by referencing Roman categories and texts, what these jurists mostly did was codify, systematize, and abstract principles from what they observed unfolding around them. To return to our example, the ways each Italian commune treated naturalization were different. Some communes wanted foreigners to marry locally, others demanded that they pay a minimum amount of taxation, or forced them to acquire real estate, but these differences, jurists sustained, were inconsequential because all conditions were directed to the same end. They all sought to establish the same thing, namely, that the person requiring naturalization had changed his nature and was no longer a genuine foreigner. Historians have thus concluded that, rather than understanding ancient Roman law, what medieval jurists did was to develop methods with which to synchronize and integrate the various legal regimes that coexisted in Europe and the many sources from which they had emerged. Their main task was not to interpret ancient documents but to make Roman, Germanic, local, feudal, and canon law as they were practiced in different parts of the Continent cohere together into a common system, a ius commune. The Results The new techniques created by jurists did not remain an abstraction, nor did they penetrate only the highest echelons of society. Instead they percolated into and affected everyday life even in remote villages. In the late Middle Ages, ordinary peasants in tiny hamlets along the Spanish-Portuguese border often fought over their right to use the land. Although their description of why the land was theirs did not employ the correct terminology (possession), it nevertheless faithfully reproduced juridical doctrine regarding land rights. It suggested, for example, that entitlement depended on having utilized the territory for an extended period of time without encountering opposition. It also pointed out that the silence of rivals could be understood as consent. This conclusion, which referenced a juridical presumption (under ordinary circumstances, silence equaled consent) was also accompanied by the understanding that a violent response against invading neighbors did the contrary, that is, it manifested disagreement. The illiterate peasants who engaged in these debates had not studied law, nor were their vindications prepared by lawyers. However, what they said and did was surprisingly identical to what ius commune jurists argued. It was based on abstractions offered by these jurists after they studied a great variety of customs and ways of doing. How peasants came into this knowledge is hard to ascertain. They themselves gave no clear answer. When asked why they believed certain rules applied, they clarified that the norms they invoked were natural, that they were universal and that, as a result, they needed no proof or explanation. Apparently, by that stage, the conclusions of ius commune were indeed seen as so logical and reasonable and were so widely accepted that contemporaries assumed that they were common to all humanity, they were immutable, and they were true. The study of law that began in the twelfth century thus revolutionized European normativity. Having no formal means to impose itself, it spread across borders and through institutions with or without authorities’ approval. Carried from place to place by jurists who were convinced of its superiority, it allowed them to rethink the existing normative order, refashioning it anew. By the end of this process, there was no place that ius commune did not touch, no field it did not affect.  6 The Birth of an English Common Law ENGLAND FORMED part of the Roman Empire until the fifth century, and Roman and Romanized citizens as well as indigenous Celts and converts to Christianity formed part of its community. Roman law was introduced to the island and affected in diverse intensities both Roman citizens and Romanized natives. What happened next is a matter of debate. According to most scholars, with the withdrawal of Roman troops, Roman law as well as Christianity virtually ceased to exist in England. According to others, pockets of both persisted, most particularly among native Celts and in the western regions. But regardless of what happened in the fifth century, most historians agree that in the late sixth century Roman and canon law were reintroduced to the island by Christian missionaries. Equally present was some version of Germanic law, carried to England by successive Germanic groups that invaded its territory. As a result of these developments, from the seventh to the eleventh century the legal situation in England was not dramatically different from that in other parts of Europe where native, Germanic (including Danish), canon, and Roman law all coexisted to some degree or the other. Evidence from this period illustrates this complexity. In the seventh century, for example, Roman law was taught at a school in Canterbury. During the same period, Anglo-Saxon remedies for various offenses were written down.1 The aim was to replace blood feuds with monetary payment, a move indicating, according to some scholars, the growing influence of Christianity and perhaps Roman law (the debate still lingers). In the sixth, seventh, and eighth centuries, Anglo-Saxon donations and testaments often cited jus ecclesiasticum (ecclesiastical law) as their guide and inspiration, and so did records of slave manumission as early as the seventh century. By the ninth century, Christian influence on legal remedies was particularly clear, many making direct references to the Bible.2 Also during this period, some royal decisions used terms originating in Roman law and so did agreements that included oath. Seventh- and eighth-century Anglo-Saxon charters dealing with land imitated formulas used by papal administration, copied the practice followed in Italy, or bore signs of Frankish and Celtic influence. By the ninth century the number of charters written in vernacular (Old English) grew spectacularly, as did the use of legal formulas of Roman origin. If canon and Roman law gradually penetrated the island, so did feudal institutions. Anglo-Saxon laws written down after the Norman Conquest (1066), allegedly in order to reproduce the legal situation predating the invasion, captured many of these trends. The Quadripartitus (ca.1108– 1118), a collection of such norms that only survives in fragments, contained a Latin translation of Anglo-Saxon laws, a few Latin documents, and two treatises on status, pleading, and theft that followed the structure of Roman law and were influenced by Christian morality. Despite striking similarities between developments in England and in Continental Europe, most historians suggest that beginning in the eleventh and twelfth centuries England took a different path. This path would allow the development of a distinct legal system that, according to most, was very different from the ius commune that came to dominate the rest of Europe. How and why this happened is the subject of this chapter, in which I trace the development of English common law and ask whether it was different from ius commune and, if so, how. Law under the Early Normans After the Norman invasion (1066), nothing indicated that England would take a different path.3 Although early Norman kings established themselves as colonial rulers, taking over the properties of natives, this political, social, and economic upheaval was nevertheless accompanied by a legal continuity. Initially Norman monarchs appeared adamant that such would be the case and proceeded to record the laws that predated their arrival with the alleged aim of arresting any possible encroachment on the existing normative order.4  In line with what was happening elsewhere, Norman monarchs such as William the Conqueror (r. 1066–1087) and Edward I (r. 1272–1307) employed men of letters as aids and councilors. Among such experts was Lanfranc (1005–1089), archbishop of Canterbury. Lanfranc was an Italian- born teacher and canonist who, as a member of the King’s Council, advised William the Conqueror also on secular matters and contributed to the compilation of existing laws and customs. There is also evidence that the teaching of Roman and canon law was introduced into England in the middle of the twelfth century by a jurist from Bologna. This jurist, Vacarius, taught law at Oxford, a new learning center having no clear date of foundation that nonetheless was considered to have begun attracting students in around 1096. To help his students, Vacarius composed a manual (Liber pauperum) that included extracts from the Digest (the sixth-century Roman recompilation of juridical opinions) and the Codex (the book including imperial legislation) alongside gloss. Copies of the Roman Corpus Iuris Civilis soon became available on the Island, and in the late twelfth and early thirteenth centuries the study of Roman law expanded from Oxford to several additional centers. During this period, training in canon law was introduced into local universities and cathedral schools, and many Englishmen studied in Continental Europe, while others avidly purchased Roman and canon law books for their libraries. It is also currently believed that canon law was practiced in the ecclesiastical courts instituted by the Normans in the 1070s. According to this new understanding, it was only after the sixteenth-century Protestant Reformation that a new doctrine emerged in England requiring canon law, now perceived as a foreign law, to be received or approved by kings before it could be applied in the kingdom.5 Thus, it is fair to conclude that England initially followed approximately the same path as many other European countries, where Roman and canon law were studied and practiced yet local legal arrangements also persisted. If this was the case, when, how, and why did England take a different path? The Superimposition of Royal Jurisdiction Historians usually begin the account of English particularism by explaining that Norman kings depended on the feudal lords who accompanied them to the island and ensured its control. Like most other contemporary monarchs, however, they wished to limit the powers of these lords, obtain direct access to their vassals, and acquire full mastery of the land. To achieve this goal, they devised ways allowing them to relinquish gradually the mediation of lords. The method they chose was to extend their jurisdiction throughout the realm. Beginning with Henry I (r. 1100–1135) and substantially intensifying with his grandson Henry II (r. 1154–1189), Norman monarchs began instituting a system of royal courts, which were to be superimposed on all previously existing jurisdictions. How they accomplished this task was beautifully described at the very end of the nineteenth century. Although many historians now contest this narrative, believing it a legend, it is nevertheless a story that deserves telling. According to it, initially Norman kings demanded the right to intervene in disputes and guarantee their peaceful resolution only when they were physically next to the litigating parties. This usually meant that their jurisdiction was limited to individuals who were in attendance at their court. In a subsequent stage Norman kings began appropriating the power to ensure peace on special days such as their coronation or the weeks of Christmas, Easter, and Pentecost. Eventually they moved from protecting dates to protecting territories. They first defined the jurisdiction of their court in a comprehensive way that covered a perimeter of up to three miles from where they were physically located and then applied special protections to the main roads and waterways of the kingdom under the excuse that they led to the court. Gradually the network of roads and waterways under royal jurisdiction was broadened to include almost all roads and waterways. By the close of the thirteenth century, lawyers at the service of the monarchs developed a legal fiction according to which the king was present everywhere in the kingdom. Thereafter, the protection of the monarch, which was once limited to his household, included the entire realm and “the king’s peace had fully grown from an occasional privilege into a common right.”6 The imposition of royal jurisdiction throughout the realm, which was first temporal (protecting certain dates) and then geographic (protecting certain places), was also carried out by assigning certain matters to royal hands. Here, too, the process was gradual. Norman kings justified their growing intervention by indicating that certain issues were of particular interest to them and were thus worthy of their attention. Among such issues were disputes over the exercise of royal franchise or the protection of particular persons.  Despite this extension, local, municipal, feudal, and ecclesiastical courts persisted—except that now superimposed on them was a web of royal jurisdiction. This web was extremely thin: it is estimated that until the late eighteenth century, rarely were there more than fifteen judges in all royal courts. Furthermore, although placed on top, royal judges had no supervisory functions: their jurisdiction was entirely separate from that of ecclesiastical, local, and feudal courts. Adding royal courts on top of the existing system of adjudication, therefore, did not create a hierarchical pyramid. What it did was to allow litigants the choice whether to take their conflicts to local, municipal, ecclesiastic, or feudal courts, or to request royal involvement. Choice, however, was given only to freemen. Those who were unfree had no right to plead before the king and no ability to solicit his protection.7 The growing web of royal jurisdiction led to occasional tensions, but by the thirteenth and fourteenth centuries almost any free man owing allegiance to the monarch could request his intervention in a multiplicity of affairs. This extension was justified by invoking the crown’s responsibility to guarantee peace, which involved primarily the ability to adjudicate conflicts. A Growing System of Writs The growth of royal jurisdiction required the development of new legal mechanisms. If, initially, kings could hear plaintiffs in person, they soon had to delegate this faculty to some of their men. As the number of individuals involved in hearing cases for the king grew, several royal courts were instituted.8 As officials and institutions proliferated, additional instruments were created to regulate their activities. Together these developments, particularly noticeable in the mid to late twelfth century but continuing thereafter, led to the emergence of what we now identify as the English common law. This development was gradual. Early royal intervention was administrative rather than judicial. When the king or his officials received reports of wrongdoing or a breach of the peace, they sent to trustworthy individuals an order to redress the situation. This order, written in Latin on a small parchment and bearing the king’s seal, was known as a “writ.”9 Written in the royal chancery by royal officials, it reproduced the version of the offended party and gave instructions as to how to remedy the situation. For example, a lord might decide that because his tenant did not pay him feudal dues, he should be evicted. If the tenant disagreed and believed he could find no remedy at his lord’s court, he could take the issue to the king. If the king (or his officers) thought the matter deserved their attention, they could issue a writ that instructed the addressee, a man of royal confidence, to make sure that the lord would not proceed to oust the tenant. Writs could instruct lords how to handle the conflict or they could order them to listen to the parties and adjudicate their claims. Writs included an executive peremptory instruction meant to guarantee peace. They were considered an efficient tool allowing the king, who was charged with overseeing the welfare of the kingdom, to intervene in selected cases. Yet although they supplied an efficient and immediate solution to problems that needed redress, they were easily abused. Issued ex parte at the request of the interested party, their grant assumed that the petition was justified. Nonetheless, because those requesting royal intervention sometimes misrepresented what had transpired, in the twelfth century a further development took place. Writs began allowing alleged wrongdoers to choose between complying with the order or appearing before a royal delegate in order to explain why he or she should not. This development, which allowed wrongdoers to defend themselves, was revolutionary. It transformed writs from administrative documents into orders to initiate litigation. Writs now sent the parties to royal officials who heard their cases and decided whether the remedy included in the writ should be granted or not. The need to appear before royal officials, justifying why the writ should be applied or denying that it should, gave rise in the thirteenth century to a procedure known as “pleading.” Armed with a writ, a plaintiff would present himself or herself before a royal official in order to narrate the facts that justified the concession of a remedy. The defendant would respond by denying some or all the facts, by admitting the facts but giving them another interpretation, by denying the relevance of the writ, or by introducing additional factors (excuses) that explained why, notwithstanding, a remedy should not be given. The plaintiff would then respond by invoking a similar set of preestablished answers. This exchange between the parties was extremely formal. Rather than describing the facts of the case, it consisted of a set of pre-ascribed positions and responses that the plaintiff and the defendant could invoke. The exchange continued until it became clear what was agreed between the parties, and what was contested. It was only after this clarity was achieved that the case went to “trial.” Contrary to pleading (that concentrated on claim making), during the “trial” the parties had to prove the facts upon which their claims were based. Proof could be established in a variety of ways depending on time, issue, and place. The parties could take an oath, be subjected to an ordeal, or a jury could be called upon. After the facts of the matter were proven (or not), the adjudicating official (now properly functioning as a judge) determined whether the remedy included in the writ should be granted (or not). How Writs Functioned In the centuries following this transformation, writs became instruments allowing litigants to begin a lawsuit before royal officials. Issued by the royal chancery, they reproduced the decision (1) that the case was within royal jurisdiction and (2) that it justified the king’s intervention. The writ instructed royal officials, now identified as “justices,” to hear the case. If writs were a means to commence litigation, their denial marked the impossibility of addressing the royal courts. In cases in which the chancery decided that there was no reason or cause for the king to intervene, it refused to issue a writ. The immediate consequence was that royal courts had no jurisdiction over the affair. Litigants who failed to secure a writ were thus barred from pleading before royal courts, but they could still find redress in local, feudal, or ecclesiastical courts. Initially writs were issued individually to the person requesting royal assistance and they covered the specific circumstances of his or her case. They were ad hoc and particular, were delivered sealed, and theoretically could be used only once. Obtaining a writ required a substantial investment in time, energy, and funds. Litigants had to convince the chancery that their case merited royal attention, which during this early period was always presented as an exceptional grant rather than a routine right. Because writs depended on the willingness of the king to intervene, they were mostly granted to individuals whom the kings wanted to protect and they covered issues that the king was most keen to control (mainly those that could potentially curb the powers of lords) or that carried a greater risk for a serious breach of peace. They were the product of piecemeal decisions that reflected the monarch’s conditions and interests. But if writs depended on the king’s willingness to intervene, they also were conditioned by the existence of a party interested in obtaining them. Pragmatic and practical rather than abstract and theoretical, writs existed because there was a conflict that required resolution, a party who chose to bring it to a royal court, and a chancery that, representing the king, decided to intervene. Writs thus proliferated in areas in which individuals sought royal protection and the king was willing to give it. This meant that the creation of writs was driven by private interests rather than by considerations of public good, and it was shaped by the economic, political, and social circumstances of the time. The Institutionalization of Writs Although writs began as ad hoc, individual solutions to particular problems, over time some writs became institutionalized. By the mid-twelfth century, and more clearly in the thirteenth century, the chancery began keeping a record of which writs had been issued in the past, and it routinely expressed willingness to continue doing the same. As a result of these developments, writs were no longer ad hoc solutions given to particular plaintiffs on a case- by-case basis. Instead they became a fixed formula that litigants could obtain if they knew what to ask for. To facilitate the identification of existing writs, many received names, such as praecipe quod reddat (“command that he render”), which instructed local authorities to give plaintiffs the land they claimed as their own, or the novel disseisin (“recent dispossession”), which did the same with regard to possession. Contemporaneously, a public list of obtainable writs also made its appearance. The growth of writs was spectacular. In around 1189 there were some forty writs; by the end of the thirteenth century their number was ten times larger. As writs became popular, royal jurisdiction extended, and as royal jurisdiction extended, new writs were produced. In the process, royal intervention, which was originally viewed as exceptional, became routine. By that stage it was possible to imagine that royal jurisdiction would become limitless, eventually supplying a remedy for almost every wrong. The success of writs was tied to monarchs’ ability to attract litigants to royal courts, which litigants preferred over feudal, local, or ecclesiastical courts. There were very few explicit statements of why this was the case, but most historians believe that if litigants preferred royal jurisdiction, it was because they thought it more equitable or more efficient than local or lordly decision making. One of the advantages of royal courts was the ability to compel defendants and jurors to appear in court when summoned. Also important was the fact that judgment rendered by these courts was recorded in rolls, which were safely stored in the Tower of London and could, in theory, be found when needed. It is also possible that royal courts were regarded as instances in which, contrary to what transpired in other courts, an impersonal, rule-bound process of dispute resolution took place. The system of conflict resolution that emerged as a result of all these developments was gradually identified as “common law.” This system was “common” because it was superimposed onto local, municipal, and feudal jurisdictions, it potentially encompassed the entire realm, and it was open to all those under allegiance to the king.10 The commonness that it referenced was political. This stood in clear opposition to ius commune, which, combining Roman, canon, and feudal law, was identified as “common” because it was theoretically shared by all the inhabitants of Latin Christendom. These inhabitants were perhaps divided into a multiplicity of diverse, even rival, polities, yet they adhered, so it was alleged, to a single culture, a single religion, and a single (common) law. Writs, Remedies, and the Growth of Common Law In theory, by granting writs the king (and his officials) supplied the forum (the court) and the procedure (which cases would be heard and by whom) but not the substantive norms that would be applied. It is nevertheless clear that, in practice, by giving access to the courts and by granting certain remedies in certain cases but not in others, the king substantially modified the existing normative order. Each time his chancery issued a writ allowing litigants to seek a specific remedy, it also implicitly recognized the existence of a right. And if allowing litigants access to the court created new rights, denying a writ was the same as the suppression of a right or an obligation. These rights and obligations theoretically continued to exist, but in practice they were no longer available because there was no writ enabling the interested party to request their implementation. This relationship between remedies and rights was to become the most salient feature of common law. This important characteristic was already present in the formative period. In the twelfth, thirteenth, and fourteenth centuries, writs recognized (and thus created) such important rights as the right to inherit land (given by the assize of mort d’ancestor, a writ enabling a plaintiff to sue a defendant for taking land that the plaintiff had inherited after the death of his kinsmen) or the right not to be charged with a crime unless there was an official indictment or presentment (established by the assize of Clarendon, 1166). The linking of remedies to rights became more pronounced as time passed. By the early modern period it occupied such a central place that many began arguing that common law was nothing other than a system of rights, which they identified as the rights of Englishmen (see Chapter 8). During this period, old writs such as habeas corpus (“have the body”) regained particular prominence. It was now suggested that this writ, which ordered authorities to present the judge with the body of the person in custody, constituted a remedy against unlawful imprisonment. It was further argued that, by supplying this remedy, habeas corpus indirectly recognized the right not to be imprisoned without cause. Eventually the idea that remedies created rights would be so important that it could lead to decisions that otherwise could be considered peculiar. This happened, for example, in 1704 when the House of Lords, sitting as an appeal instance, reversed a decision by the Queen’s Bench denying recourse to an individual deprived of the right to vote in parliamentary elections. The denial was based on the commonsense observation that the individual required no remedy because his preferred candidate won the election even without his vote. The House of Lords disagreed because “if the plaintiff has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured.” It was a vain thing, the lords argued, “to imagine a right without a remedy, for want of right and want of remedy are reciprocal.”11 The lords’ conclusion was straightforward: though the inability to vote made no difference because the candidate preferred by the plaintiff won the election anyway, the petitioner must receive a remedy because, under common law, the lack of remedy implied the lack of right. Thus, if the court did not grant the petitioner a remedy, it would be as if it did not recognize his right to vote. The Centrality of Procedure If common law was particular in its insistence on the relationship between remedies and rights, it was also special in focusing attention, not on ensuring material justice (as Continental courts did), but on controlling the way the courts functioned. Because it was founded as a system of licenses (writs) allowing litigants to plead before royal officials, common law was extremely attentive to procedural issues. It did not ask what the proper result should be but whether the right procedure would be followed. Pleading—how the parties translated their agreements and disagreements into legal formulas that could be used at the court—was often considered the most important issue. This translation began when the plaintiff chose to invoke a specific writ, the defendant responded to it, and the plaintiff replied. Because pleading was crucial to defining the issues at stake, experts of common law insisted that it was essential to verify that it was done correctly. In the late Middle Ages this became the main task of royal justices who presided over these exchanges and ensured that the parties followed an acceptable script. Because by that stage knowing which writs existed and how to employ (and answer) them became a sophisticated pursuit, most legal literature was dedicated to describing the complex ceremonies and formulaic exchanges that ruled over the working of royal courts and advised practitioners on how to channel cases through them. The preparation of lawyers followed this route, mostly centering on teaching candidates the art of pleading and procedure. Yearbooks that reported on what happened in courts did the same. Rather than describe rules and principles or narrate the decisions reached by the judges, they reproduced the dialogues between the parties and the judge, which led to the adoption of a commonly acceptable question. The issue for them was how cases were actually formulated and argued (that is, how the facts of the conflict were transformed into legal arguments), identifying what good claims were and how they could be presented. Procedural rules were at the center of how the common-law courts operated, but they were also important for safekeeping the prestige of royal justice. For the royal system to operate well and compete successfully with local, feudal, or ecclesiastical courts, it was essential to guarantee its reputation. This could be done by, among other things, ensuring litigants that a certain procedure would be followed without making exceptions because of the identity of the parties or the nature of the case. Among the instruments devised to do so were the many rules we now identify as embodying “due process.” These rules were designed to make sure that judges would be impartial umpires whose main task would be to give the same opportunities (that is, procedural rules) to both sides, allowing them to plead their cases as if on equal grounds.  Because the task of common-law judges was mainly to oversee the exchanges between litigants at the court, not to verify the making of justice, common law left almost no room for appeals. “Writs of error” allowed a superior court to review and correct the proceedings of lower courts, but these were mostly restricted to procedural errors that were evident in the record and did not extend to challenging, for example, the factual or legal basis for the decision. In exceptional cases, rather than allowing to appeal, common-law courts allowed revisiting a case by ordering a new trial. It is therefore not surprising that even as late as the fifteenth century, common law judges often refused to depart from the traditional system of rules in order to ensure material justice. The contrast with the rest of Europe could not be greater. Continental judges were charged with doing justice. How they arrived at a just decision was not particularly consequential. Although litigants in most countries had to follow a certain procedure in order for their cases to prosper, for much of the medieval and early modern period, this procedure was based on the “practice of the court.” Rather than prescribing a strict formula, it could be abbreviated if the judge considered it beneficial, or prolonged, if justice so required. Suspects of criminal offenses, for example, had a right to trial, that is, the right not to be sentenced without a court reviewing their case, but judges had a huge discretion as to what would actually happen once the case was brought to their attention.12 Until the sixteenth and even the seventeenth century, Continental judges could render decisions “following their conscience” rather than the law. As a result, while common law mostly admitted appeals on procedural issues, European courts did not. There, appeals were always based on the allegation that the decision was unjust, the question whether a specific procedure had been followed or not being considered almost irrelevant. Professionals of the Law During the formative period of common law, members of the higher echelons of royal administration, judges included, were often trained professionals who had studied canon or Roman law at universities or cathedral schools. Ranulf de Glanvil (ca.1112–1190) was an important and influential judge during the reign of Henry II. He was said to have written the Tractatus de legibus e consuetudinibus regni Angliae (ca.1187–1189), which was a manual that surveyed the work of the English royal courts. Meant not only to reproduce the practice followed by these courts but also to give it intellectual coherence and authority, the manual was composed in Latin rather than in French (the language of the court), probably to bring it to European-wide scholarly attention and have it taught in schools and universities. Henry of Bracton (Bratton) had a similar profile. The alleged author of De legibus et consuetudinibus Angliae (ca. 1220s–1250s), a work most scholars now attribute to several authors rather than to a single individual, and not necessarily to Bracton, he too was a royal official who was university trained. Although his participation in the writing of De legibus is currently questioned, it is nevertheless clear that whoever authored this text was extremely familiar with Roman law. De legibus collected the norms of common law while constantly referencing Roman law in ways that echoed contemporary discussions in universities. Among other things, it appealed to ius commune categories and to Scholastics in order to lend coherence to the English records. This was done by drawing similarities and distinctions between different texts in order to demonstrate that they did not contradict each other. De legibus also emulated the order and divisions employed in the Justinian Corpus Iuris Civilis, and it cited numerous passages of it as well as canon law texts. It is now believed that these two cases, particularly notorious, were not unique and that in the twelfth and thirteenth centuries common-law experts looked to and often adopted Roman law solutions much more frequently than we have imagined in the past. It is also clear, though, that beginning in the fourteenth century, successive English monarchs began appointing to the bench laymen with no university training. Instead of preferring jurists, as has been the case before, the main qualification of royal judges was now that they were obedient servants. Because by that time great practical knowledge was required to discern, for example, which writ was appropriate to which case and how it functioned, eventually most royal judges were selected from among the advocates working at the king’s court. By the fourteenth century not only royal judges needed a particular set of skills, mostly acquired by working at the courts; so did the parties who had to identify the correct writ, understand which procedural and evidentiary rules were associated with it, and know how to plead affectively. Adjudication in royal courts also required knowledge of French and Latin, as French remained the spoken language of the English royal courts, and Latin (alternating on occasion with French) its written language, until well into the early modern period. The need for growing expertise led to the emergence of legal specialists. These included a variety of professionals such as procurators (who could stand for an absent party), barristers (who specialized in the actual pleading in the courts), and attorneys (who counseled clients). Barristers eventually organized themselves into guilds and began frequenting certain places. These places, identified as “the Inns,” mostly began as residence halls but soon emerged also as spaces for socialization and training, where young apprentices heard and observed masters perform different tasks. There were four “Inns at Court” where barristers trained, and an Inn of Chancery, where aspiring attorneys watched how writs and other documents were drawn up. By the fourteenth and fifteenth centuries, most Inns also offered apprentices sessions of mock trials focusing on the process of obtaining evidence and following procedures, lessons in argumentation of the law (“moots”), and lectures (“readings”). Lectures required students to analyze written texts, mostly statutes. These texts were often accompanied by factual cases, which were meant to exemplify their meaning and extension. Moots were centered on watching courts in action and conducting exercises mainly focused on procedure, the selection of writs, and pleading. How Common Law Functioned The particular way common law functioned can be exemplified by observing how it developed the distinction between English subjects and foreigners. Most historians point to a pivotal ruling in which this distinction was clarified. In a decision known as “Calvin’s Case,” judges declared in 1608 that birth in a territory under allegiance to the monarch was the condition that rendered individuals English. Why the judges addressed this issue and how they reached their decision is a fascinating story that illuminates the complex procedures by which common law operates. Calvin (whose true name was Robert Colville) was a Scot born after the ascension of King James of Scotland to the English throne (1603). The question the court had to answer was whether, having been born in Scotland after the union of the crowns, Calvin could be considered an English subject. The importance of answering this question was that, if declared English, Calvin would be entitled to inherit land in England, but if he was a foreigner, he would not. The answer the judges gave was positive because they reasoned that Calvin was born under allegiance to James. Allegiance, the judges stated, was owed to a physical person (James), not to a crown or a kingdom (the English crown or England). As a result, those born under allegiance to James in one kingdom were subject to his royal jurisdiction everywhere. Thus, a Scot born in Scotland under allegiance to James could be considered an English subject in England as long as James also reigned there. Today we know that Calvin’s case was a fabricated lawsuit. It was sponsored by a group of individuals who wanted to force a decision regarding the status of Scots. This question had preoccupied James after he ascended to the English throne. He appointed a commission that concluded that Scots should be treated as English subjects, and he insisted that such was legally the case. Yet the English Parliament refused to accept this solution. Because under common-law remedies created rights, the only way to unblock the situation was to bring a case in which, by giving a remedy, the judges would recognize a right, namely, the right of Scots to be treated as English subjects in England. For this to happen, those interested in obtaining this recognition had to find a person who was in need of remedy. The person they found was a young child born in Scotland after the union. This child had inherited properties in England but his right to them was denied because, according to common law, foreigners could not inherit land in England. This child, who claimed to be a Scot in Scotland yet an English subject in England, thus had a reason to bring an action against those who refused him his rightful inheritance. For the court to grant him the requested remedy, it would have to recognize him as an English subject. This was precisely what happened. The court gave Calvin a remedy allowing him to inherit in England, thereby recognizing him as an English subject. Thereafter, Scots born after the union would be identified as such without the need for Parliament to acquiesce to that result. This example makes it clear that even as late as 1608 basic questions such as who was an English subject and who a foreigner could be resolved in England not by a royal decree or a parliamentary act, but by appealing to the courts and requesting a remedy. But Calvin’s case was also exemplary in other ways. The judges reviewing it tied the right to inherit in England to the status of English subject. According to them, only English subjects could inherit land in England; foreigners could not. But this rule too had developed because of the particular characteristics of common law: its unique insistence on the relations between remedy and right as well as on procedural requirements that were often tied to the specific writ that was employed. Today we know that the distinction between those who could and could not inherit land in England probably had nothing to do with foreignness and that, initially, birth outside the kingdom did not make people alien. A question therefore arises: Why and how did the rule connecting land inheritance with foreignness and foreignness with foreign birth come about? According to historians, the reason may have been procedural requirements. The common-law writ that regulated succession determined that, in order to inherit land, petitioners had to prove their genealogy by supplying local witnesses. In cases of petitioners born outside the jurisdiction of the court, the king could order the sheriff of their hometown to send a group of local men as witnesses. However, this solution was impossible when petitioners were born abroad. As a result, those born abroad were eligible to inherit land, but because of the particular procedural requirement tied to the writ regulating land inheritance, they faced real difficulties in proving their right to do so. Initially, whether they were or were not English was completely irrelevant. Nonetheless, over time, because of the tight connection in common law between remedy and right, the practical difficulty in proving genealogy (and therefore securing a remedy) was interpreted as inability to inherit (the absence of right). Thereafter, because there was no remedy (foreign-born individuals could not prove their genealogy and thus their right to inherit), there was no right. The circle was now closed: foreign-born individuals no longer had the right to inherit land in England, and those who could not inherit because born abroad were identified as foreigners. The Backlash The proliferation of writs and the growing presence of royal jurisdiction were not always appreciated by the lords and barons who saw their powers and privileges diminish. Protests against this state of affairs led to a rebellion that ended with the adoption of the Magna Carta (1215).13 Contrary to what is commonly believed, the Magna Carta sought to guarantee mainly the privileges of the barons and freemen, not the rights of all Englishmen. It was concerned with ensuring feudal control over land and feudal inheritance, which legal developments in the late twelfth and early thirteenth centuries seriously threatened. Because the Magna Carta failed to resolve these issues, King Henry III (r. 1216–1272), under renewed pressure from the barons who again rebelled, in 1258 ordered his officials to halt the creation of new writs. In 1285 his son, King Edward I, made a similar promise that no new royal courts would be established and none would extend its jurisdiction to new subject matters. Because the pressure to extend royal jurisdiction continued and litigants persevered in requesting royal intervention, in the late fourteenth century a new system came into being. Its creation was justified by the argument that although no new common law writs were to be established, the monarch still had to attend to special circumstances that justified his attention. Royal conscience, it was alleged, could be discharged only if the king did what he ought to do, that is, defend the weak and dispense justice. To comply with this duty, presented as a moral obligation, the king would institute new procedures. In exceptional cases, because justice so required, he would allow his chancellor to hear litigants and grant them an extraordinary remedy if existing common-law writs supplied none. As a result of these developments, litigants who could use writs already recognized by the Chancery took their cases to the ordinary royal courts (common-law courts). Those who could not find an appropriate solution in the registry of writs addressed the Chancery and requested its extraordinary intervention. This development introduced a new system of conflict resolution. This system was distinguished from common law because its operation, at least initially, was divergent. While by that stage (the fourteenth century) common- law courts were routinely open to all those who could find an appropriate writ in the registry of writs, the new system gave remedies only in exceptional cases and it had no preset list of causes of action. This new system, emerging in the fourteenth century, was called “equity,” and the court that adjudicated these extraordinary remedies was identified as the Chancery court. Meant to deal with exceptional situations, equity was intentionally fashioned as a flexible system with fluidly defined rules. It depended on the discretionary powers of the chancellor, who was empowered by the king to solve difficult cases in which common law supplied no appropriate solution. This, however, did not mean that equity was a completely arbitrary system. Initially most Chancery officials were university trained and many of them were ecclesiastics. As a result, they frequently, directly or implicitly, adopted the criteria, doctrines, and procedure of canon and Roman law. In the fourteenth and fifteenth centuries, equity was where the most exciting legal developments took place. Filling the vacuum left by the institutionalization of common law, equity fostered the creation of new instruments. Among them was the issuing of injunctions—remedies that forbade the defendant from taking certain actions otherwise allowed. Equity courts also elaborated means to enforce judicial decisions, for example, by way of sequestration, authorizing the interested party to seize the properties of the opponent who refused to obey a court order. Another important remedy created by the Chancery court was the prohibition of enforcing unreasonable, even if legal, contracts. Equity also developed important new areas such as trust, mortgages, guardianship, bankruptcy, commercial partnership, and corporations, and included doctrines defining honest mistakes as well as fraud. Despite its original malleability, over time equity also became more institutionalized and more rigid. As with common-law writs, it evolved into a system of permanent solutions. These solutions would find their way into lists of (equity) remedies that the parties could invoke. By the late fifteenth century, equity thus clearly evolved into a second system of royal adjudication that ran parallel to the older system of common law, often interacting and influencing it and vice versa. Thereafter, equity and common law began integrating. This happened in part because individuals trained in common law became chancellors; that was the case of Thomas More (1478– 1535). But the integration of equity with common law was also the result of changes in the Chancery itself. By that time, rather than adopting ad hoc decisions justified as exceptional because meant to discharge royal conscience in particularly difficult situations, chancellors began applying the same principles of fairness to all similar cases. This tendency for repetition became the rule in the second half of the seventeenth century, when the principals of equity were formally systematized and classified. Thereafter, the royal conscience that equity guarded became civil and political rather than natural and internal.14 No longer focused on discharging a subjective royal sense of right and wrong, it now aimed at guaranteeing an objective fairness and providing comparable solutions to similar conflicts.  Royal Legislation Coinciding with the institutionalization of common law and the formation of equity, English monarchs proceeded to legislate. From as early as the reign of Henry II and throughout the Middle Ages and the early modern period, successive kings intervened in the legal order by enacting important statutes touching upon a diversity of subjects. In the Assize of Clarendon (1166), Henry II modified criminal procedure, instructing that all criminal accusations were to be made by a jury of twelve men (presentment). The assize also established that criminal jurisdiction would be in royal hands as would be the execution of convicted felons. Equally famous were the statutes of Edward I that made trial by jury compulsory in criminal cases, extended the scope of actions for damages, and modified various aspects of land regimes. Several edicts by Henry VIII, such as the Statute of Uses (1536), which regulated ownership and taxation, and the Statute of Wills (1540), which allowed owners to determine who would inherit their land, were of importance for property law. The Statute of Frauds (1677) conditioned the validity of certain legal transactions in real estate on these transactions being recorded in writing and the documents being appropriately signed. From the late thirteenth and fourteenth centuries, Parliament, which had begun as an advisory council and a court, began acquiring additional powers. Among them was the hearing and presentation of petitions that sought to address questions of legal, economic, political, or administrative nature. The king’s response to these petitions was considered a legislative act, most particularly when it included instructions regarding applicability in the future. By the mid-fourteenth century, a substantive amount of royal legislation was enacted in this way. Although initiated by Parliament and often almost automatically granted, the power to enact remained exclusively at the hands of the king. Historians have long debated the importance of royal enactments. Some suggest that because royal courts habitually assumed that royal legislation could not contradict existing arrangements, they took great liberty in interpreting it, on occasion even making exceptions to it, expanding its instructions, or, on the contrary, ignoring them altogether. These observers also conclude that common law was superior to royal legislation because legislation mainly repeated rather than changed existing norms, and statutes were not very numerous if compared to the quantity and importance of other legal sources. As a result, even if statutory law was important, it was responsible only for a small fraction of the growth of law, and it mainly functioned in particular areas of law such as criminal law or real property, but not others. Other scholars point out that even as early as the thirteenth century judges habitually discussed what the statutes prescribed. They suggest that lawyers training in the Inns of Court were taught to comment on royal legislation and that statute books were copied for their use. Some even argue that the study of statutes was the centerpiece in lawyer’s education. If legislation was such a marginal component of the legal system, how could this be explained? Is it possible that our image of early common law was influenced too much by seventeenth-century developments that sought to decenter the king and make this law customary? Was England Exceptional? The system we now recognize as common law thus consisted of a collection of remedies and procedures for settling disputes that developed as a result of the growing preeminence of royal jurisdiction. It was based on the belief that royal courts would be more just or more efficient than feudal or local courts, and it was enabled by the success of English monarchs in centralizing the administration of justice and affirming their superiority vis-à-vis both lords and local communities. Although gradually triumphant, until the seventeenth century (if not later) common-law courts nevertheless competed with local, feudal, and ecclesiastical courts, which continued to exist, as well as with the Chancery court, which developed a system of its own (equity). Was the situation in Continental Europe dramatically different? Historians who concluded that England was exceptional tended to concentrate on the impermeability of its legal system to the influence of Roman law. They argue that, although spreading throughout Europe, ius commune failed to penetrate England, at least to the extent to which it influenced other European countries. They suggest that such was the case because, contrary to other European monarchs, the Normans who controlled England had no reason to permit, let alone encourage, the penetration of the new legal method into the realm. According to these narratives, ius commune was unnecessary in England because by the time it became available, the English already had a new, modern, centralized, and efficient legal system that, contrary to those operating elsewhere in Europe, needed no improvement. Hence, while the authorities and inhabitants of other European territories looked to ius commune for inspiration and perfection, no such thing happened in England. This narrative dominated much of the scholarship for many centuries, but it has been criticized since by historians who point out that during the Middle Ages no modern, centralized, or efficient English system ever existed. During this period, the English normative order was divided among royal, feudal, and local courts, and it contained rules originating in Roman, canon, Germanic, feudal, and local law. Royal courts adjudicating according to common law included only a small number of judges, and until the eighteenth century the number of cases they saw was relatively small, if compared to the quantity and importance of cases adjudicated by other courts. Furthermore, in the last two to three decades historians have also stressed that common law was developed by a French dynasty that used the services and advice of Roman and canon law jurists in order to ensure the supremacy of royal jurisdiction. These jurists, whose work was essential in the formative period of common law, employed ius commune terminology, concepts, and methodology. In some areas, such as guardianship and defamation, common law was highly influenced by the work of ecclesiastical courts, and even as late as the fifteenth century allowed Roman jurists to plead. It is also possible that common-law judges might have continued to consider Roman law as an important point of reference even as late as the eighteenth and nineteenth centuries, most particularly when they searched for new insights or desired to create or clarify categories. As far as they were concerned, Roman law was not binding, but it included a collective wisdom that was worthwhile considering, even adopting. During the same period, lawyers and judges might have used Roman law as a means to better comprehend common law in ways that were not vastly different from how Continental jurists used it to solidify and support their own ius proprium. It is also clear that by fostering royal courts and developing procedures that sanctioned their activities, English monarchs sought to achieve what most of their European peers also desired, namely, affirmation of royal superiority vis-à-vis (mainly) feudal lords. The way they justified the extension of royal jurisdiction, by appealing to their obligation to guarantee peace, was not radically different from what happened elsewhere in Europe, where other monarchs also referred to their duty to ensure concord. Yet, while the Norman monarchs proceeded to create their own courts, other monarchs used ius commune for the same purpose. They believed that because of its combination of Roman and canon law it was sufficiently universal to assist them in solving conflicts among communities whose laws were radically distinct. The penetration of ius commune to the territories we now identify as Germany, for example, is currently interpreted as the result of the urgent need felt by emperors for coordination and peacemaking among rival German polities. If all of the above is true, then England diverged from Europe only gradually. Divergence may have become particularly noticeable in the fourteenth and fifteenth centuries, which was when the English monarchs at last succeeded in efficiently extending their royal jurisdiction throughout the realm. Also determinant was the fact that by that stage most monarchs had ceased appointing clerics and jurists to their courts and instead selected laymen who were no longer trained in Roman or canon law. With the absence of university-trained personnel and the preference for practical training mostly acquired by pleading before the king’s court, common law (though not equity) gradually parted from the rest of Europe. Adding to the distance that gradually appeared between England and the Continent was the growing prominence in thirteenth- and fourteenth-century England of lay juries. Juries began as assemblies of local men who answered collectively under oath to questions asked by royal officials. Used in the eleventh and twelfth centuries mostly as a means to collect information locally, in the thirteenth century their employment greatly expanded. During this period, juries were introduced in England in both civil and criminal litigation as a means for fact-finding when other mechanisms, such as oath taking, trial by battle, or ordeal, became unavailable or were considered untrustworthy. Initially testifying on knowledge they already possessed as members of the local society, by the fifteenth century jurors could also consider other types of information that was brought to their attention. Although juries also existed in the Continent and their tasks were similar —to collectively testify to local circumstances—after the Continent moved to adopt the inquisitorial process in the thirteenth century, identifying the relevant facts and deciding the case was reserved to judges, not juries. Eventually these distinct paths would lead the English and the Continental systems in different directions. In Continental Europe, judges would be charged with the implementation of justice and, in criminal cases, would decide whether to investigate, whether to bring the suspect to trial, whether the proofs were sufficient, and what a just resolution would be. In England judges would oversee procedure, yet juries would decide whether to prosecute, which were the fact of the matter, and whether a conviction should follow. Though less notorious, in civil cases the same distinction between a judge charged with ensuring justice (the Continent), and a judge that oversaw procedure (mainly pleading) and delegated decision making in juries (England), held true. These differences, however, did not imply that the system that emerged in England was completely new. Many historians point, for example, to the striking similarities between common and ancient Roman law. They suggest that in both places conflict resolution and the courts were at the center of the legal system. In both places, trials were conceptually divided between a first stage, in which the debated question between the parties was framed (before a praetor in Rome, and during pleading before a judge in England), and a second stage, in which nonprofessionals (iudex in Rome, jurors in England) evaluated the facts of the matter and rendered judgment. In both places, by granting remedies, praetors in Rome and t