Authored By: George Yong
University of Nottingham, England
This essay assesses the validity of Sir John Baker’s statement that English law “flourished in noble isolation from Europe”[1], through four main contributions. First, it will clarify the statement’s meaning. Second, it will outline the historical background of English legal development within the 12th century. Then, it will ask whether English law really “flourished in noble isolation from Europe”. Lastly, it will conclude with an opinion on the statement.
The Statement: In framing this paper’s argument, it is important to understand Baker’s statement. Here, he asserts that despite the intellectual enlightenment in the academic study of Roman law during the 12th century (for example, with the rediscovery of the Justinian’s Digest), English law had developed its own sophisticated system and procedural framework without this. Thus, he argues that in the context of Roman influence on English common law, unlike other European legal systems that heavily or directly integrated Roman legal frameworks, English law had independently created its own distinctive framework. As such, English law managed to “flourish” in “isolation”, in a “noble” and distinctive way that was not a wholesale reception of Roman law.[2]
Historical Context: During the 12th century, England underwent significant legal developments – especially after the events of the Anarchy and the ascension of Henry II to the throne in 1154. As part of his Angevin reforms, Henry II imposed several new procedural arrangements that evolved the state of English law beyond its former Anglo-Saxon and Anglo-Norman traditions. In criminal justice, the Assizes of Clarendon (1166), and consequently the Assizes of Northampton (1176) (which were both significant royal enactments made by Henry II) increased administration on criminal justice to direct royal control over prosecution of all serious crimes in the country. For land law, Henry II’s royal writs introduced novel aassizes, providing various specific actions concerning land – designed to provide a remedy for narrowly defined situations. For instance, in Glanvill (c.1188), the treatise outlines writ rules, where no free treatment could be made to answer the tenant of a particular property without a royal writ[3]. The unique system of writs, where Pollock and Maitland asserted as developing a “formulary system which the ages…would be the strongest bulwark against Romanism”[4], led Baker to make his assertion. However, while English law resisted wholesale Romanisation, its development was not completely immune to Roman influence. For instance, the rediscovery of Justinian’s Digest and the developing influences within Roman legal studies at the university level spread across Continental Europe, consequently feeding into English legal education and practice. Thus, the next section will evaluate whether English law flourished in noble isolation, by critiquing whether it stands independently or selectively adapts alongside Roman-canonical influence in shaping 12th century English legal reforms.
Against the Statement: It can be argued that, since Rome invaded Britain in 43 AD, Roman law inexorably has some part in English legal development. Despite English law being often described as developing in isolation from continental systems, evidence reveals that Roman law has influenced several key aspects of English legal evolution. This is first evident within the ecclesiastical courts where Roman terminology was used to specifically distinguish between two Roman legal concepts: possessio (possession) and proprietas (property). Furthermore, Cheney’s analysis, through sparse evidence and academic argument demonstrates how Romano-canonical influence was present within ecclesiastical courts between 1140 and 1160[5]. For example, Cheney examines Archbishop Theobald’s Charter (recording a dispute between Reading Abbey and St. Dennis Abbey), where Roman terms like “antiqua et longi temporis prescription” (long-standing prescription) and “ita quidem ut tam de proprietate quam de possession nichii” (addressing both property and possession) are being utilised.[6] As such, Roman influence is illustrated through the use of terminology. The Charter illustrates a transitional phase in which restitution and procedural forms began reflecting Roman law principles. Roman influenc, however, did not remained confined to ecclesiastical jurisdictions. Roman influence continued to extend beyond linguistic borrowings into procedural structures under ecclesiastical courts. Here, the concept of possession was further refined under the Papal Court, where procedural jurisdictions and structured litigation continued to be heard by papal judges, as seen in the Council of Reims (1148), where papal judges formalized the distinction between possessio and proprietas.[7] By the 1150s, the courts address possession as a preliminary issue separate from ownership, thus underscoring the continued adapting influence of Roman procedural principles into English property law. This distinction between factual possession and proprietary right was absorbed into lay property disputes, influencing early possessory assizes such as novel disseisin and mort d’ancestor. Thus, with the procedural separation of possession from ownership, Roman procedural thught provided the conceptual groundwork upon which English property law, both ecclesiastical and lay, evolved.
Besides this, Roman law influence is also present through the concept of novel disseisin. Here, Roman influence is evident through the distinction of possessio (possession in having physical control or use of the property) and dominium (ownership) – another key concept within Roman law. In highlighting this distinction, McSweeney discusses the intersection of novel disseisin with the Roman law concept of possession in English courts based on a fictional case between William and Henry, where Henry appeared in court to dispute the word “dissiesed” since William never had seisin of his land.[8] Thus, McSweeney reveals a subtle distinction based on Roamn law. The distinguishing factor between a person who is seised and a person who is in seisin demonstrates how Henry II equates the Anglo-French word seisin, with the Roman legal term possession, hence revealing Roman law influence of possession to an English case. From this, we can infer that the Roman procedural rules on possession through its distinctions against ownership are reflected in English law.[9] With the presence of these distinctions reflected on assizes and writ systems where English law looks to provide remedies for those that are being “disseised” of their land, this underscores the significance of Roman law influence within English legal development during the 12th century, and thus challenges the notion that English law “flourished in noble isolation”.
Despite this, it should be noted that there are some weaknesses to the proposition that Henry II’s reforms of land law were inspired by Roman law. For instance, McSweeney concedes that several scholars have revealed that the distinction between seisin and right-tracked possession and property were poor and vague within Henry II’s reforms as they are two abstract rights, often held by the same person.[10] Moreover, McSweeney mentions Anne Duggan where she states that while jurists of Henry II’s reign knew Roman law, these pieces of evidence reveal superficial borrowings that are only limited to specific political or legal contexts.[11] So, while Roman law provided the conceptual vocabulary and procedural models that shaped English property law, it is asserted that these borrowings and evidence are sufficiently significant enough to challenge Baker’s assertion. Its adoption was neither wholesale not uniform, instead reflecting selective borrowing adapted to create the distinctive development of English law.
Anne Duggan challenges the assertion of English law flourishing in “noble isolation” through her analysis of William FitzStephen’s account of the Council of Northampton (1164).[12] She reveals that the Becket controversy demonstrates compelling evidence of an adaptation of Romano-canonical pricniples in influencing English courts, while maintaining its own distinctive procedural framework through Henry II’s legal advisors utilising specific Roman legal terms to strategically create legal challenges against Becket.[13] This is evident where legal advisors utilised terms like condictio certae pecunia (claim for a specific sum) and action tutelae (action for guardianship) to advance “civilian-style claims and actions in the context of the king’s court”.[14] However, it must be noted that these Roman law concepts are only strategic integrations rather than full integrations. The royal court at Northampton did not fully adopt Roman law, like that of a “wholesale reception”.[15] Instead, Henry II’s legal advisers use it to devise a strategy that is done through “very high level of legal expertise at the heart of the king’s administration”[16].
Besides this, Dugan turns to specific clergymen to demonstrate the presence of Roman concepts being utilised in England through education and literature circulation. She demonstrates this in her discussion of canonists and royal clerks, such as Arnulf (the Bishop of Lisiex) and Gilbert Foliot (the Bishop of London). Here, they have incorporated Roman law principles through their extensive background in Roman law and have permeated Roman influence into ecclesiastical courts[17]. For instance, Arnufl and Foliot attended Italian law school in Bologna during the 1130s, to which they have cited Roamn law, such as Corpus iurus civilis (a collection of fundamental Roman jurisprudence texts with the Codex, Digest and Institutes) in royal court contexts through their deep knowledge of the ius commune.[18] It is through this that Duggan concludes that Romano-canonical influence has been adapted into English writs and other legal instruments contributing directly to the development of Henry II’s legal reforms, such as the possessory assizes.[19] As such, this development directly challenges the notion made by Baker in English legal development flourishing in “noble isolation from Europe”. As reiterated by Duggan, “the Roman law was seeping in through all the seams, directly through texts and persons indirectly through the rapidly developing ecclesiastical courts”.[20] Thus, Duggan challenges the notion imposed by Baker, by arguing that albeit no full adoption of Roman law into English law, Roman law concepts have been adapted into procedural frameworks, by discussing why one should be cautious of overestimating Roman influence.
For the Statement: Despite evidence of the substantial influence of Roman law present, many academics have argued in support of the notion that English law “flourished in noble isolation from Europe”. Ultimately, once Roman law was discovered in Europe during the 12th century, English law had developed long enough to prevent Roman influence as opposed to other nations, given its historical foundations from Anglo-Saxon, Norman periods.[21] This is present with the continued resistance of Roman influence within England, thus limiting the adoption of Roman law principles in English courts through “efforts made to curtail the authoritative influence in England of the Roman laws”.[22] In his analysis, Sherman discusses Vacarius – a leading academic figure in Roman law, who according to the Gervase of Canterbury, became the first known teacher of Roman law in England.[23] Brought to England in the 12th century, Vacarius was prohibited from lecturing on Justinian’s Digest at Oxford in 1149, by King Stephen, who forbade him from teaching and even retaining one’s possession of the “obnoxious books of Roman law”, given that there was an increase of English prejudice against whatever bore the name “Roman” at the time.[24] As such, this institutional effort supports Baker’s notion that English did flourish in noble isolation from Europe. The fact that Roman law was met with such opposition from royals reflects a striking motivation to preserve English legal independence away from Roman law influence, thus supporting the notion. However, (in another argument) while Shearman argues that English law still maintains its distinct identity through its principles in property, tort, and corporations, he later concedes that various Roman law elements such as possessio and proprietas distinctions permeated English law through paradoxical borrowing and adaptation, rather than full incorporation.[25] Thus, under this hybrid approach of adaptation and borrowing, presents a paradox that challenges Baker’s notion of “noble isolation” by not entirely excluding Roman influence.
Schools of Thought: Further support to dismiss the presence of Roman influence can be seen through different Schools of Thought. For instance, the Instrumentalists downplayed the Roman impact on Common law by merely holding that Roman law was an indirect source of English law.[26] These instrumentalists are the jurists and text writers who adapted roman principles to fit in the English legal system even while maintaining that Roman law itself as not a direct source of authority in Englush courts. Walker asserts that Roman law is of minor importance for the English common law, as it is not a direct source at all. He argues that since Roman law was never applied as a wholly independent system within the English courts, it has limited judicial influence and relevance altogether.[27] I disagree with this school of thought, as Roman law has permeated the courts. Walker’s argument overlooks persuasive evidence like the Becket’s Trial at Northampton in 1164 in showcasing Roman influence in English common law courts. As discussed, (in the Council of Northampton), Henry II and his legal advisers strategically deployed various Roman procedural tools to trap Becket under the English courts, hence demonstrating direct influence. Sriram reaffirms this, as it is not so much the form of reception in Common law, but it is the substance which counts.[28] Therefore, the presence of Roman impact on the common law was indeed direct, as shown through procedural frameworks and previous disputes like the Council of Northampton. Walker’s omission of these compelling pieces of evidence thus rebuts Instrumentalist notions of indirect impact.[29]
The Sceptical School contends by disparaging Roman impact on English law. Here, they focused excessively on what Roman law could not do for the English legal tradition while overlooking the credit it deserves for making additions to Common law doctrines and procedures.[30] Academics of this view, like Munroe Smith, argue that while Roman law was diligently studied in England in the 12th century, this age of academic enlightenment had less effect on the English bench and bar compared to the rest of Continental Europe, as acquaintance with Roman law was neither regarded as integral to legal education.[31] I disagree with this school of thought, given that this opinion merely trivialises the extent of Roman influence in English law by stating that Roman law “had less effect”, even where there is selective Roman law influence present within the evidence that was discussed so far. Additionally, while it may be argued that this was not essential for a legal career, the use of words like proprietas and possessio (for example) are fundamental procedural tools within the English courts. Fully indulging in this school of thought would dismiss Duggan’s discussion of clergymen like Arnulf and Gilbert Foliot (whose knowledge of the ius commune came through their educational background in Bologna) enabled them to make ecclesiastical court decisions in bridging Roman legal concepts into English legal practice.[32] It essentially fails to count for the influence of Roman-trained clerics on English court decisions and their role in adapting Roman principles where common law lacked precedent. In support of this disagreement, Sriram refutes this by arguing that the lack of Roman law in legal education in England did not prevent lawyers and judges from resorting to the use of Roman principles when they could not find a Common law authority to the matter.[33] As such, it can be asserted that the Sceptical School has its argumentative flaws in supporting Baker’s assertion, whereby English law “flourished in noble isolation”.
Conclusion: English law did not flourish from Europe but developed through selective adoption of Roman law principles. While it created its distinctive procedural framework, English law engaged with Roman law texts and principles through selective borrowing and adaptation, such as possessio and proprietas. This hybrid approach allowed English law to adapt its unique system while drawing inspiration from Roman law.
Judging whether English law has flourished in noble isolation based solely on these views ignores key evidence such as the Council of Northampton, Glanvill, and other English procedural tools derived from Anglo-French origins within Roman legal frameworks. As Sriram concludes, there is substantial evidence to suggest that the Roman impact on the Common law “is indeed an inescapable legacy and not a legend dabbling in the realm of fiction,” despite attempts by the Schools of Thought to trivialise the extent of Roman contributions.[34] By refuting Instrumentalist and Scepticalist claims, this essay concludes that English law flourished not in noble isolation but through a hybrid approach that selectively integrated and adapted Roman law principles into English law frameworks.
Reference(S):
[1] Baker, ‘The Introduction of English Legal History’ (3rd edn, OUP 1990) 28
[2] ibid
[3] McSweeney, Between England and France: A Cross Channel Legal Culture in the Late Thirteenth Century in ed. Richard W. Kaeuper Law Governance and Justice: New Views on Medieval Constitutionalism (Leiden, 2013)
[4] Pollock & Maitland, “The History of English Law Before the Time of Edward I” (2nd edn, CUP, 1898) 558
[5] Cheney, Possessio/Proprietas in Ecclesiastical Courts in Mid Twelfth Century England in John Hudson and George Garnett (eds), Law and government in medieval England and Normandy essays in honour of Sir James Holt (CUP, 1994), 245-254
[6] ibid, 245-246
[7] Cheney (n. 5), 249
[8] McSweeney (n. 3), 73-76
[9] ibid,74
[10] McSweeney (n.3), 81
[11] ibid, 83
[12] Duggan, “Roman, canon and common law in 12th century England: the council of Northampton (1164) re-examined” (2010) 83(221) Historical Research 379, 379-408
[13] ibid, 386
[14] ibid, 381
[15] ibid, 386
[16] ibid
[17] ibid, 390-391
[18] ibid
[19] Duggan (n. 12), 400
[20] ibid, 401
[21] R.C Caenegem, The Birth of the English Common Law (CUP, 1988), 89-92
[22] Shearman, “The Romanticisation of English Law” (1914) 23(4) Yale LJ 318, 328
[23] Catto, J. I., The History of the University of Oxford: I The Early Oxford Schools (1st edn, OUP, New York 1984), 9
[24] Shearman (n. 22), 322
[25] Shearman (n. 22), 328
[26] Sriram, “Roman Impact on Common Law: Legend or Legacy?” (2004) Student Bar Review 25, 29
[27] R.J Walker & M.G. Walker, The English Legal System (Butterworths, 1972), 52
[28] Sriram (n.26), 29
[29] ibid
[30] ibid, 29-30
[31] Munroe Smith, The Development of European Law (New York: Columbia University Press, 1928), 291
[32] Duggan (n.12), 390-391
[33] Sriram (n. 26), 29-30
[34] ibid, 44
