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THE ROOTS OF ANGLO-AMERICAN INTELLECTUAL PROPERTY LAW IN ROMAN LAW

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by MLADEN VUKMIR

The following discussion is undertaken in order to provide the ground for a comparative analysis of the traditional property institutes with the intellectual property institutes.0 Our opinion is that the existing differences between the legal systems are often exaggerated, and that the property institutes in these various legal systems should be sensibly comparable. In order to demonstrate that, we will emphasize here the views of legal historians who maintain that the legal systems overlap. The extent to which a belief in the separate and unrelated genesis of the civil and common law systems suddenly becomes uncertain after an encounter with comparative research and the fields of mutual influences become visible and self-explanatory is surprising.0

This paper is a part of the larger ongoing research in the field of intellectual property. the aim of the research, entitled Integral Protection of Intellectual Property, is to determine the cultural and historical relation of traditional property law to modern intellectual property law. The crux of the research is directed towards analogizing between certain traditional property rights (in Roman, civil, and common law property) with intellectual property law. A future article will discuss the role of equity in Roman law and its role in intellectual property law. The author would like to express his deepest gratitude to prof. William O. Hennessey for his guidance and support during the work on the project. The author also wishes to acknowledge his gratitude to Fenwick & West, Palo Alto, California, for their support. Mladen Vukmir, 1990. 0 The word institute, as it will be used in this essay denotes an established legal principle, or a legal concept. It is common legal term in civil law doctrine in the same sense, and it should not be confused with the Institutes in the sense of legal compendia such as those written by Gaius, Iustinian, or Coke. Certainly, the meaning of the titles of these compendia denotes the same concepts. In other words, the role of the compendia is to clarify existing legal concepts by compiling legal rules in a certain systematized way, thus enabling the concepts to emerge as institutes. Although such a meaning is not familiar in the common law, some authors, such as Posner, The Economics of Justice, (1981), use the term institution in the same manner as we use institute. See, e.g.,, at page 20: [Blackstone] traced the articulation of the concept in specific rules and institutions of the legal systems of his time. (Italics added.) Finally, The Random House Dictionary of English Language, (2d Ed., 1987) defines an institute as: 10. an established principle, law, custom or organization, and Websters Third New International Dictionary (1986) defines it as: something that is instituted: as an elementary principle: a precept of rule recognized as authoritative. 0 In that respect, without trying to prove that particular rules were taken from Roman law or even that they were consciously shaped after a certain Roman corresponding rule, we will note what Alan Watson in the introduction to his The Making of the Civil Law, (1981), at vii-viii, stated in following words:

Most practicing lawyers would understand the comparative approach to legal systems as comparing the rules that constitute the positive law of the moment, or any moment in history of particular systems. What we will do in the following analysis is different - we will not compare the rules, but institutes and principles under which the rules were created. We will try to see whether common legal principles, which are further operationalized in the form of legal institutes and doctrines, ultimately shape rules which, in the final outcome, are the same or similar.0 If one remains at the level of comparing rules, no legal system is comparable to any other -- including the most similar ones. Consequently, the legal system of one country would not be comparable even to the system of the same country at a different point in time. That approach could lock us into the conclusion that the system of law in the United States in the eighteenth century was not the same as that which this country has today, just because e.g., the old common law rule of contract for employment presuming one year duration of the agreement later on changed generally into a presumption of employment at will, and more recently has in most of the states further specifically changed back from the full presumption of the employment at will granting more protection to the employees.0 Modern historical research can show that the belief that the body of the common law developed entirely separate from the Roman law in its medieval form is unfounded. The
The central issue can be easily stated. The legal elements, such as Roman law, Germanic customs, canon law, and feudal law, which historically have gone into the makeup of modern Western systems are everywhere the same. Yet most modern Western systems of law can be divided into civil law and common law systems, from which it follows that any civil law system is more like another than it is like any common law system.This division of legal systems, however is not paralleled by social, economic, or political conditions in the countries in which the legal system operate. Civil law and common law countries alike may have experienced the same extreme economic and social circumstances, such as the Industrial Revolution, that have bypassed other civil law countries. And the nature of government, whether democratic or tyrannous, does not affect the classification of the legal system. Furthermore, such historical processes as the Industrial Revolution, subsequent nationalism (as the result of it), or the previous religious intolerances, also determine legal history. Therefore, we are inclined to see the particular reflections of a general historical process as a common where others would tend to see them as specific legal developments of a particular legal system and leave it at that. 0 In his letter to Chancellor Kent, Justice Story wrote: I could not well see how I could avoid it [civil law] without leaving future accounts in ignorance of important sources of information, and even without bringing it up the knowledge of the learned in the Common law some views of principles which had carried continental jurists in an opposite light... Joseph Story to Chancellor Kent (May 17, 1834), (Story.Mass.Hist.Soc.27), quoted in Dowd, Justice Joseph Story: A Study of the Legal Philosophy of a Jeffersonian Judge, 18 Vanderbilt Law Review 643, 649 (1965). 0 See, Arthur L. Corbin, Corbin on Contracts, (1952), 70, at 115, Howard O. Hunter, Modern Law of Contracts, 1990 Cumulative Supplement No. 1, ch. 26, 26.01-26.04.

general perception tends to be of an insurmountable gap between the legal systems. How and why did this illusory gap develop? Authors of a different persuasion rarely stop at the similarities which they have found between the legal principles of the Roman and the common law, but in many cases go further and point out the similarities which both systems share with the civil law. It is sometimes hard to distinguish points on which certain historians address particularly not only the relation between the common and Roman law, but proceed to discover broader common ground which they share with the civil law. Moreover, although the Roman law (as far as its rules go) was a dominant branch of historical legal studies, understanding the influence of Roman law on Western culture has not lost an iota of its importance.0 So it is perfectly logical that those who believe that classical culture (of which the Law of Rome is only a part) holds a significant role in the formation of Western societies as they are now would turn to Roman legal institutes in order to observe how new legal and social phenomena, such as intellectual property rights, relate to the traditional forms of property which our societies developed in the wake of Roman property law. There is more of a link than mere cultural roots of Western civilization between common and Roman law. It has been argued, as seen below, that the essential legal principles are the same. In tracing the development, it is crucial to point out that although the English law did not follow directly or receive Roman law to the extent countries which developed civil law systems did, many of the legal principles of Roman law were incorporated into common law at the time the system of stare decisis was at its very beginning.0 Of course, once they had begun relying on existing precedents, the English courts did not need specific reception of Roman law as other countries did. In other words, Roman law, already

W.W. Buckland, Equity in Roman Law, (1911), at 117 et seq.: Even in Germany [* * *] the Roman Law [* * *] has become a branch of historical study. With us it has always been so, and not altogether a branch of the study of our own history, for the direct influence of the Roman Law on our own system, though it has, no doubt, been considerable, is not kept mainly in view in our Law Schools. 0 Arthur R. Hogue, Origins of the Common Law, (1966), at 22, states: The possibility of a medieval reception of Roman law or of canon law in England is so obvious that the legal historians have sought to determine precisely the extent of Roman influence.

incorporated in the common law, has been perpetuated through strings of precedents through time up to our own days. This occurred in tandem with a belief that common law developed completely separately among the lawyers practicing it, who were totally oblivious to the possibility that many of the fundamental principles of English property law were, if not taken from, then correspond to those established first in Roman law.0 Even more than for the rules themselves this is true for the concept of systematization of law which came through the Bractons influential De Legibus et Consuetudinibus Angliae.0 On a few occasions even skeptics admitted certain similarities. Oliver Wendell Holmes, Jr. wrote in connection with the easements: The English law of the subject is found on examination to be the same as the Roman in extent, reason and expression. It is indeed largely copied from that source. For servitudes, such as rights of way, light, and the like, form the chief class of prescriptive rights, and our law of servitudes is mainly Roman.0

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ANCIENT WESTERN INTELLECTUAL PROPERTY

In order to provide a historical context we will examine a single segment of Classical culture that was arguably set forth to protect intellectual property. The research conducted was not substantive: we have not examined Roman sources themselves but have used secondary sources on Roman law instead. In addition, we include the context in which the protection of intellectual property appeared in the ancient Greek culture. The influence of the

The sheer number of the Latin terms in the terminology of common law is indicative. It is enough to mention such randomly selected terms as lis pendens, mens rea, caveat emptor, ad valorem, per se, stare decisis, volenti non fit injuria, nolo contendere, non sequitur, ex parte, in re, in order to demonstrate how widespread and deeply rooted is the presence of the Roman concepts and terminology. 0 W. S. Holdsworth, Sources and literature of English Law, at 29, argues that although the rules were set forth on the body of already existing English law, the arrangement under headings such as persons, things and actions are taken from Iustinians Institutes. Bractons influence will be discussed below. 0 Oliver Wendell Holmes, Jr., The Common Law, (ed. Mark DeWolfe Howe, 1963), at 285-286. We will mention this also in a future discussion comparing the copyright doctrine of the fair use and the patent doctrine of experimental use to the traditional property doctrine of servitudes.

Greek thought on Roman law was substantial.0 By modern standards, the traces of intellectual property as the object of the legal protection are scant. There are no records of intellectual property litigation, nor any kind of registration of property rights as we know them, for example, through a patent system. Nevertheless, the use of the information identical to that which modern intellectual property system protect was extensive and fairly well documented. The forms of recognition of property in creativity were perhaps not primarily legal, according to the records; but the economic life of ideas in the market place was no less intensive than in modern times. This indicates that legal protection itself might have been richer then we are aware of. One of the reasons might be a low awareness and sensitivity of researchers of Roman law towards intellectual property protection institutes. We will provide one example of how the Roman legal institutes conceal their purpose to modern observers in the case of the actio servi corrupti.

Ancient Greece

The ancient Greeks had a system of recognizing design achievements based on awards. The awards system has been a less dominant historical rival to the patent system. Even today, it co-exists with the patent system. Frank Prager attempted to locate the reasons why the protection system did not develop in a more consistent way.0 Among other reasons
Charles P. Sherman, one of the prominent American Romanists, argued in a lecture entitled Roman Law as a World Law that the Roman law itself already incorporated legal rules and principles of the cultures that preceded it. He pointed out that the Greek, Chaldean and Babylonian laws are sources of Roman law. It is known that many of the most outstanding Roman jurists were of Greek, Syrian, Oriental, or African origin. See Sherman, Lecture Notes, in footnote 80, M.H.Hoeflich, Roman and Civil Law in American Legal Education, 1984 University of Illinois Law Review 3, at 719, also W.W. Buckland, Equity in Roman Law, (1911), at 117-118. 0 Frank D. Prager, The Early Growth and Influence of Intellectual Property, 34 Journal of the Patent Office Societies 106, (1952), at 106: It is usually assumed that the modern system of patents and copyrights was developed from so-called medieval privileges, by the exercise of royal, economic statesmanship. The present essay proposes to show that this accepted view is incomplete, and that the system has a second historic root in the ancient and eternal idea of intellectual property. This is the opening statement from an article which is essential for those with an ambition to understand the history of intellectual property law. (This article we will refer to as op.cit.; to each of the others we will refer to with the first words of its respective title.) The quoted article is one in a whole series Prager wrote on the history of intellectual property protection. A History of Intellectual Property From 1545 to 1787, 26 JPOS 711 (1944); Brunelleschis Patent, 28 JPOS 109 (1946); Proposals for the Patent Act of 1790, 36 JPOS 157 (1954); The Steamboat Pioneers Before the Founding Fathers, 37 JPOS 486 (1955); The Steamboat Interferences 1787-1793, 40 JPOS 611 (1958); The Changing Views of Justice Story on the Construction of Patents, 4 The American Journal of Legal History 1 (1960); Trends and
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he considered the slavery system wherein manual labor was entirely done by the slaves.0 The result may have been that slave-owners owned all of the results of slave labor anyway, and were uninterested in recognizing any contribution that has been made by the slaves themselves. This analysis is sustained by the findings of some researchers that in ancient Rome, judicial enforcement of the trade-secret rights of the slave-owner was possible against a person who may have bribed his slave in order to entice him to disclose the secret. Other authors point to the development of trademarks for pottery products in Greece.0 Verona refers to excavations of Solin which reveal that beside the manufacturers sign which is to be found on almost every object, a designers sign was often added. A third mark was the purchasers sign. Greenberg describes a fascinating variety of Greek trademarks on lamps, vases, cups, and amphora in the shape of a cock, a hand, a flower, a cows head, a crab, an anchor, a lyre, and a mask; usually found on the undersurface of the objects. He particularly notes a collection of earthenware lamps from Cyprus dated in the period from 100 B.C. to 200 A. C. which he saw exhibited in the Metropolitan Museum of Art in New York. For our purposes the crux of his remarks is that the lamps carry more than one mark on their undersurface. One of the marks refers most often to the potters name, by initials. The other, (says Greenberg confirming Veronas statement) is employed by the Greek sculptor, to identify his creation. It seems logical at this point to refer to the difference between the ancient personal mark of the artist or skilled artisan, and the true trade-mark of the producer of goods for trade. The Greek sculptor placed his private and personal mark, usually his name, on his creation, whereas the maker of articles for sale in commerce used a symbol to indicate the source of the articles regardless of where

Developments in American Patent Law from Jefferson to Clifford (1790-1870), 6 The American Journal of Legal History 45 (1962); An Award and a Law Obtained by Caron de Beaumarchais, 44 JPOS 147 (1962); and Examination of Inventions from Middle Ages to 1836, 46 JPOS 268 (1964). These articles are the best source of the history of intellectual property protection in American literature. Besides the fact that he provides us with numerous references, Prager also upholds the role of property as the central common element of intellectual property protection systems. See introduction to the first article referred to in this footnote. 0 Albert Verona, Pravo industrijskog vlasnistva, (Industrial Property Law), (1978), at 6, quoting Hubman, Gewerblicher Rechtschutz, (1926) at 9. 0 Verona, id, at 11.

they went.0 While the use of the mark to indicate the origin of manufacture seems somehow predictable in light of the amount of commerce in classical Greek society, the use of the designers mark is reliable evidence of a recognition of the proprietary nature of artistic creativity as well. The use of the mark to denote the creator of the design of an object is similar to the role of the copyright notice on modern copyrightable objects. It is both recognition of personal achievement and warning of ownership that serves as a fence on real estate. Rogers provides further examples, including that of possible infringement. The Greeks marked their works of art with the name of the sculptor. Greek pottery from the earliest times has borne inscriptions, usually the name of the maker and on decorated pieces the name of the decorator. The cup handles from the Ceramicus of Athens beside the makers name often bore real trade marks such as figures of Mercury staffs, oil jugs, bees, lions heads, and the like. Greek inscriptions have been found on Etruscan vases dated from 800 to 400 B.C. This has suggested the question whether these vases were truly a Greek product, or whether the Etruscan potter had copied the trade mark of some celebrated Greek maker, as the Roman engravers and sculptors were in habit of doing in later times.0

In further examination of the possibilities for legal protection or traces of the attempt to introduce the legal protection, Prager extrapolates a few names. Especially prominent is that of Hippodamus of Miletus, a contemporary of Pericles, who wrote an general outline of the law of his time, in which he insisted on enforcement of the rights of creators, proposing that those who discovered anything for the good of the state should be honored.0 Although it never took the shape of law, (in Pragers opinion for philosophical as well as economic reasons) there was at very least some form of recognition granted to intellectual property
Abraham S. Greenberg, The Ancient Lineage of Trade-Marks, 33 Journal of the Patent Office Society, 876, (No. 12, 1951), at 879. 0 Edward S. Rogers, Some Historical Matter Concerning Trade Marks, 9 University of Michigan Law Review 29, (1910), at 30. Rogers refers to: Kohler, Das Recht des Markenschutzes, Wurzburg 1884; Perrot & Chipiez, Art in Primitive Greece, Vol. I, 442; History of Art in Persia, 70, Birch Ancient Pottery, 322, 335, and 10 Encyclopedia Britannica, 140. 0 Prager, op.cit, our footnote 11, supra, at 112, in footnote 12 referring to Aristotle, Politica II, 8,1267 b. Aristotle was criticizing this idea.
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rights. Ancient Rome Historians disagree as to whether Roman law explicitly recognized rights over creations. But we do know that there were an incredible variety of Roman trademarks, numerous known complaints of Roman authors over the conditions of the exploitation of their creation, and an amazing complexity in Roman economy and law. We will leave to future research the chance to discover new authentic evidence of the existence of an organized intellectual property system. Our opinion is that present knowledge allows us to infer that fragments of such a system existed. However, there are no reported cases. In the first place, that may be because the middle age European reporters tended to skip any matter unrelated to the less complex European economy of that time.0 Second, research on the sources of Roman law was never done with intellectual property as a first objective. If such research were conducted by an intellectual property lawyer, it would probably reveal a level of protection higher than we are aware of today. Finally, the texts and cases granting protection to certain rights which today would be considered as the intellectual property rights were beneath the cloak of a different social context. However, it seems that the protection was not extensively granted despite the developed economic stage which the Empire reached. Development was more in the field of trade than in manufacture. Roman society was not industrialized, and authors doubt whether this institution of commerce [trademarks] ever became a system of established law, and whether it did not rely upon commercial honesty and integrity rather than upon the law.0

Rogers quotes Kohler, op.cit., our footnote 15, supra, at 41: That no trace of such an action is found in the commentaries of the Roman jurists is not surprising considering the fragmentary condition of those commentaries at present, especially as it is certain, from existing writings and inscriptions, that there were many legal institutions of the Roman Empire, concerning which we have no juridic commentaries. Jurists and schools of jurists have their prejudices, and there are institutions which have been favored or neglected in juridic commentaries, from purely artificial reasons. A nation is always richer in legal institutions than is indicated by its legal and judicial writings, however full and complete they may be. It would not be less certain, that there existed manufacturers marks and a system for their protection in Rome, if we had the originals of the Roman jurists writings before us, instead of the compilers extracts of them, and if we found nothing on the subject in them. 0 Kohler, op.cit., footnote 15, supra, at 39. See also F. Braudel, The Structure of Everyday Life, (1979).

Nevertheless, some insight into the richness of the known Roman trademarks gives a feeling for the level of complexity Roman commerce reached. Greenberg stated that more than six thousand marks have been identified on the pottery alone. Further, trademarks were found on the loafs of the bread excavated from the sites in Pompei, and on other excavations as well: Eye selves, made and dispensed by Roman oculist, were widely distributed in special containers throughout the Roman world, and these containers displayed physicians name and formula. Metal goods, vases, pottery, glassware, leaden ware, bronzes, gold, and silverware bore trade-marks. [* * *] In addition, the vintners, oculists and cheesemongers have been shown to have used identifying marks on their products.0 Marks used in the Roman trade were fanciful. Besides the drawings of particular objects like animal figures, flowers, or wreaths, geometric abstractions such as a cross, star, crescent or circle were also employed and combined with various background designs and pictorial marks. Drawings of human bodies, faces, or representations of divinities often functioned as symbols denoting the origin of a product. Of special interesting is the use of marks on Roman tiles. The potters name appeared in connection with the circular symbol, the place of manufacture, the clay source and sometimes the consulate year.0 Rogers refers to the same system for marking of bricks, and distinguishes them as early republican (which are short, composed only from the date and sometimes the name of the potter and the initials of the consul) or from the times of the Empire. This corresponds to the system of marking tiles described by Greenberg. Rogers further suggests that in addition to performing the function of a trademark these names and devices indicate a governmental or official regulation.0 He offers an explanation for such a regulation in the fact that it was of the utmost importance when during the year they were sun-dried for the quality of the brick. Only in the spring and in the autumn would the interior
Greenberg, op.cit., footnote 14, supra, at 879. Greenberg, id., at 879, and in continuation: These trade symbols followed the Roman banners and arms, for the trade-marked articles of ceramics, wine casks and oculist salve boxes found in England, along the Rhine, in French towns and in Spain. 0 Rogers, op.cit., footnote 15, supra, at 29.
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of the brick dry evenly, providing the structure of brick with the necessary strength. In addition, Roman architects writings show that it was considered recommendable to use bricks two to five years old. In some cities an attest from the magistrate that the bricks had been molded for more than the five years was necessary in order to use them in a building. It reminds the modern reader, of the use of the trademarks in conjunction with the, for instance, Food and Drug Administration approval. With regard to literary works, Streibich lists six possible sources of income through the exploitation of the literary efforts: (1) the playwriter or poet receiving payments for seats, the gate, at the performances of his dramae or recitations of his work; (2) the ghost writing of speeches or orations; (3) patronage for outstanding work from the wealthy and influential; (4) teaching; (5) blackmail; and (6) copying, duplication or publishing.0 Streibich further singles out, what he considers as one noted exception to the lack of the evidence of legal protection of intellectual property: Following a literary contest in Alexandria during the reign of one of the Ptolemies, Aristophanes the grammarian (c. 257-180 B.C.), acting as judge, selected as the winner a contestant whose composition was certainly not of the highest quality, or the best entry, on the grounds that the other contestants productions were literal copies from the works of well-known authors. The unsuccessful contestants were promptly brought before a tribunal and sentenced as veritable robbers, and thrust out of the city.0 Some authors argue that certain Roman legal institutes had the clear function of protection of intellectual property.0 Bowker, for example, points out that Roman literary relations were protected by law and organized on market principles. He makes four serious assertions in that regard: first, the sale of playwrights was made by dramatic authors such as
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Harold C. Streibich, The Moral Right of Ownership to Intellectual Property: Part I - From the Beginning to the Age of Printing, 6 Memphis State University Law Review 1, (No. 1, 1975), at 4-5. In pertinent footnotes 19-24 Streibich refers to G. H. Putnam, Authors and Their Public in Ancient Times 12 (3d ed. rev. 1896), at 68-79; 76-77, 179; 77,110; 225235; 79-81; 252-253; and 137-181. 0 Streibich, id., at 6, referring to Putnam, Authors, supra, at 74 citing Vitruvius, De Archit., liv. vii. Preface. Richard Rogers Bowker, Copyright; Its History and its Law (1912), at 8; Justin Hughes, The Philosophy of Intellectual Property, 77 The Georgetown Law Journal 287 (1988), at 291, quoting UNESCO, The ABC of Copyright, 12 (1981).
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Terence; second, booksellers sold copies of poems multiplied by slaves,0 and the copies were protected by a certain courtesy of trade, according to Martial, who listed particular booksellers keeping specific works of his for sale;0 third, Cicero in his letters indicated the existence of certain kinds of literary property, including the mechanisms of remuneration to authors. Finally, the rule is to be found in Gaius, that where an artist had painted upon tabula his was the superior right. Bowker estimates that the rule developed before the second century, the time when Gaius is believed to have lived and states that this opinion was adopted by Tribonian, chief editor of the code of Justinian, in the sixth century, and was applied in modern question in respect to John Leechs drawing upon wood.0 Ladas, not specifying the time he considers, states that [i]t seems strange that the idea of property in literary work, as distinguished from that in manuscript, had not been developed at the time.0 According to his pertinent footnote the rule Bowker ascribes to Gaius was a reversal of an earlier rule which secured the owner of the embodiment the rights in creation; And therefore if Titius has written a poem, a history or an oration, on your paper or parchment, you, and not Titius, are the owner of the written paper. Clearly, Romans in the time before second century did not yet distinguish the right of ownership in a creation from a right of ownership in a thing that was its embodiment. This was consistent with the early idea of Roman
Stephen P. Ladas, The International Protection of Literary and Artistic Property, (1938), Vol. I, at 13, also states that [t]he Roman booksellers did a flourishing business, and slave labor was employed to furnish copies promptly, cheaply, and on a large scale. For this, in the footnote 3 he refers to Friedlander, Roman Life and Manners under the Empire, III, 36. See also Streibich, op.cit.,, footnote 22, at 5. So Philip Wittenberg, The Protection of Literary Property, (1957, 1968), at 4-5, referring to Martial, Horace, Pliny, still concluding that there was no notion of copyright developed at the time. He especially singled out Atticus, who responding to the demand for many copies of the works of popular authors, went into the mass publishing business. He had a reader work with a large number of trained slaves who took the dictation directly in book form so that a thousand copies of a small volume of epigrams and poems could be produced in a day. The books thus produced were both plentiful and cheap, selling for as little as what would now be seventy-five cents. Everyone, says Martial, has me in his pocket; everyone has me in his hands. Laudat, amat, cantat nostros mea Roma libellos; Meque sinus omnis, me manus omnis habet. 0 Ladas, id., at 13. Although Ladas briefly reports on the history of legal protection under Roman law, in the footnote 2 he cites sources for his opinion that plagiarism was undoubtedly condemned by public opinion. He refers to Martial, Epigrams to Fidentinus (Book I, LIII, LXII, LXVI), and Cicero, who complained that Epicurus borrowed bodily all his physical theories, his philosophy as well, spoiled what he borrowed and gave no credit at all, as in Snyder, The World Machine, at 134. He also cites Renouard, Traite des droits dauteurs (1838), at 16 in stating that the term in Roman law was derived from plagium - the crime of stealing a human being. 0 Bowker, op.cit., footnote 24, supra at 8. Even extensive research both on Westlaw system, and in English reports did not reveal which John Leech case Bowker refers to. Bowker does not provide conventional footnotes to his assertions, but instead an extensive case index and a chapter devoted to bibliography. In neither does he indicate the source. 0 Ladas, op.cit., footnote 26, supra, at 13.
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property law that the dominium, or ownership, encompasses the thing as identical to the right over it. In later times, however, the Roman concept of property developed in the direction ultimately similar to modern notion of property. Gaius states: It seems to us better opinion that the tablet should accede to the picture, for it is ridiculous that a painting of Appelles or Parrhadius should be but the accessory of thoroughly worthless tablet.0 It was not just copyright law that is to be found in Justinians codification. Arguably, an action found in the text of Digesta0 under the name actio servi corrupti, was an action whose purpose was the remedy of the slave owner against the person who enticed his slave to steal some proprietary information and surrender it to a competitor in exchange for money.0 Schiller considered this action among five groups of cases designed to protect trade secrets.0 He further discussed damages available, as well as criminal responsibility in certain cases. Certainly this appears to be legal recognition of rights, and as such, is distinguishable from the systems of awards present in other ancient societies. This legal action protected some of the rights which we consider nowadays as a intellectual property, yet it was not founded in property law. Schiller concludes: It has been purpose of this article to show that at least this element of modern unfair competition, enticing a slave-employee to divulge business secrets, was ably handled in Roman Law by the actio servi corrupti, an action undoubtedly originally conceived with no commercial aspects in mind. That the other employees were subject to similar condition is shown by the mention of the filius, son, a type of free employee, in this connection. This leads one to believe that the further aspects of trade regulations were part and parcel of Roman and private civil law, for example, the field of trade-marks. Factory marks and firm names were exceedingly common, especially in pottery, bronze and lead; labels
Ladas, id, at 13, footnote 4, Gaius, The Institutes, Book 2, Title I, Sections 33 and 34. The brief discussion of Roman notion of property continues below in connection with Lord Mansfields definition of copyright. See text accompanying footnote 81, infra. 0 Justinian, Digesta 11.3., actio ser.corr. See A. Arthur Schiller, Trade Secrets and the Roman Law; Actio Servi Corrupti, 30 Columbia Law Review 837, (1930), footnote 12, at 839. 0 Schiller, id.; also E. Kintner & J. Lahr, An Intellectual Property Primer (1987), at 129 without elaborating refer to Roman origins of trade secret protection. 0 Schiller systematizes the trade secrets within the unfair competition law. Our opinion is that trade secrets also pertain to the body of property law. For the systematization of the cases in favor of such contention see Edmond Gabbay, All The Kings Horses-- Irreparable Harm In Trade Secret Litigation, 52 Fordham Law Review 804, (1984), at 809, footnotes 30 and 31.
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for drugs and wine bottles were known. Was the owner of a mark of firm legally protected against unfair usage of the mark or name by a competitor? The writer believes this question is to be answered in the affirmative for the classical period. 0 (Footnotes omitted.) There are further Roman rules that a modern lawyer would recognize as pertaining to the broad group of competition law. Generally, Roman law regarding the idea that monopolies are harmful was based on the idea that they are inequitable.0 Later on, the idea became strong enough to be codified by Emperor Zeno, about 480 AD providing: [n]o one shall exercise a monopoly over any... material, whatever by his own authority or under that of an imperial rescript heretofore or hereafter promulgated...0 (B) LINKS TO ENGLAND

Prager contends that this Roman legislation in the field of competition law was reenacted repeatedly throughout the Middle Ages in various European jurisdictions.0 There is no reason to discriminate between the fields of influence of Roman law on different European countries. It seems more reasonable to infer that if the influence existed in one field, that it is likely the similar influence existed in others as well. The origin of the idea that Roman law influenced common law in a significant extent is based primarily on the historical connections and influences that existed between the European medieval states. The field of intellectual property protection is another good example. The quick spread of intellectual property laws over Europe in a mere half a century, from around 1500 to 1570, is an excellent example.0 It started in Venice in late fifteenth century and spread northward immediately, with almost explosive speed.0 At the end of this spread, the patent system

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Schiller, op.cit., footnote 30, supra at 844-845. 3 Inst. 181, as in Prager, op.cit., footnote 11, supra, at 115.

Cod.IV 59, as in Prager, id, at 115. Prager id., at 122, and pertinent footnote 35 gives example of England: 6 Henry III; 25 Edward III; 13 Richard II; 5/6 Edward IV; also 21 Jac. l, the Statute of Monopolies. Several of these are cited in Standard Oil v. U.S. 221 U.S. 1, 31 S.Ct. 502, 513. Note that Prager mistook 5/6 Edward IV for 5/6 Edward VI. For the re-enactments on Continent he refers to J. Streider, Studien, (1925), at 184-188, 201 etc. 0 Prager, id., at 135-140, and A History..., footnote 11, supra, at 715-721.
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Prager, id., at 135.

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was introduced in England.0 There is no reason to believe that for the previous four centuries England was more isolated in its development. Burdick states: The fact that many principles of English law are similar to or identical with principles found in Roman (or Civil) Law, does not convince all writers that the English Law in such instances was borrowed or copied from the Roman Law, since, it is asserted, such likeness may be merely accidental analogies originating from entirely independent sources. The great conservativism of some English writers, also pride in the alleged indigenous laws of their own country, and prejudice, perhaps, against foreign influence, have, in all probability, affected some of their conclusions upon this subject. Blackstone in his first lecture as Vinerian professor at Oxford, published later as an introduction to his Commentaries, speaks with courteous diplomacy of the Civil law, but emphasizes the greater importance of the Common Law of England, and attributes the continued teaching, in his day, of the Civil Law in the English universities to the influence of the popish clergy. He also ascribes the revival of the study of the Civil Law to the long ago exploded story that the Civil Law had become obsolete and forgotten upon the Continent when an accidental finding of a copy of the Digest of Justinian, at Amalfi, in 1135, again brought it into vogue all over the west of Europe. Blackstones views were influenced, doubtless, by his political and ecclesiastical environment. Due to the fact that the law of the Church of Rome (the Canon Law) was drawn largely from Civil Law sources, there grew up in English Protestant circles a conviction, or at last a fixed impression, that the Civil Law, in which the clergy of Rome were more or less versed, was in some occult or insidious way, being used to propagate popish doctrines. The very term Roman Law seemed to connect it with the Church of Rome, and probably many zealous adherents of the English Church believed they were prompting a righteous cause by discouraging the spread, or even the retention, of Civil law doctrines.0 Other legal historians reached very much the same conclusions. For example, Holdsworth in the History of English Law gives to this process even further significance: It would not be true to say that the English law owes nothing to Roman law. At different periods in English history the development of our laws has been
In 1559 Giacomo Aconico, a fortifications engineer from Trent better known as a humanist and fighter for tolerance revealed his knowledge of Venetian patent system to Englishman. So Prager, A History..., at 723-724, quoting in his footnote 79, D.S. Davis, 50 L.Q.R., at 99, and E. Hassinger, Studien zu James Acontius, (1934), at 1-20. 0 William L. Burdick, The Principles of The Roman Law And Their Relation To Modern Law, (1938), at 56-57.
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materially helped by its contact with Roman Law. In the age of Bracton, Roman Law taught the fathers of the Common Law the way to construct an intelligent legal system. In the sixteenth century it helped to make English law sufficient for the needs of a modern state. In the eighteenth century it helped Lord Mansfield to found our modern system of mercantile law. We have received it in small homeopathic doses, at different periods, and as and when required.0 In order to show that the ties and bindings between civil and common law system are not just conceptual, or substantially similar only on the level of analogous legal principles, we will highlight a few characteristic points in history and the particular consequences they left on the body of the law. The influence of the Roman law began very early -- as a matter of fact, at the moment which is often regarded as the breaking point at which the common law begun its independent life. Burdick disagrees with the notion that the Norman invasion was the point from which the English common law started its separate history by pointing out that there are reasons to presume that it actually brought common law in further contact with Roman law. He considers among other factors one which could have been strongly determinative: One of the most significant things in connection with the influence of the Roman law upon the English law during this period is the fact that Williams prime minister and chief adviser was Lanfranc, the distinguished Italian scholar. He was the adviser of the William in Normandy, and later became his chief minister in England. In 1070, William appointed him Archbishop of Canterbury. He was learned in the law as well as in theology, having studied Roman Law at Pavia, his birthplace in Italy. He is said to have been a lawyer of world-wide fame. [* * *] The very fact that such a celebrated Civil Law scholar was the chief adviser of the king is in itself sufficient to cause one to believe that many principles of Roman Law must have been injected into English law at this period.0

The best analysis of the extent of the relations and connections between the various

0 0

Sir William Holdsworth, History of English Law, Vol. 4, (Boston, 1924), at 292-293. Burdick, op.cit., footnote 40, supra, at 65.

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geographic parts of the European continent, is to be found in Bermans Law and Revolution.0 Through familial relationships enhanced by marital alliances, a fine network of influences and interests developed. Such a situation led to mobility today hardly imaginable among officials and priests. For our purpose, the Norman Kingdoms of England and of Sicily were the parts of the same Norman State. Altogether, with the ties with the French territory, the ties between these today hardly related territories were in much closer connection than modern national perspective allows us to recognize. Henricus de Bracton In the history of the doctrinalization and systematization of the common law, one individual has held a uniquely distinguished position. Henricus de Bracton, lived in thirteenth century in England, and in the time of the reign of Henry III wrote a book entitled Henrici de Bracton de Legibus et Consuetudinibus Angliae libri quinque, in varios tractatus distincti. Bractons work is of importance because of its influence on the formation of the common law. Karl Gueterbock was Professor of Law at the University of Koenigsberg in the middle of last century when he published his well known treatise on Bracton. Its introduction, among other things reads: The influence of the Roman upon the English law has generally been underrated. Our increased familiarity in Germany with the English law has indeed led us to abandon the opinion that it can be regarded as the successful growth of a law purely Germanic in its origin and formation, and that we can find in England that unobstructed development of our Germanic law which has been impeded in our own country. But notwithstanding the abandonment of this error, the equally mistaken view is still prevalent that the development of the English law has been entirely uninfluenced by the Roman, and that it should be considered merely the natural indigenous product of the English soil. This latter opinion was for a long time adopted in England. The Roman law, like everything which came from, was considered by English as hostile to their national institutions. Certain politically offensive maxims (e.g. quod principi placuit, legis habet vigorem) were, indeed,
0

Harold J. Berman, Law and Revolution; The Formation of the Western Legal Tradition, (1983). In the chapters 13 and 14, at 404-519, the author provides detail historic overview with commentaries on the significance of particular phenomena.

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considered special reasons for such an opinion. English judges and lawyers avoided having anything to do with the Roman law, and were not ashamed to boast of their ignorance of it, and to show aversion and even contempt for it. So much was the nation imbued with these feelings we find them expressed even in acts of state. Such opinion are, however, no longer held in England. A scientific attention has long since been again turned to the Roman law. Judges and legislators have long acknowledged that the Corpus Juris is an authority which is useful, or rather indispensable, for the English law. The investigation of the legal history, and especially the closer study of the medieval law books, have produced the conviction that the Roman law, without indeed any formal reception, had at certain times not only been held in esteem, but also had enjoyed a practical authority and a partial validity in England. The same studies have also established the fact that the part of the Roman law in the development and formation of the English had been no inconsiderable one, and one certainly greater than had usually been attributed to it; and that many legal principles and even whole heads of the English law had been derived from the Roman, or had been fundamentally influenced by Roman views. The Roman law can therefore justly be regarded by the English as one of the sources of their Common law. The Civil and the canon laws have, indeed, always had a special sphere of application over matters which the Common law did not take cognizance of.0 (Footnotes omitted.) After noting the important fact that the Roman law nevertheless, gained ground in the ecclesiastical courts, and in the Equity system under pretor - chancellors, Gueterbock concludes his introduction: If the materials for the history of the Roman law in England were brought together, the hundred and fifty years lying between the middle of the twelfth and the end of the thirteenth century would be found to be a most productive period. During that period, while the amalgamation of various Saxon, Danish, and Norman elements were struggling to develop a uniform domestic law. Marks of the gradual success of this spontaneous effort are seen in the creation of those peculiar legal institutions and characteristics which distinguish the English law from that of the other peoples. At this very time the English law was brought into immediate and intimate contact with the Roman law, which was just then one of
Carl Gueterbock, Bracton and His Relation To the Roman Law, (Amer.Ed., 1866, 1979), at 13-14. For a civil law approach see also Leonhard, The Vocation of America for the Science of Roman Law, 26 Harvard Law Review 389, (1913).
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the principal and most successful objects of the intellectual culture of the middle ages. A new element was thus introduced into the formation of the English law, whose influence was so great and the results of which were so important, that the whole of that part of English legal history is very properly styled by Biener its Roman epoch.0 The influence of the Roman law, as it will be seen below, was remarkably stronger in equity; and equity is the body in which intellectual property in the United States has its strongest roots.0 Gueterbock does not stop here. Later in his work he states that the influence of Bracton spread further through the admiration and respect of the later scholars, in which he also includes Blackstone. He also points out the influence Bractons clear systematizations had on the judges.0 Even authors more inclined to think of the common law as an cultural entity of separate history like Maitland recognize the early links: We have yet to speak of the most distinctively English trait of our medieval law, its formulary system of actions. We call it distinctively English; but it is also, in a certain sense, very Roman. While the other nations of western Europe were beginning to adopt as their own ultimate results of Roman legal history, England was unconsciously reproducing that history; it was developing a formulary system which in the ages that were coming would be the strongest bulwark against Romanism and sever our English law from all their sisters. The phenomenon that is before us cannot be traced to any exceptional formalism in the procedure which prevailed in the England of the eleventh century. [* * *] No, the English peculiarity is this, that in the middle of the twelfth century, the old oral and traditional formalism is in part supplanted and in part reinforced by a new written and authoritative formalism for the like of which we shall look in vain elsewhere, unless we go back to a remote stage of a Roman history. Our legis actiones give way to a formulary system. Our law passes under
Id., at 16-17. The discussion of the inevitable equitable nature of intellectual property protection will follow in a future article which will discuss the role of equity in Roman law and its present role in international intellectual property law. 0 Gueterbock, op.cit., footnote 44, supra, at 74: The legal historians such as Reeves and Spence, and commentators like Blackstone, Stephens and others alike, esteem him as the leading authority for the older Common law. They regard Bractons work as the source from which a large number of general truths, which are now existing law, derive their origin or their first confirmation. Even at the present day, after a lapse of six hundred years, judges occasionally go back to Bracton, and apply his opinions as existing law. (Footnote omitted.)
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the dominion of a system of writs which flow from the royal chancery.0 Even while expressing suspicion, Maitland found hard to avoid discussion of the influence of the Roman law. Talking about the same period of time Burdick points out: The 12th and thirteenth centuries have been called the Roman epoch of English legal history.51 The writings of this period both lay and professional show that the spirit of Roman Law prevailed almost everywhere. The courts cited it with the approval52 and it was taught in the schools of learning, beginning with the lectures of Vacarius at Oxford in 1143. There is also a tradition that in the following century the son of the great Accursius of Bologna was brought to England by Edward I for the purpose of teaching Roman Law at the same university.53 During all this period Roman Law authorities were habitually cited in the common law courts, and relied upon by legal writers, not as illustrative and secondary testimonies as at present, but as primary and as practically conclusive.54 It is also said by a very conservative writer upon the history of English Law 55 that, during this period of the twelfth and thirteenth centuries, the Civil and Canon Law were perhaps the most important of all the external influences which have shaped the English Law. [* * *] In the 14th century, after the times of Edward I, a reaction against Roman Law set in, and its influence upon English law began to decline. There was no succeeding period that was visibly marked with additional Roman law principles, and there were sporadic cases of open opposition to the reception of Roman Law doctrines in certain matters, but the Roman Law already incorporated within or adopted by English law still remained.0

Of course, in some areas, like the Maritime Law the influenced continued, or even

Pollock & Maitland, History of English Law, vol. II, ch. 9. Cited according to Roscoe Pound & Theodore F.T. Plucknett, Readings on the History and System of the Common Law, (1927), at 398. 0 Burdick, op.cit., footnote 40, supra, at 74-75. Pertaining references are to: 51 Gueterbock, Bracton and his relation to the Roman Law (Coxe, Eng. Transl.), p.16. 52 Selden, c. 8, p.1, et seq. 53 Sweetland v. Curtiss Airports Corp., 41 F.2d 929. 54 Amos, Roman Civil Law, p. 450. 55 Holdsworth, II, 109.

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grew bigger.0 Three points above are of utmost importance. The introduction of the Roman principles into the common law came sufficiently early to be incorporated in the body of law, and through the precedent system be firmly established in the main body of the law, thus making the link invisible, but for the researcher of the history of the law. There are several reasons why the connection appears to be hidden.

It is often pointed out that major role in the formation of the common law was played by the ancient gentile Angle-Saxon law.0 The influence of the indigenous gential laws is certainly not something specific to common law; all civil law systems were founded on gentile laws which were already codified at the time the reception of the Roman law began.0 Thus, civil law systems are also determined by indigenous historical roots later to certain amount influenced by the Roman law. But none of the civil systems today can claim to be a direct extension of the Roman law either. The separation of the church of England from Rome, a political decision, was strongly unfavorable to whatever links there may have been between the legal system of England and those of Roman Empire, which was in the light of political fever as associated with the Church of Rome. Later, in the light of the further development of national awareness in eighteenth century, England found itself involved very much like the nations of continental Europe in favoring particular elements of its history as constitutive of the nation and emphasizing them strongly. Common law certainly was such one element; but in that process whatever relation its history had with Roman law gradually faded evermore.

Burdicks study provides us with a panorama of contending opinions on the origin of the English Law, citing in turn such American and English Justices and scholars as William

Burdick, id., at 75. The influence in the particular case of commercial law may be interesting in the broader context of the relation of intellectual property with commercial law. 0 For the selection of the excerpts of various authors on the Anglo-Saxon law before the Conquest see Pound and Plucknett, Readings on the History and System of the Common Law (1927), at 43-55, with further references. 0 For the history of the German and French legal systems see, e.g., Konrad Zweigert and Hein Koetz, Introduction to Comparative Law, (1987), Vol. 1, at 76-137 for the Romanistic legal family, and at 138-186, for the Germanistic legal family. Although they are closer to Maitland's view, they present some possible influences at 201-204.

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Wirt Howe, Lord Campbell, Lord Mansfield,0 Holdsworth, Welsby and Lord Holt. The latter, Chief Justice of Kings Bench as late as the end of nineteenth century concluded: And this is the reason of the civil law in this case, which though I am loth to quote, yet inasmuch as the laws of all nations are doubtless raised of the ruins of the civil laws, as all Governments are sprung out of the ruins of Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, therefore grounded upon the same reasons in many things.0 However, some authors insist on the origin of the Common Law in the usages and primitive customs which preceded the influx of fidelity.0 Before we continue, let us acknowledge Welsbys opinion on Lord Mansfield: The Civil Law - that splendid monument of human wisdom was to him a well-filled storehouse of reasoning, from which a ready supply of principles and of rules might always be drawn, to guide him in the decision of cases unprovided for by our own jurisprudence. There are very few departments of our own law on which some light may not be thrown by it in the way of analogic illustration, and with respect to very many, as he has frequently had occasion to show, it is of more direct application, being in fact the source from which they have been either partially or entirely deduced.0 (C) LINKS TO AMERICA One of the strongest links between American and English common law is the work of
0

English Chief Justice of the Court of Kings Bench Lord Mansfields influence is most strongly present in commercial law. His effort to bring civil law ideas into the common law was concentrated on an attempt to introduce the principles of causa and promise instead of the common law concept of consideration. He took part also in the decision of the leading copyright case Millar v. Taylor, 4 Burr. 2396 (1769), and describing the right involved as an incorporeal right. The discussion of his definition follows below. 0 Lane v. Cotton, 12 Mod. 472, at 482 (1866), 88 English Reprints 1458, at 1463. 0 Henry Sumner Maine, Ancient law, (1888); Kenelm Digby, Introduction to the Law of Real Property, (1876); Pringsheim,The Inner Relationship between English and Roman Law, 5 Camb. L.J. 352, (1935); Roscoe Pound, The Formative Era of the American Law, (1938); Re, The Roman Contribution to the Common Law, 29 Fordham Law Review, 447, (1961); Peter Stein, Roman Law and English Jurisprudence Yesterday and Today, (1969) Continental Influences of English Thought 1600-1900, 3 La Formazione Storica Del Diritto Moderno in Europa, 1105-1125, (1977); Logic and Experience in Roman and Common Law, 59 Boston University Law Review 433, (1979). 0 George Shearswood, Lectures Introductory to the Study of the Law, (1870), at 153. Another observation of Mansfield by Lord Campbell, Lives of the Chief Justices, 3 ed., III, (Life of Lord Mansfield), at 274: Lord Mansfield had only to consider what was just, expedient and sanctioned by the experience of nations further advanced in the science of jurisprudence. His plan seems to have been, to avail himself, as often as opportunity admitted, of his ample stores of knowledge acquired from his study of the Roman Civil Law, and of the juridical writers produced in modern times, by France, Germany, Holland, and Italy - not only in doing justice to the parties litigating before him, but in settling with precision and upon sound principles a general rule, afterwards to be quoted and recognized as governing all similar cases.

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Sir William Blackstone.0 His treatise on common law, the famous Commentaries, had an extraordinary role in the education of several generations of American lawyers. Surprisingly, even in the Commentaries the notion springs out that he was deeply aware of the numerous links between Roman and common law. For national, or nationalistic, reasons which had began to emerge in all European countries at the time he was writing, he simplified the history of the common law in his first book, thus leaving the impression that the link was less than it actually was.0 Paradoxically, Blackstone, in emphasizing the independent development of the common law, was not at the same time in favor of the system of judicial precedent. To the contrary, and in the true spirit of his time, he believed in the supreme role of the Parliament as the legislator.0 An interesting approach to Blackstone is provided by Berman in his Introductory Remarks delivered at the Annual Meeting of the American Society for Legal History in October 1982. He said: Blackstone, more than a century before Maitland, recognized that the English law had many features that were very comparable with features of other European legal systems, and further, that England was itself governed, in part, by some of the same bodies of law that prevailed elsewhere in Europe.0
0

A famous example is Chancellor James Kents admission in his Commentaries on American Law (the title itself is an homage to Blackstones Commentaries on English Law) that he owed his reputation to the fact when studying law [* * *] he had but one book, Blackstones Commentaries, but that one book he mastered. Quoted in Daniel Boorstin, The Mysterious Science of the Law, (1958), at 3. However, one has to keep in mind Kents other famous admission, the one in which he points the advantages he had over the opposing attorneys, because of his better knowledge of civil law. See Hoeflich, op.cit., footnote 10, supra, and F.H. Lawson, Roman Law as an Organizing Instrument, 46 Boston University Law Review 181, (1966), at 197: But even the literary genius of Blackstone cannot disguise the incomplete and unbalanced character of eighteenth century English law; and it was in that state that the Americans had inherited it by the time they came to draft their Constitution. 0 Thomas E. Scrutton, The Influence of the Roman Law on the Law of England, (1885), at 149, gives over forty examples where Blackstone refers to the Roman or civil law. In the conclusion he states: While Blackstone therefore utterly repudiates any authority of the civil laws in themselves in this kingdom, except in particular courts; and only allows them in those, so far as they have been adopted by the English courts and have derived their authority from the English Crown, he yet recognizes that large portions of the Roman law have been incorporated by Bracton and later authorities into the Law of England. But he bases the authority of these parts, not on their incorporation by text writers, but on their recognition by the judges of the realm. (Emphasis in original.) 0 Arthur R. Hogue, op.cit., at 244, is of the opinion that [f]or Blackstone the competence of the Parliament was so great that he knew of no power in the ordinary forms of the constitution that is vested with authority to control it. However unreasonable a statute might be, Blackstone saw no means of avoiding it; certainly no judge was at liberty to reject a statute, for, in Blackstones opinion, setting the judicial above the legislative authority would be subversive of all government. See also Blackstone, Commentaries, Intro., Section III, and I, 69. Also, Posner, op.cit., footnote 1, supra, at 25-27. 0 Harold J. Berman, Introductory Remarks: Why the History of Western Civilization Is Not Written? 1984 University of Illinois Law Review 511, at 512. Professor Berman continues later on the same page: Notwithstanding his conservativism, Blackstone saw England as a part of a larger world. He saw that the law merchant, although traditionally not part of the English common law, was nevertheless part of English law as a whole, as it was part of French and German and

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Roman Law had less direct impact on the legal development in the United States. Nevertheless, its influence is easy to trace. Its main source is probably the impact of the work of distinguished legal scholars. Other sources through which the link exists is primarily the presence of the Roman and civil law principles to the extent in which they were incorporated in the English common law in early days of its development. But it would be wrong to consider that these incorporation processes ceased in the United States. To the contrary, the early states that formed Union did not hesitate to consult principles of civil or Roman law.0 Illustrative in that respect is Brysons article The Use of Roman Law in Virginia Courts conclusion of which illustrates the process which limited reception of the civil and Roman law in the United States which is analogous to the process by which the influence of English law on American law has declined: As the quantity of Virginia precedents increased, it became less necessary and then unnecessary to cite English cases, to rely on first principles, or to argue from the civil law of Imperial Rome. The rules of the civil law, however, are reasonable and respectable, as George Wythe pointed out, even if they do not have for Virginia the same authority as the English common law. During the first fifty years or so of republican Virginia, many Roman law concepts have became incorporated into the body of Virginia case law, as we have seen , and in this limited form the Roman law survives today in Virginia.0 Regarding the use of classics in Supreme Court decisions, beyond a wealth of cases

Italian law. It was European law. Similarly, the canon law of the Church of Rome prior to the Reformation was as much English law as it was Italian or German or French law. Canon law was no more foreign to England than the Internal Revenue Code of the United States is foreign to Massachusetts or Missouri. 0 E.g., Davis v. Rowe, 27 Va. (6 Rand.) 355, 370 and 374, (1828). W. Hamilton Bryson, The Use of Roman Law in Virginia Courts, 28 The American Journal of Legal History 135, (1984). Same standpoint takes also Richard J. Hoffman, Classics in the Courts of the United States, 1790-1800, 22 The American Journal of Legal History 55, (1978). See footnote 64, supra, and the pertinent text. Hoffman is also presenting the manner in which the Supreme Court introduced some principles even without making any references to Roman law. Another article on the subject is Stein, The Attraction of the Civil Law in Post-Revolutionary America, 52 Virginia Law Review, 403 (1966), at 403-404. Some the U.S. cases which refer to Roman or civil law listed in the footnotes of cited articles are: Dandridge v. Lyon, Wythes Reports 123, 125 (1791), Turpin v. Turpin, Wythes Reports 137, 142 (1791), Pendelton v. Lomax, Wythes Reports 4, 8 (1790), Ross v. Pynes, Wythes Reports 69, 72 (1790), Dawson v. Winslow, Wythes Reports 114, 119 (1792), Carry v. Buxton, Wythes Reports 183 (1793), 23 V. (2.Rand.) 150, 241, 242, 319; 24 Va. (3.Rand.) 260, 345; 25 Va. (4 Rand.) 372, 638; 27 Va. (6 Rand.) 335, 337, 338, 560, 657, 5 Va. (1 Call) 317; 8 Va. (4 Call) 401; 9 Va. (5 Call.) 230; 10 Va. (6 Call) 180, Branch v. Burnley, 5 Va. (1. Call) 147, 159 (1797) (per Pendelton), etc.
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from the District Court of Puerto Rico and former District Court of Philippines discussing various aspects of the civil law which were applied, there is another, more important group of cases from the District Courts of the United States cited in an article by Hoffman: While classics are not used as extensively by the Supreme Court as they are by the High Court of Chancery, their presence is noteworthy. Twelve classical references are made in five cases by four Supreme Court justices, one Attorney General, and several lawyers arguing before the court. In spite of fact that this number seems small, two points should be made. First, in this period, the case load of the Supreme Court was not great. Nevertheless, classical references appear in almost one-fifth of the cases heard, the same percentage as found in Wythe. Second, the most controversial case in this period was Chisholm v. Georgia (1793), and it is in this case that the greatest number of classical references occurs.0 Justice Joseph Story and the Influence of Lord Mansfield The history of scholarship of the legal development of the United States reveals several distinguished individuals which were aware of the role of Roman Law even in modern society. Doubtless, one of the most prominent was Joseph Story, Associate Justice of the Supreme Court,0 and Dane Professor at the Harvard Law School. Born in Massachusetts in 1779, and graduated from Harvard College in 1798, Story studied for the Bar in the law offices of Samuel Sewall. As a student he was never trained in Roman or civil law, yet he grew to be a great admirer of it. It is possible that he was influenced by his discovery of the impact of the Roman law on Lord Mansfield and Sir William Jones, whose work he studied and appreciated very much from the early years of his career when he worked on admiralty

Hoffman, id., at 58. At 64 he refers to three Supreme Court cases that used ancient Greek references. Although these were historic rather than juridic in their nature, he singles out Chisholm v. Georgia, 2 Dallas 419, 424, 459 (1793), as the most important one. Other two are Ware v. Hylton, 3 Dallas 199, 207, 234, 259 (1796), and Talbot v. Jansen, 3 Dallas 133, 139 (1795). 0 For more on various aspects of Storys career and appointment to the Supreme Court, see R.Kent Newmyer, Justice Joseph Story on Circuit And a Neglected Phase of American Legal History, 14 The American Journal of Legal History 112, (1970), and Justice Joseph Story, The Charles River Bridge Case and the Crisis of Republicanism, 17 The American Journal of Legal History 232, (1973), Morgan D. Dowd, Justice Joseph Story and the Politics of Appointment, 9 The American Journal of Legal History 265, (1965), Gerald T. Dunne, Joseph Story: The Lowering Storm, 13 The American Journal of Legal History 1, (1969). Finally, Prager, The Changing Views of Justice Story on the Construction of Patents, 4 The American Journal of Legal History 1, (1960).

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cases. A student of his work stated that his knowledge of Roman law was derived from secondary rather than primary sources, like Austin; his main reading and his main analysis centered upon the civilian tradition rather than readings in Roman texts.0 The approach he undertook in his writing was comparable to the one taken by Lord Mansfield. It is curious indeed that the relation between the two men was not simply of admiration Story had for his senior influence, but the fact that they have both left to intellectual property law some concepts which have stayed very much relevant till the present day. Lord Mansfields contribution was the attempt to define intellectual property as the right over intangibles; and it left a strong mark on the United States law. Story, on his behalf, left a landmark doctrine of intellectual property law, the doctrine of the fair use as formulated in the case Folsom v. Marsh.0 It could be hardly a coincidence that the two doctrines, which are still cornerstones of the field, were initially formulated by the lawyers who had Roman law background.0 An analysis of Folsom v. Marsh, and primarily of the English authorities Justice Story referred to in his opinion, reveals most of the influences that shaped the American version of the common law doctrine of the fair abridgement0 which Story skillfully built into the American copyright law. Out of the sixteen English cases Story refers to in his opinion, three should be distinguished on the basis of the influences of either Roman law or Lord Mansfield. There are no explicit references in Storys opinion, but there are both implicit and explicit references in the English cases he cites. Storys great contribution to the doctrine was his systematization of the various criteria set forth in the English cases on the basis of the underlying factual patterns into a coherent set of criteria embodied today in the doctrine of fair use as it is now codified by the Copyright Act of 1976.
M.H.Hoeflich, John Austin and Joseph Story: Two Nineteenth Century Perspectives on the utility of the Civil Law for the Common Lawyer, 29 The American Journal of Legal History 36, (1985), at 59. The article is masterly systematization of the types of the approach to the role of the Roman law in the development of the common law, as well as an example of an objective approach to the issue. 0 Folsom v. Marsh, 9 Fed.Cas. 342, (Case No. 4,901) (1841), 13 Copy.Dec. 991, 1000-1001. 0 For the comparison between the two, with a lot of references to the interpretation of their work, both from the civil and common lawyers, see Hoeflich, op.cit., footnote 65, supra, at 65. 0 See e.g., two of the cases Justice Story refers to: Gyles v. Wilcox, 2 Atk. 141, Barn. C. 368, 370, (March 6, 1740), 27 English Reports, Full Reprint 602, 603; Tonson v. Walker 3 Swanst. 672, 678 (April 25, 1752), 36 English Reports, Full Reprint 1017. It is worth noting that the term fair abridgement is, as used in Gyles v. Wilcox, hundred years older than Folsom v. Marsh.
0

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The earliest of the three cases with a reference to either Roman law is Pope v. Curl0 Story refers to the case as the leading case of the doctrine of literary property which he considers as more intelligible and reasonable.0 The case set an important precedent for the matter of property in letters and is an often cited authority in English copyright law. In his short opinion in the case of Mr. Pope, Lord Chancellor Hardwicke, without any reference to authority, states the following rule regarding the property of the author and of the receiver in letters sent: But I am of opinion that it is only a special property in the receiver, possibly the property of the paper may belong to him; but this does not give a licence to any person whatsoever to publish them to the world, for at most the receiver has only joint property with the writer.0 The rule is strikingly similar to Roman law rule as it was formulated by Gaius who stated that where an artist had painted upon tabula his was the superior right.0 The second case, Gee v. Pritchard,0 refers explicitly to Roman law. In the argument the prevailing party cites Cicero in the footnote to the opinion. The attorney for plaintiff, arguing for the injunction said: It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property possesses such a right of property in them, that they cannot be published without his consent, unless the purposes of justice, civil and criminal, require the publication.0 Attached to this paragraph is the following Latin text: At etiam literas quas me sibi misisse diceret, recitavit, homo at humanitatis expers, et vitae communis ignarus. Quis enim unquam, qui paululum modo bonorum consuetudinem nosset, literas ad se ab amico missas, offensione
0

Pope v. Curl, 2 Atk. 342 (June 17, 1741), 26 English Reports, Full Reprint 608. In Folsom v. Marsh, 9 Fed.Cas. Folsom v. Marsh, 9 Fed.Cas. 342, at 346.

342,346.
0 0 0

Pope v. Curl, 2 Atk. 342, 26 English Reports, Full Reprint 608. See our footnote 27, Bowker, op.cit., footnote 24, supra at 8. Probably the rule was adopted first in the mentioned case of John Leechs painting upon wood, and as such was already common law at the point when Lord Hardwicke referred to it as to an authority. 0 Gee v. Pritchard, 2 Swanst. 403, (July 17, 28, 1818), 36 English Reports, Full Reprint 670. In Folsom v. Marsh, at 346. 0 Gee v. Pritchard, 2 Swanst. 403, 418, 36 English Reports, Full Reprint 675-676.

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aliqua interposita, in medium protulit, palamque recitavit? Quid est aliud tollere a vita vitae societatem, quam tollere amicorum colloquia absentium? Quam multa joca solent esse in epistolis, quae prolata si sint, inepta esse videantur? Quam multa seria, neque tamen ullo modo divulganda? Cic. Phil. ii.0 It is not the only Roman reference in this decision. In the text preceding the argument cited above, Lord Chancellor Eldon cites Pliny in an attempt to determine the property of the receiver in the letters: The cases of Pope v. Curl (2 Atk. 342), and Thompson v. Stanhope (Amb. 737), render it doubtful to what extent the court recognizes the doctrine of property [receivers] in letters. Thus Plinys letter are said to have been written or revised for publication. (Plin. Episi. l. 1, ep. 1.).0 Finally, in Mawman v. Tegg,0 Lord Chancellor Eldon referred extensively to an unnamed opinion of Lord Mansfield regarding the piracy of intellectual property, specifically a dictionary, again using the Latin terminology. The following paragraph is even more important as the evidence of the influence of Lord Mansfield on Justice Story. It is clear that what is today Section 107(3) of the Copyright Act of 19760 and was articulated as a legal doctrine in the United States in the opinion by Justice Story was originally articulated in the common law by Lord Mansfield. Mawman v. Tegg is the case to which Justice Story refers, and it contains the paragraph that reveals the origin of the doctrine.0 Lord Mansfields influence on the American intellectual property law was remarkable, and in some aspects in continues until today. A good example of it will be
Id., at 427, 679. The attorneys for the plaintiff seeking to continue the injunction were Sir Samuel Romilly and Mr. Roupell. The plaintiff prevailed. The translation of the paragraph by D.R. Shackelton Bailey, Philippics, (1986), at 37, is: Then there is the letter he said I wrote him. In his hopeless ignorance of civilized conduct and the usages of
0

society, he read it aloud. Has anyone possessing the least acquaintance with the behavior of gentlemen ever produced a letter written to him by a friend with whom he had subsequently had a difference and read it aloud in public? That amounts to robbing life of its social foundations, abolishing intercourse between absent friends. How many jokes find their way into letters which would seem silly if produced in public, along with much that is serious but on no account to be divulged! (Cicero, Philippics, 2.7.10)
Id., at 414, 674. Mawman v. Tegg, 2 Russ. 385 (August 4, 5, 7, 17, 18, 21, 1826), 38 English Reports, Full Reprint 380. In Folsom v. Marsh,at 348. 0 15 U.S.C. (1976) 107(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 0 Mawman v. Tegg, 2 Russ. 400-401, 386-387. ..., although I cannot entertain any doubt that a man may pirate a dictionary, yet, when you consider what the language is which both Lord Mansfield and Lord Ellenborough have used in summing up to juries in respect to pirating dictionaries, charts, &c., it would be going a great way to say, that the language of their directions does not suppose, that, in cases of this kind, something ought to be left to the jury as a matter of fact. In the case, for instance, of a dictionary, Lord Mansfield expressly says, that you are not merely to look at what is published in the one work being part of the other work, but that you are to consider, whether the matter alleged to have been copied has, upon the whole, been used in such manner as to shew (according to the language of Lord Ellenborough in another case), that the party meant to give to the public what might fairly be called a new work; or whether, on the other hand, in robbing the former author of so much of his work, he acted as Lord Ellenborough express it, animo furandi. (Italics in original).
0 0

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discussed below. To start the discussion we will try to focus by presenting a flaw in legal reasoning we found repeatedly in the opinions of United States courts. Of course, by the repetitive nature of the stare decisis it was bound to stay, and as the consequence the word of law became unclear. The mistake is done by confusing the nature of the object with the nature of the right itself. In short, often in copyright related cases the courts state that copyright is an intangible right.0 Even the Supreme Court has been prone to this solecism, and described the copyright as this intangible right.0 Such a definition does not make sense on two levels. First, on the linguistic level, it is paradoxical to distinguish a right on the basis of its intangibility, because there is no such right that would be tangible. It is not only thus in the common law; there are no tangible rights in any legal system. On the legal level, the definition does not make sense either. We have to explain this historically. Blacks Law Dictionary defines copyright, among others, as: [a]n intangible, incorporeal right granted by statute to the author or originator... It could be inferred that the definition was based on the same source on which the Supreme Court relied in its definitions of the right -- Mansfields well-known opinion in Millar v. Taylor where the copyright was defined as: The property in the copy, thus abridged, is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words or sentences and modes of expression. It is equally detached from the manuscript or any other physical existence whatsoever.0

It appears strange that Lord Mansfield would describe imprecisely the right at issue.0
It is not often that common law courts discuss the legal nature of an institute, but the issue often arises when National Stolen Property Act, 18 U.S.C.A. 2314 is to be applied. A copyright which is an incorporeal, intangible right or privilege existing of both its physical manifestation and the very thing copyrighted is not a good, ware, (or) merchandise such as the felony provisions of the National Stolen Property Act are implicated. U.S. v. Smith, 686 F.2d 234, 239-244, (1983). 0 So, e.g. Justice Day in American Tobacco Co., v.Werckmeister, 207 U.S. 284, 299, 29 S.Ct. 72, 77 (1907), ...the statute must be read in the light of the intention of Congress to protect this intangible right as a reward of the inventive genius that has produced the work. (Emphasis added.) Sometimes, courts use expression as: infringement of its copyrights in the fifteen scripts and conversion of its intangible property rights. Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, (1984). Clearly, the property concerned is intangible and such use appears to be more accurate. 0 Millar v. Taylor, 4 Burr. 2303, at 2396, (1769), 98 Eng. Rep. at 253. C. Reinold Noyes, The Institution of Property; A Study of the Development, Substance and Arrangement of the System of Property in Modern Anglo-American Law, (1936), at 306, for analysis of the use of the term incorporeal in
0 0

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Rather, it seems that Lord Mansfield was using the term in the sense in which Roman lawyer would do it, by identifying the object of ownership with the right over it.0 That use may appear as a mistake from the modern point of the civil law theory of property where the right of ownership is sharply distinguished from the object itself.0 However, in the language of the common law the term property is used even today so as to denote the object of the right.0 By doing so, common lawyers are actually closer to the early Roman conception of dominium which signified both the object and the right over it than to the modern civil law theory. Conclusion In an article entitled The Civil Law And The Common Law Peter J. Hamilton envisioned possibility that the systems may converge in the future on a premise that some country will adopt a newly created mixture of the two. Although he based his conclusions in part on the assumptions inferred from the climatic and mentality of the particular nations some of his observations are very sharp. Hamilton began his comparison by turning to the historic position of Roman law as the source to both of the systems: Perhaps some day there will be a union of the two in some favored land now on the firing line of the Saxon and Latin civilizations; certainly there are modifications of the one by the other in progressive countries even now;
English and Roman law. Noyes is pointing to John Austin, Lectures on Jurisprudence, (1832, 1869), vol. I, at 368, who traced the error in the related case, to the jargon of English law in which the term is used to denote the material object. And, in fact, that may be the clue to the seemingly imprecise words of lord Mansfield. He was likely trying to point the fact of the right in the material object, but did not distinguish it from the right in the creation which it was embodying. However, the use in the modern legal jargon is wrong, because we do distinguish the two. 0 Noyes, id, at 357, addresses the problem as follows: In the most cases the American courts use the word thing as a synonym for material object. Nevertheless, when the medieval term incorporeal is used, the thing seems to be a nonpossessory interest - or an interest less than dominium - in some material object. And, unfortunately the newer term intangible is in process of being spoiled in the same way, referring not to immaterial wealth or services but to nonpossessory interests, as if it were synonymous with the legal term incorporeal. 0 Dr. Marijan Horvat, Rimsko Pravo (Roman Law) (1957) vol. 1, at 143, ascribes the distinction to the influence of the Greek dialectic philosophy. Further, the distinction as the matter of the legal differentiation are to be found first in Gaius, as to the res incorporales quae tangi non possunt as opposed to res corporales quae tangi possunt. At the same place he points that Romans considered only tangible things (corpora) as the possible objects of the rights, while the intangible things, (iura) were commonly identified with the right itself. 0 According to Burdick, op.cit., footnote 40, supra, at 312, in the United States at the present time, incorporeal rights are usually classified as consisting of easements, profits a prendre, rents and franchises. In the same paragraph Burdick describes ten incorporeal hereditaments from the Blackstones classification, and on the preceding page points out that Bracton followed Gaius and Roman law classification. It is not strange than, that that usage remained in the later development of the common law, as many aspects of Bractons writing did.

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nevertheless, for the present we must think of them as different if not opposing systems. It is, however, not easy to define their differences. Every system of law must cover substantially the same subjects, although in the different way. Certain it is that these two systems of law both originated in the Aryan stock, and that the early Roman law, from which the civil law is derived, presents strong analogies to the primitive Germanic customs from which the common law is descended. There is one striking difference in the original elements to which less attention is paid than is deserved. The Roman law, like the Greek before it, in its origin is based upon the gens system, that is upon the system of kindred groups which have expanded beyond the immediate family, while on the other hand the German races when they come within the ken of history have groups of kindred, to be sure, but kindred which does not make up any closed gens. In other words, at the formative period, when it settled in its historic home, the Latin stock was still based upon the gentile system, while the Germanic, probably on account of more extensive wanderings, was passing from the kindred group to the group based upon locality. Particularly was this true in England, probably because the appropriation of Britain by the Angle-Saxons was more gradual than is recognized in the legend of Hengist and Horsa.0 However idealistic Hamiltons opinion regarding the Utopia where the legal systems will blend may have been in the time when the article was written, nowadays the blending of the systems within the European Economic Community seems most natural and smooth process. As it may have been hard for Hamilton hard to envision that any country would launch in the reform of its legal system by adopting the elements of other legal systems and incorporating them in the body of its own law, it showed how far the genius of prediction can go if based on the understanding of the advantages of diversity. Seventy years later we can with more confidence conclude that the convergence is taking place in the countries which belong to both systems. We have especially in mind the emergence of the new law of the European Economic Community which is created in an environment utilizing both statutory provisions of the existing state laws and stare decisis interpretation of these law in light of the Treaty of the
0

Peter J. Hamilton, The Civil Law And The Common Law, 36 Harvard Law Review 180, (1923), at 180-181.

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European Communities,0 through the opinions of the European Court of Justice. The extent to which traditional common law countries introduced statutes or semi-codified rules of procedure into their systems, and the trend in the civil law countries to publish court decisions and consult them in addressing the court should not be overlooked. A good example of the extent in which civil law jurisprudence refers to the court decisions can be found frequently, for example in International Copyright Law and Practice.0 In this

compilation, published in the United States, local experts from the various parts of the world review the positive laws of their respective countries. In doing so more than often they refer to the local judicial decisions regardless of the fact that they are covering a civil law jurisdictions. The authors writing on the copyright laws of Argentina,0 Hungary,0 Poland,0 Sweden,0 or Switzerland,
0

all make numerous references to the court decisions from either

trial, or appellate level in their respective countries. Beyond the foregoing, the most obvious differences between the legal systems is the matter of the priority of sources in applying the law to the facts -- that is, in priority of the precedents in common law systems over the codified law, as opposed to the priority role of statutes over the case law in civil law systems. But the hierarchy of the sources (not historical sources of law in this context, but the sources of authority), is not determinative to the law itself when the principles which lay above the rules which are being applied are similar. The point is that it is possible that in legal systems of various countries particular rules may express the same legal principle with a different result. Still, for those who insist on a difference we have to stress that we are not negating the emphasized role of the judiciary in the common law, nor are we negating its law-making role and exemplary independence. Not the priority of the sources, but the legal principles upon which the rules are modeled is what matters.
0 0 0 0 0 0 0

Treaty Establishing European Economic Community signed in Rome, on March 25, 1957. M.B. Nimmer & P. E. Geller, International Copyright Law and Practice, (1989). Id., Miguel A. Emery, Argentina, e.g., 2 [1][b] footnotes 12-18, 2 [2][c]-[e] footnotes 22, 23, 27, etc. Id., Dr. Mihaly Ficsor, Hungary, e.g., 2 [4][a]-[e] footnotes 11, 12, 15, 16, 27, 4 [1][a] footnotes 26-28 etc. Id., Dr. Jerzy Serda, Poland, e.g., 2 [3] footnote 9, 4 [3][c] footnote 63. Id., Dr. Gunnar Karnell, Sweden, e.g., 7 [1][b] footnotes 105, 106, 8 [1][d] footnote 129. Id., Franois Dessemontet, Switzerland, e.g., 2 [1][b] footnotes 29-33, etc.

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The other rather obvious difference between the systems is the visibility of the institution of the jury in common law. The history of the development of the jury from the body of persons giving the testimony to the courts to its modern role is an autochthonous element of the common law systems as much as the system of following the precedents. Indisputably, the autonomy of the jury played an important role in providing the autonomy of a particular court when making decision under the external pressure of political will. As a final result it relieved the judicial branch from the pressures, and helped establishing the judicial system as truly independent. As such it served its function fully and provided the autonomy of courts which is easy to envy. But that does not mean that the legal principles of the common and civil law are too different to be fruitfully compared. However, the modern civil courts also use an institution similar to those of the juries in common law jurisdictions. Many European countries, both Western and Central, use the institution of the judicial council in many proceedings. Typically, it means that instead of the judge sitting alone the trial will be conducted before the judge accompanied by the two lay or juror judges, or in front of the panel composed of two judges and three lay judges in criminal trials.0 The idea of the role of the lay judges is to provide the same type of the objectivity expected from the jury, but as the lesser expense then the jury trial. After the culmination of works in the Thirties there is no significant work published after the beginning of the Forties, other than the several cited articles devoted to the history of the teaching of the Roman law in the United States. Reviewing the previous scholarship on the subject Roman law has mostly went out of the U.S. legal curriculum. It could be only inferred that it is not merely coincidental with the Second World War. American skepticism regarding studies of history and legal history of Europe grew into the disinterest and temporary rejection. However, despite historical evidence to the contrary, the belief in the entirely distinct
See e.g., Yugoslav Code on Civil Procedure, Sections 13, 43, 44 (Official Gazette SFRY 4/1977, as amended), and the pertinent provisions of Croatian Law on Regular Courts Sections 1-169 (NN, SRH 5/1977). In Yugoslavia the term is juror judges.
0

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nature of the common law remains the general point of perception, and the incompatibility of the two system is taken for granted even without studying the problem. There is no doubt that such a belief was shaped by political factors. As George Parkin Grant suggests in his book English Speaking Justice, the fact that the liberal idea embodied in the societies based on parliamentary democracy was working successfully, reduced the interest for intellectual reexamination of it or any other concept drastically. A common law lawyer rarely attempts to reach any conclusions about other legal systems. Thinking in the terms of comparative advantages of the both systems is a heresy. Concluding his book Grant refers to such contentions in the following words: In the task of lightening the darkness which surrounds justice in our era, we of the English-speaking world have one advantage and one great disadvantage. The advantage is practical: the old and settled legal institutions which still bring forth loyalty from many of the best practical people. The disadvantage is that we have been so long disinterested or even contemptuous of that very thought about the whole which is now required. No other great western tradition has shown such lack of interest in thought, and in the institutions necessary to its possibility. We now pay the price for our long tradition of taking the goods of practical confidence and competence as self-sufficiently the highest goods.0

George Parkin Grant, English Speaking Justice, (1974, Notre Dame Press 1985), at 89.