Miguel Ilagan

Philo of Law Block 1C

Roman Law in England and English Law in the Continent

University study - Roman law taught by Vacarius, an Italian professor who taught in Oxford England Civilian employment in courts had clerks who have access to Justinian, European compilations However this was opposed by English bench and bar

Introduction of Roman law by the Norman conquest and Henry II Spaces in the law filled by Roman law by Judges who were trained ecclesiastics and schooled in the mainland judges will never admit that they borrow (claimed to find the law in the clouds or in natural reason). Lord Mansfeld acknowledged indebtedness to Roman Law Resemblance is more than accidental borrowed Influence of Roman Law on English Jurisprudence

Changing social conditions and increased importance of personal property called for new law in England and on the Continent

ENGLAND -Royal courts and centralized administration of justice develop new general law without incorporation of foreign body of law in meeting new conditions -Adhered to common law due to developed and serviceable general law

CONTINENT -Roman law was called to meet changing social conditions -There was an increased importance of personal property Roman Law in English System Danger of adopting Roman law in Tudor and Stewart period due to:

Way of looking at the law, on English jurisprudence, and on English lawwriting Glanville 1187-1189 first systematic attempt to write treatise shows strong trace of Roman law Bractons Laws and Customs of England details, framework and illustration reveals influence of Roman sources and from Summa Azonis of Bologna. He borrows form Roman rule whenever English custom could not work out. English Law on the Continent Interpenetration of Roman and Teutonic Law

Teutonic elements in Spanish and Italian law due to Code Napoleon had many concessions to Teutonic laws Specific borrowings of English law in the field of public law English local government which was known as selfgovernment is characterized as having local representatives which was the classic model for Europe The continent however refused practice of having civil jury European Blend No such thing as pure Teutonic law or pure Roman law Variety of European law represents blend of Teutonic and Roman law Continental countries adopted Teutonic rule in the right of a bona fide purchaser of moveables England adopted Roman rule on ownership as distinct from possession Diffusion of European Law: English and Continental European law was a blend of Teutonic and Roman law. It was regarded as one system from the world point of view Movement of discovery, exploration and colonization caused the diffusion of European law in the world. Spain and Portugal took the lead among other countries Dutch, French and English followed later on Spanish Law Ruled West Indies, Mexico, Central and South America, and also Philippines No uniform law for all Spain

Spanish monarchy- congeries of kingdoms under Ferdinand and Isabelle Colonies as personal possessions laws were based of Castilian laws

Ordinance Law and Private Codes Leges de Las Indias 1680 dealt with criminal and administrative laws First official compilation of colonial legislation Left ordinary laws to be inferred from Castilian law

Influence of Spanish Law Today Important part in the law of Louisiana Necessary to translate the old Code of Seven Parts

Portuguese law confined to Brazil

Dutch came mostly for trading and commerce, not to make expansive settlements Strongholds in Netherlands and South Africa French law extended in Canada and Louisiana Laws in the colonies was the custom of North French law Situation in Louisiana in the succession of French-Spanish-French law resulted to a blend of their laws

The English its colonization started later than the other countries Expansion of colonization mostly in North America, South Africa, and Australasia

No attempts to impose English law due to difficulties of administration However some fundamental law must be imposed Child marriage and widow burning in India Extension of European Law by Borrowing and Imitation Extension of European law increased by direct borrowing and Imitation -Turkey and Egypt borrowed from the Code of Napoleon, though still Mohammedan countries -Interest in the Orient of borrowing from the occidental - Japan, Persia, and China as examples of vast spread of European public law - Japan became open to European influences (feudalism to absolute monarchy) Reception of Common Law and Equity on the United States Diffusion of French, Spanish and English law in the Unites States part of the general movement that spread European law all over the world Prevailing court was the commonlaw court Emergence of Lawyer Class people came to know the law more due to wealth and prosperity Simple life of people did not require neat discriminations of equity, there was little equity administered Development of Law in America Many of the states made the common law the law of the land upon achieving independence

Not all common law was received Only so much was adopted to local conditions Abolition of the common-law theory of merger of husband and wife into one person

Anglo-American system of law from the interpenetration of common-law principles with territory theoretically covered by Spanish and French law such as in Louisiana -Arizona and New Mexico have enough Spanish law to prevent from being a common-law states Supremacy of the Judiciary in the United States Americans naturally prepared for the judicial interpretation of the law Supreme Court as the guardian and protector of the highest law of the land- the Constitution Like in England, legislatures are of limited powers conflict with general laws can be set aside by the courts

Generally, no country has a pure Civil or a pure Common lawit is always a mixture.