Freedom, Society, and State - Ludwig von Mises Institute

Whi Ie this no doubt took place, its extent is a
matter of dispute and it is possible that Leoni exagg
era t est h earn 0 u n t 0 f j udie i a} I a w- rna king by Roma n
jurists and, accordingly, underrates the importance of
legislation. The renowned legal historian Edward
Jenks, for exampl e, points out that the Roman Emperor
c I aim ed, and wa sacknowledgedt 0 posse s s, the "r i g h t t 0
leg i s I ate." And J e n k s a r g u e s, i n fa c t, t hat leg is 1a t ion
is a product of Roman ideas.(17) And H. F. Jolowicz
notest hat the two for ma Iso u r ces 0 f Roma n Law we r e
statute and professional opinion and writings; ttit is
eve n do u b ted," he adds, "whe the r the c I ass i cal j uri s t s
recognized custom as a source of the law at all ••• "
However, Jolowicz goes on to point out that the import
a nee 0 feu s tom " was i mmens e • Not on} y werethe s y s ­
terns with which the revived Roman law came into contact
themselves customary, but the medieval mind looked to
custom as the ultimate authority in any case•••"(18)
What eve r the rei a t ion between c us t om and leg i s I a ­
tion in ancient Roman law, there can be little doubt as
the relatively greater signficance of custom in the
Eng lis h comm0 n I a w . This i s no t t 0 say t hat leg is} a ­
t ion was tot a I 1Y a bsen t • P I uc knet t c ommen t s t hat even
in this bastion of common law "we find a fairly cons
tan t s t ream 0 f }e g is} a t ion, from the ve r y beg inn i n g 0 f
authentic Anglo-Saxon legal history about the year 600
cont inuously down to the present day." But, he quickly
adds, thi s was generally used for "only comparatively
t r i v i a I mat t e r s • " ( 1 9) And, a s Ca r t erand Her z po i n t
out,
If all legislation in England and the United
States were suddenly declared null and void
there would still be a body of common law and
equity on which to depend ••• If, on the
other hand, common law and equity were suddenly
swept away, the basic foundation in
bot h coun t r i es for the rules governing such
matters as contracts, wills, trespass, or
I i bel would be missing, except insofar as the
r u 1 e sin the s e fie 1d s ha ve been em bod i edin
1e g i s I a t ion. ( 20 )
The common law is law based on custom and tradition,
and Pre-Norman England had a complicated network
of "county courts" rendering decisions based on existi
n g c u s tom s. And a I tho ugh Will i a m the Ba s tar d, 0 r
Wi II iam the Conqueror as he was better known, appointed
his own men to pr e ide over these courts in the elev-
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