Influences of Roman Law and Civil Law on the Common Law

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<strong>Influences</strong> <strong>of</strong> <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> on the Common
<strong>Law</strong>
I. Introduction
Diana Nestorovska ∗
Common <strong>Law</strong> practitioners have <strong>of</strong>ten been hostile to any perceived <strong>Roman</strong> <strong>Law</strong> or <strong>Civil</strong>
<strong>Law</strong> intrusions into their legal system. Despite this, <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> have
influenced the Common <strong>Law</strong> at various points in English legal history. In examining how
the Common <strong>Law</strong> has so been influenced, this essay will firstly define the terminology that
will be employed hereafter <strong>and</strong> examine the formative years <strong>of</strong> the common law, equity
<strong>and</strong> the nation­state. The impact <strong>of</strong> <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> influences on the English
legal system during these periods will subsequently be analysed. Finally, having regard to
the key features <strong>of</strong> the Common <strong>Law</strong>, this essay will evaluate the arguments for <strong>and</strong> against
the harmonisation <strong>and</strong> eventual merging <strong>of</strong> the Common <strong>Law</strong> with <strong>Civil</strong> <strong>Law</strong>, <strong>and</strong>
determine whether any such rapprochement is feasible <strong>and</strong> occurring.
For the purposes <strong>of</strong> consistency <strong>and</strong> clarity, it is prudent to outline the terms that will be
used in this essay. 1 ‘<strong>Civil</strong> <strong>Law</strong>’ encompasses canon law, mercantile law, maritime law,
legal principles espoused in Continental juristic writings (eg the Glossators, German
P<strong>and</strong>ectists etc.) <strong>and</strong> the codified national systems <strong>of</strong> Continental countries such as France
<strong>and</strong> Germany, all <strong>of</strong> which can trace their roots to <strong>Roman</strong> <strong>Law</strong>. 2 ‘Common <strong>Law</strong>’ refers to
the common law, equity <strong>and</strong> statute while ‘common law’ refers to the body <strong>of</strong> laws that
∗ In the final year <strong>of</strong> a Bachelor <strong>of</strong> Arts, Bachelor <strong>of</strong> <strong>Law</strong> degree at the University <strong>of</strong> Wollongong, NSW,
Australia. This essay was originally submitted as a research paper for LLB337 Comparative <strong>Law</strong> in spring
session 2004; an elective <strong>of</strong>fered by the Faculty <strong>of</strong> <strong>Law</strong>, University <strong>of</strong> Wollongong, NSW, Australia. The author
wishes to acknowledge Dr Thomas Musgrave, Sub­Dean, Faculty <strong>of</strong> <strong>Law</strong>, University <strong>of</strong> Wollongong, NSW,
Australia, for the original essay question <strong>and</strong> for his comments on the original research paper. The essay question
was as follows:
‘Despite the <strong>of</strong>tentimes fierce, <strong>and</strong> sometimes even irrational resistance <strong>of</strong> Common <strong>Law</strong> practitioners in the past
to what they perceived as encroachments <strong>of</strong> aspects <strong>of</strong> <strong>Roman</strong> <strong>Law</strong> or the <strong>Civil</strong> <strong>Law</strong> into their legal system, the
English legal system has in fact been influenced in many ways by <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> by the <strong>Civil</strong> <strong>Law</strong>. In what
ways has the Common <strong>Law</strong> been so influenced, <strong>and</strong> what impact has this had on its development <strong>and</strong> functioning
as a legal system? Does the fact that the Common <strong>Law</strong> has at various times <strong>and</strong> in various ways adopted
elements <strong>of</strong> <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> the <strong>Civil</strong> <strong>Law</strong> into its system demonstrate that the Common <strong>Law</strong> is capable <strong>of</strong>
mutating into a legal system which can be harmonised with, <strong>and</strong> eventually merge, with the <strong>Civil</strong> <strong>Law</strong> at some
point in the future, or are there essential attributes <strong>of</strong> the Common <strong>Law</strong> which would prevent such a process from
occurring?’
1 Adapted from the terminology used by G. Gorla <strong>and</strong> L. Moccia in A ‘Revisiting’ <strong>of</strong> the Comparison between
‘Continental <strong>Law</strong>’ <strong>and</strong> ‘English <strong>Law</strong>’ (16 th ­19 th Century)’ (1981) 2 Journal <strong>of</strong> Legal History 143, 144.
2 Ibid.
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emerged from the traditional forms <strong>of</strong> action. 3 ‘European common law’ refers to the period
prior to the rise <strong>of</strong> national legal systems when ‘common legal rules <strong>and</strong> principles spread
throughout Continental Europe <strong>and</strong> Engl<strong>and</strong> thanks to a transnational spirit <strong>of</strong> mutual
underst<strong>and</strong>ing…<strong>and</strong> ‘fraternity’ amongst jurists.’ 4 Finally, ‘<strong>Roman</strong> <strong>Law</strong>’ refers to the
Emperor Justinian’s Corpus Iuris <strong>Civil</strong>is, as differentiated from the law <strong>of</strong> the classical
<strong>Roman</strong> period. 5
II . <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> <strong>Influences</strong> on the Common <strong>Law</strong> <strong>and</strong>
their Impact
(a) The development <strong>of</strong> common law
The common law developed during Henry II’s reign, when royal courts traveled around the
English countryside dispensing the King’s justice. 6 The royal courts initially operated
within a restricted jurisdiction, dealing with matters concerning the King <strong>and</strong> country
including taxation, serious crime <strong>and</strong> property. 7 Local matters were dealt with by the feudal
courts, which were eventually eclipsed by the popularity <strong>and</strong> expansion <strong>of</strong> the royal courts. 8
The extent to which judges drew upon the <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> during the formative
years <strong>of</strong> the common law is unclear. The emergence <strong>of</strong> the royal courts generally coincided
with the emergence <strong>of</strong> universities in Europe, the foremost <strong>of</strong> which was at Bologna, where
the newly discovered Corpus Iuris <strong>Civil</strong>is was studied by the Glossators <strong>and</strong> taught. 9 As the
many lawyers <strong>and</strong> judges <strong>of</strong> the early royal courts were educated, they arguably imparted
this knowledge onto the common law. 10 The fact that <strong>Roman</strong> terms are still part <strong>of</strong> the
English legal tradition is worth noting. 11 One writer suggests that the early royal judges
made new laws ‘out <strong>of</strong> necessity’, re­shaping local customs, <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong>
3 Ibid.
4 W. Senior, Doctors’ Commons <strong>and</strong> the Old Court <strong>of</strong> Admiralty: A Short History <strong>of</strong> the <strong>Civil</strong>ians in Engl<strong>and</strong>
(1922), 111 in Ibid.
5 A.R. Emmett, <strong>Roman</strong> Traces in Australian law (2001, ABR Lexis) 1, [14]; F. Pringsheim, “The Inner
Relationship between English <strong>and</strong> <strong>Roman</strong> law”, (1933­1935) 5 Cambridge <strong>Law</strong> Journal, 347, 350.
6 W.J.V. Windeyer, Lectures on Legal History, 2
nd
Edition (1957, <strong>Law</strong> Book Company), 47.
7 R. David <strong>and</strong> J.E.C. Brierley, Major Legal Systems in the World Today, 3
rd
Edition (1985, Stevens <strong>and</strong> Sons),
314.
8 Ibid.
9 Emmett, above n 5, 15.
10 W. Holdsworth, A History <strong>of</strong> English <strong>Law</strong>: Volume II (1977, Methuen & Co Ltd <strong>and</strong> Sweet <strong>and</strong> Maxwell),
177.
11 J. Frank, ‘<strong>Civil</strong> <strong>Law</strong> <strong>Influences</strong> on the Common <strong>Law</strong> – Some Reflections on “Comparative” <strong>and</strong> “Contrastive”
<strong>Law</strong>’ (1955­1956) 104 University <strong>of</strong> Pennsylvania <strong>Law</strong> Review 887, 891.
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principles to fit around the forms <strong>of</strong> action that were used in the courts. 12 The courts never
revealed the origins <strong>of</strong> these customs <strong>and</strong> principles. 13 Instead, the doctrines <strong>of</strong> precedent
<strong>and</strong> stare decisis as well as the fiction that judges merely declare the law ensured that their
decisions would be presented as the product <strong>of</strong> reason. 14
The formative years <strong>of</strong> the common law also saw the publication <strong>of</strong> the first books on the
English legal system. 15 Bracton’s Concerning the <strong>Law</strong>s <strong>and</strong> Customs <strong>of</strong> Engl<strong>and</strong> was
published in 1256. 16 Influenced by the Italian jurist Azo, Bracton drew upon <strong>Roman</strong> terms,
maxims <strong>and</strong> doctrines ‘to construct upon native foundations a reasonable system out <strong>of</strong>
comparatively meager authorities’ that included rolls <strong>of</strong> the king’s courts, the register <strong>of</strong>
writs, legal enactments <strong>and</strong> an earlier treatise <strong>of</strong> the same name written by Glanvill. 17 Thus,
<strong>Roman</strong> <strong>Law</strong> influenced the substance <strong>and</strong> structure <strong>of</strong> Bracton’s treatise. 18 Centuries later,
Bracton’s work on bailments <strong>and</strong> servitudes, which heavily drew upon <strong>Roman</strong> <strong>Law</strong>, was
used to develop the modern day law <strong>of</strong> bailments <strong>and</strong> easements. 19 As can be seen in Coggs
v Bernard 20 <strong>and</strong> Re Ellenborough Park 21 , <strong>Roman</strong> <strong>Law</strong> was used to fill a gap in the common
law.
Thus, the <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> influenced the English legal system as the common
law emerged, notably through judges <strong>and</strong> jurists. 22 Arguably, these influences provided the
common law with an organisational framework <strong>and</strong> substantive principles where it was
deficient, <strong>and</strong> essentially ‘inoculated’ the common law against a full­scale reception <strong>of</strong>
<strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> during this period. 23
(b) The rise <strong>of</strong> equity <strong>and</strong> its clash with the common law
While the royal courts were in their embryonic stages, other courts in Engl<strong>and</strong> had to deal
with matters outside the jurisdiction <strong>of</strong> the common law: these other courts practiced in the
<strong>Civil</strong> <strong>Law</strong> <strong>and</strong> included the ecclesiastical courts, the Court <strong>of</strong> Chancery <strong>and</strong> the Court <strong>of</strong>
Admiralty. 24
12 David <strong>and</strong> Brierley, above n 7, 323.
13 Ibid.
14 Ibid.
15 Emmett, above n 5, 16­17.
16 Ibid.
17 Ibid; Holdsworth, above n 10, 269, 286.
18 Holdsworth, above n 10, 270­271.
19 Emmett, above n 5, 29, 86.
20 (1703) 2 Ld Raym 909; 92 ER 107 in Ibid 23.
21 [1956] Ch 131 in Emmett, above n 5, 89.
22 J.H. Baker, An Introduction to English Legal History, 3
rd
Edition (1990, Butterworths), 33.
23 Ibid.
24 David <strong>and</strong> Brierley, above n 7, 314­315.
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The ecclesiastical courts applied the canon law, a sub­category <strong>of</strong> the <strong>Civil</strong> <strong>Law</strong> as
defined. 25 These courts dealt with the clergy <strong>and</strong> personal matters including matrimony <strong>and</strong>
probate. 26 While the jurisdiction <strong>of</strong> the ecclesiastical courts was eventually transferred to
the common law courts in the 19 th century, 27 the canon law influenced equity before then,
which, in turn, later became a part <strong>of</strong> the Common <strong>Law</strong>. 28
By the 16 th century, the common law forms <strong>of</strong> action were too inflexible to deal with an
emerging Renaissance society: change in the common law could only ever be achieved
incrementally. 29 Disgruntled litigants had been appealing directly to the Chancellor for
relief since the 14 th century, but by this stage the trickle had become a steady stream. 30 The
Chancellor up until 1529 was a member <strong>of</strong> the clergy <strong>and</strong> the king’s personal confessor. 31
In dealing with these appeals <strong>and</strong> thereby developing the rules <strong>of</strong> equity, he emphasised
justice <strong>and</strong> conscionability, concepts which stem directly from the canon law. 32 Indeed, a
feature <strong>of</strong> modern day procedure, discovery, traces its root to the ecclesiastical idea <strong>of</strong>
‘scraping the conscience <strong>of</strong> the defendant.’ 33
After 1529, <strong>and</strong> the prohibition on canonistic teachings at Oxford <strong>and</strong> Cambridge a few
years later, the Chancellor was a lawyer who nevertheless continued to infuse equity with
<strong>Civil</strong> <strong>Law</strong> learning. 34 The influences <strong>of</strong> the <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> in equity prevented
the <strong>Civil</strong> <strong>Law</strong> from replacing the archaic common law in its entirety, as equity became a
corrective jurisdiction to supplement the common law <strong>and</strong> infuse it with notions <strong>of</strong>
justice. 35
During the 17 th century, the power struggle between the English Parliament <strong>and</strong> the Crown
enveloped the country’s legal institutions. 36 The common law courts were associated with
the former while the <strong>Civil</strong> <strong>Law</strong> courts, notably, the Court <strong>of</strong> Chancery, were associated
with the latter. 37 The compromise <strong>of</strong> 1616 <strong>and</strong> the eventual triumph <strong>of</strong> the English
Parliament over the monarchy during the English civil war meant that the <strong>Civil</strong> <strong>Law</strong> courts
would thereafter be associated with ‘monarchical despotism’. 38 While there were many
25 Windeyer, above n 6, 37.
26 P.H. Winfield, The Chief Sources <strong>of</strong> English Legal History, (1925, Harvard University Press), 57.
27 Windeyer, above n 6, 285.
28 Frank, above n 11, 894.
29 David <strong>and</strong> Brierley, above n 7, 320.
30 Ibid 324­325.
31 Ibid.
32 A.T. V<strong>and</strong>erbilt, ‘The Reconciliation <strong>of</strong> the <strong>Civil</strong> <strong>Law</strong> <strong>and</strong> the Common <strong>Law</strong>’ in B. Schwartz (ed.), The Code
Napoleon <strong>and</strong> the Common <strong>Law</strong> World, (1956, Greenwood Press), 393.
33 Ibid.
34 David <strong>and</strong> Brierley, above n 7, 325; Emmett, above n 5, 18.
35 David <strong>and</strong> Brierley, above n 7, 326.
36 L. Moccia, ‘English Attitudes to the ‘<strong>Civil</strong> <strong>Law</strong>’ (1981) 2 Journal <strong>of</strong> Legal History 157, 160.
37 Ibid.
38 Ibid.
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resemblances between the European common law <strong>and</strong> the English legal system during this
time, political events increasingly saw the Common <strong>Law</strong> lawyer defend the homegrown
Common <strong>Law</strong> from ‘foreign encroachments’. 39
From 1616, therefore, the common law courts <strong>and</strong> equitable courts existed parallel to one
another. 40 However, despite this compromise, the rivalry between the common law courts
<strong>and</strong> the <strong>Civil</strong> <strong>Law</strong> courts was not entirely extinguished, as can be seen when the former
appropriated the Court <strong>of</strong> Admiralty’s jurisdiction over maritime <strong>and</strong> mercantile matters. 41
The source <strong>of</strong> mercantile law in the 17 th century was Malynes’ Lex Mercatoria. 42 First
published in 1622, the work ‘extracted the observations <strong>of</strong> the learned in the civil laws
upon all the precedent points’ relating to mercantile law. 43 The Court <strong>of</strong> King’s Bench
employed the fiction that all international commercial transactions were made in London
<strong>and</strong> issued writs <strong>of</strong> prohibition against the Court <strong>of</strong> Admiralty, preventing it from hearing
mercantile disputes. 44 Thereafter, mercantile matters were dealt with by the common law
courts. 45 However, mercantile law was largely crafted in the 18 th century by Lord
Mansfield, the then Chief Justice <strong>of</strong> the King’s Bench. 46 He introduced <strong>Civil</strong> <strong>Law</strong> principles
relating to international trade, shipping, commercial contracts <strong>and</strong> insurance into the
common law. 47
Arguably, by 1873, principles that originated in the Court <strong>of</strong> Admiralty <strong>and</strong> that had not
yet been appropriated into the common law would have been so appropriated once the
Court <strong>of</strong> Admiralty merged with the High Court <strong>of</strong> Justice. 48 Similarly, the common law
courts <strong>and</strong> equitable courts were procedurally fused <strong>and</strong> hence, formed the ‘Common <strong>Law</strong>’
as defined in this essay. 49
(c) The rise <strong>of</strong> the nation­state
The 18 th <strong>and</strong> 19 th centuries saw the emergence <strong>of</strong> the modern day nation­state <strong>and</strong> an
intellectual tradition that celebrated systematisation. 50 Many Continental countries codified
39 Ibid 164; Gorla <strong>and</strong> Moccia, above n 1, 147.
40 David <strong>and</strong> Brierley, above n 7, 326.
41 Windeyer, above n 6, 178; P. Stein, The Character <strong>and</strong> Influence <strong>of</strong> the <strong>Roman</strong> <strong>Civil</strong> <strong>Law</strong>: Historical Essays,
(1988, The Hambledon Press), 219.
42 Stein, above n 41.
43 Ibid 220.
44 Ibid 219.
45 Ibid.
46 Ibid 220.
47 Ibid.
48 See Emmett, above n 5, 54, 57 <strong>and</strong> 89; Windeyer, above n 6, 179.
49 Windeyer, above n 6, 289.
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their laws while Engl<strong>and</strong> increasingly turned to statutes. 51 The drive towards codification,
coupled with the insular mindset <strong>of</strong> English lawyers since the 1616 compromise <strong>and</strong>
subsequent civil war, fragmented the once great European common law. 52 However,
<strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> continued to influence the common law. For example,
Blackstone’s Commentaries on the laws <strong>of</strong> Engl<strong>and</strong> (1765­1769) attempted to present the
common law in a methodical manner <strong>and</strong> clearly borrowed its organisational structure from
Justinian’s Institutes. 53
In addition to shaping its form, the <strong>Civil</strong> <strong>Law</strong> continued to fill gaps in the common law.
Thus, the <strong>Civil</strong> <strong>Law</strong> influenced ‘disputes about the prerogative rights <strong>and</strong> powers <strong>of</strong> the
Crown…the origins <strong>of</strong> the privilege against self­incrimination…<strong>and</strong> the early history <strong>of</strong> the
law <strong>of</strong> libel <strong>and</strong> sl<strong>and</strong>er.’ 54 The German P<strong>and</strong>ectists influenced the common law with
respect to corporate personality, the theory <strong>of</strong> possession <strong>and</strong> the law <strong>of</strong> contract, notably in
contractual mistake. 55 Pothier <strong>and</strong> Savigny were widely read among Common <strong>Law</strong> lawyers
for their theories regarding contract. 56 In Taylor v Caldwell, 57 impossibility <strong>of</strong> performance
was introduced into the English law <strong>of</strong> contracts, as espoused by Pothier <strong>and</strong> the <strong>Roman</strong>
principle <strong>of</strong> impossibilium nulla obligatio. 58
III. Can the two Systems Harmonise <strong>and</strong> Eventually Merge?
(a) Factors pointing towards harmonisation
It has been argued that ‘the differences that once seemed significant between the civil <strong>and</strong>
the common law are becoming blurred or hazy’ 59 <strong>and</strong> that the two systems are already
harmonising as regards the sources <strong>of</strong> law, procedure, drafting techniques <strong>and</strong> judicial
50 Stein, above n 41, 223; J.H. Merryman, ‘On the Convergence (<strong>and</strong> Divergence) <strong>of</strong> the <strong>Civil</strong> <strong>and</strong> the Common
<strong>Law</strong>’ (1981) 17 Stan. J. Int’l L. 357, 359.
51 J.H. Merryman, The <strong>Civil</strong> <strong>Law</strong> Tradition, (1985, Stanford University Press), 28; M.A. Glendon, ‘The Sources
<strong>of</strong> <strong>Law</strong> in a Changing Legal Order’ in M.A. Glendon, M.W. Gordon <strong>and</strong> C. Osakwe, Comparative Legal
Traditions, 2 nd Edition, (1994), West Publishing Co), 242.
52 Merryman, above n 50.
53 Stein, above n 50, 216.; A. Watson, <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> Comparative <strong>Law</strong>, (1991, University <strong>of</strong> Georgia Press),
179.
54 R.H. Helmholz, ‘Continental <strong>Law</strong> <strong>and</strong> Common <strong>Law</strong>: Historical Strangers or Companions’ (1990) Duke <strong>Law</strong>
Journal. 1207, 1214­1218.
55 Stein, above n 50, 226­228.
56 Ibid.
57 (1863) 3 B&S 826 in Pringsheim, above n 5, 362.
58 Pringsheim, above n 5, 362.
59 Glendon, above n 51, 250.
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views. 60 For example, since the 19 th century Common <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> countries have
increasingly relied on legislation to ‘codify’ parts <strong>of</strong> their law or compel law reform. 61
Associated with this increase in legislation, which now regulates almost every aspect <strong>of</strong> a
person’s life, is the rise <strong>of</strong> administrative law. 62 There has been a move towards increased
bureaucratic discretion, which is significant for the Common <strong>Law</strong> since it favours formal
rules. 63 Similarly, in <strong>Civil</strong> <strong>Law</strong> countries such as France, public law is largely uncodified. 64
This seems highly incongruous in a legal system that otherwise celebrates rationality <strong>and</strong>
order. 65
Another factor pointing to harmonisation is the increasing acknowledgement on the part <strong>of</strong>
common law judges that they make the law rather than blindly adhere to precedent. 66
Likewise, there is a shift in attitude in France where judges, traditionally relegated to the
role <strong>of</strong> merely applying the law with reference to the code, are establishing lines <strong>of</strong>
‘precedent’ to guide courts <strong>and</strong> practitioners. 67 This is arguably evident in areas <strong>of</strong> the
private law such as delictual responsibility. 68
Some writers argue that globalisation is compelling harmonisation. 69 Increased
international transactions have prompted countries with similar economic, social <strong>and</strong>
political values to integrate. 70 Integration could potentially lead to the emergence <strong>of</strong> another
European or international common law. 71 The European Union (EU) is the best example <strong>of</strong>
integration: it is a body with its own Parliament, Court <strong>and</strong> bureaucratic institutions. 72 The
EU employs the technique <strong>of</strong> unification to harmonise laws across member states; a
60 B.S. Markesims, ‘Learning from Europe <strong>and</strong> Learning in Europe’ in his (Ed.), The Gradual Convergence in P.
Legr<strong>and</strong>, ‘European Legal Systems are Not Converging’ (1996) 45 International <strong>and</strong> Comparative <strong>Law</strong> Quarterly
52, 54­55.
61 Glendon, above n 51, 242.
62 Ibid 247.
63 Ibid.
64 R. David, English <strong>Law</strong> <strong>and</strong> French <strong>Law</strong>, (1980, Stevens), 99.
65 David <strong>and</strong> Brierley, above n 7, 309.
66 Glendon, above n 51, 245; see M. Kirby, ‘Beyond the Judicial Fairytales’ (2004) Quadrant 26.
67 F.H. <strong>Law</strong>son, A.E. Anton, N. Brown, Amos <strong>and</strong> Walton’s Introduction to French <strong>Law</strong>, 3
rd
Edition, (1967,
Clarendon Press), 11.
68 For example, the Affaire J<strong>and</strong>’heur discussed in Ibid 205. In that case, a truck seriously injured a girl who was
walking on a pavement. The French Cour de Cassation held that the defendant could only escape liability by
proving that the accident was caused by some external factor for which he was not to blame. The decision was
based on an interpretation <strong>of</strong> article 1384, paragraph 1 <strong>of</strong> the French Code <strong>Civil</strong>e, which states that ‘A person is
responsible not only for the damage which he causes by his own action, but in addition for that which is caused
by the actions <strong>of</strong> persons for whom he must answer or <strong>of</strong> things in his care.’ The fact that liability could be
imposed without the need to show fault was a departure from previous interpretations <strong>of</strong> the Code.
69 Merryman, above n 50, 363 <strong>and</strong> L.N. Brown, ‘The Two Legal Traditions: Antithesis or Synthesis’ (1980) 18 J.
Common Market Studies 246, 248.
70 Merryman, above n 50, 363­364.
71 See B.S. Markesinis, ‘Bridging Legal Cultures’ (1993) 27 Israel <strong>Law</strong> Review 363, 382 in Legr<strong>and</strong>, above n
60, 55.
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technique which relies on treaties, conventions <strong>and</strong> legislation. 73 One writer has argued that
the EU’s semi­constitutional structure <strong>and</strong> the prevalence <strong>of</strong> broad legislative <strong>and</strong> treaty
provisions – a feature <strong>of</strong> the civil law – have ‘Europeanised’ the British legal institutions,
leading to a convergence <strong>of</strong> substantive laws <strong>and</strong> legal approaches. 74
In arguing their case for harmonisation, some writers point out that the human need for
simplicity coupled with progress will lead less­developed legal systems to ‘catch up’ to the
developed ones. 75 Aside from legal evolution, harmonisation in this situation has been
achieved through legal transplants – the conscious choice <strong>of</strong> a nation to adopt a foreign law
or institution. 76 The adoption <strong>of</strong> American­style constitutionalism in many parts <strong>of</strong> the
world is an example <strong>of</strong> legal transplantation. 77
Other writers see harmonisation as a ‘a situation in which the common nature <strong>of</strong> human
beings is properly observed <strong>and</strong> expressed by the law.’ 78 Derived from a natural law
perspective, this point is particularly evidenced through the widespread acceptance <strong>of</strong>
human rights in the Western world 79 <strong>and</strong> the use <strong>of</strong> general principles in both systems. 80 In
France, the Conseil Constitutionnel has invoked the concept <strong>of</strong> ‘general principles’ to
determine the constitutional validity <strong>of</strong> legislation. 81 In Engl<strong>and</strong>, where judges avoid
speculating beyond the facts <strong>of</strong> the particular case, the notion <strong>of</strong> natural justice has been
cited as an example <strong>of</strong> a (limited) move to more deductive modes <strong>of</strong> reasoning. 82
Finally, some writers argue that while their legal rules <strong>and</strong> contexts may differ, both
systems produce similar outcomes, thus illustrating that they are not irreconcilable. 83 For
example, succession law in the <strong>Civil</strong> <strong>Law</strong> provides for a reserve. 84 In Common <strong>Law</strong>
countries such as the United Kingdom <strong>and</strong> Australia, the traditional notion <strong>of</strong> freedom <strong>of</strong>
testation has been curtailed in recent years through statute, leading to a similar result. 85
72 See O.F. Robson, T.D. Fergus <strong>and</strong> W.M. Gordon, European Legal History: Sources <strong>and</strong> Institutions, 2
nd
Edition, (1994, Butterworths), 304.
73 Brown, above n 69, 249.
74 J.E. Levitsky, ‘The Europeanisation <strong>of</strong> the British Legal Style’ (1994) 42 Am. J. Comp. L. 347, 348.
75 Merryman, above n 50, 360­361.
76 Ibid 367. See also Brown, above n 69, 249.
77 Merryman, above n 50, 367­8; Brown, above n 69, 250.
78 Merryman, above n 50, 361 citing A. Passerin D’Entreves, NATURAL LAW, (1951).
79 Ibid 363; Brown, above 69, 252.
80 Merryman, above n 50, 375; Brown, above n 69, 250.
81 Brown, above n 69, 250.
82 Ibid 251. Dr. Musgrave (introductory note above) pointed out in the original essay that natural justice is a
limited example because it is invoked in relation to procedural matters <strong>and</strong> is narrow in scope.
83 Ibid 253.
84 Ibid.
85 Ibid citing the Inheritance (Family Provision) Act 1938 <strong>and</strong> the Inheritance (Provision for Family <strong>and</strong>
Dependents Act 1975. In the author’s home state, a comparable statute is the Family Provisions Act 1982
(NSW).
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(b) Factors against harmonisation
Writers claiming that the two legal systems are harmonising have been criticised for
limiting the scope <strong>of</strong> their analysis to legal rules <strong>and</strong> concepts. 86 In particular, this narrow
focus fails to consider ‘the law machine – the complex <strong>of</strong> legal structures, actors <strong>and</strong>
processes’ when assessing the extent to which harmonisation, if any, is occurring. 87
Legr<strong>and</strong> notes that when one focuses on the mentalities that underlie the <strong>Civil</strong> <strong>Law</strong> <strong>and</strong> the
Common <strong>Law</strong>, ‘these two legal traditions reflect two modes <strong>of</strong> experiencing the world’
which simply cannot be reconciled. 88 While they may have similar rules, concepts <strong>and</strong>
outcomes, this is peripheral: the key features <strong>of</strong> the Common <strong>Law</strong> prevent intermingling on
a deeper level. 89
As for these key features, there is firstly the basic division in the Common <strong>Law</strong> between
common law <strong>and</strong> equity. Indeed, the idea that ‘justice’ is infused into the Common <strong>Law</strong>
through a separate corrective jurisdiction is a novel concept for civil lawyers. 90 Secondly,
the Common <strong>Law</strong> clings onto an inductive mode <strong>of</strong> reasoning which is reactive rather than
proactive. 91 Thirdly, while both the Common <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> make use <strong>of</strong> legislation,
their respective approach to ‘systematisation’ differs: judges in the Common <strong>Law</strong> approach
legislation with the same inductive mindset as they would approach case law, <strong>and</strong> case law
is still an authoritative source <strong>of</strong> law for the interpretation <strong>of</strong> statutes. 92 Indeed, the idea that
the Common <strong>Law</strong> is moving away from precedent is clearly unfounded, since even judicial
‘activists’ will seek to justify their rules on the basis <strong>of</strong> past authorities, no matter how
obscure. 93 Fourthly, the Common <strong>Law</strong> notion <strong>of</strong> facts preceding the law is diametrically
opposed to the <strong>Civil</strong> <strong>Law</strong> system's emphasis on the law preceding facts. 94 Thus, in the
Common <strong>Law</strong>, ‘rights’ do not exist per se, but rather, arise when there is an ‘assemblage <strong>of</strong>
those facts that are necessary for supporting a claim in a court <strong>of</strong> law.’ 95
Aside from the key features <strong>of</strong> the Common <strong>Law</strong>, other factors indicate that the systems are
not harmonising. The importance <strong>of</strong> administrative law in evidencing harmonisation may
be overstated, particularly as modern states move away from the welfare model <strong>and</strong>
86 Legr<strong>and</strong>, above n 60, 53.
87 Brown, above n 69, 252 Brown acknowledges that law is more than about rules but, as noted in the text above
at n 87, he states that different rules, structures <strong>and</strong> cultures can produce similar outcomes. Merryman, above n
50, 382 also recognizes that convergence <strong>and</strong> divergence can occur at various levels, including legal rules,
culture <strong>and</strong> structures.
88 Legr<strong>and</strong>, above n 60, 63.
89 Ibid 55.
90 <strong>Law</strong>son et al, above n 67, 17.
91 Legr<strong>and</strong>, above n 60, 64­65.
92 Ibid 66.
93 Kirby, above n 66, 32.
94 Ibid 68.
95 Ibid 70.
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towards decentralisation. 96 Similarly, the idea that globalisation <strong>and</strong> integration are
compelling the systems to merge has been dismissed as an over­exaggeration. 97 In the case
<strong>of</strong> European integration, one writer has pointed out that the harmonisation <strong>of</strong> European law
is patchy at best since EU laws <strong>of</strong>ten only require ‘partial harmonisation’ <strong>and</strong> the European
legal system merely exists alongside the national legal systems. 98 Deficiencies in the
creation <strong>and</strong> implementation <strong>of</strong> European laws have also been noted. 99
Finally <strong>and</strong> perhaps, most importantly, is the idea that <strong>Civil</strong> <strong>Law</strong> practitioners <strong>and</strong> Common
<strong>Law</strong> practitioners do not approach certain ideas in the law with the same assumptions, no
matter how similar those ideas may be. 100 Contract law provides a pertinent example. When
a <strong>Civil</strong> <strong>Law</strong> practitioner speaks <strong>of</strong> ‘contrat’, this concept does not neatly correspond to the
Common <strong>Law</strong> practitioner’s notion <strong>of</strong> ‘contract.’ Contrary to the <strong>Civil</strong> <strong>Law</strong>, contracts in
the Common <strong>Law</strong> require consideration, thus excluding bailments <strong>and</strong> gifts from the scope
<strong>of</strong> its law <strong>of</strong> contract. 101
IV. Conclusion
Thus, it can be seen that the <strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> greatly influenced the Common
<strong>Law</strong> during the development <strong>of</strong> the common law <strong>and</strong> equity, through judges, jurists <strong>and</strong> the
intervention <strong>of</strong> the Chancellor. These influences provided the English legal system with
just enough substance <strong>and</strong> structure to prevent a full­scale reception <strong>of</strong> the <strong>Civil</strong> <strong>Law</strong>. Even
after the rise <strong>of</strong> the nation­state <strong>and</strong> the fragmentation <strong>of</strong> the European common law,
<strong>Roman</strong> <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> continued to influence the Common <strong>Law</strong> from beyond the
Channel. While many writers claim that the Common <strong>Law</strong> <strong>and</strong> <strong>Civil</strong> <strong>Law</strong> are already
harmonising, there are key features <strong>of</strong> the Common <strong>Law</strong>, including its basic structure, the
role <strong>of</strong> legislation <strong>and</strong> precedent, its mode <strong>of</strong> reasoning <strong>and</strong>, most importantly, its
underlying assumptions, which have remained in tact despite peripheral changes. Thus,
harmonisation, let alone a convergence, appears unlikely in the near future.
96 Merryman, above n 50, 373.
97 Legr<strong>and</strong>, above n 60, 79.
98 T.M.J. Möllers, ‘The Role <strong>of</strong> <strong>Law</strong> in European Integration’ (2000) 48 American Journal
<strong>of</strong> Comparative <strong>Law</strong>. L. 679, 683­685.
99 Ibid.
100 Legr<strong>and</strong>, above n 60, 76.
101 <strong>Law</strong>son et al, above n 67, 150.
88