The great formative traditions of law

De Baripedia

Based on a course by Victor Monnier[1][2][3]

The evolution of law and the formation of the modern state is a complex, multi-layered process, intimately linked to the history and culture of societies. The modern state, as we know it, began to take shape around three centuries ago, marking a major turning point in the management of political power. This period was characterised by the centralisation of power, the clear demarcation of national borders, and the establishment of structured government institutions. At the same time, public law emerged as a distinct area of law, governing the relationship between the state and its citizens as well as the functions of the state itself, including constitutional, administrative, fiscal and criminal law.

In contrast to public law, private law has much older roots, dating back more than 2,000 years. It deals with relationships between individuals and covers areas such as contract law, property law, family law and inheritance law. Much of modern private law derives its principles from Roman law, which established legal foundations and concepts that are still relevant today. For example, the concept of contract, central to private law, has its origins in Roman legal practice and theory.

International law, although it has ancient origins, has expanded significantly in recent centuries. It has developed in response to the growing complexity of international relations and world trade. This area of law, which governs relations between states and international organisations, continues to evolve in the face of global challenges such as climate change and human rights. A key example of the evolution of international law is the creation of the United Nations after the Second World War, establishing international standards for peace, security and cooperation.

The unification of Swiss law in the late nineteenth and early twentieth centuries provides a concrete example of how legal systems can be harmonised. Eugène Huber, a Swiss jurist, played a crucial role in this process. Drawing on Swiss legal codes and traditions that had evolved over millennia, Huber succeeded in unifying the different cantonal legal systems in Switzerland. His work led to the creation of the Swiss Civil Code, which has become a model of legal codification that has influenced other countries.

The development of law and the formation of the modern state therefore reflect historical, cultural and social influences throughout the ages. Public, private and international law are the fruit of this evolution, showing how legal systems adapt and develop in response to the changing needs of societies.

The influence of the great law-forming traditions[modifier | modifier le wikicode]

Swiss private law is a fascinating amalgam of historical legal traditions dating back almost two millennia. These traditions have been carefully woven together to form the foundations of the country's modern legal systems, a synthesis emblematically illustrated by the drafting of the Civil Code and the Code of Obligations in 1912. These legislative documents marked a turning point in Swiss legal history, symbolising a significant stage in the unification and modernisation of the country's legal system.

The influence of Roman law on Swiss legislation is undeniable. Inherited from the Roman Empire, this legal system introduced fundamental concepts such as contracts, property and obligations, which are pillars of modern private law. These ideas, originally formulated in Roman law, have been adapted to meet contemporary needs, but their essence remains deeply rooted in Roman principles. Alongside Roman law, Germanic law has also played a crucial role in shaping the Swiss legal system. Originating with the Germanic tribes, this tradition emphasised local customs and practices, particularly in matters of property and family relations. Germanic law, with its more community-centred approach and local customs, provided an essential counterpoint to the formalisms of Roman law. Canon law, which grew out of the Christian tradition, also influenced Swiss legislation. Although its role is primarily religious, canon law has governed important aspects of civil life, such as marriage. Its influence is a reminder of the historical importance of religion in the formation of European law. Finally, the school of modern law in Switzerland represents the evolution of ancient legal traditions in response to contemporary realities. This school is the product of an adaptation and integration of the principles of Roman, Germanic and canon law, reshaped to meet the social, economic and political challenges of the modern world. This tradition is testimony to the Swiss legal system's ability to evolve and harmoniously integrate various historical influences.

In short, Swiss private law is the result of a unique fusion of different legal traditions, a combination that has created a legal system rich in history and adapted to the demands of the contemporary world. The Civil Code and the Code of Obligations, drawn up in 1912, embody this synthesis, illustrating how Switzerland has succeeded in creating a coherent and effective legal framework by integrating these diverse heritages.

The Roman law[modifier | modifier le wikicode]

Rome spanned a period of 1000 years from the 5th century BC to the 5th century AD. The Roman Empire developed a coherent system that applied to all Roman citizens and free men in the Empire. This period encapsulates the rise, heyday and decline of ancient Rome. It was an era that saw Rome evolve from a small city-state to a colossal empire spanning three continents. During this millennium, one of Rome's most significant achievements was the development of its legal system. This system, which emerged gradually, eventually constituted a coherent set of rules and standards applicable to all Roman citizens as well as to free men living in the Empire. This legal framework was crucial to the management of such a vast and diverse empire. The Roman legal system was characterised by innovations such as the concept of civil law, governing relations between citizens, and the law of nations, concerning relations between nations and peoples. These concepts have greatly influenced modern legal systems, particularly in nations following the civil law tradition. One of the most remarkable aspects of Roman law was its universal application within the Empire. Regardless of the ethnic and cultural diversity of the conquered peoples, Roman law provided a common framework that helped to integrate and effectively administer these diverse territories. This universality also contributed to the expansion of Roman influence far beyond its political borders and served as a foundation for the subsequent development of legal systems in many parts of Europe and the Mediterranean world. The Roman Empire also saw the emergence of important legal figures, such as the jurists, who interpreted, developed and taught the law. Their writings and teachings formed the basis of what would later become the Corpus Juris Civilis under the emperor Justinian in the sixth century AD, a compilation that strongly influenced the development of Western law. The history of Rome over this thousand-year period is not only one of territorial expansion and military power, but also of an exceptional contribution to the field of law. The Roman legal system, with its principles of universality and equity, laid the foundations of legal practice in the Western world, and its legacy lives on in contemporary legal systems.

Roman law, which has formed the basis of many contemporary legal systems, is characterised by two main features, each of which played a crucial role in the development and sophistication of this ancient legal system.

On the one hand, Roman law had a strong doctrinal and customary component, which was carefully transposed into writing, known as "ius". This written tradition was fundamentally based on the interpretation and analysis of Roman jurists, whose work shaped and refined the law over time. These jurists, such as Gaius, Ulpian, and Justinian, not only interpreted existing laws but also developed legal principles that influenced the practice of law well beyond the Roman era. Their influence is particularly evident in the compilation of the Corpus Juris Civilis under Emperor Justinian in the 6th century. In addition to doctrine, Roman customary law, made up of the customs and practices of the citizens of Rome, was gradually codified, enabling the law to be applied uniformly and systematically throughout the Empire. On the other hand, the decisions of the Emperor and the actions of the organs of the Republic played an essential role in the evolution of Roman law. Under the Empire, emperors had the power to issue edicts and decrees that had the force of law. These imperial declarations, or "constitutiones", could modify or establish new legal norms, playing a crucial role in responding to the changing needs of the Empire. Before the imperial era, during the Republic, institutions such as the Senate and the People's Assemblies also had a significant impact on the creation of law. The laws passed by these bodies, known as "leges", were another fundamental component of the legal framework.

The interaction between the written and doctrinal tradition and imperial and republican decisions created a rich and dynamic legal system. This system not only governed everyday life in the Roman Empire, but also laid the foundations for the development of Western law. The principles and structures developed in Roman law, such as the concept of contract, property rights, and the foundations of criminal law, continue to exert a profound influence on modern legal systems, particularly those following the civil law tradition. This Roman heritage is a testament to the law's ability to adapt and evolve, while retaining continuity and coherence across the centuries.

The shaping of Roman law around the 5th century represents a key moment in the history of Western law. This period saw the official codification of Roman laws and legal principles, a crucial process for the preservation and transmission of the Roman legal heritage. One of the most significant events of this period was the codification of law under Emperor Theodosius II in 438. The Code of Theodosius, or "Codex Theodosianus", was a major achievement. It brought together and organised the edicts, decrees and laws promulgated by the Roman emperors since the reign of Constantine I. This codification was essential for unifying and clarifying Roman law, which had developed considerably and sometimes haphazardly over the previous centuries. The Codex Theodosianus had a lasting impact not only in the Eastern Roman Empire, where Theodosius reigned, but also in the Western Roman Empire. It served as a legal reference for emperors and courts of justice, and influenced the subsequent development of law in the Byzantine Empire as well as in the barbarian kingdoms that succeeded the Roman Empire in the West.

The codification of law under Theodosius II was a crucial step in the transition of Roman law from a system based primarily on tradition and custom to a more formally structured and codified system. This transformation led to a better understanding and application of Roman law, and laid the foundations for further codification efforts, notably the Corpus Juris Civilis commissioned by the emperor Justinian in the sixth century. The codification of Roman law in the 5th century, particularly under Theodosius II, marked an important stage in the history of law. It made it possible to preserve the Roman legal heritage and pass it on to future generations, significantly influencing contemporary Western legal systems.

The fall of the Western Roman Empire in 476 marked a major historical turning point, not only politically and socially, but also in terms of legal development. While the Western Empire collapsed, the Eastern Roman Empire, later known as the Byzantine Empire, continued to prosper. It was against this backdrop that Emperor Justinian I, one of the most influential emperors of the Byzantine Empire, undertook one of the most ambitious legal initiatives in history: the creation of the Justinian Code. Reigning in the 6th century, Justinian saw the importance of reforming and systematising Roman law, which at the time was scattered across numerous texts, edicts and decrees that were often contradictory or obsolete. Between 529 and 534, he and his team of jurists, under the direction of Tribonian, set about compiling, revising and organising these laws. This monumental work culminated in the creation of the Corpus Juris Civilis, or "Body of Civil Law", a body of work comprising the Code (Codex), the Digest (Digesta or Pandectae), the Institutes (Institutiones) and the Novelles (Novellae Constitutiones).

The Codex Justinianus brought together the existing imperial constitutions. The Digest was a compilation of opinions and rulings by renowned Roman jurists. The Institutes served as an introductory law textbook for students, and the Novelles included new laws enacted after 534. The importance of Justinian's Code lies in its systematisation of Roman law and its lasting impact on legal development in Europe. It served as the basis for civil law in many European countries and influenced legal systems worldwide. Even after the fall of Constantinople in 1453, the Corpus Juris Civilis continued to be studied and used as a legal reference in Western Europe, playing a key role in the legal Renaissance and the formation of modern legal systems. Thus, while the Western Roman Empire was collapsing, the legacy of Roman law was being preserved and revitalised in the Byzantine Empire. Justinian's Code is a testament to the perseverance and resilience of the Roman legal heritage, and remains one of the most significant contributions to legal theory and practice in world history.

Following the fall of the Western Roman Empire, a major reform of Roman law was undertaken in the Eastern Roman Empire, later known as the Byzantine Empire. Under the leadership of Emperor Justinian in the sixth century, this reform led to the creation of the Corpus Juris Civilis, or Justinian Code, which represents a monumental effort in the preservation and systematisation of Roman law. The Corpus Juris Civilis begins with the Codex Justinianus, which brings together the imperial constitutions - essentially the decisions and edicts of the emperor. This compilation replaces the earlier Theodosian Code and centralises all the imperial laws from the time of the emperor Hadrian. The codex was intended to provide clear, structured access to the laws of the Empire, making them easier to understand and apply. Secondly, the Digest, or Pandectes, forms a crucial part of the Corpus. It is a vast compilation of extracts from over 1,500 books written by the jurisconsults of classical Rome. This section forms the legal doctrine and represents the accumulated wisdom and interpretations of Roman jurists. The Digest served as a guide for judges and lawyers, providing them with a detailed resource for interpreting and applying the law. For law students, the Institutes offered a basic textbook, presenting the fundamental principles and structures of Roman law in an accessible way. The Institutes played a vital role in legal education, ensuring that legal knowledge was passed on to future generations. Finally, the Novelles, or New Laws, completed the Corpus by including laws promulgated by Justinian after the Codex had been written. These texts reflected the changes and adaptations needed to the law to meet the contemporary needs of the Byzantine Empire. The Corpus Juris Civilis had a profound and lasting impact on the development of law in the Western world. Its compilation not only preserved the legal heritage of ancient Rome but also laid the foundations of civil law in many European countries. The influence of the Corpus extends far beyond the Byzantine Empire, as its principles and methodology have been adopted and adapted in various legal systems over the centuries. Justinian's work thus ensured that Roman legal wisdom would live on, making it accessible and relevant for future generations.

It was at the beginning of the second millennium that Justinian's texts began to have a significant influence on the Western medieval legal world. After the fall of the Western Roman Empire and during subsequent periods, including the High Middle Ages, much of Western Europe lost direct contact with the legal heritage of ancient Rome. However, this situation began to change around the 11th and 12th centuries. The 12th century renaissance, a period of intellectual and cultural renewal in Western Europe, played a crucial role in the rediscovery of Justinian's texts. Universities, which began to emerge in cities such as Bologna in Italy, were centres for the study and teaching of Roman law. The University of Bologna, in particular, became a centre of reference for legal studies. Scholars such as Irnerius and his successors, known as the Glossators, analysed, commented on and taught the Corpus Juris Civilis, helping to spread it throughout medieval Europe. During this period, Justinian's texts were translated, interpreted and adapted to meet the legal and social needs of the time. Medieval jurists integrated elements of Roman law into local legal systems, a process that greatly influenced the development of European civil law. This integration contributed to the formation of the first national legal systems in Europe, such as the canon law of the Catholic Church and the various regional customary laws. The beginning of the second millennium marked a period of rediscovery and reintegration of Roman law in Western Europe, with the texts of Justinian playing a central role in this process. This influence laid the foundations for modern legal systems in Europe and made a significant contribution to the history of Western law.

Germanic law[modifier | modifier le wikicode]

The conquests of the Germanic tribes in the 5th century represented a period of significant transformation for the territory of the former Roman Empire. As these tribes, such as the Franks, Burgundians and others, penetrated and established themselves on Roman territory, they brought with them their own legal systems and customs. This period saw the emergence of a distinct legal tradition: Germanic law.

Unlike the centralised and codified Roman approach to law, the Germanic tribes relied mainly on oral customs and tribal rules. When they invaded and colonised various parts of the Roman Empire, they maintained their own laws. For example, the law of the Franks (known as the Lex Salica) and the law of the Burgundians (Lex Burgundionum) were sets of laws specific to these peoples. These laws governed aspects of daily life and the resolution of conflicts within their communities. At the same time, the Roman populations under Germanic rule continued to live according to Roman laws. This coexistence of distinct legal systems led to a legal duality in many territories: Germanic law for the conquerors and Roman law for the native populations.

Over time, as they interacted with Roman civilisation, the Germanic peoples began to put their customs down in writing, often using Latin, the language of scholarship and administration at the time. This written formalisation of Germanic customs was an important step in the evolution of their legal system. Not only did it preserve these customs for future generations, it also facilitated their integration with elements of Roman law. This period of European history was therefore characterised by a complex cultural and legal interaction, in which Roman and Germanic traditions influenced each other. The adoption of Latin script to document Germanic laws is an example of this synthesis. Over time, this fusion of legal traditions contributed to the formation of modern European legal systems, blending elements of Roman and Germanic law.

In the Roman Empire, particularly around the Mediterranean basin, Roman law had a vast scope and application, extending across the entire Empire. This universality of Roman law contrasts sharply with the approach adopted by the Germanic tribes, where the law was much more personal in character. Roman law, with its codified systems and universal principles, was designed to apply uniformly to all citizens of the Empire, regardless of their ethnic origin or social status. This approach was intended to create a common legal basis and facilitate the administration of such a vast and diverse empire. Roman law governed various aspects of life, ranging from private law (such as family law and contract law) to public law (including administrative and criminal law). Its scope encompassed the entire Mediterranean basin, reflecting the geographical extent and cultural influence of the Roman Empire. The Germanic tribes, on the other hand, practised personal laws. Each tribe, whether Franks, Burgundians, Visigoths or others, had its own set of laws and customs governing the lives of its members. These laws were generally handed down orally and reflected the specific traditions and values of each tribe. Unlike Roman law, Germanic laws were not designed to apply universally, but rather were adapted to the particularities of each group.

When these Germanic tribes settled in the territories of the former Roman Empire, they retained their individual legal systems. In doing so, they created a situation where different communities within the same territory were governed by different legal systems. For example, a member of a Germanic tribe would be subject to the laws of his tribe, while a native Roman would continue to follow Roman law. This legal duality had important implications for social organisation and the development of legal systems in post-Roman Europe. Thus, the coexistence and interaction of universal Roman law and Germanic personal law played a crucial role in shaping European legal traditions, blending the concepts of universal law and law based on ethnic or tribal identity. This historical synthesis laid the foundations for modern legal systems in Europe, where the tension between universal norms and personalised rights continues to influence legal practice and theory.

Canon law[modifier | modifier le wikicode]

Canon law is a unique legal system that plays a central role in the organisation and governance of the Catholic Church. This system of law is distinct from civil legal systems and focuses specifically on the internal aspects of the Church, as well as the way in which it interacts with its faithful and society in general. Canon law covers a wide range of areas, including the constitution and organisation of the Church, ecclesiastical functions, the status of Church members, and the management of ecclesiastical property. It also regulates aspects such as liturgical processes, sacraments, and disciplinary norms for clergy and laity. This legal system is based on a set of deontological principles derived from Christianity, reflecting the values and teachings of Christianity.

A notable feature of canon law is its aspiration to extend to all people, in the sense that it aims to guide not only the internal conduct of the Church, but also to influence morality and ethics in wider society. Although its direct application is limited to members of the Catholic Church, the principles of Canon Law have often had a significant impact on laws and social norms in many societies, particularly in countries with a Christian tradition.

Canon law has evolved over the centuries, adapting to changes in society and within the Church itself. Ecumenical councils, papal decrees and the decisions of ecclesiastical tribunals have played an important role in the development and updating of canon law. One of the most significant moments in the evolution of modern canon law was the promulgation of the Code of Canon Law in 1917, revised in 1983, which systematised and updated the legal norms of the Catholic Church.

Canon law is an essential part of the structure and functioning of the Catholic Church. It represents a legal tradition which, while distinct from civil legal systems, has had a considerable influence on the moral and ethical development of many societies throughout the world.

First millennium[modifier | modifier le wikicode]

The transition of the Roman Empire from a predominantly pagan entity to a Christian empire was a pivotal moment in Western history, marked by two important edicts in the fourth century.

The first crucial turning point was the Edict of Milan, promulgated in 313 by Emperors Constantine I and Licinius. This edict was not a legalisation of Christianity, but rather a decree of religious tolerance. It put an end to the persecution of Christians and granted all people in the Roman Empire the freedom to practise their religion. This edict marked a radical change in the Empire's religious policy, giving Christianity legal status and the opportunity to develop and spread freely. The second decisive moment was the Edict of Thessalonica, also known as the Cunctos populos, promulgated in 380 by Emperor Theodosius I. This edict established Nicene Christianity as the official religion of the Roman Empire. The edict proclaimed that all Roman citizens had to follow the Christian faith as interpreted by the bishops of Rome and Alexandria, who followed the teaching established by the Council of Nicaea in 325. This meant the end of official religious diversity in the Empire and the establishment of Christianity as the dominant and exclusively state-sanctioned religion.

These developments had profound consequences for the religious, cultural and political history of the Roman Empire and Europe in general. The conversion of the Roman Empire to Christianity not only changed the religious dynamics of the Empire, but also laid the foundations for the rise of the power of the Church in secular affairs, influencing the formation of European legal, political and social systems in the centuries to come. The transition to a Christian Empire also facilitated the emergence and consolidation of canon law as an influential legal system within the Catholic Church and European society.

The conversion of the Roman Empire to Christianity marked a radical transformation in the social and political structure of the time, profoundly affecting the interaction between Church and State. The integration of Christianity as the official religion of the Empire, following the Edict of Thessalonica in 380, not only strengthened the position of the Church in Roman society, but also created fertile ground for the mutual influence of Roman law and Church practice. The Church, which had previously operated on the fringes of the official political structure, found itself at the heart of Roman society. This integration had several important implications. Firstly, the Church began to adopt and adapt elements of Roman law to manage its own internal affairs, particularly in the administration of its properties and the regulation of its internal processes. For example, the principles of Roman law concerning property and contracts were integrated into the management of the Church's assets.

At the same time, the development of canon law, influenced by Roman legal principles, marked an important step in the evolution of the Church. This distinct legal system, while based on Christian teachings and scripture, reflected many aspects of Roman law in its structure and application. Canon law became an essential framework for regulating the internal affairs of the Church, including clerical discipline and the practice of the sacraments. In addition, the relationship between Church and State took on a new dimension. The Roman emperors, although exercising primarily temporal authority, often had a significant influence on ecclesiastical matters. Conversely, the Church began to play an influential role in secular affairs, guiding not only spiritual matters, but also influencing social and legal norms. This period of history was therefore characterised by a dynamic interaction between Roman legal and administrative structures and the Church. This synergy laid the foundations for the future development of medieval Europe, shaping the political, social and legal structures of the time. The conversion of the Empire to Christianity was not just a change in religious belief, but also brought about a profound transformation in social and legal organisation, the impact of which can still be felt in contemporary legal and political systems.

The influence of Christianity and Roman law, following the conversion of the Roman Empire, extended far beyond the imperial borders, also impacting the Germanic peoples who converged towards and within the Empire. This period of European history was marked by a complex interaction between Roman and Germanic cultures and legal systems, under the growing influence of Christianity. As Germanic tribes settled in the territories of the Roman Empire, they came into close contact with Roman civilisation and its legal and administrative structures. At the same time, the spread of Christianity, as the official religion of the Empire, began to exert a significant influence on these peoples. Germanic chieftains, often in search of legitimacy and political support, gradually adopted Christianity, which led to changes in their social and legal structures.

The adoption of Christianity by the Germanic peoples was not just a religious transformation, but also involved an adaptation of certain aspects of Roman law and its principles. For example, Germanic laws, which were traditionally handed down orally and based on tribal customs, began to be influenced by Roman legal concepts, particularly with regard to the organisation of property and the management of civil affairs. In addition, the interaction between Christian clerics and Germanic elites facilitated the transmission of Roman legal and administrative knowledge. Clerics, often educated in Roman traditions, played a key role in the administration of the Germanic kingdoms and in the drafting of their laws. This influence contributed to the emergence of mixed legal systems in the Germanic kingdoms, combining elements of traditional Germanic law with those of Roman and canon law. In this way, the influence of Roman law and Christianity extended far beyond the boundaries of the Roman Empire, shaping the cultures and legal systems of the Germanic peoples on its periphery and within it. This interaction played a crucial role in the development of medieval Europe, laying the foundations for the emergence of modern legal and political structures.

Canon law, as the legal system of the Catholic Church, developed from a mosaic of sources, each bringing its own influence and perspective. At the heart of this system are the Sacred Scriptures, in particular the Old and New Testaments, which provide the fundamental principles and moral guidelines. In addition to their spiritual role, these sacred texts provide guidelines for conduct and organisation within the Christian community, thus influencing canonical norms. Another pillar of canon law is the decisions taken at councils, which are assemblies of bishops and theologians. These councils have played a decisive role in shaping the doctrine and canons of the Church. For example, the Council of Trent, held in the 16th century, brought about significant reforms and enacted numerous canons that have shaped modern canon law. Papal decrees are also an essential source of canon law. These documents, issued by popes, deal with a wide variety of issues, ranging from ecclesiastical discipline to the administration of the sacraments. Because of their authoritative nature, decretals have often served as key references in the interpretation and application of canon law.

In addition to these ecclesiastical sources, canon law has been influenced by regional customary law. Local practices and traditions of the Church, when recognised by ecclesiastical authority, could acquire legal status. These local customs reflected the diversity of Christian practices and contributed to the richness of canon law. Finally, the impact of Roman law, particularly in the area of the law of obligations, on canon law is indisputable. The Church borrowed and adapted many Roman legal principles to manage its own affairs. For example, Roman notions of contract and property have been integrated into the management of Church property and the resolution of disputes. In short, canon law is the result of a process of integration and adaptation of various sources and influences. From the wisdom of Sacred Scripture to the decisions of councils, papal decrees, customary law and the principles of Roman law, each element has helped to shape a legal system that has played a crucial role in the governance of the Catholic Church and exerted a profound influence on European society as a whole.

Roman law and canon law share a fundamental characteristic: they are both systems of written law. This characteristic plays a crucial role in the way in which these legal systems have been developed, transmitted and applied over time. Roman law, as the legal system of the Roman Empire, was formalised and codified in various written documents. These documents included laws, edicts, decrees and resolutions issued by Roman authorities such as emperors and assemblies. Notable examples of this codification include the Code of Justinian, which brought together imperial laws, the Digest, a compilation of the opinions and decisions of Roman jurists, and the Institutes, a manual for teaching law. This written formalisation enabled the law to be applied consistently and uniformly across the vast Roman Empire. Similarly, the Canon Law of the Catholic Church is a codified system of law. It consists of laws and regulations established by the ecclesiastical authorities, in particular the Ecumenical Councils and the Popes. Canon law has been systematised in various written texts, such as the Code of Canon Law, which organises and presents the norms governing the Church. Writing down these laws and regulations has ensured uniformity and clarity in their interpretation and application within the Church throughout the world. The written nature of Roman and canon law contrasts with customary law systems, which are often based on oral traditions and uncodified practices. The existence of written texts in these legal systems has favoured the preservation and dissemination of legal knowledge, allowing for more in-depth study and more systematic application of the law. This characteristic has also facilitated the evolution and adaptation of these legal systems in response to social, economic and cultural changes over the centuries.

End of the first millennium[modifier | modifier le wikicode]

At the end of the first millennium, Europe underwent significant changes in its social and legal structure. One of the most remarkable aspects of this period was the obsolescence of the old laws, particularly those inherited from the Roman Empire and the various Germanic peoples such as the Burgundians, Visigoths and Franks. During this period, the notion of written law, as understood and applied in the Roman Empire and among the Germanic peoples, began to fade. Written codes, once the cornerstone of the legal and social order, lost their pre-eminence. This was partly due to the fall of the Western Roman Empire and the political fragmentation that followed, as well as to the rise of the Germanic kingdoms, which did not have the same tradition of legal codification.

In this context, identity based on ethnic or imperial affiliations, such as defining oneself as Roman, Burgundian, Visigoth or Frankish, began to decline. Instead, identity and social organisation were increasingly defined by place of residence. People identified more with their locality or region than with ethnicity or nationality. This transition marked a significant change in the perception of the social and legal order. As a result, customary law became increasingly important. This law was based on local traditions and practices handed down orally from generation to generation. Each region, and even each locality, could have its own customs that governed daily life. These customs were often flexible and adaptable, reflecting the needs and realities of local communities.

This period also saw the emergence and consolidation of feudalism in Europe, a system in which social and political relations were largely based on land tenure and vassalage relationships. The feudal system, with its complex hierarchy of lords and vassals, also helped to shape the legal and social organisation of the period. The end of the first millennium was a period of profound transition in Europe, marked by changes in the legal and social order. The obsolescence of Roman and Germanic written law and the rise of customary law and feudalism redefined the way in which European societies were organised and governed.

The entrenchment of customary law in Europe at the end of the first millennium can be explained by a series of significant social and cultural changes that occurred following the great invasions and the gradual fusion of the Germanic and Roman peoples. These migratory movements and the resulting interactions led to a profound redefinition of identity in many parts of Europe. During the Great Invasions, also known as the Migration Period, Germanic tribes such as the Goths, Vandals, Franks and Lombards crossed the borders of the Roman Empire, settling in various parts of Europe. These movements marked the end of the Western Roman Empire and led to the formation of new kingdoms and societies in which Roman and Germanic cultures merged. This cultural and social fusion led to a redefinition of identity. Rather than identifying themselves strictly as Romans, Burgundians, Visigoths or Franks, people began to identify themselves according to the locality or region in which they lived. This transition was accompanied by a shift from Roman and Germanic written laws to more locally oriented legal systems based on oral customs and traditions.

These local customs were a mixture of Roman and Germanic traditions, adapted to the needs and realities of the communities. Instead of being based on centralised written codes, the law became a set of practices and norms transmitted orally, often under the supervision of local authorities such as lords or community assemblies. This period also saw the development of the feudal system, which reinforced the localisation of identity and law. In this system, loyalty and vassalage relationships were paramount, and rules and obligations were often defined by the customs of the fiefdom or seigneury. The entrenchment of customary law in Europe at the end of the first millennium was the result of a process of fusion and redefinition of identity, following the great invasions and the integration of the Germanic and Roman peoples. This transformation indelibly shaped the social, cultural and legal structures of medieval Europe.

At the end of the first millennium, Europe went through a period in which the notion of written law, inherited from Roman and Germanic traditions, experienced a significant decline. This period is often associated with a loss of scholarly culture, particularly in terms of legal knowledge. This had a significant impact on the operation of the justice system and the application of the law. With the gradual disappearance of the use of written law, much of Europe entered a period when established legal traditions were less accessible, less understood or sometimes even forgotten. Judges and local authorities, who played a key role in the administration of justice, often lacked formal legal training and had little or no knowledge of Roman and Germanic law. This ignorance of written law led to increased dependence on local customs, which, although practical and adapted to everyday life, did not always benefit from the coherence and rigour of formalised legal systems.

Canon law, however, escaped this trend. As the legal system of the Catholic Church, canon law continued to be taught, developed and applied throughout this period. Church clerics and scholars, who often had access to more formal education, maintained and passed on knowledge of canon law. Universities, which began to emerge in the Middle Ages, played a crucial role in the preservation and teaching of canon law, as well as in the renaissance of legal studies in Europe. Canon law remained a bastion of written and structured legal thought at a time when other forms of written law were in decline. Moreover, the Catholic Church, as an influential and widespread institution, used its canon law to influence not only religious matters, but also social and even political aspects in many parts of Europe. As a result, canon law not only survived this period of cultural loss, but also played a key role in the subsequent development of European law, laying the foundations for the renaissance of Roman law and the formation of modern legal systems.

During this period of legal transition in Europe, marked by a retreat from Roman and Germanic written law, we saw the emergence of local law, better adapted to the realities and needs of specific communities. This development reflects a pragmatic adaptation to changing circumstances and a response to the challenges posed by the loss of a scholarly legal culture. In many territories, the law applied was that of the majority of the population living in the area. This meant that legal norms and rules were largely dictated by the customs and practices prevalent among the local inhabitants. This local law was therefore inherently flexible and varied, reflecting the diversity of traditions and lifestyles across Europe.

This new local law often combined elements of ancient Roman and Germanic legislation. Although detailed knowledge of these legal systems had diminished, their influences persisted in the form of fragments incorporated into local customs. For example, certain principles of Roman law, such as those relating to property or contracts, could be interwoven with Germanic legal practices, particularly in relation to family law and conflict resolution. In addition, these local legal systems were characterised by a capacity for innovation and adaptation. Solutions to specific legal problems were often created on a case-by-case basis, without necessarily referring to a written code or established precedent. This allowed great flexibility in the administration of justice, but also led to a lack of uniformity and predictability in the application of the law. This period, although representing something of a retreat from the legal formalisation of the Roman Empire, was essential in the formation of legal systems adapted to the medieval realities of Europe. The emergence of this local law laid the foundations for the subsequent development of national and regional legal systems in Europe, blending historical influences with innovations adapted to local contexts.

During the medieval period, particularly after the fall of the Western Roman Empire, European law underwent a significant transformation with the emergence of a new body of law developed primarily at local level. Unlike the earlier Roman and Germanic legal systems, this law no longer took the form of formalised written law, but rather took the form of local customary law. This local customary law was based on traditions and practices that were passed down orally and applied by communities. It reflected the specific social, economic and cultural realities of each region or locality. As a result, this law was extremely varied across Europe, with each community having its own customs that governed aspects of daily life, such as property ownership, marriage, inheritance and conflict resolution. The lack of uniformity and the unwritten nature of this customary law had both advantages and disadvantages. On the one hand, it allowed great flexibility and adaptation to specific local circumstances. On the other, it could lead to legal uncertainty and marked differences in the application of justice from one region to another.

During this period, local customary law became the dominant legal system in many parts of Europe. Formal written law systems, such as Roman law, were largely inaccessible or forgotten outside scholarly circles, mainly preserved in monasteries or ecclesiastical institutions. Consequently, for the majority of the population, local customary law was the main, if not the only, relevant legal system. This predominance of customary law continued until the revival of legal studies and Roman law in medieval universities, particularly from the 11th and 12th centuries onwards. The re-emergence of Roman law and the emergence of universities played a crucial role in shaping the foundations of modern legal systems in Europe. Nevertheless, the influence of local customary law remained important and continues to influence legal systems in many regions.

In the medieval period, after the collapse of the Western Roman Empire and during the periods of migration and settlement of the Germanic peoples, the Roman and Germanic legal systems did not disappear completely, but their accessibility and direct influence on everyday life diminished considerably. These laws, especially Roman law, existed mainly in the form of written documents that were kept in libraries, particularly those of monasteries and ecclesiastical institutions.

During this period, Europe experienced a kind of decline in the knowledge and active use of Roman law. Roman legal texts, such as those compiled in Justinian's Corpus Juris Civilis, were often inaccessible to the majority of the population, including many local judges and administrators. These texts were mainly preserved in monastic libraries, where they were studied by a small elite of clerics and scholars. However, this preservation was crucial to the transmission of Roman legal knowledge down the centuries. Similarly, Germanic law, although codified in some cases (such as the Laws of the Burgundians or the Lex Salica of the Franks), was not as widespread or accessible as local customary law. These Germanic texts were also often preserved in monastic contexts or in royal courts, and their application was limited compared with local customary law, which was more immediately relevant to people's everyday lives.

This began to change with the Renaissance of the twelfth and thirteenth centuries, when universities in Europe, such as Bologna in Italy, began to rediscover and teach Roman law. This legal renaissance led to a revitalisation of the study of Roman law and laid the foundations for the subsequent development of legal systems in Europe. Thus, although Germanic and Roman law were to some extent relegated to libraries during this period, their preservation in these centres of learning was essential to their rediscovery and influence on later European legal systems.

Beginning of the second millennium[modifier | modifier le wikicode]

Glossators : 12th century - 13th century[modifier | modifier le wikicode]

The twelfth and thirteenth centuries marked a crucial period in the history of European law with the rediscovery and study of Justinian law at the University of Bologna. This period is particularly notable for the emergence of glossators, jurists and scholars who played a central role in the revival of Roman law. At Bologna, one of the first and most influential medieval universities, the glossators began to study in depth the Corpus Juris Civilis, a collection of legal texts drawn up in Constantinople under the emperor Justinian in the sixth century. These texts, which included the Code, the Digest, the Institutes and the Novelles, formed an exhaustive compilation of Roman law. Although these texts had been preserved for centuries, it was not until this period that their systematic study was revived. The glossators not only rediscovered these ancient texts, but also set about commenting on and explaining them. Their work consisted of writing "glosses" or marginal commentaries that clarified, interpreted and extended the original text. This method of study made Justinian law more accessible and applicable to contemporary situations.

Their approach marked a significant change in the way legal disputes were resolved. Instead of relying solely on traditional customs, which could sometimes be arbitrary or contrary to reason, the glossators promoted a more rational and systematic approach. They analysed each specific case, seeking to extract a solution that not only complied with the legal texts, but was also logical and fair. The influence of the glossators and their work on the Corpus Juris Civilis had a profound impact on the development of law in Europe. They laid the foundations for a deeper understanding and more systematic application of Roman law, which ultimately led to the emergence of the civil law tradition in Europe. Their legacy lives on in modern legal systems, where rational analysis and reference to fundamental legal texts remain central aspects of legal practice.

The glossators, with their meticulous and innovative work on the Corpus Juris Civilis in the twelfth and thirteenth centuries, are often considered to be the fathers of European jurisprudence. Their influence on law and legal methodology in Europe was profound and lasting, marking a decisive turning point in the history of Western law. By rediscovering and commenting on the texts of Roman law, the glossators not only preserved a precious legal heritage, but also revolutionised the way law was thought and practised in Europe. Their methodical and analytical approach led to a deeper understanding and more systematic interpretation of the law. By providing detailed commentaries and clarifications on complex legal texts, they made Roman law accessible and applicable to contemporary situations. Their work contributed to the formation of a European legal tradition that valued rational analysis, reference to written texts and the systematic application of legal principles. This tradition was crucial in the development of what is now known as the civil law system, which predominates in much of Europe and has influenced other legal systems around the world. The glossators also laid the foundations of jurisprudence, establishing methods for interpreting the law and resolving disputes. Their influence is felt not only in the way the law is taught and studied in universities, but also in the day-to-day practice of law. Thus, by reviving and enriching Roman law, the glossators not only preserved a legal heritage, but also helped to shape the framework of legal thought and practice in modern Europe. Their legacy continues to be a cornerstone of European jurisprudence.

The work of the glossators at the University of Bologna in the twelfth and thirteenth centuries had a considerable influence, attracting students from all over Europe wishing to study Roman law. Thanks to these scholars, Bologna became a major centre of legal learning and played a crucial role in spreading legal knowledge across the continent. The glossators' teaching method, based on in-depth analysis and rigorous interpretation of Roman law texts, was revolutionary for its time. Students were attracted not only by the richness of the content taught, but also by the teaching method, which fostered an in-depth and critical understanding of legal principles. The glossators taught how to apply the principles of Roman law to concrete cases, a highly sought-after skill at a time when local customary law predominated.

The students who came to Bologna to study with the glossators came from various parts of Europe, helping to form an international network of jurists trained in the Roman law tradition. Once they returned to their home countries, these students disseminated the knowledge they had acquired and often played an important role in the development and reform of local legal systems. They also contributed to the creation of new law schools and the spread of legal education across Europe. The impact of the University of Bologna and the glossators therefore extended far beyond Italy. Their influence was a decisive factor in the revival of Roman law in Europe and laid the foundations for the subsequent development of the civil law system. Thanks to these teachings, the University of Bologna has remained a model for legal education institutions for centuries and continues to be recognised today as one of the cradles of modern legal education.

Conciliators: 14th century - 15th century[modifier | modifier le wikicode]

In the 14th and 15th centuries, the influence of the glossators' teachings and the gradual integration of Roman law into European legal practice continued to evolve, notably through the role of the conciliators. These conciliators, often professors and jurists, played a crucial role in the fusion of Roman law with local legal systems, particularly in regions such as Italy.

Continuing the work begun by the glossators, the conciliators sought to apply the principles of Roman law to the resolution of specific legal cases. Faced with situations where local law, often based on Germanic customs or traditions, proved insufficient, the conciliators turned to Roman law to find more appropriate and rational solutions. This approach led to what might be called a 'Romanisation' of local law, especially in Italy. By incorporating elements of Roman law into legal practice, the conciliators helped to enrich and sophisticate local legal systems. Roman law, with its logical structure, elaborate concepts and systematic approach, offered a more complete legal framework for dealing with a variety of legal issues.

This process marked an important stage in the evolution of law in Europe. By fusing the principles of Roman law with local customs, the conciliators helped to create more unified and coherent legal systems. This synthesis also helped to form the basis of modern legal systems in Europe, which often combine elements of Roman law with local legal traditions. The role of the conciliators in the 14th and 15th centuries was essential to the spread and practical application of Roman law in Europe. Their work not only helped to fill the gaps in local legal systems, but also played a crucial role in the harmonisation and modernisation of European law.

Legal humanism: 16th century - 17th century[modifier | modifier le wikicode]

In the sixteenth and seventeenth centuries, Europe experienced a major intellectual movement known as legal humanism. This movement marked a turning point in the way Roman law was approached and understood, distinguishing it from the methods of the glossators and conciliators of previous centuries.

Legal humanism was characterised by a return to the original sources of Roman law, focusing particularly on the meaning and spirit of the law as laid down in the Corpus Juris Civilis of the Emperor Justinian. Legal humanists sought to understand Roman law in its purest form, stripping away the layers of interpretation and commentary accumulated over the centuries by glossators and conciliators. This approach involved direct, in-depth study of the original texts of Roman law, moving away from medieval interpretations towards a more authentic, historical understanding of the law. Legal humanists emphasised philology, the critical study of texts, to rediscover the original meaning and intent behind the laws and principles established by Justinian and other Roman sources.

Legal humanism also encouraged a broader perspective in the study of law, integrating historical, philosophical and cultural knowledge. This holistic approach made it possible to place Roman law in a broader cultural and historical context, thereby enriching legal understanding and fostering a more nuanced and enlightened interpretation of the texts. The legal humanism movement had a significant impact on the development of law in Europe. It not only contributed to a better understanding of Roman law, but also influenced legal practice, the teaching of law and the formation of modern legal systems. By returning to the sources of Roman law, the legal humanists helped to establish a solid foundation for the study and practice of law, which continues to influence contemporary legal thought.

The integration of Roman law in Western Europe[modifier | modifier le wikicode]

The integration of Roman law in Western Europe during the second millennium took place in several distinct phases, each contributing significantly to the renaissance and evolution of European jurisprudence. In the twelfth and thirteenth centuries, the University of Bologna became the centre of a remarkable intellectual movement with the emergence of the glossators. These scholars set out to restore and study the Corpus Juris Civilis, an exhaustive compilation of Roman law drawn up under the emperor Justinian. Their meticulous work not only revitalised the study of Roman law, but also laid the foundations for modern European jurisprudence. For example, Irnerius, one of the first glossators, was instrumental in analysing and interpreting Roman legal texts, shedding essential light on their understanding. The fourteenth and fifteenth centuries saw the emergence of the conciliators, who played a crucial role in integrating Roman law into everyday legal practice. The conciliators used the principles and solutions of Roman law to fill the gaps in local legal systems, which were often based on less formalised customs and traditions. This led to a 'Romanisation' of local law, particularly in Italy, where conciliators helped to enrich and sophisticate legal practice. In the sixteenth and seventeenth centuries, legal humanism marked a return to the origins of Roman law, seeking to understand these legal texts without relying on the earlier annotations and interpretations of glossators and conciliators. Legal humanists, such as Andrea Alciato, adopted a philological and historical approach, aiming to grasp the original meaning and intention behind Roman laws. This period was characterised by a more critical and contextualised study of Roman law, profoundly influencing the way law was taught and practised. Together, these different phases shaped the renaissance and development of Roman law in Western Europe, indelibly influencing the trajectory of European jurisprudence. They not only preserved a precious legal heritage, but also laid the foundations for modern legal systems that combine the principles of Roman law with contemporary realities.

The dynamics of the relationship between Roman law and local customs in medieval and early modern Europe are complex and fascinating. Although Roman law seemed to disappear or at least to recede significantly after the fall of the Western Roman Empire, it continued to exert a subtle influence through local customs that had absorbed some of its principles. With the revival of Roman law, initiated by the work of the glossators at the University of Bologna and continued by the conciliators and legal humanists, this ancient law gradually regained ground in Europe, particularly in the southern regions that had a strong Roman heritage. In these regions, Roman law began to re-enter legal practice, often replacing or modifying the systems of local law that had developed over the preceding centuries.

This effect was particularly marked in countries such as Italy, Spain and Portugal, where the Roman heritage was deeply rooted. In these regions, the 'Romanisation' of local legal systems accelerated as the principles of Roman law were rediscovered and reintegrated. These principles offered a more coherent and systematic legal framework than the often fragmented and varied local customs. In Italy, for example, the return of Roman law led to a significant transformation in local legal practices. Lawyers trained in Bologna and other university centres began to apply the teachings of Roman law to the resolution of disputes and the formulation of new laws. Similarly, in Spain, Roman law influenced the compilation of the "Siete Partidas", a major legal code of the 13th century. Although Roman law seemed to disappear after the fall of the Western Roman Empire, it survived and was preserved through local customs. With the legal renaissance that began in the Middle Ages and continued through the Renaissance, it regained a pre-eminent position, particularly in the countries of southern Europe, where it replaced or transformed existing local legal systems. This process was a key element in the formation of Europe's modern legal systems.

Prior to the promulgation of the Civil Code in 1804, France had a divided legal landscape, reflecting the historical and cultural complexity of the country. This division was particularly marked between the south and the north of the country, each with a distinct approach to law and legal tradition. In the south of France, the influence of Roman law was particularly strong. The revival of Roman law, which began in the Middle Ages, led to a gradual decline in local customs rooted in Roman tradition. This region, having retained a direct heritage from the Roman Empire, saw Roman law reintegrated and taught in universities. The University of Orléans, for example, was an important centre for the study of Roman law in France. This Roman legal tradition, with its sophisticated principles and methodology, was favoured and gradually supplanted local customs in the south. In the north of France, however, the situation was different. The arrival and development of Roman law was often perceived as a threat to local legal traditions, which were more influenced by Germanic law. Faced with the growing influence of Roman law, there was a movement to write down Germanic customs. The aim of the medieval customary law movement was to preserve local legal traditions by codifying them.

Medieval coutumiers, such as the "Coutumier de Normandie" or the "Coutume de Paris", played a crucial role in documenting and formalising local legal practices. These texts not only served as compilations of customs; they also represented an effort to systematise and rationalise traditional legal practices. Although these coutumiers were influenced by Roman law in certain respects, they mainly sought to transcribe and preserve Germanic customs in their own right. The legal duality in France, with Roman law dominating in the south and Germanic customs in the north, persisted until the promulgation of the French Civil Code in 1804. The Civil Code, known as the Napoleonic Code, sought to unify the French legal system by integrating and rationalising elements of both legal traditions. This codification marked a key moment in French legal history, creating a uniform legal framework for the whole country.

15th century - 16th century[modifier | modifier le wikicode]

In the 15th and 16th centuries, a significant development in the field of law took place in France: the drafting of local customs under the aegis of the sovereign power. This process was part of a wider effort to systematise and formalise legal laws and practices, which varied widely from region to region.

During the reign of Louis XI, and later under François I, the royal power undertook an initiative to compile and codify local customs. This move was motivated by the desire to bring a degree of coherence and uniformity to France's fragmented legal landscape. Each locality or province was invited to draw up its custom, i.e. to formalise in writing the laws and practices that had traditionally been handed down orally and applied informally. The process of drafting customs often involved collecting, examining and standardising local legal practices. This meant that, for the first time, whole regions of France had written documents describing their laws and legal procedures. However, although this initiative contributed to a degree of organisation and clarification of the law, it also maintained legal diversity across the country, with each region retaining its own specific customs.

It was not until Napoleon Bonaparte promulgated the Civil Code in 1804 that a single, uniform law was applied to all French citizens. The Civil Code, also known as the Napoleonic Code, rationalised and unified French law, replacing the multiple local customs with a single coherent body of law. The Code was a major achievement in legal history, not only for France but also for many other countries, as it influenced the development of law throughout the world. The fifteenth and sixteenth centuries in France were marked by a major stage in the codification of customs under royal authority, paving the way for the subsequent unification and standardisation of French law with the Civil Code of 1804.

The emergence of universities in Europe in the Middle Ages marked a turning point in the development and dissemination of canon law and Roman law, transforming them into veritable 'learned laws'. These educational institutions played a crucial role in the preservation, study and propagation of these legal systems, contributing to their refinement and sophistication. The University of Bologna, founded in the eleventh century, became a major centre for the study of law and gained particular renown for its teaching of canon law and Roman law. In many ways, Bologna was at the heart of the heyday of canon law and the revival of Roman law in Europe. As far as canon law is concerned, the University of Bologna was an important centre of study and development. Canon law, which governs the internal affairs of the Catholic Church, was systematised and taught in depth at this university. Bologna's jurists and theologians have contributed to the interpretation, development and application of canon law, influencing the practice and administration of the Church throughout Europe.

At the same time, the University of Bologna was also the birthplace of the glossator movement, which rediscovered and commented on the Corpus Juris Civilis. This movement marked the renaissance of Roman law in Western Europe. Through their meticulous analysis and detailed commentaries, the glossators revitalised and clarified Roman law, making it accessible and applicable to contemporary realities. Universities were therefore essential in transforming canon law and Roman law into academic disciplines, elevating their study to the rank of legal science. These 'learned laws' not only enriched legal knowledge in Europe, but also laid the foundations for modern legal systems. The apogee of these legal disciplines at the University of Bologna influenced legal thought and practice far beyond Italy, shaping the development of law in Europe for centuries to come.

In the mid-twelfth century, a major event in the history of canon law occurred with the compilation of the "Decree of Gratian", also known as the Edict of Gratian. Gratian, a monk and jurist, undertook the ambitious task of collecting and organising all existing canon law into a single compendium. Gratian's Decree marked a fundamental step in the development of canon law by consolidating a multitude of disparate canonical sources, such as papal decrees, the canons of councils, and the writings of the Fathers of the Church. Prior to Gratian's work, canon law was scattered across many different documents, making it complicated to study and apply. By bringing all these sources together in a single systematic work, Gratian created an invaluable pedagogical and legal tool.

Gratien's Decree quickly established itself as a reference in universities and ecclesiastical courts throughout Europe. It was widely adopted as a teaching manual and a guide to legal practice within the Church. Gratian's organisation and method of reconciling conflicting texts greatly facilitated the understanding of canon law and helped to standardise its application. The influence of Gratian's Decree was such that it became the foundation of the Catholic Church's legal system until the subsequent codification of canon law in the twentieth century. His work played a crucial role in shaping the canonical legal tradition and had a significant impact on the development of law in general. The Gratian Decree remains a fundamental work in the historical study of canon law.

In 1582, a major development in the history of canon law occurred with the publication of the "Corpus Juris Canonici". This collection represented an exhaustive compilation of canon law, encompassing texts and decrees from the "Decree of Gratian" up to that period. The "Corpus Juris Canonici" was not simply a reprint of the "Decree of Gratian", but rather a complete collection that included the Decree itself as well as many other canonical legal sources that had been established since then. This compilation included papal decrees subsequent to Gratian, as well as other important documents and decisions of the Church. The importance of the Corpus Juris Canonici lies in its ability to provide a coherent and organised overview of the legislation of the Catholic Church. By bringing together all these sources into a single whole, the Corpus Juris Canonici has facilitated the study, teaching and application of canon law. This was particularly important as the Church sought to assert its authority and clarify its laws during the Counter-Reformation period.

The publication of the Corpus Juris Canonici also had a significant impact on the subsequent development of canon law. By providing a stable and comprehensive legal reference, it helped to standardise legal practice within the Catholic Church and served as the basis for subsequent reforms and adaptations of canon law. The "Corpus Juris Canonici" remained the standard canonical authority of the Catholic Church until the twentieth century, when the 1917 Code of Canon Law was promulgated, representing a further codification of canon law.

The school of modern natural law[modifier | modifier le wikicode]

In the modern era, a significant evolution in legal thought emerged with the development of a new conception of natural law. This approach to law differs from previous conceptions in that it sees law as being founded on a set of universal fundamental principles inherent in human nature and reason. According to this perspective, positive law, i.e. the law established and applied by societies, should be derived directly from these principles of natural law. This new approach to natural law was influenced by the work of philosophers such as Thomas Hobbes, John Locke and, later, Jean-Jacques Rousseau. These thinkers put forward the idea that certain rights and principles are natural and universal, such as the right to life, liberty and property. These rights are not granted by governments or institutions, but are inherent to the human condition.

According to this view, positive law should be an expression of these natural rights and principles. In other words, the laws created by governments and institutions should be in harmony with, and derived from, fundamental natural rights and the principles of universal justice. When positive law is at odds with these natural principles, it is considered unjust or illegitimate. This new conception of natural law has had a profound impact on the development of law and legal theory. In particular, it influenced the formation of theories of human rights and played a key role in the conceptualisation of modern democratic constitutions, such as those of the United States and France after the Revolution. The French Declaration of the Rights of Man and of the Citizen of 1789, for example, clearly reflects the influence of these ideas of natural law.

The modern school of natural law, which flourished between the seventeenth and eighteenth centuries, represents a philosophical and legal approach that seeks to establish the foundations of law and justice on the basis of principles derived from human nature and reason. The thinkers of this school adopted a rational and critical approach to exploring and understanding the fundamental aspects of human existence and deducing universal legal principles from them. Authors of the modern natural law school, such as Hugo Grotius, Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, sought to identify principles that they believed were self-evident or innate in human nature. These principles are considered to be the foundations on which all other legal rules rest. For example, Locke's concept that individuals have inalienable rights to life, liberty and property is a typical example of this kind of fundamental principle. The approach of these thinkers was to use an analysis of the human condition - its needs, aspirations and ability to reason - as a basis for establishing fundamental rights and duties. These natural rights and duties would then serve as the basis for the creation of positive law, i.e. the law established by societies and governments. The idea was that laws and legal systems should reflect these natural principles if they were to be just and legitimate.

This approach marked a break with previous conceptions of law, which often relied more on tradition, authority or divine revelation. It also helped to shape the philosophical foundations of modern democracies, particularly in terms of human rights and governance. The authors of the modern natural law school played a key role in the transition to a more rational and universal understanding of law. Their efforts to deduce legal principles from a study of human nature have profoundly influenced the development of law and legal thought in the contemporary world.

Hugo Grotius, also known as Hugo de Groot, is a central figure of the modern school of natural law and is often regarded as the father of international law. His most famous contribution to jurisprudence is his work De Jure Belli ac Pacis (On the Law of War and Peace), published in 1625. This treatise became a founding text in the field of international law and had a profound influence on the development of international legislation. In "De Jure Belli ac Pacis", Grotius explores the principles of natural law and their application to war and peace. He addresses issues such as the just causes of war, the rules of conduct in war, and the foundations of a just peace. One of Grotius's major contributions is the idea that certain laws and principles are universal and apply to all peoples, regardless of the specific laws of their country. This idea laid the foundations for the modern concept of international law, which governs relations between nations.

Grotius also defined the concept of sovereign power in his treatise. According to him, sovereignty is characterised by autonomy and independence: a sovereign authority is one whose acts do not depend on any higher power and cannot be annulled by any other human will. This definition had a significant impact on the theory of the state and the notion of national sovereignty, key concepts in the formation of modern nation states. Grotius' work not only laid the foundations of international law, but also influenced political and legal thought in many other areas. His ideas on natural law, sovereignty, and the laws governing war and peace continue to be relevant and are studied in the fields of law, international relations and political philosophy.

The notion that states should be self-limiting in their international relations is a fundamental principle of global governance and international law. This idea, influenced by the work of thinkers such as Hugo Grotius, emphasises that although states are sovereign entities, they are also members of an international community governed by common laws and norms. According to this perspective, states, in their collaboration and interactions, should adhere to a framework of international law that limits their actions for the common good. This implies the recognition of and respect for certain rules and conventions that regulate the behaviour of states on the international scene. These rules may concern various aspects of international relations, including, but not limited to, the rules of war, treaties, human rights and international trade.

Adherence to a system of international law creates a more predictable and stable environment, where states can interact peacefully and constructively. It also helps to prevent conflict and manage disagreements in a more civilised and equitable manner. By agreeing to limit themselves within a shared legal framework, states recognise that their own interests are best served in a context of mutual respect and cooperation. This idea of an international society governed by law plays a crucial role in efforts to maintain international peace and security. It is at the heart of many international institutions, such as the United Nations, and international treaties, which seek to frame and regulate interactions between states to promote collective well-being and the peaceful resolution of conflicts.

Hugo Grotius's conception of natural law is distinguished by its insistence on the intrinsically rational and universal nature of certain legal norms and principles. For Grotius, natural law is intimately linked to man's nature and capacity for reason. He maintains that certain principles are so fundamental that they are recognised by all human societies, independently of the particular laws established by each state or community. According to Grotius, the strength of natural law lies in its ability to transcend different local laws and customs. This right does not depend on divine will or any other external authority; rather, it is inherent in the human condition itself. Grotius argues that even God cannot make good what is intrinsically evil or contrary to human nature and society. In other words, there are fundamental moral and legal principles that are inalienable and immutable, even by divine authority.

This perspective marks a turning point in legal thought, as it establishes natural law as a universal frame of reference for judging the justice and legitimacy of human laws. Natural law, in this view, serves as a yardstick for assessing the morality and validity of positive laws, those created by human societies. Grotius's approach had a profound impact on legal and political theory. It paved the way for the later development of theories of human rights and international law, emphasising the idea that certain rights and principles are universal and must be respected by all societies and governments. This vision influenced the way in which later thinkers conceived of fundamental rights and justice, and continues to be a cornerstone of contemporary legal thought.

The conception of natural law developed by Hugo Grotius and other thinkers of his time is based on the idea that natural law is a set of universal and invariable principles that do not depend on divine will or any other external authority. For Grotius, natural law is a constant, just like the laws of nature, and constitutes a higher ideal of justice that applies to all human beings, regardless of their culture, religion or political system. From this perspective, natural law is immutable and universal. It transcends the positive laws created by human societies and serves as a reference for assessing their fairness and legitimacy. This vision suggests that certain truths and moral principles are inherent to the human condition and must be respected by all forms of governance and legislation.

Grotius and his contemporaries in the modern school of natural law thus established the idea that, although human laws may vary from place to place, there are fundamental principles of justice and morality that are universal. These principles should guide the creation and application of laws, thus ensuring that legal and political systems serve the fundamental interests of humanity and respect the inalienable rights of the individual. This conception of natural law has had a considerable influence on the subsequent development of theories of human rights and international law. It provided a philosophical basis for arguing in favour of universal and inalienable rights, and significantly influenced the drafting of documents such as the Universal Declaration of Human Rights. In short, Grotius's vision of natural law as a set of superior and immutable principles has been essential in shaping the ethical and legal framework of the modern world.

The principle of "Pacta sunt servanda", which literally translates as "agreements must be respected", is one of the essential foundations of natural law and, by extension, of modern international law. This principle stipulates that agreements and treaties concluded in good faith between the parties must be honoured and executed in accordance with their spirit and letter. In the thinking of Grotius and other natural law jurists, "Pacta sunt servanda" is more than just a legal rule; it represents a fundamental moral principle reflecting reliability and integrity in human relations. This notion is based on the idea that the word given and the commitments made must be respected, as they form the basis of trust and cooperation in any society. This principle is crucial in the context of international relations, where it serves as a pillar for the development and maintenance of international treaties and agreements. By recognising and applying "Pacta sunt servanda", states and international actors accept that commitments made must be respected, thus creating a framework of stability and predictability that is essential for international cooperation. The importance of "Pacta sunt servanda" is not limited to the field of international law. It is also applicable in civil law, where it underpins the principles of contractualisation and contract enforcement. This principle ensures that parties to contracts are bound by their agreements and are obliged to respect their contractual commitments.

Hugo Grotius is often celebrated as one of the first to formulate universal principles of natural law, but the elaboration of these principles into a rational and autonomous legal system is attributed to Samuel Pufendorf, another eminent philosopher of natural law. Samuel Pufendorf, who lived in the seventeenth century, made a significant contribution to the theory of modern natural law. He proposed a legal system based on observation and rational deduction, a system that emphasised the importance of human experience and reason in understanding the law. Pufendorf differentiated his approach from that of his predecessors by emphasising a more empirical and less theological analysis of natural law. For Pufendorf, natural law was not simply a set of universal moral principles; it was also a logical and coherent system that could be understood and applied through the use of human reason. His work marked an important step towards a more secular and rationalist view of natural law, moving away from the theological underpinnings that had often characterised earlier discussions on the subject. Pufendorf also emphasised the importance of social relations and sociability in understanding natural law. In his view, human beings are by nature social creatures, and natural law must take account of this social dimension of human existence. His writings emphasised the need for rules and norms to regulate human interaction, recognising that these rules are essential for maintaining order and stability in society. While Grotius laid the foundations for the modern theory of natural law, it was Samuel Pufendorf who developed these ideas into a rational and autonomous legal system. His approach significantly influenced the subsequent development of natural law and contributed to the foundation of modern legal and political philosophy.

Christian Wolff, an eighteenth-century German philosopher and jurist, was a leading disciple of the natural law school and made a significant contribution to the development of this theory. Influenced by the work of Samuel Pufendorf, Wolff deepened the conceptualisation of natural law by approaching it with a rigorous scientific method, characterised by logical and detailed deductions. Wolff's approach to natural law was methodical and systematic. He sought to define the principles of natural law precisely and comprehensively, applying techniques of scientific reasoning to establish a coherent set of legal rules. Wolff saw law not only as a set of norms and rules, but also as a logical and scientific system that could be understood and explained by human reason. His vision of law as a logical system had a significant influence on legal practice in continental Europe. By insisting on logic and order in the development of laws and legal systems, Wolff contributed to the formalisation of legal practice, encouraging a more structured and systematic approach to the application and interpretation of law. Wolff's influence also extended to judicial systems, where his emphasis on logical deduction based on a fundamental order encouraged a more rigorous and methodical approach to the law. This has led to greater predictability and consistency in the resolution of legal disputes, as well as a better structuring of legal systems. Christian Wolff played a crucial role in the development of natural law theory and greatly influenced the way the law was understood and practised, particularly in continental Europe. His rigorous methodology and systematic approach left a lasting imprint on legal philosophy and judicial practice.

Philosophers of the social contract, such as Jean-Jacques Rousseau and John Locke, played a crucial role in the development of modern political and legal thought, following in the footsteps of the natural law school. These thinkers put forward the idea that the legitimacy of governments rests on the voluntary consent of individuals. According to them, political and governmental structures must be based on mutual agreement between the governed and those who govern. John Locke, in particular, was an influential advocate of this approach. For Locke, government is legitimate only if it is the product of the voluntary agreement of individuals. In his view, people consent to government in order to preserve their natural rights, such as the right to life, liberty and property. This consent is not a concession of rights, but rather a strategy to better protect them. Locke argued that governments exist to serve the interests of their citizens, and in particular to protect these natural rights. Jean-Jacques Rousseau also explored similar themes, although his approach differed in some respects. In his work On the Social Contract, Rousseau emphasised the idea of the general will as the basis of political legitimacy. In his view, a legitimate government should reflect the collective will of the community, rather than the particular interests of a few. The theories of Locke and Rousseau had a profound influence on the formation of the concepts of human rights and democracy. Their ideas on the social contract formed the basis of the modern notion of popular sovereignty and representative government. These concepts were incorporated into the fundamental principles of modern democracies and influenced the drafting of important documents such as the American Declaration of Independence and the French Declaration of the Rights of Man and the Citizen.

Before the great codifications of the eighteenth century, continental European law was an amalgam of diverse legal systems and traditions. This complexity reflected the rich and varied history of Europe, where different legal influences intermingled over time. Roman law, the legacy of the Roman Empire, continued to exert a significant influence, particularly in the countries of southern Europe. Reinterpreted by legal glossators and humanists, this ancient law formed the basis of many legal systems, particularly in Italy. Its elaborate principles and systematic methodology played a key role in the formation of continental civil law. At the same time, canon law, which governed the affairs of the Catholic Church, also influenced continental law. Universities, often linked to the Church, were centres for the study and dissemination of canon law. This legal system had a significant influence in areas such as family and inheritance law. In northern and western Europe, customary law, often derived from Germanic traditions, predominated. These local legal systems were based on ancestral practices and were gradually formalised in documents such as customary law. For example, the "Coutumier de Normandie" in France was a notable effort to codify local laws and customs.

In addition, the school of modern natural law, with thinkers such as Grotius, Pufendorf, and Wolff, brought a new dimension to continental law. This school introduced the idea of universal legal principles based on reason and human nature. Their work influenced legal thought by introducing more abstract and universal concepts, which served as a basis for rationalising legal systems. These various elements - Roman law, canon law, customary law and modern natural law - coexisted in a complex and sometimes contradictory relationship, making the European legal landscape particularly diverse. The codifications of the eighteenth century, such as the famous French Civil Code of 1804, sought to unify and systematise these diverse traditions. These codification efforts marked an important stage in the history of continental law, rationalising and modernising legal systems to make them more coherent and accessible.

The influence of the modern natural law school on the development of both private and public law is deeply rooted in the principle of equality between individuals. This principle, which emerged from reflection on the natural and inalienable rights of man, had a considerable impact on the formation of legal systems and government structures, particularly from the eighteenth century onwards. In the field of private law, the principle of equality has influenced the way in which laws treat individuals in terms of civil rights and transactions. It has challenged and often modified legal practices that drew distinctions based on birth, social status or other arbitrary criteria. This approach has led to a broader recognition of the equality of parties in contracts, property rights and other private legal relationships.

In the field of public law, the principle of equality has had an even more profound influence, particularly in the development of modern constitutions. The United States Declaration of Independence of 1776, with its famous assertion that all men are created equal, and the French Declaration of the Rights of Man and of the Citizen of 1789, which proclaims the equality of all citizens before the law, are emblematic examples of the application of this principle in public law. These and similar constitutional documents establish equality as a fundamental principle of the legal and political order. They formed the basis for the abolition of unequal legal and social structures, such as feudalism and serfdom in Europe, and provided a framework for combating discrimination and injustice in modern societies. The principle of equality, as developed by the modern school of natural law, has therefore played a crucial role in the transition to more democratic and egalitarian societies. It has influenced not only legal and political theories, but also concrete practices of governance and legislation, helping to shape the evolution of modern democracies and respect for human rights worldwide.

Over the centuries, Geneva has represented a fascinating microcosm of the evolution and interaction of legal systems in Europe. Prior to the standardisation of the law with the great codifications, the city witnessed the complex coexistence of several legal systems and traditions.

Roman law, with its ancient roots and widespread influence, was applied in Geneva in many areas, particularly those of civil law. Its sophisticated principles and rules concerning property, contracts and inheritance were a fundamental pillar of the legal system. The depth and complexity of Roman law made it particularly well-suited to the regulation of legal affairs in an urban and commercial society such as Geneva. At the same time, for specific aspects such as construction, Geneva referred to the Custom of Paris. This custom, one of the most important in France, provided a set of rules and practices to govern specific areas, showing how local law could complement Roman law by providing solutions tailored to the specific needs of the community. Before the Protestant Reformation, canon law also played an important role in Geneva. This legal system, which governed not only religious affairs but also certain aspects of civil life such as marriage, had a significant influence on the city's legislation and social practices.

With the advent and development of the modern school of natural law, new principles began to permeate Geneva's legal system. The ideas of universal natural rights, popular sovereignty and the social contract, promoted by thinkers such as Grotius, Pufendorf and Wolff, found particular resonance in Geneva, especially after the Reformation. These concepts gradually influenced legal and political practice, introducing notions of inalienable rights and individual autonomy. Geneva's legal history is therefore a fascinating example of how different legal influences - Roman law, the custom of Paris, canon law and the ideas of modern natural law - can coexist and interact. This coexistence has shaped a unique legal landscape, reflecting both the diversity and the dynamics of legal development in Europe.

The development of law in Europe, and in Geneva in particular, is not limited solely to the influences of Roman law, canon law, customary law and the ideas of the school of modern natural law. Another crucial element to consider is national law, which takes different forms depending on the region and political structure. In the Holy Roman Empire, for example, national law consisted of imperial laws. These laws were promulgated by the emperor and the imperial institutions, and their scope extended across the various territories of the Empire. They constituted an additional layer of legislation, often coexisting with local and regional legal systems. For Geneva, national law took the form of statutes adopted by the Genevan sovereign. These statutes were laws specific to the city-state of Geneva, reflecting its particular political, social and economic features. The development of these local statutes was an important aspect of the city's autonomy and governance, especially after its emancipation from the domination of the Duchy of Savoy and its alliance with the Swiss cantons.

In the Swiss cantons, national law was represented by regulations and adopted charters. Each canton had its own laws and regulations governing local affairs. These documents, often the result of long traditions and negotiations between various social and political groups, were crucial to the maintenance of order and social organisation within each canton. These different forms of national law, whether the imperial laws of the Holy Roman Empire, the statutes of Geneva or the regulations of the Swiss cantons, show how the law evolved and adapted to the specific political and social realities of each region. They complemented and interacted with other layers of law - Roman, canonical, customary and natural - to form a complex, multi-layered legal system, characteristic of Europe before the great legal codifications of the nineteenth century.

The late eighteenth and early nineteenth centuries in Europe were marked by an unprecedented legal codification movement, largely influenced by the ideas of the modern natural law school. This movement aimed to simplify, systematise and unify the various existing laws and legal practices through clear and accessible written codes. The first codification efforts were made in Germany, reflecting the trend towards rationalising the law in accordance with the principles of natural law. Austria, for example, was one of the first states to adopt this approach, introducing a Civil Code in 1811 to regulate civil matters, and establishing a Penal Code in 1786 and a Code of Criminal Procedure in 1788. These codes represented a significant modernisation of the legal system, moving away from traditional and heterogeneous norms. Prussia did not remain on the sidelines of this trend and drew up its own code, which was finalised in 1894. The Prussian Code was an ambitious project aimed at unifying and rationalising the law within the state, illustrating a commitment to a more organised and coherent legal system. In France, the codification movement culminated in the promulgation of the Civil Code in 1804, commonly known as the Napoleonic Code. This code profoundly transformed French civil law, establishing clear rules for civil rights, property and the family. The French Civil Code was admired and adopted, in various forms, in many other countries, becoming a model for global legal development. In addition to the Civil Code, France also introduced a Penal Code in 1791 and a Commercial Code in 1807, consolidating its legislation in other key areas.

These codification initiatives marked a significant break with previous legal practice. By replacing the complexity of local and customary laws with unified codes, these reforms made the law more accessible and comprehensible to citizens, while ensuring greater consistency and logic in the application of the law. These codes were not simply compilations of existing laws; they represented a fundamental reorganisation of legislation based on principles of clarity, logic and universality, embodying the ideas of natural law in legal practice and leaving a lasting legacy in the field of law.

The modern notion of codification, as embodied in contemporary legal codes, represents a significant departure from earlier methods of compiling and organising the law. This modern approach to legal codification is based on several fundamental principles that reflect a systematic and rationalised vision of the law. Firstly, modern codes are characterised by the formulation of general and abstract rules. Unlike the simple compilation of existing laws and customs, modern codes aim to establish universal principles that can be applied to a wide variety of situations. This general and abstract approach allows greater flexibility and adaptability of the law, while ensuring uniformity and predictability in its application. Secondly, these rules of law are organised according to a systematic plan, often divided into subjects. This structuring by subject or legal area makes it easier to find and understand the legal provisions. Each article or section of the code deals with a specific aspect of the law, making it easier to navigate and interpret.

In addition, a code, as a whole, constitutes a coherent system. The various rules and articles are designed to fit together harmoniously, forming a coherent and logical whole. This systematic coherence is essential to ensure that the code is not only understandable, but also logically consistent. Finally, codes are the result of official promulgation by the sovereign authority and apply to all inhabitants under its jurisdiction. This official promulgation gives the code legal authority and legitimacy, ensuring that it is recognised and respected as the principal source of law. The universal application of the code to all inhabitants also ensures that the law is applied equally and fairly to the whole of society. Modern legal codes represent a structured and systematised approach to the law, reflecting a desire to organise legal rules in a way that is logical, accessible and universally applicable. This codification methodology has significantly influenced the way the law is conceived and applied in contemporary societies, contributing to the development of more orderly and efficient legal systems.

The evolution of legal codes since the late eighteenth century represents a remarkable integration and synthesis of the four great legal traditions that have shaped law in Europe: Roman law, Germanic law, canon law and the teachings of the modern school of natural law. Roman law, with its long history and detailed elaboration, provided a solid structural and conceptual basis for modern codes, particularly in the areas of civil law. Its principles of contract, property and civil liability have been integrated and adapted in the new codifications. Germanic law, which influenced the legal systems of northern and western Europe, made its contribution in terms of customary law and local practices. These elements enriched the codes by incorporating aspects of law that were better adapted to the specific realities and traditions of different regions. Canon law, for its part, has had a significant influence in the areas of family and inheritance law. Although its role has diminished with the secularisation of legal systems, some of its principles and approaches have been retained and reflected in the new codifications. Finally, the teachings of the modern school of natural law played a crucial role in bringing in concepts of universal rights, equality before the law and popular sovereignty. These ideas had a profound influence on the development of constitutional and public law, as well as the notions of human rights and citizenship. These codes, which emerged at the end of the eighteenth century and the beginning of the nineteenth, therefore represent a remarkable effort to consolidate and unify the law. They succeeded in harmonising and systematising diverse legal traditions, making them accessible and applicable to a modern society. These codifications marked a turning point in the history of law, establishing legal foundations that continue to guide contemporary legal systems.

Swiss civil legislation, with the adoption of the Civil Code in 1912 and the Code of Obligations, represents a remarkable fusion of various historical legal traditions, reflecting the diversity and richness of Europe's legal heritage. These codes are not simply compilations of existing laws, but rather the result of a deliberate and considered synthesis of the most significant legal influences in Europe. The Germanic tradition, known for its emphasis on local and regional customs, has played an important role in the development of Swiss law, particularly in the areas of family law, inheritance law and rights in rem. For example, in family and inheritance law, there are elements that reflect the local values and practices inherited from this tradition. Similarly, canon law, with its history of regulating family and matrimonial matters within the Catholic Church, has influenced these same areas in the Swiss Civil Code. Although Switzerland has adopted a modern, secular approach, the legacy of canon law on family relations is still perceptible. Roman law, with its sophisticated concepts of property rights and obligations, has also left its mark on Swiss law. The Code of Obligations, for example, illustrates the influence of the methodology and principles of Roman law, particularly in the way it deals with contracts and civil liability. The modern school of natural law, promoting principles such as fundamental rights and equality, has also shaped Swiss civil legislation. These universal principles have become essential components of Swiss law, influencing the country's legislation, constitution and overall legal framework. Finally, Christian Wolff's methodological approach, which focused on legal systematisation and logic, had an impact on the way in which Swiss law was codified. This influence can be seen in the organised and systematic structure of the Swiss codes, which reflect a coherent and orderly vision of the law. Swiss civil legislation, with its civil codes and codes of obligations, represents a successful integration of Germanic, canonical and Roman legal traditions, as well as the ideas of modern natural law and the systematic thinking of Christian Wolff. This blend of traditions and influences has led to the creation of a legal system that is not only rooted in history, but also adapted to the requirements and values of contemporary Swiss society.

Common law and the rules of equity[modifier | modifier le wikicode]

Common law[modifier | modifier le wikicode]

Common Law is a legal system that has its roots in England and is distinct from the civil law-based legal systems that prevail in continental Europe. Common law is characteristic of Anglo-Saxon countries, including the United Kingdom (with the exception of Scotland, which has a mixed system), the United States (with the exception of Louisiana), Canada (with the exception of Quebec), Australia, New Zealand and other former British colonies. This system is based on case law, i.e. the decisions of courts and tribunals, rather than on written codes or formal legislative statutes. In Common Law, judicial precedents (decisions in previous cases) play a crucial role in determining the outcome of future cases. Judges play an active role in shaping the law by interpreting legislation and establishing precedents to guide future decisions.

By contrast, continental Europe mainly follows the civil law system, which developed from Roman law. This system is characterised by comprehensive legal codes covering broad areas of law, such as civil, commercial and criminal law. Civil law emphasises written statutes and codes, and judges' main role is to apply these statutes consistently, rather than to create law through their decisions. Thus, although Common Law and Civil Law share certain legal principles and concepts, they differ fundamentally in their approach and methodology. Common law is deeply rooted in the legal traditions and practices of Anglo-Saxon countries and has not directly influenced the legal systems of continental Europe, which follow the civil law tradition.

The legal history of England in the first millennium is marked by a series of significant transformations due to its membership of the Roman Empire and the Germanic invasions that followed. After the Romans withdrew in the early fifth century, England was invaded by Germanic peoples, mainly the Saxons, Angles and Jutes. These invasions had a profound impact on the social, cultural and legal structure of what was to become England. The kingdoms that developed in the British Isles after these invasions were characterised by Germanic practices and customs. These Germanic peoples, when they settled in England, brought with them their own legal systems, which were mainly based on oral customs. Over time, and particularly as the kingdoms consolidated, there were efforts to write down these customs. The writing down of Germanic customs in their own languages was an important step in the development of law in England. These written documents were the foundations of what was to become English common law. These early laws, although rudimentary by modern standards, were essential in establishing a legal and social order. These written customs reflected the values and practices of Germanic societies of the time, with an emphasis on concepts such as compensation (payment for wrongs or damages) and the importance of community and family relationships in resolving disputes. England in the first millennium, influenced by its Roman past and the Germanic traditions of the invading peoples, saw the emergence of legal systems that would shape the later development of English law. The writing down of Germanic customs was a crucial milestone in this process, laying the foundations for what was to become the Common Law legal system.

L'armée anglaise encaisse la charge de la cavalerie normande lors de la bataille de Hastings.

The invasion of England in 1066 by William the Conqueror, Duke of Normandy, and his victory at the Battle of Hastings marked a turning point in English history, including in the legal sphere. After his conquest, William took several important steps to consolidate his power, while striving to maintain a certain continuity in existing social and legal structures. One of these measures was the proclamation of the maintenance of the Germanic law that had been in force prior to his conquest. This law, which had evolved from the customs of Germanic peoples such as the Saxons, Angles and Jutes, formed the basis of the legal system in the Anglo-Saxon kingdoms. By choosing to maintain this legal system, William ensured a certain continuity and stability, which was essential for the efficient administration of the kingdom and for maintaining social peace. William also maintained the existing courts of justice. These courts, which were responsible for administering justice according to local customs, continued to function under Norman rule. This decision made it possible to preserve the existing legal order while gradually integrating Norman influences. However, although William maintained the existing legal framework, he also made significant changes that shaped the future development of the English legal system. For example, the introduction of feudal tenure altered the structure of land ownership and had far-reaching legal implications. In addition, Norman influence gradually manifested itself in the centralisation of royal power and in the development of English law. The Norman conquest of England in 1066 by William the Conqueror was a key moment in English legal history. Although he retained the existing Germanic legal system and courts, the period that followed saw a gradual integration of Norman influences and a process of centralisation and evolution that would eventually lead to the development of the Common Law system.

William the Conqueror's conquest of England in 1066 led to significant changes in the judicial organisation of the kingdom, while preserving certain aspects of the existing legal system. William adopted a two-pronged approach, combining the maintenance of Germanic legal traditions with the introduction of new judicial structures. On the one hand, William respected existing Germanic law and retained the local courts of justice, which contributed to the continuity and stability of the legal system after the conquest. These local courts continued to apply customary law, which was rooted in the traditions and practices of the Germanic peoples who had settled in England before the Norman Conquest. On the other hand, William created new courts in different parts of England and placed Norman lords at their head. These new jurisdictions, often called seigniorial courts, were intended to strengthen Norman control over the country and to integrate the conquered territories into the royal domain. These seigniorial courts gradually began to replace the old judicial structures, although they continued to apply customary law.

From the twelfth century onwards, the influence of royal power over the judicial system increased. The kings of England began to regularly send representatives, often called itinerant judges, to attend trials in different parts of the kingdom. The role of these royal representatives was to ensure that justice was done in accordance with the laws and customs of the kingdom. Their presence also served to assert royal authority and centralise control over the administration of justice. This development had important implications for the evolution of the English legal system. The presence of itinerant judges contributed to the standardisation of legal practice across the kingdom and paved the way for the emergence of the Common Law system. This system, based on case law and judicial decisions, became a distinctive feature of English law, in contrast to the codified civil law that prevailed in continental Europe.

The introduction of itinerant judges in England after the Norman Conquest represented a major step in the development of the English legal system and was welcomed by many. These judges were sent by the king to travel around the kingdom and sit in the various local courts. Their presence was intended to ensure that justice was dispensed fairly and in accordance with the laws and customs of the realm. One of the main perceived advantages of itinerant judges was their impartiality. Unlike the seigneurial courts, where decisions could be influenced by local interests or pressure from the local nobility, itinerant judges were perceived as being above local quarrels and influences. By being directly linked to the crown, they were seen as more neutral and independent, enabling them to deliver fairer and more balanced judgements.

This perception of impartiality and fairness helped to strengthen confidence in the judicial system and increased respect for the royal authority in the administration of justice. Circuit judges played a key role in creating a sense of legal unity and standardising legal practice across England. Their work also contributed to the formation of the Common Law, as their decisions and the precedents they established formed the basis of the case law on which that system rests. Circuit judges were a major judicial innovation in medieval England. Not only did they help to consolidate royal authority in the field of justice, but they also laid the foundations for the development of a more uniform and equitable legal system, characteristics that became cornerstones of the Common Law system.

The transformation of justice in England after the Norman Conquest gradually led to the establishment of a more centralised and unified judicial system, in particular with the creation of a permanent Court of Justice at Westminster. This development marked a key stage in the formation of the Common Law legal system. Initially linked to the King's court, the judiciary gradually began to detach itself from this direct influence. Itinerant judges, initially delegates of the King who travelled the length and breadth of the realm to dispense justice, eventually took up permanent residence at Westminster. This centralisation enabled a more systematic discussion and analysis of local customs and of the decisions taken in the various trials throughout the kingdom. By meeting at Westminster, these judges were able to compare and evaluate the different practices and penalties applied in the various regions of England. This process made it possible to identify the best solutions and to reject those that were deemed unfounded or inappropriate. As a result, the judges played a crucial role in unifying and standardising English common law.

The work of these judges at Westminster also contributed to the formation of a coherent body of case law. The precedents established by their decisions became benchmarks for future cases, creating the foundations of the Common Law system. This system is based on the principle that previous judicial decisions should guide judgements in similar cases, thus ensuring a certain consistency and predictability in the application of the law. This move towards a centralised judicial system and the formation of a coherent body of case law at Westminster marked a turning point in English legal history. It led to a legal system in which the law is based primarily on judges' decisions and judicial precedents, in contrast to the civil law systems based on written codes that prevailed in continental Europe.

The development of jurisprudence in England, particularly at Westminster, was marked by the gradual adoption of the principle of "stare decisis", a Latin concept meaning "to stand by what has been judged". This principle became a fundamental pillar of the Common Law system, emphasising the importance of respecting previous judicial decisions. The principle of "stare decisis" implies that judges must respect the precedents established by past judicial decisions when dealing with similar cases. In other words, once a question of law has been decided in a particular case, that decision serves as a point of reference for future cases involving similar facts or legal issues. This respect for previous decisions ensures a certain consistency and predictability in the application of the law, as the parties involved in a dispute and society as a whole can expect similar cases to be resolved in a similar way. The adoption of this attitude to matters previously decided has had several important effects on the English legal system. First, it reinforced the authority of judicial decisions, establishing court judgments as major sources of law. Secondly, it has encouraged the formation of a coherent body of case law, allowing judges and lawyers to rely on well-established precedents to guide their arguments and decisions. Finally, it has contributed to the stability and uniformity of English law. Rather than relying solely on written statutes or codes, the Common Law system in England has evolved primarily through judicial decisions and interpretations. This system, centred on precedent and case law, contrasts with the civil law systems of continental Europe, where the law is based primarily on written codes.

The thirteenth century was a crucial period in the establishment of the Common Law in England. It was during this century that the legal system began to take its definitive shape, thanks in particular to the gradual and careful action of the royal judges. This period saw the development of a coherent body of legal principles and practices that became the basis of English law. A key aspect of the development of the Common Law was the way in which the Royal Judges extended the jurisdiction of the Royal Courts. This was done carefully and gradually, partly to accommodate existing territorial courts. The royal authorities were aware of the potential tensions with local and seigniorial legal systems, and too rapid an expansion of the royal courts could have provoked resistance or even revolt. The royal courts developed in parallel with the seigneurial and local courts, offering an alternative for litigants. Over time, these royal courts gained in prestige and authority, mainly due to their perceived impartiality and their more uniform and consistent application of the law. The gradual extension of the jurisdiction of the Royal Courts has also helped to develop and consolidate the principles of the Common Law. Royal judges, in their decisions, developed a body of legal rules and principles based on precedent. These precedents became the cornerstones of Common Law, forming a body of case law that guides judicial decisions to this day.

As part of the consolidation of his power and authority over the whole kingdom, the royal judicial system in England was organised around three key areas, each managed by a specific court. This structure reflected the King's need to exercise effective and direct control over vital aspects of the realm. Firstly, the Court of Exchequer played a central role in the management of the royal finances. This court was responsible for collecting and administering the king's revenues, such as taxes. At a time when financial resources were essential for maintaining order and defending the kingdom, the role of the Court of Exchequer was crucial in ensuring the financial stability of the state. It thus served as a pillar for the economic management of the kingdom and the projection of royal authority. Secondly, the Court of Common Pleas dealt with issues of land ownership. In a feudal society where land was the main source of wealth and status, the control and regulation of land rights was essential. This court dealt with land disputes, inheritance issues and property rights. It played a decisive role in the social and economic structuring of the kingdom, regulating relations between lords, vassals and peasants. Thirdly, the Court of King's Bench specialised in major criminal cases, particularly those affecting the security of the state. This court dealt with major crimes and cases that jeopardised the stability and security of the kingdom. Its role was to maintain public order and protect royal authority, ensuring that crimes against the state were duly tried and punished. By managing finance, land ownership and state security respectively, these three specialised courts enabled the King of England to assert his power over essential areas of government and society. They contributed to the centralisation of royal power and played a key role in the evolution of English government and the legal system, demonstrating the importance of an organised and effective justice system for the governance of a kingdom.

During his reign, the King of England sought to extend his jurisdiction beyond the three main areas managed by the specialised royal courts, in order to assert his power and increase his revenues. This expansion of royal jurisdiction often met with the support of the population, who sometimes perceived the royal courts as fairer and less subject to local influence than the lordly or local courts. By extending his jurisdiction, the king was able to intervene in a wider variety of legal matters, which not only strengthened his authority over the whole kingdom, but also helped to increase the crown's income. Judicial fees, fines and other forms of revenue from trials increased the royal finances, which was essential for the maintenance and expansion of the state. To effectively implement the sentences of the royal courts, the royal judiciary had royal officers. These officers were responsible for enforcing judicial decisions, including, if necessary, the use of force. Their presence and activity testified to the scope and effectiveness of royal justice, ensuring that court decisions were respected and enforced throughout the kingdom. This process of extending royal jurisdiction played a crucial role in the centralisation of power in England and in establishing the authority of the king as the supreme source of justice. At the same time, it contributed to the formation of a more unified and coherent legal system, with royal justice acting as a counterweight to local and seigniorial influences and providing a fairer and more uniform framework for the resolution of disputes.

The development and expansion of the areas of jurisdiction of the Westminster Royal Courts in England were greatly facilitated by the establishment of specific procedures for litigants to bring cases before these courts. These procedures played a crucial role in making royal justice accessible and in asserting the King's authority over the judicial system. These procedures, known as writs, were written orders issued in the name of the king. They allowed individuals to bring their cases to the royal courts for a variety of legal matters. Essentially, writs acted as a bridge between litigants and the royal courts, providing them with a formal means of seeking the intervention of royal justice.

The use of writs extended the reach of royal justice beyond the original areas of finance, land ownership and criminal cases against the state. Over time, writs became increasingly sophisticated instruments, enabling the royal courts to deal with a wider range of disputes, including those arising in seigneurial or local jurisdictions. Greater access to the royal courts also reinforced the sense of more uniform and fair justice under the authority of the king. The subjects of the kingdom could appeal to courts perceived as more neutral and less influenced by local or seigniorial interests. This helped to increase confidence in royal justice and strengthen the legitimacy of royal authority in the administration of justice.

The role of the writ in the English legal system, particularly in the context of the Royal Courts at Westminster, was central to the way in which disputes were approached and resolved. The writ was an official document, issued in the name of the King, which authorised a person to bring a case before a royal court. This mechanism was essential to guarantee access to royal justice and to assert the king's authority in settling disputes. In a dispute, it was crucial to find a writ applicable to the case in question if the claimant was to obtain satisfaction. If a suitable writ existed, it meant that the case could be heard by a royal court. Failure to obtain satisfaction in a dispute could be seen as a form of disobedience to a royal order, since writs represented the authority and will of the king. On the other hand, the defendant in a dispute also had the opportunity to appear before a royal court to explain why he felt he should not obey an injunction he had received. This procedure provided an opportunity for both parties to present their case before a neutral and respected judicial authority, far removed from local or seigniorial influences. The use of writs led to the development of a series of royal courts, often to the detriment of seigneurial courts. Indeed, the appeal of the royal courts lay in their perceived impartiality and their ability to offer justice based on uniform and consistent principles. This development gradually reduced the role and influence of the seigneurial and local courts, centralising judicial authority under the direct control of the King.

The system of writs in England, which began as a personalised way of dealing with specific legal cases, evolved into the use of stereotyped formulae. The Chancellor, who was responsible for issuing writs, began to issue them routinely and for a fee, without a thorough examination of each case. This practice made access to royal justice easier and more direct, attracting a large number of disputes to the royal courts. This development had several important consequences. On the one hand, it improved the finances of the crown, as the issuing of writs became a significant source of revenue. On the other hand, this practice provoked opposition from the barons and feudal lords, whose own seigneurial courts of justice began to be abandoned in favour of the royal courts. The barons saw this development not only as a loss of their legal influence, but also as an erosion of their power and income.

Seigniorial justice, which had historically played a key role in the administration of justice at local level, began to oppose the practice of the chancellor. The lords objected to the fact that the chancellor was issuing writs for matters that traditionally fell outside the royal jurisdiction, such as disputes that did not fall within the categories of royal finance, land ownership, and criminal cases against the state. This conflict between the interests of seigneurial justice and those of royal justice was a significant aspect of the evolution of the English legal system. It reflected the tension between the centralisation of power under royal authority and the preservation of local powers and prerogatives. The expansion of the jurisdiction of the Royal Courts, facilitated by the systematic use of writs, was a key element in the formation of the Common Law system, characterised by a more centralised and uniform system of justice.

The period of conflict between the interests of the royal courts and those of the seigniorial courts in England led to a compromise with the Statute of Westminster. Adopted in the 13th century, this statute aimed to balance the interests of the King and the feudal lords, while ensuring the smooth running of the legal system. Under the Statute of Westminster, the Chancellor was limited in his ability to create new writs. This meant that the Chancellor could no longer arbitrarily extend the jurisdiction of the Royal Courts by inventing new writs for every new legal situation. This restriction was intended to protect traditional jurisdictions, particularly those of feudal lords, by preventing excessive expansion of royal judicial power.

However, the Chancellor was authorised to issue writs in cases similar to those already existing. This provision allowed a degree of flexibility in the application of writs, authorising their use in legal situations which were not explicitly covered by the existing formulas, but which were deemed sufficiently similar. In addition, the principle of similarity was used to incorporate many cases into existing writs. This principle allowed judges to apply an existing writ to a case that was not exactly the same, but which was sufficiently similar. This approach allowed a degree of flexibility and adaptation of the writs system without breaching the framework established by the Statute of Westminster. The Statute of Westminster thus played a crucial role in striking a balance between the centralisation of justice under royal authority and the preservation of local and seigneurial judicial powers. It helped to stabilise the English legal system and establish the Common Law as a coherent legal system, while respecting the rights and jurisdictions of feudal lords.

The development of the common law in England was based to a significant extent on the system of writs. This system, with its roots in the Norman period and its evolution during the Middle Ages, played a central role in the assertion and expansion of the jurisdiction of the royal courts. Under the Common Law, the procedure for initiating litigation involved finding a writ applicable to the specific situation. Writs, being written orders issued in the name of the King, gave access to the Royal Courts for a variety of disputes. This approach standardised and formalised judicial requests, thereby facilitating access to royal justice. Over the course of the Middle Ages, the royal courts gradually acquired a wider jurisdiction, eventually becoming the kingdom's principal judicial institutions. They dealt with a wide range of cases, from property and contractual issues to criminal matters. This centralisation of justice under royal authority helped to standardise the law and create a coherent body of case law. At the same time as the development of the royal courts, the ecclesiastical courts continued to exercise their jurisdiction, albeit on a more limited scale. These courts, under the authority of the Church, had jurisdiction primarily over matters relating to marriage, wills (insofar as they concerned spiritual matters), and Church personnel. Although their scope was restricted, the ecclesiastical courts continued to play an important role in the areas within their jurisdiction.

The development of common law in England was strongly influenced by the practice of the judges of the Royal Courts of Westminster, who played a key role in the creation and development of this legal system. This development was accompanied by the gradual decline of the seigneurial courts, largely due to the extension of the jurisdiction of the Royal Courts through the practice of "like cases" or similarity. Unlike judges on the European continent, who were often university-educated and had an academic background in law, judges in England were generally field-trained practitioners. They did not come from a formal legal academic background, but rather were trained through practice as litigators. This practical approach to legal training had a significant impact on the nature and evolution of the common law. The judges of the Westminster Royal Courts, as practitioners, placed great importance on judicial precedent. They relied on decisions in previous cases to guide their judgments in current cases. This practice of precedent was essential to the development of the Common Law, as it created a coherent body of case law. Past decisions formed the basis on which judges resolved new disputes, ensuring predictability and consistency in the application of the law. This method of developing the law, based on precedent and the practical experience of judges, contrasted with the civil law system on the Continent, where the law was based primarily on written codes and formal legal theory. In England, Common Law developed organically through case law, reflecting a more pragmatic and adaptive approach to justice.

As a legal system, Common Law relies heavily on the principle of precedent and the use of judicial precedents. This distinctive feature makes it a system in which past court decisions play a central role in the resolution of current disputes. Under common law, a lawyer's ability to remind the court of a similar previous decision is a powerful tool in advocacy. If a lawyer can demonstrate that a previous case decided by the court bears significant similarities to the current dispute, he or she is in a favourable position to influence the judgment. This practice is based on the principle that courts should follow decisions made in similar cases in the past, thereby ensuring consistency and predictability in the application of the law.

The role of the judge in the Common Law system is therefore to decide cases on the basis of the rules and principles established by judicial precedent. Unlike civil law systems, where judges primarily refer to written legal codes, in Common Law they rely heavily on previous interpretations and applications of the law. This method of judging ensures that the law is not only applied consistently, but also evolves through successive judicial decisions. As a result, Common Law is essentially judge-made law, constructed and developed on the basis of court decisions. This distinguishes it from other legal systems and contributes to its unique dynamic of evolution and adaptation over time.

Equity[modifier | modifier le wikicode]

During the fourteenth and fifteenth centuries, the Common Law, although having established a solid legal framework in England, began to show its limitations, particularly as a result of the rapid evolution of society and the economy. New types of disputes and complex situations emerged, which the existing Common Law framework struggled to resolve adequately. This situation has led to a search for alternative solutions outside the traditional Common Law system. Faced with these challenges, litigants turned to the King as a "fountain of justice". They appealed to the royal court, stressing the exceptional nature of their case, hoping to obtain more flexible justice adapted to their specific needs. This approach was based on the concept that the king, as sovereign, had the ultimate power to dispense justice and could intervene in cases where ordinary law was insufficient or inappropriate.

This trend led to a strengthening of the role of the Court of Chancery. Initially, the Chancery was responsible for managing the King's administrative affairs, but it gradually evolved into a court of justice. The Chancellor, acting on behalf of the King, began to deal with cases that could not be adequately resolved by the common law courts, applying principles of equity. The Chancellor's Court thus filled the gaps in the Common Law by dealing with cases that required a more nuanced and flexible approach. The concept of equity, as distinct from the strict rules of the Common Law, enabled the Chancellor to provide fairer solutions tailored to particular situations.

The use of equity in the English legal system was a response to the limitations of the Common Law, particularly its procedural rigidity. Whereas the common law was heavily weighted towards established rules and procedures, equity offered a more flexible approach based on case-by-case justice. The Court of Chancellor, acting on behalf of the King, played a central role in the application of equity. In dispensing justice, the Chancellor did not rely strictly on the law as in the Common Law, but rather on his conscience and the principles of equity. This approach made it possible to consider the moral and ethical aspects of a case, thus offering fairer and more balanced solutions, particularly in situations where the strict application of the Common Law could have led to an unjust outcome.

One of the main advantages of equity was its ability to overcome the shortcomings and rigidities of the Common Law, particularly with regard to formal defects. Under the common law system, litigation could often fail for simple procedural errors, even if the plaintiff's claims were substantiated in substance. Equity, on the other hand, made it possible to overcome these formal obstacles and focus on the merits of the case. The distinction between common law and equity thus led to the emergence of two parallel but complementary systems in English law. Whereas the common law emphasised tradition, consistency and precedent, equity focused on individual justice and flexibility. This duality enabled the English legal system to respond in a more comprehensive and nuanced way to diverse legal needs and situations, thereby enhancing the overall efficiency of the administration of justice.

The procedure of equity, applied by the Court of Chancellor in England, was not conceived as a remedy for the shortcomings of the Common Law, but rather as a complement offering more flexible tools better suited to certain legal situations. This distinct approach to justice has grown in popularity over time, due to its ability to offer fairer and more personalised solutions than those provided by the Common Law. Equity, by focusing on the specific needs and unique circumstances of each case, made it possible to resolve disputes that might have been mishandled or unresolved by the more rigid Common Law system. For example, equity could offer remedies such as injunctions, trusts and specific decrees, which were not available under the Common Law.

The growing popularity of the Court of Chancery and Equity led to an increase in the amount of litigation brought before it. This was largely due to the perception that equity offered fairer justice that was more attentive to the detail of each case. However, this trend caused some tension with Common Law judges. The Common Law courts, seeing some of their cases transferred to the Court of the Chancellor, suffered a decline in income and influence. This conflict between common law and equity revealed the limitations and challenges of each system, while highlighting the need for a more integrated approach to justice. Over time, the principles of equity were gradually incorporated into the general legal system, leading to greater harmonisation between the two approaches. This integration eventually led to a more comprehensive and nuanced legal system, capable of responding more adequately to the diversity of legal needs.

The relationship between common law and equity in England has been marked by a period of conflict, but also by a search for compromise and harmonisation. This conflict between common law and equity judges has been driven by fundamental differences in their legal approaches and methodologies. At the heart of the conflict was the question of which system should prevail in the event of disagreement between the decisions of the Common Law courts and those of the Chancellor's Court, which applied the principles of equity. In the end, it was decided that, in the event of a conflict between the two, equity should prevail. This decision reflected the recognition of equity as a means of correcting the potential rigidities and injustices of the Common Law.

However, a definitive resolution and unification of the two systems had to wait until the eighteenth century. At that time, the various Royal Courts of Justice, including the Court of Westminster (representing the Common Law) and the Court of the Chancellor (applying equity), were consolidated into a higher court. This consolidation enabled the two sources of law to be used jointly and undifferentiated, thus combining the rigour and predictability of the common law with the flexibility and individualised justice of equity. In this unified system, in the event of conflict between common law and equity, the primacy of equity has been maintained. This prevalence of equity over Common Law in the event of conflict ensured that final decisions were fair and balanced, taking into account the particular aspects of each case.

The distinction between continental and English legal systems is marked by the different approach to the codification of the law. Whereas continental countries, influenced by the Enlightenment and the French Revolution, adopted codification as a means of systematising and rationalising their laws, England maintained its attachment to a common law system based on case law. In continental law systems, codification was seen as a way of modernising the law and making it more accessible and comprehensible to citizens. Codes, such as the famous Code Napoléon in France, sought to bring together the rules of law in an organised and systematic whole, reflecting the Enlightenment ideals of rationality and universality. These codification efforts marked a significant turning point, establishing clear and uniform legal bases in the countries that adopted them.

In England, by contrast, the notion of codification as understood on the Continent was virtually unknown. The English legal system continued to rely heavily on Common Law and the principles of equity. Instead of written codes, English law developed through judicial decisions handed down over time. English lawyers often refer to decisions dating back as far as the eighteenth century, underlining the importance of precedent in legal practice. This divergence between Common Law and Civil Law systems reflects fundamentally different legal philosophies and traditions. Whereas continental countries have sought to establish clear, codified rules, England has favoured a more organic and evolutionary system, where the law is shaped and adapted by judicial decisions. This approach has enabled the English legal system to remain flexible and adaptable, although less codified and systematised than its continental counterparts.

The assertion that Anglo-Saxon law has not been influenced by Roman law because it is judicial law requires qualification. Although the Anglo-Saxon legal system, or Common Law, is distinguished by its approach based on case law and judicial precedents, it has been indirectly influenced by Roman law through various historical and legal channels, notably during the period of the Roman Empire in Great Britain and later through interactions with Canon Law and Romano-Germanic Law on the European continent. However, it is true that Common Law developed relatively independently of the civil law system based on Roman law, which is predominant in continental Europe. In countries applying the Anglo-American Common Law system, case law is regarded as a formal source of law. When faced with a dispute, judges first look to see if a similar case has been decided in the past. If a precedent exists, the judge is generally obliged to follow it in his or her decision. This practice, known as "stare decisis" (keeping to past decisions), ensures the consistency and predictability of the law. Conversely, when a judge is faced with a new case with no clear precedent, his or her decision establishes a new precedent. This new precedent will then be binding on all judges of the same or lower rank, thus guiding future decisions in similar cases. This rule of precedent is fundamental to the Common Law system and leads to the formation of a body of case law. Case law is therefore the law formulated and developed through court cases. It differs from the civil law system in that it evolves primarily through court judgments rather than through codes or statutes. This characteristic gives the Common Law system flexibility and the ability to adapt to social changes and new situations, although it can also lead to a certain complexity and a need for constant legal interpretation.

Annexes[modifier | modifier le wikicode]

References[modifier | modifier le wikicode]