English Common Law and the Ius Commune: The Contributions of an English Civilian

Any student of legal history who believes that the European ius commune played a meaningful part in the origins and development of English law will profit from reading Reinhard Zimmermann’s masterpiece, The Law of Obligations. Indeed, that student will read it with joy. I am one of that number, and I remember my own reaction well when his book first appeared—equal parts of admiration and encouragement. Not only was the book a sparkling and learned treatment of many important aspects of the civil law, subjects about which I needed to learn more, it also proved to be the source of specific examples of connections between the two relevant legal systems in England. That subject was one of my special interests then. It still is. Significant differences between the two legal systems did exist. No doubt about that. However, more than occasional coincidence also connected them, linking the European ius commune and the English common law, and not only in minor or accidental matters. Where most English historians had seen large differences and even enmity between them, Professor Zimmermann concluded that the “European ius commune and the English common law had not been so radically distinct as is often suggested.”1 It would be, he added, “a fruitful exercise” to attempt a comparison of legal rules and achievements “against the background of a common Western civilization.”2 That comparison is what I have attempted to do in this essay, albeit on a small scale. I thought it would be sensible to take up and examine the works of an English civilian, one of those lawyers whose career was centered in the ecclesiastical courts and whose principal sources of authority were drawn from the Roman and canon laws. Many of these men wrote legal treatises. They thus left written accounts of the use of laws drawn from the ius commune that others might consult. A little digging would therefore make it possible to investigate whether what a civilian had written had been treated as a legitimate source of law in cases that had come before one or another of the English royal courts, courts in which the English common law was in force.

The Law of Nature and the Early History of Unenumerated Rights in the United States

This Paper seeks to make a modest contribution to the topic of unenumerated rights in American constitutional law by examining the role that natural law played in our legal system at the time of the founding of the Republic-a period here taken, largely for the sake of convenience, to run from the 1 7 90s through the 1820s. The Paper\u27s focus is on case law, rather than legal theory or constitutional doctrine, although I have tried to say enough about the law of nature as it was understood at the time to put the cases into their intellectual context. Whether the evidence presented here makes any real impact on current controversies about unenumerated rights is not easy to say. Perhaps not. This, however, is a separate question, and except for a hesitant word at the end, this Paper does not address it. I have sought only to discover what role natural law played in day-to-day jurisprudence during the nation\u27s early years and to relate this evidence to the theme of this Conference. In other words, the question being discussed is whether-and in what ways-natural law thinking had any impact on the creation and protection of civil and human rights, drawing most of the evidence from the early federal and state reports