Orucu, E.

English

Enlighten: Publications

 
 
 
 
 
 
 
Orucu, E. (2006) H. Patrick Glenn, 'On Common Laws': 
Review. Edinburgh Law Review, 10 (3). pp. 463-465. ISSN 1364-9809 
 
http://eprints.gla.ac.uk/38122/ 
 
Deposited on: 02 April 2012 
 
 
Enlighten – Research publications by members of the University of Glasgow 
http://eprints.gla.ac.uk 
463reviewsVol 10 2006
 Moreover, Goodare attributes considerable credit to the Court of Session as “a fl agship institu-
tion of central government” (161). Recognising the extent to which the Jacobean state placed a 
premium on securing “order” in its law and order policies, Goodare also draws attention to its 
policy of “discretionary enforcement” (120) of statute law. Nonetheless, Goodare enthusiasti-
cally concludes that “[e]verybody, in fact, seems to have loved the Court of Session, one of the 
sixteenth century’s great success stories” (57).
Based on a secure and comprehensive command of the Jacobean regime’s archival legacy, 
The Government of Scotland is lucid, inventive and illuminating. Refl ecting the amorphous and 
overlapping spheres of early modern governance itself, it comfortably reintegrates political, legal, 
intellectual, social, cultural and economic histories and historiographies. Particularly valuable is 
an instinctive inclination to eschew early modern Scottish exceptionalism in favour of drawing 
similarities and contrasts, not only between Scotland and England, but also between Scotland 
and continental Europe. As Goodare suggests, for example, although Edinburgh was about the 
same distance (four days), in postal terms, from London as Barcelona was from Madrid, it was 
the crucial decision to retain conciliar government in Scotland that should perhaps encourage 
us to “write less about absentee monarchy and more about postal monarchy” (144). A minor 
criticism could be levelled at a recurrently distracting colloquialism: by 1623, for example, 
Goodare claims that “the exasperated burghs’ attitude to royal economic policy was tantamount 
to ‘Find out what little Jimmy’s doing and tell him to stop it.’” (55). More substantively, whilst 
one might question the value of investing his enterprise with such an explicitly Eltonian inspira-
tion, Goodare’s redefi nition of the “revolution in government” thesis as “a cluster of governmen-
tal developments” (296) is judicious and convincing. Nor by any means should such quibbles 
detract from the range of insights and ideas contained within this authoritative, knowledgeable 
and thoughtful account of Scottish governance under the kingship of James VI.
Clare Jackson
Trinity Hall, Cambridge
EdinLR Vol 10 pp 463-465 
H Patrick Glenn, ON COMMON LAWS. 
Oxford: Oxford University Press (www.oup.com), 2005. ix and 158 pp. ISBN 0-19-928754-6. 
£50. 
This is another tour de force by Patrick Glenn. In view of the breadth of coverage in such a short 
space, the work is of necessity somewhat superfi cial, but should become compulsory reading 
for those interested in legal history, comparative law, and in integration and similarity or non-
integration and diversity in Europe. The scope goes well beyond Europe, however. The thesis 
of overlapping and interlocking legal systems, in which this reviewer has a particular interest, 
is strengthened by this work, and the relationship between mobility of people and mobility of 
law, is also stressed.
Universality and particularity, unity and diversity, unity in diversity, and expansion and local 
sensibility appear as the defi ning moments of this intriguing work. Glenn observes time and 
again that the concept of common law, not as it lives in the name of the Common-Law tradi-
tion but in its primary historical sense, is common in relation to law that is not common, that 
is, it lives as “relational common law” surviving and functioning in relation to the particular law 
that has priority over it. It is suppletive to the law of all receiving jurisdictions, present only in 
a manner compatible with the local law, with no obligatory content, and no binding or unifying 
authority. Two things are fi rmly imbedded in our minds: that the common laws have “a relational 
character”, that is, they defi ne themselves in relation to others, and that “they are in a constant 
dynamic state” (43). 
ELR10_3_07_Reviews.indd   463 11/8/06   11:46:33
the edinburgh law review464 Vol 10 2006
Glenn demonstrates that the Common Law, the ius commune, le droit commun, el derecho 
comun, il diritto commune and das gemeine Recht, with their different experiences, all share 
these characteristics. In addition, multiple, interactive common laws, refl ecting the essential 
diversity of European law, “each radiating out from major centers of population or infl uence”, 
variously accommodated “iure propria internal to each of them” (21). This leads Glenn to make 
the point that today the hypothesis of multiple common laws is “as plausible as that of a single 
overarching common law” (25) for our understanding of the ius commune: a point that is crucial 
for a number of projects in different fi elds working towards the creation of common cores for 
“European laws”.
This elegant volume analyses the common laws in Europe, as they expanded in the world 
at large, and in relationship to each other, and ends with some incisive concluding remarks. 
As Glenn informs us, out of the three chapters that make up this work, chapters 1 and 2 were 
presented in earlier versions in the University of Oxford as the Richard Youard Lectures in 
Legal History; and as the Eason-Weinmann Lecture at Tulane Law School. Further versions 
were presented at the Faculty of Law, University of Edinburgh, the Scuola Superiore St-Anna, 
Pisa, the Institute of Foreign and International Private Law, Hamburg, and the University 
Laval, Quebec. Extensive research has gone into the preparation of this work and the wide 
discussion at these presentations must have helped the maturation of the ideas. This is a truly 
tried and tested work, and a pleasure to read.  
Chapter 1, “The Common Laws of Europe”, starts by looking at Roman law and Roman 
universality, and at ius unum: the law common to all humanity, the general precepts of a given 
law and the common elements of distinct laws. Then the chapter traces the ius commune, the 
common law as originating in England, in France, in Germany and in Spain, and other common 
laws of Europe. The early expansion of ius unum and the common law is also dealt with here: 
Empire and Conquest. We are also reminded that there were a number of common laws “free 
of a territorial base”, such as canon law and commercial law.
A number of questions are investigated in chapter 2, “The Common Laws of the World”. 
“How was it possible for common laws, of such large infl uence and application, to expire?” (44) 
“What were the commonalities” of the pan-European process of appropriation, “and, upon what 
were they based?” (49) “Why was there a nineteenth-century pan-European phenomenon of 
nationalization of law, or at least attempted nationalization of law?” (51) “If there was a multi-
plicity of common laws in Europe, which became effective abroad?” (56) “To what extent did” 
the common laws that moved abroad, “retain the characteristics of a relational law?” (62) “To 
what extent is a common law linked to a particular language?” (124) “How does one appropriate 
a practical framework of a practical reasoning?” (69) In search for answers to these questions, 
some common laws such as the French and the English (Anglo-American) are more extensively 
covered than others, these being the two most infl uential and extensive in their impact abroad, 
though we are reminded that “the common law originating in England and the ius commune 
originating in Italy are today the two most well-known common laws in the world” (97).
The fi nal chapter dealing with the relations of common laws, though repetitive, is stimulat-
ing. Common laws, tolerant to particular laws, were also tolerant of each other; common laws, 
not being aggressive, shared information. It is refreshing to see an exposé of the infl uence of the 
Common Law on the development of the ius commune, challenging the traditional academic 
coverage, and intriguing to read the discussion on why this infl uence has been reduced (101). 
In this chapter there is also a brief look at canon law, commercial law, feudal law, and non-Euro-
pean legal traditions of Talmudic, Hindu and Islamic law. 
There is also some reference to mixed jurisdictions as places of confl uence of common 
laws analysed as “ongoing interdependence”: places where we see an unsuccessful “process of 
exclusive appropriation of one of the common laws” (119). Glenn rightly points out that the 
ELR10_3_07_Reviews.indd   464 11/8/06   11:46:33
465reviewsVol 10 2006
signifi cance of the notion of mixed jurisdictions may decline in the future “with the increase in 
importance in the world of overlapping laws” (119).
Glenn starts other valuable channels of discussion, not fully dealt with in this volume, such 
as “common laws have much in common with languages” (124) and “common laws and legal 
education” (128-131). There are also many signifi cant messages. One is that since state law is 
in the process of “losing its complete and exclusive nature”, the idea of ius commune should 
be re-examined, and to this end it is worthwhile to look at “the multiple forms of common 
law which have existed in western law” (viii). Another message is that teaching common laws 
is essential as we must refl ect on the relations of different laws and different peoples while 
developing an awareness of normative history, in order to help in resolving today’s problems. 
“The notion of the common law was the most important instrument for conceptualizing legal 
relations in Europe for hundreds of years” (43). A common law is bounded by other common 
laws with which it is in an ongoing interaction. So it is bounded by its own iura propria and 
respects local circumstances. Although it is diffi cult to believe that common laws achieved their 
“commonality through local acceptance and not imposition”, as they remained suppletive, the 
research that led Glenn to this conclusion is persuasive. Glenn concludes that common laws are 
not imperialistic either to the external or their own internal worlds. Thus, common laws were, 
and will be, a contemporary means of “reconciliation and equilibrium” (143). The conclusion 
that “there should be a great future for common laws” (143) is heartening. 
This work is unique. There is no other that examines the legal history of the many common 
laws, their relations to particular laws with which they lived, and some still live, and to each 
other. Any one of its chapters could be richly extended.
Esin Örücü
University of Glasgow and 
Erasmus University Rotterdam.
ELR10_3_07_Reviews.indd   465 11/8/06   11:46:34


H. Patrick Glenn, '<i>On Common Laws</i>': Review

Enlighten

       Orucu, E. (2006) H. Patrick Glenn, 'On Common Laws': Review. Edinburgh Law Review, 10 (3). pp. 463-465. ISSN 1364-9809  http://eprints.gla.ac.uk/38122/  Deposited on: 02 April 2012   Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk 463reviewsVol 10 2006 Moreover, Goodare attributes considerable credit to the Court of Session as “a fl agship institu-tion of central government” (161). Recognising the extent to which the Jacobean state placed a premium on securing “order” in its law and order policies, Goodare also draws attention to its policy of “discretionary enforcement” (120) of statute law. Nonetheless, Goodare enthusiasti-cally concludes that “[e]verybody, in fact, seems to have loved the Court of Session, one of the sixteenth century’s great success stories” (57).Based on a secure and comprehensive command of the Jacobean regime’s archival legacy, The Government of Scotland is lucid, inventive and illuminating. Refl ecting the amorphous and overlapping spheres of early modern governance itself, it comfortably reintegrates political, legal, intellectual, social, cultural and economic histories and historiographies. Particularly valuable is an instinctive inclination to eschew early modern Scottish exceptionalism in favour of drawing similarities and contrasts, not only between Scotland and England, but also between Scotland and continental Europe. As Goodare suggests, for example, although Edinburgh was about the same distance (four days), in postal terms, from London as Barcelona was from Madrid, it was the crucial decision to retain conciliar government in Scotland that should perhaps encourage us to “write less about absentee monarchy and more about postal monarchy” (144). A minor criticism could be levelled at a recurrently distracting colloquialism: by 1623, for example, Goodare claims that “the exasperated burghs’ attitude to royal economic policy was tantamount to ‘Find out what little Jimmy’s doing and tell him to stop it.’” (55). More substantively, whilst one might question the value of investing his enterprise with such an explicitly Eltonian inspira-tion, Goodare’s redefi nition of the “revolution in government” thesis as “a cluster of governmen-tal developments” (296) is judicious and convincing. Nor by any means should such quibbles detract from the range of insights and ideas contained within this authoritative, knowledgeable and thoughtful account of Scottish governance under the kingship of James VI.Clare JacksonTrinity Hall, CambridgeEdinLR Vol 10 pp 463-465 H Patrick Glenn, ON COMMON LAWS. Oxford: Oxford University Press (www.oup.com), 2005. ix and 158 pp. ISBN 0-19-928754-6. £50. This is another tour de force by Patrick Glenn. In view of the breadth of coverage in such a short space, the work is of necessity somewhat superfi cial, but should become compulsory reading for those interested in legal history, comparative law, and in integration and similarity or non-integration and diversity in Europe. The scope goes well beyond Europe, however. The thesis of overlapping and interlocking legal systems, in which this reviewer has a particular interest, is strengthened by this work, and the relationship between mobility of people and mobility of law, is also stressed.Universality and particularity, unity and diversity, unity in diversity, and expansion and local sensibility appear as the defi ning moments of this intriguing work. Glenn observes time and again that the concept of common law, not as it lives in the name of the Common-Law tradi-tion but in its primary historical sense, is common in relation to law that is not common, that is, it lives as “relational common law” surviving and functioning in relation to the particular law that has priority over it. It is suppletive to the law of all receiving jurisdictions, present only in a manner compatible with the local law, with no obligatory content, and no binding or unifying authority. Two things are fi rmly imbedded in our minds: that the common laws have “a relational character”, that is, they defi ne themselves in relation to others, and that “they are in a constant dynamic state” (43). ELR10_3_07_Reviews.indd   463 11/8/06   11:46:33the edinburgh law review464 Vol 10 2006Glenn demonstrates that the Common Law, the ius commune, le droit commun, el derecho comun, il diritto commune and das gemeine Recht, with their different experiences, all share these characteristics. In addition, multiple, interactive common laws, refl ecting the essential diversity of European law, “each radiating out from major centers of population or infl uence”, variously accommodated “iure propria internal to each of them” (21). This leads Glenn to make the point that today the hypothesis of multiple common laws is “as plausible as that of a single overarching common law” (25) for our understanding of the ius commune: a point that is crucial for a number of projects in different fi elds working towards the creation of common cores for “European laws”.This elegant volume analyses the common laws in Europe, as they expanded in the world at large, and in relationship to each other, and ends with some incisive concluding remarks. As Glenn informs us, out of the three chapters that make up this work, chapters 1 and 2 were presented in earlier versions in the University of Oxford as the Richard Youard Lectures in Legal History; and as the Eason-Weinmann Lecture at Tulane Law School. Further versions were presented at the Faculty of Law, University of Edinburgh, the Scuola Superiore St-Anna, Pisa, the Institute of Foreign and International Private Law, Hamburg, and the University Laval, Quebec. Extensive research has gone into the preparation of this work and the wide discussion at these presentations must have helped the maturation of the ideas. This is a truly tried and tested work, and a pleasure to read.  Chapter 1, “The Common Laws of Europe”, starts by looking at Roman law and Roman universality, and at ius unum: the law common to all humanity, the general precepts of a given law and the common elements of distinct laws. Then the chapter traces the ius commune, the common law as originating in England, in France, in Germany and in Spain, and other common laws of Europe. The early expansion of ius unum and the common law is also dealt with here: Empire and Conquest. We are also reminded that there were a number of common laws “free of a territorial base”, such as canon law and commercial law.A number of questions are investigated in chapter 2, “The Common Laws of the World”. “How was it possible for common laws, of such large infl uence and application, to expire?” (44) “What were the commonalities” of the pan-European process of appropriation, “and, upon what were they based?” (49) “Why was there a nineteenth-century pan-European phenomenon of nationalization of law, or at least attempted nationalization of law?” (51) “If there was a multi-plicity of common laws in Europe, which became effective abroad?” (56) “To what extent did” the common laws that moved abroad, “retain the characteristics of a relational law?” (62) “To what extent is a common law linked to a particular language?” (124) “How does one appropriate a practical framework of a practical reasoning?” (69) In search for answers to these questions, some common laws such as the French and the English (Anglo-American) are more extensively covered than others, these being the two most infl uential and extensive in their impact abroad, though we are reminded that “the common law originating in England and the ius commune originating in Italy are today the two most well-known common laws in the world” (97).The fi nal chapter dealing with the relations of common laws, though repetitive, is stimulat-ing. Common laws, tolerant to particular laws, were also tolerant of each other; common laws, not being aggressive, shared information. It is refreshing to see an exposé of the infl uence of the Common Law on the development of the ius commune, challenging the traditional academic coverage, and intriguing to read the discussion on why this infl uence has been reduced (101). In this chapter there is also a brief look at canon law, commercial law, feudal law, and non-Euro-pean legal traditions of Talmudic, Hindu and Islamic law. There is also some reference to mixed jurisdictions as places of confl uence of common laws analysed as “ongoing interdependence”: places where we see an unsuccessful “process of exclusive appropriation of one of the common laws” (119). Glenn rightly points out that the ELR10_3_07_Reviews.indd   464 11/8/06   11:46:33465reviewsVol 10 2006signifi cance of the notion of mixed jurisdictions may decline in the future “with the increase in importance in the world of overlapping laws” (119).Glenn starts other valuable channels of discussion, not fully dealt with in this volume, such as “common laws have much in common with languages” (124) and “common laws and legal education” (128-131). There are also many signifi cant messages. One is that since state law is in the process of “losing its complete and exclusive nature”, the idea of ius commune should be re-examined, and to this end it is worthwhile to look at “the multiple forms of common law which have existed in western law” (viii). Another message is that teaching common laws is essential as we must refl ect on the relations of different laws and different peoples while developing an awareness of normative history, in order to help in resolving today’s problems. “The notion of the common law was the most important instrument for conceptualizing legal relations in Europe for hundreds of years” (43). A common law is bounded by other common laws with which it is in an ongoing interaction. So it is bounded by its own iura propria and respects local circumstances. Although it is diffi cult to believe that common laws achieved their “commonality through local acceptance and not imposition”, as they remained suppletive, the research that led Glenn to this conclusion is persuasive. Glenn concludes that common laws are not imperialistic either to the external or their own internal worlds. Thus, common laws were, and will be, a contemporary means of “reconciliation and equilibrium” (143). The conclusion that “there should be a great future for common laws” (143) is heartening. This work is unique. There is no other that examines the legal history of the many common laws, their relations to particular laws with which they lived, and some still live, and to each other. Any one of its chapters could be richly extended.Esin ÖrücüUniversity of Glasgow and Erasmus University Rotterdam.ELR10_3_07_Reviews.indd   465 11/8/06   11:46:34

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H. Patrick Glenn, '<i>On Common Laws</i>': Review

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