Article by Shael Herman
English legal scholarship, when it has not been reticent, has traditionally been inconclusive about the influence of Roman law upon the course of English legal history. Of course, the contributions of Vacarius, Bracton, and Fleta have figured prominently in scholarly assessments, although these early writers seem to have made hardly a dent in England's living law and polity. Studies of these medieval figures leave an overwhelming impression that they embroidered the fabric of English law, but that finally they were ornaments neither fully nor durably integrated into it. Oxford and Cambridge have boasted of some of the most distinguished Romanists in the world. At those institutions, Roman-law studies have long flourished, but they have flourished as academic pursuits untranslatable into daily lawmaking activities. Scots law, properly characterized as uncodified Roman law, grew up just the other side of the border, a short drive from York; but it is largely ignored or dismissed as, well, Scots law.
About a century ago, the publication of Frederic W. Maitland's Roman Canon Law in the Church of England signalled an intensification of scholarly interest in the contribution of Roman law to English law. Evidently dissatisfied with some of the conclusions in his joint project with Pollock, Maitland, in his inimitable way, broke new ground by demonstrating with available evidence that Roman law, through the medium of canon law, figured more prominently in the course of English legal history than earlier scholars, such as Bishop Stubbs, had supposed. As did Virgil in Dante's Divine Comedy, Maitland illuminated new paths for later generations of researchers. Academics who have been encouraged by Maitland's willingness to engage in critical re-examination of the evidence have deepened and broadened Maitland's lines of inquiry.
The present study extends the inquiry begun by Maitland into a heretofore neglected area: the contribution of Roman law to medieval English regulation of English Jewry. This Article explores English legal evolution from just after the Norman Conquest in 1066 until the expulsion of the Jews in 1290. To fulfill the title's promise, we also focus on Roman regulation of the Jews dating from the first century C.E. until the era of Justinian (527-565 C.E.). This unifying analysis necessarily includes an overview of Christian Church doctrine; by projecting their Roman learning upon the medieval tapestry, churchmen contributed mightily to the medieval image of Jews as a nefarious sect doomed to eternal suffering because they had rejected Christ. This Article formulates the “Jewish question” that faced both Roman emperors and English monarchs and highlights the connective tissue between medieval French and English regulation of the Jews.
In view of the foregoing theme, an appropriate subtitle for this Article might be: All Roads Lead to Rome. Thanks in part to the canon law, the English, far from Rome, were compelled to do with their Jews as the Romans had done. To illustrate the Roman legacy to English legal evolution hundreds of years after the fall of the Roman Empire, this Article shows that the template for the medieval English Exchequer of the Jews was likely the Roman fiscus judaicus, dating from about 70 C.E., and that the English medieval Jewry was governed in accordance with a Roman nomenclature prevalent among Romans centuries earlier. Even the official chest, in which English rulers made Jewish lenders keep their debt instruments and gages, appears to have originated as a depository in use among the Jews in the 300s. Inspired by decrees of medieval church councils, royal statutes of the twelfth and thirteenth centuries restated Jewish policies articulated seven centuries earlier by Roman emperors like Gratian, Justinian, and Theodosius. The appendix analyzes one such English statute to illustrate this last point. In view of the argument that English scholarship's diffidence toward Roman law is sometimes unwarranted, however, certain methodological issues that Maitland himself adumbrated, but never fully explored, must first be addressed.
About the Author
Shael Herman. Professor of Law, Tulane University School of Law. B.A., M.A., J.D., Tulane University.
Citation
66 Tul. L. Rev. 1781 (1992)