Article by Peter G. Stein
When a common-law lawyer is asked to identify the most obvious difference between the common law and the civil law, he will probably answer that the civil law is based on Roman law whereas the common law is relatively immune from Roman influence. Several recent Roman-law writers, however, have noted that the Roman law of the classical period, the first two centuries A.D. when it reached its highest point of technical development, is in many respects closer in character to the common law than it is to modern civil-law systems that are derived from Roman law. There are of course significant differences between the classical Roman law and the common law, and recently Professor Watson has argued that the stress on similarities “leads to serious misunderstandings of the two systems, and of legal development in general.”
If the comparisons are confined to the structure of the two systems in their formative periods, it is suggested, there remain some important similarities. They can be briefly listed. First, both systems were built up through the discussion and decision of cases, and the law was perceived as essentially law discovered through debates among experts over particular sets of facts rather than as general rules laid down by a legislature. Watson considers this emphasis on the systems' casuistic character to be “banal,” since in his view “progress is possible only on the basis of discussion of narrow facts to discover whether a situation falls within the scope of some particular remedy or counts as being some particular legal insitution.” Even legislation, he believes, is always “postulated on preceding casuistic discussion.” Of course whatever the form of the law, its application to cases involves some casuistic discussion, but the point is that in both systems the major part of the law actually emerged out of recorded discussions of cases. Therefore, both systems produced narrow rules whose limits were continually being modified by further debates. In both systems it was assumed that the relevant law existed, but was not yet articulated, and that its precise scope needed definition. This is not a universal phenomenon. Other societies, such as ancient Athens, envisaged law as essentially the product of legislation. Early legislation, such as the Roman Twelve Tables, may well have aimed to clear up doubts as to the existing law, but there is no evidence that the terms of such legislation were always based on prior case discussions.
A second and related feature is that legal development centered around particular forms of action; legal discussion was concerned with remedies rather than with rules. In both systems a plaintiff could only bring an action by obtaining a document from a magistrate identifying the precise type of claim that he was asserting. This was the formula granted by the praetor in Rome and the writ granted by the Chancellor in England. Just as the praetor published in his Edict, for the benefit of litigants, the various formulae that he was prepared to grant, so the Chancellor issued a Register of writs that could be obtained by litigants on request from the Chancery. Both Edict and Register were continually updated. Thus the state, through its chief legal officer, was able to control the kinds of disputes that were considered suitable to be dealt with in the state courts.
Thirdly, the classical procedure of both Roman law and common law divided legal actions into two stages; the first was devoted to identifying the legal issue that divided the parties and the second was devoted to proof and the decision of that issue in favor of one of the parties. The second stage was assigned to laymen, the iudex in Rome and the jury in England, whose sole involvement with the administration of justice might be this one case. Thus, the first stage had to produce a clearcut question that was appropriate for a lay tribunal to decide. In a straightforward case, the formula or writ, when applied to the facts of the dispute, sufficiently presented that question. In some cases the praetor had to be asked to modify the terms of the formula in order to allow the pleading of defenses, and the common-law judges were asked to indicate what questions, within the terms of the writ already issued, the facts produced for the jury's decision. In both systems it was the laymen who had the last word. The formula or writ told them that if they found certain allegations had been proved, “they were to decide against the defendant and if they could not be satisfied on these matters, they were to absolve him.”
The laymen's decision, like that of the judgment of God which it replaced, was final and there was in principle no possibility of an appeal against their verdict. Since, therefore, the time-consuming work of considering evidence was left to unpaid laymen, and there were no appeals, the system made efficient use of official time.
A fourth similarity concerns the nature of the available remedy. An important consequence of leaving the last word to the laymen was the limitation on the relief they could give to a successful plaintiff. With only one or two minor exceptions, “the only remedy which the iudex [or] jury could provide was an award of money damages.” This was probably because of the transitory nature of their office; once they had given their verdict, their office ceased to exist. This transitory character meant that neither iudex nor jury could give, for example, an order to a party to do or not to do something. “When the time came to decide whether the order had been obeyed, they would no longer be in existence.”
In both Roman and English society, there came a point at which remedies other than money damages were required, and they had to be provided by the magistrates themselves. These new remedies were provided by the praetor himself in Rome and, since the common-law judges restricted themselves to control of the writ system, by the Chancellor in England. Interdicts in Rome and injunctions in England were among the first such remedies. A characteristic of all of these magisterial remedies was that, unlike the formulae and writs which were granted as of right, they were discretionary and the magistrate had to satisfy himself, by personal inquiry, that they were merited by the applicant under the circumstances.
A fifth similarity concerns the categorization of the law derived by legal experts from the remedies. In both systems there were perceived to be two distinct bodies of law: on the one hand, the traditional rules, which became rigid and difficult to change, and on the other, a more flexible set of rules based on ideas of fairness and justice. The latter were the ius honorarium of the Roman praetor and the equity of the English Chancellor. In Rome both bodies of law were administered by the praetor but were recognized as belonging to separate jurisdictions, the ordinary and the extra-ordinary; in England they were administered by separate courts, applying common law and equity respectively.
About the Author
Peter G. Stein. Regius Professor of Civil Law, University of Cambridge. Fellow of Queens' College. B.A. 1949, M.A. 1951, LL.B. 1950 University of Cambridge. Ph.D. 1955 University of Aberdeen.
Citation
66 Tul. L. Rev. 1591 (1992)