McSweeney on Civil and Common Law in Medieval England

Thomas J. McSweeney, William & Mary Law School, has posted two articles.  The first is Property Before Property: Romanizing the English Law of Land, which appeared in the Buffalo Law Review 60 (2012):

We tend to treat the idea of property as if it is a neutral way to speak about the relationship between people and things. In comparative legal studies, it is easier to compare two different cultures’ approaches to people and things when we assume that both can usefully be spoken of in terms of property. But property has a history. Terms like proprietas and possessio, which give the modern common law a vocabulary for speaking about that relationship, arose in the context of the classical Roman law and were worked into a systematic language of property by medieval Roman law scholars. The early common law, however, did not use the language of property to describe the relationship between people and things.

Image Credit: BC Law Library

In this paper, I will examine the period when English justices first attempted to turn English norms and practices concerning landholding into a law of property. Between 1187 and 1258, several justices tried their hands at writing treatises in which they translated English court practices into a systematic property law on the Roman model. The justices of the twelfth and thirteenth centuries, particularly the justices who wrote the treatise known as Bracton, were heavily invested in the idea that English law was part of the Romano-canonical ius commune. They realized, however, that the practices of the English courts and the landholding norms of the Anglo-Norman landed elite could not be made to fit neatly into a Roman law mold. The authors of Bracton embarked upon what we might consider an early exercise in comparative law scholarship. They created several complicated and contradictory schemes to try to express English landholding in Roman law terms, but ultimately failed in their attempts to create a coherent English law of property. Their failure is useful to us, however, in that it shows us very clearly that the language of property is not natural or essential and in that it helps us to understand a way of talking and thinking about landholding that is alien to us today. We can use the ways the Bracton authors creatively misunderstood the Roman law of property to help us to understand the cultures of landholding they came from: those of the English courts and the Anglo-Norman landed elite of the twelfth and thirteenth centuries.

The second is English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law, which appeared in Temple Law Review 84 (2012):

This Article looks at a historical problem — the first use of case law by English royal justices in the thirteenth century — and makes it a starting point for thinking about the ways legal reasoning works in the modern common law. In the first Part of the Article, I show that, at its origin, the English justices’ use of decided cases as a source of law was inspired by the work civil and canon law scholars were doing with written authorities in the medieval universities. In an attempt to make the case that English law was on par with civil law and canon law, the justices and clerks of the royal courts began to treat cases as if they were the opinions of great jurists, to apply the same types of dialectical reasoning that were used in civil law discourse to those cases, and to work them into systems of authority. They used cases, as the modern common law does; but they used cases to create systems of the kind we usually associate with civil law. In the second Part of the Article, I turn to the modern common law and, using the methods of medieval case law as a mirror, show that the differences between civil law and common law reasoning are more perceived than real. American lawyers tend to view common law as flexible and creative, whereas they view civil law as ossified and hierarchical. This largely stems from the fact that common lawyers focus on the judicial opinion as the place where legal reasoning takes place. By integrating other texts, like the student outline and the restatement — which seek to create a harmonious system out of judicial opinions — into the picture of common law reasoning, I show that common law reasoning shares quite a bit in common with civil law reasoning.