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The growth of a common market in Europe has led to a renewed interest
in the old concept of "common law." The preferred model of modern
legal thinkers is the medieval ius commune, which they perceive
to represent the sort of uniform, pan-European law that they desire
to see emulated. H. Patrick Glenn, the Peter M. Laing Professor
of Law at McGill University, has written a book insisting that the
historical record does not support this definition of common law.
Glenn believes that common law was neither hegemonic nor singular.
Instead, he finds both multiple possible definitions of the concept
and multiple possible instances of common laws. This is an important
insight. The rest of his theory, in particular the definition of
common law that he claims best describes the post-twelfth-century
phenomenon that strongly influenced modern legal systems, proves
less satisfying. The book consists
of three chapters. In the first, Glenn presents three primary
types of common law (in addition to several other minor forms
that he discusses in passing and that will be ignored here). The
first was the Roman law concept of ius gentium, or the
law shared by all peoples, in contradistinction to the ius
civile, which governed only Roman citizens. The second was
the shared customs of the various early medieval Germanic peoples.
The Roman law and Germanic custom eventually formed the basis
for the third, and historically most important, form of common
law. Glenn calls this "relational common law." He defines it as
a non-exclusive, non-binding gap-filler that flowed around the
local, regional, or national positive law and interacted with
this ius propria in a fluid and on-going dialect in which
the common law played a subservient role. In this sense of the
concept, Glenn denominates not just the ius commune and
the English common law as common laws but also the common customary
law of France, the Siete Partidas of Spain, the German
Pandectist doctrine, Roman-Dutch law, Talmudic and Islamic law,
among others. The second chapter discusses the relationship of
these common laws with the iura propria with which they
come into contact, and the third chapter considers the interaction
of common laws between themselves.
As significant as is Glenn's point
that common law was not a phenomenon unique to the English common
law and, especially, the ius commune, his attempts to capture
all of the multitude of common laws he identifies in his expansive
definition do not hold up to scrutiny. While the ius commune
was a relational, gap-filling law in the sense that the ius
propria came higher in the hierarchy of sources, the gaps
the Roman law was called upon to fill were huge and frequently
overshadowed the local positive law. In England, while the common
law accommodated local custom, the divide was jurisdictional.
Reversing the relational pattern of the ius commune, the
English common law took precedence in the king's courts and left
the local courts to apply local law.
Pairing "gap-filling" and "non-binding"
in the definition creates its own problems. If the common law
served as a gap-filler, then at a certain point its contents were
employed as rules of decision, and presumably became binding in
some sense. When this happened, did the rule derived from the
common law become a part of the ius propria (according
to Glenn the only type of binding law), and thus no longer part
of the common law? Is the common law only what is left after the
ius propria has whittled away all the rules it wants, as
if the common law were nothing but a source of ideas for the ius
propria to raid? In any event, Glenn is not correct to claim
that the common laws were non-binding. The law applied in the
king's courts in England was most certainly binding, and if at
least parts of the ius commune were not considered binding
it becomes difficult to explain the widespread citation to Roman
law in continental court decisions or the group of early modern
works listing those parts of the Roman law abrogated by local
customary law.
Another important characteristic
in Glenn's definition is non-exclusivity. This, he claims, means
not only that common laws can coexist with iura propria
but also that common laws can coexist with each other in the same
territory. However, Glenn does not address the question of where
the borrowing of discrete legal concepts ends and the adoption
of a secondary common law begins. Many of his examples could perhaps
best be explained as evidence of the former rather than of the
latter.
As a final point, Glenn explicitly
uses history normatively. He also uses it cavalierly, eliding
historical periods and speaking in generalities so broad that
a reader unfamiliar with the history risks being misled and a
knowledgeable reader frustrated.
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