The difference between "Common" Law and "Statute" Law to a lay person.

[Northern_Piper]

@Tripler

This thread is fascinating. I’m glad I asked!

So, if I may repeat what I think I’m understanding, the Romans developed “Roman Law” which codified rules and basic principles for conducting proceedings, evidence gathering, trials. . . basically the procedural concepts, as GreenWyvern and DSY describe.

It was more than just procedure; it was the substantive law of what we now call contracts, property, and so on.

Law in early societies always starts with customs, such as the Hopi/Anasazi customs you describe. Then at some point those customs start to be seen as laws, and then statutes that can alter the laws start to develop. One of the issues is, what happens if there is dispute about the scope of the customary law, and how it should be applied?

The Twelve Tables that GreenWyvern and DSY mention were one of the earliest examples of that transition from custom to written law. They weren’t a “code” in the modern sense, of being a complete record of all law. As the wiki article on Roman law comments:

The first legal text is the Law of the Twelve Tables, dating from the mid-5th century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent magistrates from applying the law arbitrarily.
…
The fragments which did survive show that it was not a law code in the modern sense. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.

As I mentioned earlier, in the formative period of the Roman law, there was a methodology similar to that of the English common law, and that was the jurists. They could represent individuals, but they could also give advice to public officials on the law:

The first 250 years of the current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication. The law of this period is often referred to as the classical period of Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.

The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts, in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.

The jurists also produced all kinds of legal punishments. Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor’s edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian.

That’s why, even today, the works of legal academics are considered a source of law in civil systems, but not the decisions of individual judges. That’s different from common law systems, where the decision of a judge has law, but academic treatises do not.

However, even with the development of edicts and other types of legislation, customary law still had a role:

ius scriptum and ius non-scriptum – meaning written and unwritten law, respectively. In practice, the two differed by the means of their creation and not necessarily whether or not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. “laws”) and plebiscita (lit. “plebiscites,” originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non-scriptum was the body of common laws that arose from customary practice and had become binding over time.

The final stage of the Roman period was the development of comprehensive codes of laws. Several different ones were developed, but they were not all consistent. Finally, the Emperor Justinian directed that a single comprehensive summary of the law be prepared. Although that’s referred to as the Justinian Code, it is more complex than that, with four components:

The work as planned had three parts: the Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; the Digest or Pandects (the Latin title contains both Digesta and Pandectae) is an encyclopedia composed of mostly brief extracts from the writings of Roman jurists; and the Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. All three parts, even the textbook, were given force of law. They were intended to be, together, the sole source of law; reference to any other source, including the original texts from which the Code and the Digest had been taken, was forbidden. Nonetheless, Justinian found himself having to enact further laws and today these are counted as a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws).

That was around 530 AD. Although Justinian’s Code was used continuously in the eastern Empire (i.e. Greece and the Balkans), it was lost with the fall of the western Empire (Rome). Customary law, based on the customs of all the invading tribes, began to play a greater role in Western Europe: the Franks, the Goths, the Lombards, and all the tribes had their own customs, as did the Basques, who pre-dated them all.

Land law in particular was often based on the customs of the individual tribes, and tended to be the most conservative type of customary law, in the sense that it did not change quickly. For example, in England, the law of inheritance of land differed in Kent from all the rest of the country. The explanation seems to be that Kent is the area that traditionally was said to be settled/invaded by the third, small germanic group, the Jutes, whose customs for land inheritance were different from the Angle and Saxons, who settled/invaded the rest of England, and whose inheritance rules prevailed. It wasn’t until the great legal reforms of the 19th century that the rule for land inheritance in Kent was changed to conform to the rest of the country.

@Tripler

The Anglo-Saxons and French procedural systems were influenced by Roman Law, but each ‘tribe’ developed their own penal and civil codes through judge-written ‘common law’[sup]1[/sup] This ‘common law’ as Ascenray and Nava discuss are the initial evolutions of what would later become ‘statutory’ law, correct?

Yes, but in different ways. The influence of Roman law continued in the former Roman Empire. It wasn’t completely lost, but was fragmented. And then, on top of the customary laws of the invading tribes, there was an overlay of feudalism, starting around 1000. But the feudal laws also varied from place to place. It’s that complex history, with considerable regional variation, which Nava describes for both Spain and “the region that came to be known as France”. ;).

Then, in the early stages of the Renaissance, the Justinian Code was rediscovered in the West, as part of the “New Learning”. It began to have a major influence on European laws, but exactly how varied with each little regional government/monarch. In some areas, parts fo the Code were enacted as laws, in other areas it was treated as a source of interpreting/modifying customary laws.

There were also different attitudes to written law and customary law. For example, northern “France” was primarily the area of customary laws, while southern “France” was primarily written laws: see the map in the wiki article on Coutume (Not surprising, given that southern France was closer to Rome and thus likely the Roman influence lasted longer there). The division also appears to track the division between the pays d’oc and the pays d’oui.

But even in northern “France”, there were varieties of customary laws. The coûtume de Paris gradually became the dominant one, but it wasn’t until the Civil Code was enacted in 1804 that all of France was under the same civil law.

England was different. It was one of the first Roman possessions to be abandoned by the Romans, so the English common law was mainly based on the customary laws of the Anglo-Saxons (plus Jutes), and then with an overlay of Norman law and feudal law. Roman law didn’t really start to have a major influence on English common law until it began to be taught in the universities in the Middle Ages, culminating in Blackstone’s reliance on it, but the Inns of Court, where the lawyers got their professional training, didn’t rely on the Roman law very much. It’s a complex history, but that’s why the English common law is different from the civil law of the rest of Europe.

@Tripler

(It blows my mind that for the thousands of years Britain/England has been around, there is still no statute that defines “murder.”

There’s a wiki article on common law offences. Check it out for a list of all the common law offences of England and Wales that have never been put into a statute.

As for why, England has never had a major successful revolution, akin to the French Revolution and the similar upheavals in other European countries. It’s an evolutionary legal system, not a revolutionary, and has never had a comprehensive “re-write” akin to the French Civil Code, which in turn influenced modernizers in many other European countries.

[Nava]

@Northern_Piper

That’s why, even today, the works of legal academics are considered a source of law in civil systems, but not the decisions of individual judges.

Just because I’m sure that if this isn’t explained, someone will understand “legal academics” to mean “law professors and other people writing very heavy books”: in the case of Spain, that specifically means either “review by the Colegios de Abogados” (the “Bar Associations”, sort of) or “a decision by the Supreme Court”; Parliament (regional or national, and any chamber) can ask the Colegios for advice during the preparation of a law but that’s not binding while the other two are.

In the rape case I mentioned previously, the original decision followed previous precedent because the Provincial Court simply could not go against it: the Supreme Court’s overturning of the initial decision requires updating the statute.

In other cases, Collegial review has discovered an error in a law within days or even hours of it being published; I remember one particular case which apparently took place during a slow news period, where the correction was published in the very next BOE: 24h between error and correction. The Colegios review every bit and piece of legislation published in BOE and apparently make a sport of attacking any nits, typos, lacks of clarity and other errors with all the zeal, zest and CONSIDERANDOs they are capable of. (Every item that’s taken into consideration in a judicial decision is explained in a section which begins with the all-caps word considerando, “considering”). The Colegios also prepare what is called texto refundido of any statutes: when a modification to a statute is published, the Colegios prepare a document which merges the original text with the modification(s) in what’s called the “recast text”, so if you want to know what’s current law about any subject you look for the appropriate refundido. Speaking as a citizen with no special legal training those texts are a blessing, specially the annotated versions.

But the feudal laws also varied from place to place. It’s that complex history, with considerable regional variation, which Nava describes for both Spain and “the region that came to be known as France”. ;).

A very pixelated description