A Comparative Analysis of Roman and Anglo Law - Essay Example

A COMPARATIVE ANALYSIS OF ROMAN AND ANGLO LAW Contents Introduction 3 Roman Law and Anglo Law 3 Development of the Laws - Roman Law (Reformation) andAnglo Law (Equity) 5 British Law and Spanish Law 9 Conclusion 11 Bibliography 12 Introduction English Law is a variation of Law that is distinct and unique. Anglo Law forms the foundation of the legal systems in countries like the UK, United States and most of the British Commonwealth. This include elements of the Common Law balanced with Equity which is based on a continuous development and evolution of different legal systems that existed in the different communities within which this legal system expanded into. On the other hand, the Greco-Roman legal system, often called the Civil Law or the law of mainland Europe is somewhat different. It is based on a series of Civil Codes that are canonised in different generations and come with various degrees of authority in enforcement. This paper involves a comparative analysis of Roman and Anglo Law. It identifies the differences and similarities between these two streams of law and how they work in the historical context. The study goes on to examine the contemporary effects of these two streams of law and how they operate in Britain and Spain. Roman Law and Anglo Law In examining the context of Roman and Anglo Law, there is the need to evaluate and analyse the historical context within which the two legal systems evolved. The history of Roman law cannot be separated from the spiritual age or the role of the Catholic Church in formulating rules and anointing leaders who were believed to have the divine right to rule (Coughlin, 2011). This is different from the Anglo legal code which is centrally built around the Norman Conquest and the changes that came with the political and feudal order through the creation of laws that were a collection of legal systems and processes that existed in different parts of Britain (Atiyah & Sommers, 1987). The scope of the Roman Law is based on the Canon of the Catholic Church which included core rules and fundamental principles that were laid down by the Church for its followers (Glenn, 2010). Roman Law and the Canon Law was shrouded in mysticism and hence, this formed the foundation for the actions and activities of the legal system and the legal processes that existed in these Catholic countries and such nations. Some of the top commentators and proponents of Roman Law rejected the concept of the validity of law, this is because the these thinkers believed that law should not be based on logic, but rather on divine direction (Coughlin, 2011). This is because there is a general trend and process in which they sought to protect the divinity of the papacy and the divinity of anointed kings and nobles who were viewed as persons with divine power and divine authority. Thus, the Roman Law was based on this kind of divine and metaphysical system of authority which is steeped in spirituality and mysticism. Anglo-Law on the other hand has its roots in an era where a lot of things were fast-changing. This is because the Norman’s conquest occurred at the middle of the Medieval period and at this point, there was a general process where people were actively questioning the authority of kings and authorities in order to attain results. This implies that English law developed at a crossroad where there were different views and different ideas against the divinity of kings and the clergy who were still viewed as divine in Roman law. There was however, some philosophers who sought to seek to get some kind of order in relation to spirituality (Coughlin, 2011). The expectation of the people of Canon authority in the Roman legal system sought to promote a degree of authoritarianism where people were to take instructions without taking any position in which they will question and demand changes. This formed the foundation and the basic legal system within which had authority in Western Europe. However, there were some mergers and modifications of these legal systems. Development of the Laws - Roman Law (Reformation) and Anglo Law (Equity) In order to critically review the differences between these two legal systems, there is the need to identify the main ingredients and components of the social and legal systems that played a role in the reformation and modification of these legal systems. This includes significant pointers that approached and changed the two legal traditions and caused them to diverge and metamorphose into distinct legal traditions. Technically, the British Isles were under Roman Rule for the most part of the past 1,000 and 2,000 years ago. The differences and divergences between the two legal systems are steeped in the relevant issues and matters that made the two different systems different and unique. One argument is that the Roman law was the fundamental legal system for all the European nations. However, most other nations during the Reformation codified new sets of laws that covered the different components of their legal systems, but Britain developed the Common Law which is now the embodiment of Anglo Law (Kleyn & Viljoen, 2012). The presentation of a faith-based legal system created the basis for the creation of a set of abstract rules and regulations in the Roman legal system. This is because the Canon codes were fundamentally based on abstract ideas and concepts that were based on the spiritual requirements and expectations of the different legal systems and processes. Historically, the evolution from the abstract religious based code to a civil based code is credited with Emperor Justinian who is believed to have tried to codify a set of rules and regulations from abstract concepts and ideas (Kunkel, 1966). This is because Justinian sought to create a system that separated the spiritual from the national secular system and process. Hence, there was the need to set up a legal system that was fundamentally based on the rules and regulations in a clear-cut manner. The tradition of codifying laws and regulations went on long after Justinian who lived in the 6th Century AD. The traditional allowed the Roman legal system to evolve as a system where abstract laws were brought together to culminate in strict rules and regulations that were applied in on the authority of the king or potentate of a given territory. The implication of this was that the Roman legal system was devoid of a system of precedents and judge-made laws (Kunkel, 1966). In effect the Law was made up of a series of rigid abstract constructs that were applied to each case that was presented. On the other hand, the Anglo-legal system developed after the Norman Conquest when the French kings conquered the British Isles and set up a system of sending itinerary judges who were to compile and put together different laws from the various legal systems in the British Isles to come up with what became known as the body of Common Law. This Common Law formed the fundamental legal system on which the English legal system was built and this guided the judges in carrying out their rulings and in making laws. One thing that sets apart the English legal system from the Roman system and to a large extent, the Greco-Roman legal system is the fact that the English legal system’s Common Law traditional sought to attain consistency. This was achieved through the principle of judicial precedence. This implied that a judge had to follow the rulings of previous cases and previous situations and concepts. This created a system through which old cases were used as the basis for the provision of rulings and judgements in particular cases. Hence, there was a general trend through which old cases could be compared to new and specific cases and situations. This led to the creation of consistent methods and consistent systems for dealing with issues and matters. The end was that it enabled the law to be applied more fairly and in a more predictable manner and fashion. Roman law on the other hand created a system and process through which the potentate or authority in question could make laws and rules that were applied to cases that came up. This created a system through which divinely elected and anointed leaders could come up with rules and regulations that led to interpretations that came with great and huge variations. This was the reason behind many of the Revolutions that occurred as a sign of the Reformation and Renaissance in Europe. This is because some leaders sought to create laws and rules that did not seem to meet the needs of some people in the society. Therefore one of the Kings of France where the Roman legal tradition played a role once said “ I am the Law”. In other words, this leader believed that his views and pronouncements were laws and they had to be adhered to in totality. Hence, there was a general trend and process through which nobles could create laws based on their subjective whims and caprices. On the other hand, English law developed from a more consistent system and more objective system where a laissez faire approach was used to develop and grow the legal system through the application of precedents and other historical rulings. Thus, English law became a body of thorough and robust rules and regulations that were tried and tested in different situations and contexts. This culminated in two distinct things that exists in English Law and has been perpetuated throughout connected nations: 1. Parliamentary democracy; 2. Equity and fairness. Britain is deemed to be the mother of democracies and this can be traced to the fact that the English legal system afforded the UK an opportunity and chance to create relatively independent rules and regulations that could be applied without the intervention of its kings. This goes back to the case of an English king who was beheaded for insisting on the creation and maintenance of an absolute monarchy. This is because the legal tradition of Britain gave the foundation for the creation of an independent body of laws that could be used to regulate things in a laissez faire manner. On the other hand, a lot of nations in the Roman legal systems struggled with various constitutional challenges with absolute leaders and dictators because of the Civil Law tradition which was steeped in abstract rules and regulations. These could be manipulated by authorities because there was a limited precedent-based guarantee to prevent the abuse of power and authority by persons in power. Hence, the Roman legal system gave birth to a civil code and system that was based on absolutism. In the case of the Anglo-legal system, the absolute democratic system was replaced by the parliamentary democratic system. However, the King’s role as a fountain of justice gave room for the creation of an equitable stream of the English legal system which paralleled the mainstream Common Law system. This allowed the English legal system to become balanced because the King could allow people to be given some kind of pardon in law. This created two streams of law that worked together to ensure that the legal system was robust and justice could be accessed through a blend of rigid rules as well as other extenuating situations and circumstances. This culminated in the creation of the dual system which was later merged by the two legal systems to provide an appropriate system that dealt with two different processes and systems to help to expand and promote justice. British Law and Spanish Law This section of the essay will examine two distinct classes of laws that operated in British Law and Spanish Law. This will provide an embodiment of the differences and changes that occurred with the two legal systems into our modern contemporary era. To this end, there will be a review of the different legal systems that was applied from colonial days to the present day. The Spanish legal system was influenced by the Napoleonic Code. This began with the Seven-Part Code or the Siete Partidas which culminated in the formulation of a legal system and legal process through which the Spanish authorities adopted Napoleon’s code and added some elements and aspects of the Castilian tradition to their legal system. This formed the foundation of the Spanish legal system till the 20th Century where a lot of changes came with the various revolutions and war that plagued Spain. On the other hand, Britain was not conquered by Napoleon, hence they never really came under the influence of the Napoleonic and Civil code that sought to change countries in mainland Europe that he conquered. Rather, Britain maintained their Commonwealth system and ideology without any interruptions frmo outside their borders. One authority identifies that there were two distinct emanations of laws that existed in colonial Spain and colonial Britain (Grossberg & Tomlins, 2010). Whereas the British legal system was instituted its colonies directly through the creation of courts that conformed with British legal traditions, the Spaniard colonies were somewhat independent and the authorities that were commissioned by the Spanish Crown to control the colony were given a lot of rights to make laws that were somewhat independent and different from Spain (Grossberg & Tomlins, 2010). On the other hand, the British legal presence in the colonies involved the presentation of professionals who worked for the interest of Britain. However, the Spaniard system involved some kind of rule where the families commissioned to colonise a given territory were made accountable to the Spanish crown. Once this was done, the family and the colonising community will be able to make their own laws and this could be somewhat distinct and different from the mainland Spanish rules and regulations. Spain has a constitution that was promulgated in 1978 and hence, on this grounds, it can be said that Spain’s laws are written whilst the British legal system is unwritten (Oxford LibGuides, 2014). This written constitution involves the conscious division of authority and this shows that the government and administrative justice system is defined in the constitution. On the other hand, Britain’s law is unwritten. This is because it involves a lot of different sources that are brought together to define the legal system. This is steeped in the fact that there is no supreme legal system or legal document that is over and above the different legal systems and processes. This shows that there is a general trend for a nation like Spain which has a history steeped in the Roman and Civil Law tradition is one in which the law is defined and put together by the authorities and the relevant powers in the nation. The Spanish constitution has a direct recognition of the Church and religious orders and groups, hence, there is a general view of integrating aspects and elements of religion in Spain and the idea is to keep its Catholic tradition (Witte & Green, 2010). Conclusion The study identifies that the Roman legal system is steeped in a traditional that goes back to the days of the Catholic Church’s Canon laws and systems. This has given rise to a tradition of the creation of abstract rules and regulations that forms a system of civil laws that are used by nations, mainly in mainland Europe who adopted various elements and aspects of the civil code based on the dominant rules. On the other hand, the Anglo-legal tradition is based on a history of the coordination of different laws and collection of different laws that formed the core of the Common Law. The Common Law remained in operation through the use of judicial precedence which ensured a more objective and uniform application of law to different stakeholders in the country. In the Middle Ages and during the Reformation, different interaction between politics and these two legal traditions led to changes. The Roman legal system was transposed to a Civil Law system based on the laws made by authorities in the different nations and communities. In Britain though, the Common Law system grew and encompassed around parliamentary sovereignty and the development of economy. The examination and review of the British and Spanish legal system indicates that the Spanish legal system was fundamentally a Civil-Law based system steeped in the Napoleonic Code. Britain remained a Common Law jurisdiction where precedents and equity played a role throughout the country’s history. On the other hand, the current Spanish legal system is controlled by a written constitution whilst the British legal system is still unwritten and is based on a collection of different and diverse legal systems and processes. Bibliography Atiyah, P. S., & Sommers, R. S. (1987). Form and Substance in Anglo-American Law. Oxford: Clarendon Press. Coughlin, J. (2011). Canon Law: A Comparative Study with the Anglo-American Legal Theory. Oxford: Oxford University Press. Glenn, H. P. (2010). Legal Traditions of the World: Sustainable Diversity in Law. Oxford: Oxford University Press. Grossberg, M., & Tomlins, C. (2010). The Cambridge History of Law in America. Cambridge : Cambridge University Press. Kleyn, D. G., & Viljoen, F. (2012). Beginners Guid for Law Students. Cape Town: Juta Law . Kunkel, W. (1966). An Introduction to Roman Legal and Constitutional History. Oxford: Clarendon . Oxford LibGuides. (2014, January 21). Spanish Law. Retrieved May 19, 2014, from Bodleian Libraries, Oxford University: http://libguides.bodleian.ox.ac.uk/content.php?pid=266192&sid=2197758 Witte, J., & Green, M. C. (2010). Religion and Human Rights: An Introduction. Oxford: Oxford University Press. Read More