1. Did English Law flourish in Noble Isolation?
For a long time, it was believed that English Law developed independently from Roman law and that Roman law had only a minimal influence on the formation of English Law. It is also commonly accepted that English Law thrived in isolation from the rest of Europe[1]. However, some authors have argued that Roman law played a much more significant role in shaping Anglo-American law than previously thought[2]. As a result, many contemporary authors now believe that English Law is not as distinct from continental law as once believed.
The importance of Roman law in England can be clearly seen through the attempts made by English authors to systematize their own legal system. One such author was Bracton (13th century AD), who presented a comprehensive overview of Common Law in his work De legibus et consuetudinibus Angliae (ca. 1250). Another notable contribution came from William Blackstone (1723 – 1780) with his Commentaries on the Laws of England, 1765-69. Since Common Law relied heavily on case law, which did not lend itself well to systematic organization, these authors turned to Roman categories as a basis for creating a more structured English legal system. As a result, an indigenous English law emerged that often borrowed terminology from Roman law.
It should be noted that this approach tends to stimulate the reception of rules from the system used for classification and denotation. This method of classification, along with a substantive use of terminology, often leads to the conclusion that not only did the representation of subject matter originate from the system but also that the subject matter itself derives from it.
Civil Law and the Civilian Tradition
Civil law is sometimes used to refer to Roman law in its entirety, but it can also mean private law. It is often contrasted with canon law and English Common law, as it is a fundamental aspect of the Continental European Legal system. Civil law and Common law are the two major legal traditions in the Western world. In Civil law, large areas of private law have been codified and are therefore systematic.[3] The civilian legal tradition originated from Justinian’s Digest, which is the most important body of legal sources for this tradition. On the other hand, English Common Law developed more independently from Roman Law; however, it cannot be said that it developed in noble isolation.” In contrast to English Common Law, there is a clear historical connection between Civil Law and Continental European Law through a process known as “reception.” The reception of Roman Law was instrumental for the development of European Civil Law.
Civil law has several characteristic features that distinguish it from other legal systems. One of its most important features is that it is based on written laws and codes, rather than on judicial decisions or common law traditions. This means that civil law judges are bound by the specific provisions of the code, and have less discretion to interpret or apply the law in individual cases.
Civil law, in the sense of Continental European private law, has many distinguishing features that make it different from the laws of other cultures. The most important feature is that Civil law has established its relationship with moral norms, religious beliefs, and political evaluations in many complex ways. Civil law is usually administered by a set of professionals who are qualified to do so. European legal science makes strong attempts to demonstrate how general propositions would be able to contribute to arriving at individual rules and decisions in individual cases. It contains a determined effort to have a rationalized approach to the application of the law.
Codification is a fundamental element in the history of Civil law. In civil law, codification relates more to attitude and ideology than substance. The German Civil Code was drafted after German national unification and can be seen as a characteristic expression of the German national spirit. On the other hand, the French Code cannot be seen as just a mere systematization of existing law. It was intended to be a ‘revolutionary code’ that reflects the achievements of the French Revolution.
Common Law
Common law is a legal tradition that evolved in England from the 11th century onwards. Its principles are mostly based on reported judgments from higher courts, which relate to specific fact situations arising in similar disputes that have been settled earlier by the courts. Common law is considered more descriptive than civil law and serves as the foundation of private law not only for England but also for all Commonwealth nations, the United States, and Canada.
The common law of England presents an unusual case of being part of the Roman Empire while retaining a legal system that is somewhat independent from the continental reception. According to John Baker, an eminent English legal historian, England was largely immune to the influence of Roman law that swept through Europe. The continent was mostly influenced after the rediscovery of the Justinian Digest in the 12th and 13th centuries and later during the end of the Middle Ages. Although English jurists were not completely isolated from Roman Reception, England’s legal structure differed so greatly from that of Europe that wholesale borrowing was unlikely.[4]
Alan Watson notes that borrowing has been recognized as the most significant factor in the evolution of Western law in most states, except for England[5]. According to the author, this isolation may be due to the complex nature of the series of writs and pleading procedures, which made English lawyers concentrate more on their study and practice than observing jurists. Watson observes that the need to have a writ to bring the case before the court meant that high priority was centered on proof and on systematic development of legal rules” (p. 242). Additionally, unlike other European nations, there were not many English law schools, and lawyers received their training in professional associations rather than universities. This factor as well as others like resistance from England’s strong feudal structure towards ancient categories and concepts from Rome made English law unique. It remained a source of great Western rivalry with civil-law tradition.
2. Involvement of Business Communities in the Approximation of Laws.
There is an ongoing international debate about whether parties to contracts, usually international parties, are free to choose the law applicable to their contract. Some argue that since it is the parties who make contracts, the law should follow the deal and therefore the choice of party should prevail. Others contend that it is the prerogative of the state to address the binding effect of contracts. As such, no contract can be implied to be above or beyond state law. Thus, any choice expressed by parties is only one factor in objectively deciding whether state law must govern a contract[6]. However, there are exceptions to this theory as some countries like Germany have found more contribution by the business community in their legal tradition.
German legal tradition.
German law has its roots in the feudal and territorial law that emerged in the 11th century. This period coincided with the development and organization of the city-states and principalities of the Hohenstaufen Empire. The legal system evolved into a complete one during the 13th century, backed by written law in statute books and unwritten customary law, both complementing each other.
During this time, Germany witnessed the development of a general law for all of Germany shared with a continuous system of coding applicable throughout large areas, kingdoms, small territories, and even smaller local authorities. Another parallel development was a separate and distinct sophisticated city law that traced its origins from Saxonian cities from the beginning of the 14th century.
During this period of emergent German law (whether written or customary), Roman law was also finding its way to German lands. The eventual “reception” of Roman Law was facilitated by general application canon law as well as by continued inability to resist true jus commune from more sophisticated Corpus juris civilis refined and reshaped by late medieval Italian scholarship.”
A revived interest in natural law and an intensified movement for national codification characterized the evolution of modern German law. After a series of political transformations in Germany following the end of the Napoleonic period, the development of a national identity became a central priority. This necessitated drafting codes based on national needs and culture for the next three decades.
The resultant codification of German law was found to be a product of German-Roman law scholarship and a reaction to the national law orientation of the French-controlled civil law tradition. In 1900, the German civil code (the Bürgerliches Gesetzbuch) was enacted. The BGB is considered as the foundation of German private law, but cannot be regarded as a revolutionary document.
Codes for private law were necessitated by historical situations prevailing in Germany at that time. The German codes created during relative social and political stability were considered retrospective and reflective, seeking to maintain favorable conditions for establishment.
The Commercial Code of 1871 was replaced by the new Handelsgesetzbuch at the end of the 19th century. German commercial law was developed through extensive study and legislation in this period, incorporating several reforms and innovations to meet the needs of the business community [7]. After decades of near stagnation due to war, modernization became a leading force in commercial legislation.
The superiority of Germany’s legal system is demonstrated by its understanding of the needs of both the business community and society. The term business” is foundational in German law, representing the free will to create a distinct concept of private corporations known as Vereinsgründung. This terminological diversity arises from the German Civil Code (BGB) which establishes two concepts for private corporations: corporation (Articles 21-79) and foundation (Articles 80-88). These institutions are systematically incorporated into German legislation, demonstrating the involvement of the business community in shaping their legal system.
Austrian Legal Tradition
The Allgemeines bürgerliches Gesetzbuch (ABGB), also known as the Civil Code of Austria, was established in 1811. It is comparable to the Napoleonic code and is based on the ideals of freedom and equality before the law. The ABGB was modernized during World War I but still serves as the basic civil code in Austria today.
The development of a national legal system in Austria is closely linked to its legal history, which has roots in Germanic law. Prior to the mid-18th century, German codifications such as tribal codes and collections like Visigothic and Burgundian coexisted with Roman Law for two centuries. In specific localities, there were collections of different legislations supplemented by Stadtrechte (city laws) of specific cities.
Finally, after a codification process initiated by Maria Theresa in 1760, the General Civil Code (Allgemeines Bürgerliches Gesetzbuch or ABGB) came into force on January 1st, 1812 [9].
The AGBG was heavily influenced by both Roman law and French law. It is worth noting that both of these legal codes were the result of the natural law movement that arose in the 18th century. To a great extent, the AGBG resembled the Germanic version of jus commune from Roman law and also incorporated the liberal approach of natural lawyers.
It may be noted that the interim period during the World Wars was experiencing serious political and economic dislocations, which disturbed the normal lifestyle of people. This period enabled a relook into the foundations of several social and labor legislations formed by the Hapsburgs around 1880s. In fact, these legislations were studied for their fundamental characteristics and weaknesses, which helped to enlarge traditional social and labor legislations. Taking several radical spurts, there was considerable development in modern social legislation, leading to several laws being enacted.
This period, one of intermittently liberal constitutional advances, was surprisingly successful considering the hazards and pitfalls such movements faced in declining political and economic climates of the 1920s and 1930s.
The AGBG had an influence on legal development in other parts of the Empire up until 1914. However, this influence was proven to be transitory. With the start of World War I, there were three revisions made to the AGBG in 1914, 1915, and 1916. Most of these revisions remodeled the AGBG to resemble more closely the German Civil Code BGB of 1900.
Austrian law underwent significant changes due to the 1938 unification with Germany. Despite the alteration of marriage law, the ABGB remained in force. However, the most crucial change occurred in commercial law when the general commercial code, which had been in use since 1862, was abrogated. In its place, the Austrian state received” the German commercial code of 1897.
Development of the Legal Tradition in Asia.
In traditional Asian societies, communal temples and lineage groups have been projected as institutions of protective mechanisms to counter the religious and political forces of economic activities. A complicated web of kinship, ethnicity, and personal relations has therefore complicated business activities. Nevertheless, British Colonialism starting from the early 19th century brought the application of British legal systems in Asia which really threatened the material interests of religious endowments and other institutional forms. This formed the basis for the development of legal applications based on demand from the business community. Over time it has become necessary that legal traditions are formed with a view to protect the interests of business communities.
One interesting example can be found in Saudi Arabia, where the traditional legal system relies notably on Sharia, the traditional Islamic law. While Sharia has provided for several business situations, its underlying provisions are not up-to-date enough to handle the complicated business situations of modern-day businesses. Therefore, applying Sharia does not have the ability to protect the interests of the business community. The rules of Sharia are seen as ineffective in resolving commercial disputes among parties, which has formed a strong foundation for developing modern laws that will appropriately meet the needs of the business community in Saudi Arabia.
The shift towards protecting the interests of the business community is evident in recent developments in law, such as the amendments made in the Companies Act (2006). Another example of this trend can be seen in the acceptance of Insurance law, which was previously forbidden under sharia rules due to its association with gambling. However, due to the urging needs of the business community and with time, a modern Insurance Act has been developed that paves way for insurance laws in Saudi Arabia. This has greatly benefited commercial and industrial establishments by contributing to about 16 national and international insurance companies functioning within Saudi Arabia. These developments prove that legal traditions are adapting to meet the needs of businesses in Asia.
3. Concept and Historic Context of Unequal Treaties
In the history of international law, the terms extraterritoriality, extrality, and capitulations all underpin diplomatic immunities. These are secured when one state permits another to exercise jurisdiction over its own nationals within the boundaries of the nation permitting it. In today’s context, only certain diplomatic agents can enjoy this privilege. Under the immunity granted to them, these agents can be exempted from both criminal and civil charges in countries where they are accredited. This agreement was reached in the Convention on Diplomatic Relations signed in Vienna in 1961 (Encyclopedia Britannica 2003)[11]. However, diplomatic relations had to overcome many milestones through treaties – some of which were unequal – and have a historical background worth studying.
It was argued that the local laws, which reflected ancient familial and agricultural practices, were inadequate to deal with complex business situations that emerged from the activities of foreign merchants. In the 13th century BC, Phoenician and Greek merchants were the first to form their own laws in Memphis and other Egyptian cities. Some cities in Italy and non-Roman citizens in the Roman Empire also followed a similar attitude by being allowed to be subjected to their own laws in the third century BC.
In 1535, Francis I of France entered into a treaty with Suleyman I of Turkey called the Franco-Ottoman” Treaty. This treaty granted French consuls jurisdiction over criminal and civil affairs of French nationals in Turkey. During medieval Europe, merchants established permanent consulates in other cities or foreign countries where they settled business disputes and exercised jurisdiction over merchants sharing their nationality (Keeton 1928).
Liu and Zeng argue that these examples represent more a matter of convenience or gratuitous granting of territorial powers rather than surrendering sovereignty.
The concept of modern sovereign nations, which is one of the basic concepts of international law, emerged in Europe during the mid-seventeenth century. This concept emphasized the principles of equality and reciprocity among nations. However, the modern notion of sovereign supremacy and exclusivity came into conflict with the extraterritoriality that was present in ancient international communities. According to Liu Shishun (1925), reciprocal extraterritoriality was accorded” in several treaties such as the 1606 treaty between England and France, 1787 treaty between France and Russia, 1788 treaty between France and U.S., as well as a series of treaties concluded between Portugal (1696), France (1701), England (1713) and Spain.
After the 18th century, Europeans and Americans attempted to discontinue ancient and medieval practices of capitulations among themselves. However, they found it convenient to impose extraterritoriality on countries like Turkey, China, Japan, and Siam. Ironically, nationals from these countries were never given reciprocal rights in Europe or the US. The United States’ extraterritoriality in Japan ended in 1899; in Turkey by the Treaty of Lausanne in 1923; and in China by 1943.
Unequal Treaties are international agreements that were extorted from most Asian countries by imperial powers during the heyday of colonialism. These treaties are unequal because one of the signatories entered into the treaty under threat and force from the other. As a result, the country subjected to the threat had to compromise its sovereignty without any reciprocal obligations on the powerful nation signing the treaty. The objective of these treaties was to forcibly gain entry into countries like China or Japan against their wishes to remain secluded. The unequal treaties aimed to provide imperial trading powers access to markets in these countries and exploit their resources without taking up annexation burdens.
Extraterritoriality is a condition that exempts citizens of a treaty power from being subject to local laws. Similarly, the most favored nation automatically grants concessions to the treaty power that they enjoy with other nations. It should be noted that such treaties were particularly irksome to China due to its Confucian system of administration, which relied on absolute inequality even within the country’s own internal affairs. The country treated diplomatic emissaries as lowly people subject to the protection of the Chinese government.
The first unequal treaty, which was forcibly entered into with the Qing dynasty and known as the ‘Treaty of Nanjing’, was signed in 1842 to bring an end to the opium war. This treaty forced China to accept opium imports from Britain and cede Hong Kong territory, as well as make five ports available for British merchants. Other treaties followed, such as the Tianjin treaties of 1858 that expanded on the original treaty of 1842. One of the last unequal treaties imposed on China was masterminded by Japan following the Sino-Japanese war of 1894-1895. The Treaty of Shimonoseki gave Japan rights over Taiwan, Penghu islands, and Korea.
The experience of Japan with unequal treaties began in 1853 when the US, through the sheer threat of force, established diplomatic relations and gained access to Hakodate and Shimoda in 1854. In 1856, Britain, Russia, and The Netherlands were granted similar powers. The Harris treaty was signed in 1858 which secured full commercial freedom for the US followed by European powers who were granted the same privileges. However, since this treaty did not receive imperial approval, it led to the cancellation of all treaties marking the end of Japan’s Edo period during the Meiji Restoration in 1868.
Thailand was forced into signing its first unequal treaty with Britain in 1855. This was done while the memory of the first Opium War and China were still fresh in British and Thai minds. Sir John Bowring managed to secure free trade links, consular representation, and extraterritoriality for Britons. The Bowring Treaty served as an example for other Western powers who also coerced Thailand into signing similar treaties. As a result, Thailand’s sovereignty was severely compromised.
It should be noted that there were strong pressures to revise or abrogate the unequal treaties in all of the affected Asian states from the very beginning. China’s refusal to ratify the treaties of 1858 led to the occupation of Beijing and the torching of the summer palace in 1860. Japan, through its strong Meiji government, secured a gradual phasing out of extraterritoriality in 1894 and finally recovered from full clutches in 1911. However, achieving this required Japan to yield four subject states of Malay Peninsula to Britain in 1909. Thailand also negotiated an end to unequal treaties after a change in government in 1937. The alliance between China and the victorious powers of World War II brought an end to almost all its unequal treaties except for Hong Kong and Macau as legacies of those agreements.
Bibliography
Alan Watson’s book, The Evolution of Western Private Law Expanded Edition,” was published in 2001 by The Johns Hopkins University Press in Baltimore.
Arthur Taylor Von Mehren and James Russell Gordley’s book, ‘The Civil Law System’, was published in its second edition in Boston and Toronto in 1977. The book is cited on page 3.
Encarta’s Unequal Treaties
Unequal Treaties accessed on March 21, 2008.
Encyclopedia Britannica (2003) defines Extraterritoriality” as the state of being exempt from the jurisdiction of local law, usually granted to foreign diplomats and businesses operating in a foreign country. This information is available on Encyclopedia Britannica Premium Service’s website at http://www.britannica.com/ed/artiche?=eu=34058, accessed on April 04, 2003.
Accessed on March 22, 2008.
Gerald J. Russello (2001) reviewed the book ‘The Evolution of Western Private Law Expanded Edition’ in Bryn Mawr Classical Review. The review can be accessed at http://ccat.sas.upenn.edu/bmcr/2001/2001-10-28.html. It was last accessed on March 22nd, 2008.
H. Patrick Glenn’s ‘Legal Traditions of the World’, Second Edition, published by Oxford University Press in New York, can be found on page 362.
J.H. Baker’s An Introduction to English Legal History” is a book published in London in 1979, with a second edition available. On page 28 of the book, readers can find valuable information about English legal history.
Keeton, George W. (1928): The Development of Extraterritoriality in China.” 1969 edition, 2 vols. New York: Howard Fertig.
Liu Shishun wrote a book titled Extraterritoriality: Its Rise and Its Decline” in 1925. The book was included in “Studies in History, Economics, and Public Law,” which was edited by The Faculty of Political Science of Columbia University. The publication was released in New York, NY by Columbia University.
M. Reimann (Ed.), The Reception of Continental Ideas in the Common Law World (1820-)
(1920) Comparative Studies in Continental and Anglo-American Legal History, Volume 13. Berlin, 1993.
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Accessed on 22nd March 2008 from http://info8.juridicas.unam.mx/cont/8/arc/arc6.htm.
[1] J.H. Baker’s An Introduction to English Legal History” (2nd ed.), published in London in 1979, discusses this topic on page 28.
[2] For further information, refer to M. Reimann’s edited volume “The Reception of Continental Ideas in the Common Law World” (1820-).
Comparative Studies in Continental and Anglo-American Legal History, vol. 13 (1920), Berlin 1993.
Arthur Taylor Von Mehren and James Russell Gordley, The Civil Law System, 2nd Edition. Boston and Toronto: Little, Brown and Company, 1977, p.3.
Gerald J Russello (2001) Review of the book The Evolution of Western Private Law Expanded Edition. Bryn Mawr Classical Review. Accessed on March 22nd, 2008 from http://ccat.sas.upenn.edu/bmcr/2001/2001-10-28.html.
Alan Watson (2001). The Evolution of Western Private Law Expanded Edition. Baltimore: The Johns Hopkins University Press.
H. Patrick Glenn’s ‘Legal Traditions of the World’ Second Edition, published by Oxford University Press in New York, is a valuable resource on legal traditions around the world. (p. 362)
For more information on German legal history, please visit http://faculty.cua.edu/pennington/Law508/GermanLegalHistory.htm. Accessed on March 22nd, 2008.
Pedro Alfonso’s ‘Foundations in Mexican Private Law’ is an article published in the Mexican Law Review.
Accessed on 22nd March 2008
[9] Accessed on 22nd March 2008
[10] Accessed on 22nd March 2008
[11] Encyclopedia Britannica (2003): “Extraterritoriality”. Encyclopedia Britannica Premium Service. Retrieved from http://www.britannica.com/ed/artiche?=eu=34058 (April 04, 2003). Accessed on 22nd March 2008.
[12] Keeton, George W. (1928): The Development of Extraterritoriality in China. New York: Howard Fertig,1969 edition, two volumes.
[13] Liu Shishun (1925): Extraterritoriality: Its Rise and Its Decline. In The Faculty of Political Science of Columbia University (Ed.) Studies in History, Economics, and Public Law. New York: Columbia University.
[14] Encarta Unequal Treaties
Unequal Treaties Accessed on March 21, 2008.
