THE GLOBAL LEGACY OF THE COMMON LAW

Abstract

This year we celebrate the 800^th anniversary of the promulgation of Magna Carta. Amongst the great number of initiatives for this event, Professor Mark Hill QC and the Reverend Robin Griffith-Jones have edited an interesting book, which gives a detailed account about the origins of Magna Carta, the social and political context of the time, and the religious background which forms the very foundation of the main principles of the Charter.

I am neither an historian of law, nor a specialist in public law, nor an expert in the field of law and religion. I try only to be a humble comparatist, that is, a “strange” person, because comparative law itself is “strange”, in the sense that, unlike other fields of law studies, it is not a body of rules, but a way of legal learning, looking at law as a phenomenon which is relative and universal at the same time, and trying to identify the profound features which characterize the form and substance of a legal system. I dare to venture gingerly into the debate and to discuss some aspects of the “global legacy of the common law”, whose origins, to my understanding, are closely interconnected with Magna Carta.

First, I will depart from the assumption that one of the most important aspects of Magna Carta is the idea of law as a limit of the sovereign’s power. In reality, this concept was not new, nor was it peculiar to English law, as it had been developed on the Continent by the efforts of medieval jurists, but it was fixed in ‘black letters’ in Magna Carta at the end of a difficult period of controversies and it can be said that it is at the origin of the doctrine of the Rule of aw. Second, I will consider the process of codification of law taking place on the Continent between the end of the XVIII and the beginning of the XIX century and in particular the idea of Rechtsstaat, shaped on different basis than the conception of the Rule of Law in English law, which flows from the Magna Carta and continues to characterize, at various degrees, the common law legal mentality. Third, I will concentrate on the main legacies of the conception of law which underlies the doctrine of Rule of Law, focusing on some features which still connote the common law tradition as opposed to the civil law tradition: the idea of the primacy of the unwritten law over statutory law and the unity of jurisdiction; the attitude of judges towards the interpretation of statutes; the circulation of precedents in a vibrant legal tradition. At the end, I will draw some conclusions.