Ancient and modern

Britain’s fight with European law goes back 750 years

The EU is undoing an approach pursued since the days of Henry III

30 April 2016

9:00 AM

30 April 2016

9:00 AM

It is no surprise that the laws imposed on the UK by a European parliament in Brussels should so infuriate the ‘Leave’ campaign. England has form here going back 750 years.

Roman law has been one of the wonders of the world since its codification in the Twelve Tables (449 BC). But it is not the laws themselves that are the real point. The key lies in the way that laws were later argued over by the ‘jurists’. These started out as private, freelance legal consultants, simply earning respect for the legal advice they offered. In a case fought against his jurist friend Servius, though Cicero admitted Servius was good at ‘providing legal opinions, preparing documents, and giving advice’, he put the knife in later: ‘Many long to make the grade as orators, but failures regress into giving legal opinions.’ Ouch.

In fact the jurists, who eventually held positions at the emperor’s court, were of high importance. They effectively became legal scholars and theorists, interpreting the law in their opinions, which were recorded and passed down for future jurists to argue over (the emperor was the final arbiter). It was their methodology that was of such supreme juridical value. Gaius’s Institutes (c. AD 150) is one collection of such jurists’ opinions; and in AD 530 the Eastern Roman emperor Justinian published his massive Digest, jurists’ opinions drawn from some 1,500 books, mainly dated AD 100–250.

When the Roman empire in the West collapsed in the 5th century AD, the invaders’ Germanic law took hold (though not over church law). But in the 11th century, Bologna University and then others in Italy started using the Digest to teach legal reasoning. As a result, Roman law, adapted to the new age, slowly returned over most of Europe. In the 12th century, one Vacarius came to England, where common law reigned, with this exciting new Euro-doctrine. It did not last. In 1234, Henry III banished it for good, and our local common law developed into a body of national law, the first in Europe. The EU ended that independence.

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  • Freddythreepwood

    ‘The EU ended that independence.’

    So we must take it back.

  • Nephthys

    Good article.

  • Bonkim

    U.K is not part of Europe – simple.

    • Mary Ann

      Oh yes we are, and we will remain so.

      • terence patrick hewett

        That’s the way to do it:)

      • monsieur_charlie

        Unfortunately you are probably right.

      • Ed  

        No. That’s what the Channel is for, after all.

        Different language, different culture, different history, different religion, different outlook, different economy, different currency, different constitution. The differences substantially outweigh the similarities. Still do, so many years after joining the Common Market.

        • Mary Ann

          And people worry about Britain losing its culture. If our culture is worth keeping it will endure.

          • antoncheckout

            You have a nerve!

          • Ed  

            Facepalm. That hardly makes it appropriate to throw it away, and God knows, European history is not a model to follow.

            That’s the point.

  • Michael W

    Put another way: Britain’s fight with European law actually commenced before the UK of GB was an actual legal concept? And lets just disregard that their are two unique legals systems in the UK. Call a spade a spade-

    • Ed  

      The Scottish have chosen wisely a number of times in history.

  • John Carins

    The UK (England & Wales) is incompatible with the EU. If we stay in the EU we will have to continue to change and give up our traditions..

    • Mary Ann

      You can still go Morris Dancing, Eat Yorkshire pudding as a first course, roll cheeses down hills, play football in rivers………………

      • John Carins


  • Marathon-Youth

    The defeat of Napoleon ended any chance that Napoleonic laws would have shaped England.
    Earlier than that was the Magna Carta that changed the way the British monarchy ruled the land
    From the French Revolution to Germany in the 1940’s the violent upheavals of Continental Europe remained on the continent.

  • Conway

    What you fail to mention is the assumptions behind the distinct legal systems. Common law assumes that everything is allowed unless there is a law to forbid it. Our freedom hinges on it. Roman law (corpus juris) assumes that everything is forbidden unless the state passes a statute to allow you to do it. We are getting a very bad deal as continental law takes precedence over common law. Vote to LEAVE!

    • LG

      Except that’s completely not true.

      • sfin

        The only thing he left out is the fact that it is Napoleonic code law (now called the French Civil Code, in France), rather than the broader brush ‘corpus juris’ which underpins the legal principles in most European countries and which specifically removes inalienable rights – i.e. rights granted at birth which are beyond the power of government to grant or remove – freedom of opinion and its expression, for example.

        He is absolutely correct in saying that, in most European countries, ALL rights are granted by written statute – i.e. You may not do anything unless there is written permission for you to do so. It is fundamentally different from British common law which concentrates on inalienable rights and what the state specifically forbids.

        Rights granted by written statute are very easily removed.

  • Give our God Immortal Praise

    Sharia law is the future. Hence the fact our children eat halal school dinners, likewise our patients in NHS hospitals.