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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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