Roman law mind and common law mind: A study in the comparative history of English and continental jurisprudence before 1700.

摘要

Legal scholars in this century have settled upon a received understanding about the distinguishing characteristics of common law and civil law jurisprudence. In part, this understanding holds that civil law systems purport to be coherent bodies of rules deduced from general principles and arranged systematically in codes having fixed and authoritative texts. By contrast, the common law is said to have been from early in its development a set of rules inferred inductively from decisions in particular cases. Roman and civil law, in this view, are conceptual and theoretical while the common law is particularistic and pragmatic. The common law is, and always has been, judge-made case law strongly tied to the doctrine of binding precedent, but the civil law has depended upon the legislator and the legal scholar for its development.;This study demonstrates that the absence of a sustained and detailed comparative historical study of the jurisprudence of the two traditions--one which takes into account the changes that sometimes quickly took place in the thought of both traditions, and the frequently striking differences among contemporaries within the same tradition--has led to the widespread overestimation of the uniformity of each tradition and of the starkness of the contrast between the two traditions. The study further shows that common law doctrines about customary law, case law and precedent, reason and the law, and legislation, equity, and interpretation are derived largely from the Roman law. The differences, frequently noted by comparativists, between civil and common law jurisprudence, in many instances merely reflect the common law's having followed a particular strand of civil law thought--a strand not ascendant in the civil law at the point in time upon which comparisons between the two traditions were based but which at other times in the history of the civil law tradition may have been dominant.