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Tulane European & Civil Law Forum


Any student of legal history who believes that the European ius commune played a meaningful part in the origins and development of English law will profit from reading Reinhard Zimmermann’s masterpiece, The Law of Obligations. Indeed, that student will read it with joy. I am one of that number, and I remember my own reaction well when his book first appeared—equal parts of admiration and encouragement. Not only was the book a sparkling and learned treatment of many important aspects of the civil law, subjects about which I needed to learn more, it also proved to be the source of specific examples of connections between the two relevant legal systems in England. That subject was one of my special interests then. It still is. Significant differences between the two legal systems did exist. No doubt about that. However, more than occasional coincidence also connected them, linking the European ius commune and the English common law, and not only in minor or accidental matters. Where most English historians had seen large differences and even enmity between them, Professor Zimmermann concluded that the “European ius commune and the English common law had not been so radically distinct as is often suggested.”1 It would be, he added, “a fruitful exercise” to attempt a comparison of legal rules and achievements “against the background of a common Western civilization.”2

That comparison is what I have attempted to do in this essay, albeit on a small scale. I thought it would be sensible to take up and examine the works of an English civilian, one of those lawyers whose career was centered in the ecclesiastical courts and whose principal sources of authority were drawn from the Roman and canon laws. Many of these men wrote legal treatises. They thus left written accounts of the use of laws drawn from the ius commune that others might consult. A little digging would therefore make it possible to investigate whether what a civilian had written had been treated as a legitimate source of law in cases that had come before one or another of the English royal courts, courts in which the English common law was in force.3

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