Common Law and Roman Law

Two peas in a pod

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The Common Law system is sometimes contrasted with the Roman one and its successor Civil Law systems, but, leaving aside the sour anti-Napoleonic taint which has flavoured some of the discussions on how different the two systems are, the two systems are, in fact, quite close.

Firstly, in the concept of equity, in the broad sense, sensu latu:

 

“Like their republican predecessors, the jurists of the Empire attached particular importance to the concept of aequitas and its role in correcting or expanding the existing body of law so it could meet the demands of social and commercial life. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 51).
ISBN 9783642428135

 

And secondly, in the practical, hands-on, case-by-case approach to seeking what the law is in concrete, rather than abstract, situations; not to mention, the reliance on Nature [read: Reason] in formulating solutions:

 

“They developed the content of natura [natural law] in close connection with the practical aspects of legal life and always in response to concrete needs and problems emerging from actual cases. From their viewpoint, discovering the appropriate legal rule or devising an acceptable solution to a legal problem presupposed a reasonable familiarity with both the nature of practical reality and the ordinary expectations that social and legal relations entailed. In this respect, the postulates of nature did not emanate from metaphysical speculation but from the findings of common sense and the need for order in human relations. ”
— George Mousourakis,
Fundamentals of Roman Private Law, (2012)
[Springer, 2012], [1.4.6] The Culmination of Roman Legal Science (p 52).
ISBN 9783642428135

 

The academic approach, — theoretical, abstract, classificatory (and later, the more easily codifiable) –,  is a different matter.*

 

*And, again, even here, the inference to be drawn from observing that one developed from the other (from practical Roman to theoretical Civil) is that they are not entirely (substantively) “different”, anymore than the tip of a leaf and the tip of a root are different yet on the same tree: it’s the same sap.