History of Legal English Throughout the Years: 3 Main Influences of English Common Law
I would like to talk about three historical influences of the language of English law that have left a major imprint on this highly technical speech, to try to understand its structure. We are dealing with a complex medley in which it is not easy to extract its strains to analyze each one independently. The problem is that they were either incorporated simultaneously or went through ebbs and flows throughout the ages until it crystallized into modern English legalese, as we know it today.
My attempt to divide it into three parts is just to help visualize the main elements that compose it and to emphasize why English law followed a different path than the rest of the European continent. They are so intrinsically interwoven, that you will notice I cannot discuss only one influence without mentioning the other two.
Corpus Iuris Civilis
This was the main collection of jurisprudential work used to spread the Roman civil code throughout Europe. Justinian I, Eastern Roman Emperor, ordered its compilation around 529 AD.
It did not have much impact for a long period until the eleventh century, when the Holy Roman Empire, which considered itself the successor of the classical Roman Empire of the Caesars, revived it and used it as the basis for their legal system. However, the influence of the corpus iuris civilis on common law systems has been much smaller. Some basic concepts from the corpus have survived through Norman law, such as the contrast between "law" (statute) and custom.
During the twelfth and thirteenth centuries, medieval Roman law helped shape and develop English Common Law*. In the mid fifteenth century, influenced by Roman law, the law of the Christian church was codified in Latin. Later, Roman law and canon law fused into Jus commune (Latin for "common law"), although it should be pointed out that this term is distinct from the Anglo-American family of law.
The traditions of the Germanic tribes
As I discussed in a previous post, On the Aspects of Legal Translation, the development of English law follows a different path that the rest of the European continent because people from the Saxon nations, which settled in England, had their own laws, not written, but rather memorized and interwoven in the oral tradition of the people.
Germans considered law as part of their national heritage, a birthright that shall accompany individuals for the rest of their life. The laws, or customs, of the barbarian nations of Northern Europe were essentially oral: they were from time to time repeated by memory in public and relied for their continuation upon the spoken word, and the recollection, perhaps whimsical, of those whose duty it was to remember them.
The Norman conquest of England in the eleventh century was a critical event that marked the influence of Norman French in the language of English law. Before this conquest, the Anglo-Saxon law was a body of written rules and customs that was in place during the Anglo-Saxon period.
Contrary to what could have been expected from a conquest, Norman custom was not simply imposed on England. Upon its arrival, a new body of rules, based on local conditions, emerged. Norman French was the main oral language during trials. The judge gave its sentence verbally in Norman and was then written in Latin.
The English Common Law and Civil law systems did not completely part ways until after the Tudor period (1485-1603), when the laws of the Court had finally prevailed over academic legal institutions in relation to the education of barristers, sergeants-at-law, and judges.
*Roman law also penetrated English law through canon law, which was applied in English law in church courts, especially in relation to marriage and testaments. Since the members of the Court of Chancery (on equity) were clergymen, the canonical idea of equity, and indirectly the Roman one, influenced the development of English equity.