Merryman and Perez-Perdomo on European Legal History

My disappointments with a common narrative

John Henry Berryman and Rogelio Pérez-Perdomo’s The Civil Law Tradition provides a certain kind of “standard narrative” of states and legal systems in European history. The book is widely assigned in law schools and can be found in the “further reading” section of many legal history introductions. Their account of European legal institutions follows something like a “creation, fall, redemption” narrative arc. For them, the pristine system of Roman Law was smashed by barbarians and lost for several hundred years, only to be rediscovered in the supremely chaotic middle ages where, along with secular nationalism, it slowly led Europeans into a sophisticated and enlightened legal present.

What I’m most interested in when reading an account such as theirs is its treatment of the “poly-legal” world that existed in different forms for many hundreds of years in Europe. By the poly-legal world, I mean the world in which there were different court systems applying different rules that cut across state boundaries, such as they were. The authors think that this world was at best a quaint curiosity and at worst an inefficient mess. They also clearly think that its end was an inevitable consequence of the forward march of progress. Because the only “forward march of progress” that they clearly identify is the rise of the powerful nation-state, which is something I’ve got mixed feelings about, their story raises more questions than it answers for me.

Their story begins with the fall of the western Roman Empire and the Roman legal world with it. The next several centuries get only a cursory treatment of the very simplistic “Germanic Dark Ages” style.

With the fall of the Roman Empire in the West in AD 476, Roman law lost its dynamism. Cruder, less sophisticated versions of the Roman civil law were applied by the invaders to the people of the Italian Peninsula and other parts of Europe. The invaders also brought with them their own Germanic legal customs, which, under their rule that the law of a person’s nationality followed him wherever he went, were applied to themselves but not to those they had conquered…Over the centuries this produced what Europeans still refer to as “vulgarized” or “barbarized” Roman law. (p. 8)

They don’t tell us what exactly was unsophisticated about this law. They instead want to quickly turn to what they see as the restarting point of history with the rediscovery of Roman law.

As the Europeans regained control of the Mediterranean Sea, an extraordinary period of feverish intellectual and artistic rebirth called the Medical Renaissance…began and an intellectual and scholarly interest in law reappeared…’the revival of Roman law’ is generally conceded to have had its beginning in Bologna, Italy, late in the eleventh century…The first modern European university appeared at Bologna, and law was a major object of study. But the law that was studied was not the barbarized Roman law that had been in force under the Germanic invaders. Nor was it the body of rules enacted or customarily followed by local towns, merchants’ guilds, or petty sovereigns. The law studied was the Corpus Juris Civilis of Justinian. (p. 9)

As the final lines of the above quotation make clear, Berryman and Pérez-Perdomo think that the various systems overlapping in Europe in the high middle ages did not merit a lot of kind words. The implication is perhaps that European societies were imperfectly ordered by legal means because the laws were not very well thought out and because people would be confused which ones applied to them. They keep this theme going as they explain the supposed process by which the diffusion of Justinian Roman law through universities caused that more sophisticated system to eventually conquer medieval institutions.

The distinctions between different types of law were [not] clear. Royal courts that were supposed to apply royal laws were staffed by university-educated jurists who were trained in and naturally favored Roman law. Seigneurial courts that applied customary law also felt the influence of educated jurists. Ecclesiastical courts were staffed with canon law judges who were university educated in both canon and Roman law. There was a tendency of overlapping jurisdiction. Ecclesiastical courts frequently exercised jurisdiction in family law and succession matters, as well as in certain types of crimes. (p. 12)

Their explanation for how these different legal systems eventually fell away thus starts with the claim that Roman law first homogenized them. That’s an interesting thought, and has a ring of plausibility considering that there might naturally be pressure for different systems to apply more similar rules over time. Their basic explanation is just that kings paid for universities and eventually university grads filled all the legal positions and got their way because they had a flashier and smarter system of rules to work with.

But in their account, the real end of the poly-legal world wasn’t the rebirth of Roman law, it was what Berryman and Pérez-Perdomo call “the revolution.” By “the revolution” they seem to mean every big intellectual change having to do with politics that took place in modern Europe. They see a grand unity there, describing it as “a revolution that took place in the West in the century beginning with the year 1776” where “certain long-established patterns of thought about government and the individual were finally overcome, and newer ways of thinking about humanity, society, the economy, and the state took their place.” (p. 15)

This replacement of thought patterns changed everything about European political and legal life.

The revolution was…a great step along the path toward glorification of the secular state. Henceforward the temporal allegiance of the individual would be owed primarily to the state. Feudal obligations and relationships were abolished. Religious obligations lost most of their remaining legal importance. The ecclesiastical courts lost what little remained of their temporal jurisdiction. Family relationships were now defined and regulated by law (i.e., by the state). Local governmental autonomies were abolished; guilds and corporations were deprived of regulatory power. Separate legal traditions were merged into a single body of national law. The legal universe, formerly very complicated, was suddenly simplified: henceforward it would in theory be inhabited only by the individual and the monolithic state. (p. 18)

The more I read Berryman and Pérez-Perdomo on “the revolution” the less I think they have something to say. They offer the concept up as if it is going to help them explain what happened to the old world order. But are they really saying more than “well, everything changed, so it makes sense that legal stuff changed too”? Is their account supposed to be primarily intellectual? Once “certain patterns of thought” were “overcome” all this other stuff fell out naturally? What even are the patterns of thought that could explain this much change on their own? Is their claim, “people stopped worshipping God and started worshipping the state” and thus guilds had to lose their power?

I’m pretty open to the force of ideas in history, but this kind of narrative leaves me feeling that I haven’t learned anything. Faced with the question of how and why this complicated political and legal world disappeared it seems to just say “well, eventually people realized that their institutions were backwards, and they changed them.”