In 1981 the Journal of Legal History published the essay “A ‘Revisiting’ of the Comparison between ‘Continental Law’ and ‘English Law’ (16th-19th Century)” by Prof. Gino Gorla and Dr. Luigi Moccia. The article challenged, for the period under consideration, the traditional view of a marked contrast between Continental and English legal systems, highlighting that common juridical patterns and close resemblances existed between them. In particular, the authors pointed out that, during the 16th-19th centuries, powerful and independent Great Tribunals existed both in England and on the Continent, that a doctrine of judicial precedent was recognised and applied by Continental judges, and that a most important and authoritative part of legal literature was made up of collections of “law reports” written by lawyers (judges and advocates) on both sides of the Channel, concluding that the two legal traditions met on the ground of their common judicial character. The essay was followed by extensive research on the European Supreme Courts and the collections of their judges’ decisions carried out by legal historians all over Europe. Prof. Gorla’s and Dr Moccia’s first suggestions were confirmed by the following studies in many respects: Italian legal historians, in particular, acknowledged the high authority of the powerful European Great Tribunals and the tendency on the part of their judges to follow a doctrine of judicial precedent, emphasizing the role of real sources of law played by the collections of their decisions (case-law). They highlighted, at the same time, the fundamental role played, in the jus commune system, by the wide interpretation powers of the judges, especially taking into consideration the absence of a general duty to express the motives (the ratio decidendi or legal grounds) of their judgments. Nevertheless, the most recent legal historians, going deep and clarifying some of the data coming from the first studies in the matter, have showed a few of their limitations, questioning the existence of a real binding force of the judges’ decisions in practice and highlighting the prevailing doctrinal character of the jus commune. The paper points out that, in the light of the most recent research, Gorla’s and Moccia’s views need partial revision. At the same time, it emphasizes that comparative-historical research on lawyers reporting considered as a “European” phenomenon is still at an initial stage and that the initial interpretations and hypothesis formulated by English and Continental European historiography still need to be verified and deepened.

Law reporting in England and Continental Europe during the Early Modern Period: a Comparison reappraised / Freda, Dolores. - (2022). (Intervento presentato al convegno European Society for Comparative Legal History 6th Biennal Conference tenutosi a ULisboa - University of Lisbon nel 23.6.2022).

Law reporting in England and Continental Europe during the Early Modern Period: a Comparison reappraised

dolores freda
2022

Abstract

In 1981 the Journal of Legal History published the essay “A ‘Revisiting’ of the Comparison between ‘Continental Law’ and ‘English Law’ (16th-19th Century)” by Prof. Gino Gorla and Dr. Luigi Moccia. The article challenged, for the period under consideration, the traditional view of a marked contrast between Continental and English legal systems, highlighting that common juridical patterns and close resemblances existed between them. In particular, the authors pointed out that, during the 16th-19th centuries, powerful and independent Great Tribunals existed both in England and on the Continent, that a doctrine of judicial precedent was recognised and applied by Continental judges, and that a most important and authoritative part of legal literature was made up of collections of “law reports” written by lawyers (judges and advocates) on both sides of the Channel, concluding that the two legal traditions met on the ground of their common judicial character. The essay was followed by extensive research on the European Supreme Courts and the collections of their judges’ decisions carried out by legal historians all over Europe. Prof. Gorla’s and Dr Moccia’s first suggestions were confirmed by the following studies in many respects: Italian legal historians, in particular, acknowledged the high authority of the powerful European Great Tribunals and the tendency on the part of their judges to follow a doctrine of judicial precedent, emphasizing the role of real sources of law played by the collections of their decisions (case-law). They highlighted, at the same time, the fundamental role played, in the jus commune system, by the wide interpretation powers of the judges, especially taking into consideration the absence of a general duty to express the motives (the ratio decidendi or legal grounds) of their judgments. Nevertheless, the most recent legal historians, going deep and clarifying some of the data coming from the first studies in the matter, have showed a few of their limitations, questioning the existence of a real binding force of the judges’ decisions in practice and highlighting the prevailing doctrinal character of the jus commune. The paper points out that, in the light of the most recent research, Gorla’s and Moccia’s views need partial revision. At the same time, it emphasizes that comparative-historical research on lawyers reporting considered as a “European” phenomenon is still at an initial stage and that the initial interpretations and hypothesis formulated by English and Continental European historiography still need to be verified and deepened.
2022
Law reporting in England and Continental Europe during the Early Modern Period: a Comparison reappraised / Freda, Dolores. - (2022). (Intervento presentato al convegno European Society for Comparative Legal History 6th Biennal Conference tenutosi a ULisboa - University of Lisbon nel 23.6.2022).
File in questo prodotto:
Non ci sono file associati a questo prodotto.

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11588/889153
Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus ND
  • ???jsp.display-item.citation.isi??? ND
social impact