Magna Carta And The Roman Law Tradition

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Abstract

Magna Carta is one of the most important illustrations of the exceptionalism of English common law. Within a completely feudal framework it gave the clearest possible articulation to the concept of the rule of law and at the same time it also showed that there were certain basic rights which every freeman enjoyed without any specific conferment by the king. From English perspective, continental European law after the process of the reception of Roman law was commonly regarded to be apart and different from the English legal tradition, as well as being perceived to pose a continual threat. The English Parliament constantly turned down royal attempts to emulate the continental reception of Roman law by characterizing it as something entirely foreign to English law. Roman law was supposed to promote an authoritarian and absolutist vision of the relationship between rule and subjection and this was expressed in the famous phrases 'princeps legibus solutus' and 'quod principi placuit legis habet vigorem'. Roman law was also anti-feudal, because one of its main principles that all power originated from one central source was the antithesis of the distribution of power over multiple centers, which was a crucial element of the feudal society. Many English historians have held the view that the English law is democratic, whereas the continental tradition is undemocratic and authoritarian, and this is why the Roman law succeeded on the Continent and failed in England.

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