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common law vs Roman law

Reader comment on item: Conservatism's Hidden History

Submitted by John Taylor (Russia), Aug 3, 2018 at 02:56

You have distorted this legal tradition because you approached it with your own questions about conservatives and liberals. These questions are too narrow. You should approach the legal tradition with an open mind, and you should apply it to you questions only after you first grasp its basic tenets.

There were two great traditions of law in Europe, the Roman law which was reenforced in 16h century Europe by discussion of the Code of Justinian. In this Roman tradition, human reason was the touchstone of right and justice, and the will of the prince had the force of law. The great French theorist Bodin was the key early modern proponent. Sir Robert Filmer was Bodin's champion in England. John Locke was his opponent.

The other legal tradition was that of the common law of England. The common law was unwritten. It was customary law. The common law was the common custom of the realm. The reason of the common law was superior to the reason of any particular person. The common law required consent. Custom gave consent but custom then had to be long continued and unforced.

You should read the great classics, Blackstone on the common law of England and F W Maitland on the constitutional history of England.

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