1 0098100 - 0000313 UKS1: 2014230548.1 QUESTIONS FOR JOHN & PHILIP - NOVEMBER 2023 Q1. Does the produced common law then also replace the practice of Roman law elsewhere, or is its development driven by areas using the English language? Whilst generally being based on Roman law, the common law must replace the practice of Roman law because Roman law is not a source of law in common law systems. Taking what was written in Glanvill in 1189 and Bracton in the 1220s, the judges developed these principles in cases decided in Westminster Hall, situated next to the House of Commons, and later in other English courts. After our colonies became independent, their common law courts developed the principles in English cases so that a body of case law developed in the newly independent countries. The common law is the law in most of Britain’s former colonies. However, note that on the one hand not all British political entities have a common law system even though they speak English e.g. Scotland, Channel Islands, Isle of Man, South Africa, Quebec, Louisiana. On the other hand, note that some political entities have a common law system even though they speak languages other than English e.g. Hong Kong, Singapore, Malta, UAE Financial Zones. Q2. How can I make these topics bite-sized for work experience students? Everybody should read Barry Nicholas’ “ An Introduction to Roman law ” or listen to Philip’s and my webinars (as part of their work experience). Standards are rightly high for those wishing to practice at A&O, just as they are at A&O’s competitor firms. Learning Roman law would make us all much better lawyers. Q3. I always wonder how we perceive the reality of now or the past and whether one can incorporate a gender lens to it, however challenging it might be. Would women through time have praised the systems and how would their input, if sought, have impacted life today? How much further ahead would we be? How has feminist thinking been accepted? Perhaps you could add a guest speaker if this is not your forte? We tend to have colonial and patriarchal pride overflow on these topics; how can we evolve emotionally from what winds up coming across as supremacist a lot of the time? Did Ireland have laws, for example? Perhaps surprisingly, there were quite a number of very influential women in the Roman Empire. To me the most interesting is Galla Placidia (circa 388-450), daughter of the Roman emperor Theodosius I. Her brother-in-law, Honorius I, arranged for her to be married to Ataulf, king of the Visigoths from 414 until his death in 415 after his brother-in-law had sacked Rome in 410. Galla Placidia was then briefly empress consort to Constantius III in 421, and managed the government administration as a regent during the early reign of her son Valentinian III until her death. Other powerful women include Livia, wife of Augustus; Agrippina who reputedly poisoned Claudius so her son, Nero, could become emperor but who murdered her because he said she was too powerful; Cleopatra, ruler of Egypt; Julia Domna, wife of Emperor Septimus Severus; and Theodora, wife of Justinian etc. Mary Beard’s “Emperor of Rome” has two chapters on women in Roman Society. Jane Gardner in her book looks at the position of women in Roman law. In my last talk, I expressed my view that the Roman Empire imploded due to the egos of the male rulers getting out of control. Of course, in the ancient world there was no equality, although there 2 0098100 - 0000313 UKS1: 2014230548.1 should have been. At all times, we would have benefitted from wiser counsel at the top of politics. Nevertheless, just as George Bush’s and Tony Blair’s egos got out of control in invading Afghanistan and Iraq, so I am afraid to say did Margaret Thatcher’s and Liz Truss’. So, even if there had been equality, the Roman Empire may still have fallen. Q4. How did English common law and French custom ( coutume ) evolved side by side for a few centuries and why common law resisted whilst the French coutume disappeared/was replaced by the Napoleonic code. As I understand it, after the French Revolution, law was pretty chaotic in France with each party to a case arguing that either custom or Roman law as set out in Justinian’s Digest should apply depending on what was in their interests. Napoleon put a stop to all this when in 1804 he enacted his code. Although based on Roman law, the Code also took into account custom if this was considered better. What was set out in the Code could not be challenged by what was considered to have been the law earlier e.g. after 1804, in France you could not refer to Justinian’s Digest Note that Scotland and South Africa do not have Codes so in theory you can refer to Justinian’s Digest today. Q5. Is the common law system really so different from the Roman law, considering the importance of Jurisprudence in the latter? Jurisprudence really answers the question “Why is law binding?” There are many theories as to why law is binding. Personally, I think Cicero gave the answer in around 50 BC when he said to be binding, law must be moral. His view of what was moral law was that it must comply with Natural law, which is a body of norms or principles inherent in all of us. If so, I do not think common law or civil law jurisprudence is different. Many people would disagree with me. Q6. Patrick Kennedy, Founding Director of Entrust Pension Limited (a UK pension trustee company) and Allen & Overy and winner of the Jolowicz Prize for Roman Law at UCL in 1986 (it was a book token) said that English law has developed Equity and the Law of Trusts as a workaround for the inflexibility of the common law on its own. Advocates gave opinions in Roman law which provided practical workarounds for the Justinian Code's unhelpful rigidity. What can we learn from this? I would suggest that just as Roman law developed enormously during the 1000+ years leading up to Justinian’s Digest in 533 AD, so the common law, equity and civil law have developed since Justinian’s Digest was discovered in 1070 in Italy. Q7. How does Roman law inform the concept of human rights and the rule of law in modern legal systems, and what are the main challenges or opportunities for advancing these values in the CEE region? Whilst in no way sympathising with Rome being a brutal slave civilization, the Romans did have a concept of human rights. These were called Natural Rights, even though you may query the extent to which the governing class respected them. These were negative human rights e.g. freedom of expression and freedom from arbitrary arrest. They were not positive human rights e.g. right to a family life. More than this Philip and I cannot say as we were commercial and not human rights solicitors. Of course, the rule of law covers the whole of law. I have mentioned the enormous influence of Roman contract law on the development of civilization. CEE countries are civil law countries based 3 0098100 - 0000313 UKS1: 2014230548.1 on Roman law. The effect of the development of commercial law on civilization in CEE countries has been and will be huge. Q8. I am interested in how case law evolved. Taking what was written in Glanvill in 1189 and Bracton in the 1220s the judges developed these principles in cases decided in Westminster Hall, next to the House of Commons. Q9. Where do you feel the merger with Shearman will take A&O in the future? There is every chance in five years that A&O Shearman will be regarded as the world’s outstanding firm. Q10. While the Royal Prerogative may have initially driven England to pick and choose principles from Roman law, rather than adopting it wholesale, didn't the Prerogative fade into the background once the common law developed a life of its own? Obviously English law is contained in hundreds of thousands of cases and very few of them refer to the Royal Prerogative. English law has developed enormously from what was set out in Glanvill and Bracton. Nevertheless, the Royal Prerogative is still important. e.g. the Foreign Office issues more than 500,000 Apostilles a year simply because civil law countries will not accept a notary’s authority on a document. Q11. Also, do you have any thoughts on why continental jurisdictions, with what one would have thought would be a great appetite for a prerogative override, nevertheless were happy to adopt wholesale Roman law? What tricks or legal devices did they use to achieve this, I wonder? Purely political? Accepting that the detail of private law remained outside the bounds of the autocrat and so outside of any prerogative, unlike in England at least in the earliest of days? Kings in countries other than England believed that they were absolute and above the law, which therefore did not apply to them. When the Reception arrived from 1100 onwards, it was so much easier just to accept Justinian’s Digest and not bother about niceties like Roman law not accepting the Royal Prerogative. Codes such as Justinian’s Digest and later the Napoleonic, German and Dutch equivalents, require so much less effort and are much more user friendly than the common law. Why did we put ourselves through this? We are the only country to have done so. Starting with the Anglo-Saxons, our theory of kingship was that a king was not absolute but governed with advice from the curia regis or King’s Council. Look what happened to Charles I who thought he was absolute. If a king was to exercise the huge power of controlling the population through the law by using the Royal Prerogative to appoint and dismiss judges, he had to have a legal right to do so. You should also note our long antagonistic history with many countries where the king took the blame, particularly as we usually won the wars. It was not just Spain and France. There are six states out of 50 in the USA where an Apostille is required on documents issued by an English notary under the Royal Prerogative. These are New York, Pennsylvania, Maryland-all because of hatred of the English crown, the first two due to the American War of Independence and Maryland also because it was settled by Catholics fleeing persecution. Also, California and Hawaii (former Spanish colonies) and Arkansas (as far as I am aware, nobody knows). Note documents going from the USA to a civil law country require an Apostille presumably because America was a former colony. 4 0098100 - 0000313 UKS1: 2014230548.1 Q12. Many thanks for the inspiring talk! Are there elements in Roman law that can help us with addressing (perceived) new developments such as AI? I believe the common law and civil law systems will just develop new legal principles from existing ones to deal with AI. Q13. Philip, what do you think will be the law that will replace the common law as the international law? What do you think of AI's influence on law in general? It seems doubtful that law will ever be completely harmonised in all areas and we are a long way from that. The advantages of some diversity include that there is competition between legal systems, and choice of law and courts in contracts confers freedom for users. Both of these mean that international users have a shadow “vote” on major legal systems with the result that local politicians can’t just do what they like if the legal system, like English law, is widely used internationally. In my view AI is essential for lawyers now to be able to do their job since otherwise legal systems are unmanageable because of their size and complexity. Q14. How did the French deal with Royal Prerogative v Roman law pre- 1789. See the answer above. J A Fisher 9/11/23