ON COMMON LAWS

Vol. 16 No. 7 (July, 2006) pp.530-532

ON COMMON LAWS, by H. Patrick Glenn. Oxford: Oxford University Press, 2005. 176pp. Hardback. $95.00/£50.00. ISBN: 0199287546.

Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. E-mail: sullivak [at] ohio.edu

ON COMMON LAWS is an historical study of law that is very much concerned with the present. As European legal systems are making a transition from state-based systems to a common European system, a law common to nations is being taken seriously, along with its imperialist tendencies. In ON COMMON LAWS, H. Patrick Glenn, a law professor at Canada’s McGill University, revisits European civil law and imperialist legal orders to elicit insights on political power, processes of legal expansion, and the survival of local traditions. While the common law is often associated with England, Glenn expands the definition of common law to include laws common to the people, and he finds common laws throughout Europe. Although the common law is often traced back to the twelfth century, Glenn presents the twelfth century as the first time that the common law was expressed; it was in operation long before and across Europe. By expanding his definition of the common law temporally and spatially, he can identify the construction and dynamics of the law in European history.

Glenn begins his study with the Roman Empire, a classic example of imperialism, and yet he finds that Roman law was never hegemonic. He explains that Roman law acknowledged the validity of local laws informally by recognizing the mores of non-citizens, a process that allowed Jewish law, Greek law, and Egyptian law to survive the Roman Empire. The relation between Roman law and local law was one of ongoing mutual exchange rather than an exercise of imperial force. After noting the presence of local laws under conditions of empire, Glenn proceeds to identify common laws in England, France, Germany and Spain. When he does, he finds that the story is, once again, not one of centralized authority, but instead, the freelance expansion of law by non-governmental actors such as priests, knights and merchants, and a central authority seeking to garner acceptance of the law. Glenn discovers in historical plurality some key concepts of the law, finding that, even in empires and monarchies, the law must be rendered legitimate. Even under conditions of strong authority, empires and monarchies have tended to let local law continue, and law took hold through local acceptance. The dynamics of localities accepting the law opens up the possibility for resistance, and Glenn addresses this phenomenon in his second chapter.

Glenn describes early common law as “floating,” with its meaning determined through the collaboration of jurists and judges. Its lack of definitive content allowed for sustained tension between the common and the particular. This quality could be destroyed if a figure in authority stated its definitive content in a binding way. Law would then become [*531] nationalized. While a variety of methods of appropriation were available for nationalization, Glenn stops short of ceding a pan-European appropriation of law. Without a pan-European authority to render definitive meaning, the dynamics of appropriation did not obtain. Glenn explains that the standard account of European history would assume such appropriation, but the standard account overlooks the complexity of relations between the laws of Europe. There was a dialogical and ongoing process involving relations among the common laws and all their respective iura propria, and relations between the common laws and a particular ius proprium in the form of an emergent source of national law.

Glenn goes on to consider the role of the expansion of the common law abroad, through settlement or colonization. Postcolonial theory has suggested that the colonial subject was not a passive recipient of law but was its “strategic critic and subverter . . . resisting, ambushing, waylaying, disorientating, the mega-structures” (p.66, citing Uprenda Baxi) Without ignoring the violence of colonialism, Glenn points out that indigenous law has not disappeared as a legal tradition. Referencing the CALDER case in Canada and the MABO case in Australia, he points out that local, indigenous law can serve as a source of ongoing vitality in the evolving legal order. The presence of Indian law in the United States, for example, provides the means for ongoing delineation. In short “hybridity continues to prevail” (p.67)

Positivism hit the common law hard, with its derision for the notion that judges declare what the law is. Glenn corrects the misunderstanding of the declaratory theory of the common law, noting that judicial declarations were never meant to be definitive but were more modest statements of judicial reasoning that could yield to better reasoning in the future. This floating feature of the common law is the feature that has acquiesced to local law, and has allowed for recognition and tolerance of hybridity and the fluidity of populations under conditions of colonization and imperialism. Chapter Three addresses the relation between the common law and other legal traditions within a nation, such as canon law, feudal law, commercial law, Talmudic law and Islamic law.

Glenn’s perspective draws attention to the dynamics of a legal system and the spaces for resistance, subversion and ongoing definition of law and its parameters. Glenn captures notions of what law is, how it operates, and how it intersects with political power. This book’s strength lies in its interpretive purchase more than its empirical contributions. It offers a comparative approach to legal history, although its accounts of various legal systems are treated in swift succession and may not contain sufficient content sought by those interested in traditional legal history. The book should be of use to political theorists interested in the intersection between law and society, who may make use of some history while examining legal dynamics and relational theories of power. It should also be of interest to Americanists. The [*532] imperialist and colonial history of the United States is increasingly being reconsidered in accounts of American political development, and it is time to contend with political power and legal authority from that perspective. Glenn’s work opens up possibilities for locating dynamics of authority and reception, as well as offering possibilities for freedom and fairness through law in a period of globalization. As Glenn concludes, the common law is not immune from appropriation for purposes of imperialism, but imperialism is not an inevitable feature; under conditions of contemporary globalization, the common law offers the tools for recognizing difference and negotiating the tension between the common and the particular, while its open-ended features invite ongoing contestation and responsiveness.

REFERENCE:

Baxi, Upendra. 2003. “The Colonialist Heritage,” in Pierre Legrand and Roderick Munday (eds). COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS. Cambridge: Cambridge University Press.

CASE REFERENCES:

CALDER v. ATTORNEY-GENERAL OF BRITISH COLUMBIA (1973) S.C.R. 313.

MABO v. STATE OF QUEENSLAND (No. 2) (1992) 107 A.L.R. 1.

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