The Divergence of Legal Systems

Abstract

If we gather together all his discussions, Maitland’s picture of what happened is, in essence, as follows. The legal, political and social systems of much of north-western Europe were alike in the long period between the collapse of the Roman Empire and about the twelfth century. There was nothing special about England except that, having been overrun by three waves of Teutonic peoples (Anglo-Saxons, Vikings, Normans), and having been less deeply Romanized than much of continental Europe, it was an extreme example, with northern Germany and Scandinavia, of the Germanic system. It was only in the twelfth century that the divergence between England and the Continent became clear, consisting largely in the fact that in England the relations between king, lords and people remained balanced, property was held by contract and the rights of kin were not re-established. In other words, while much of the continent began to move towards a ‘peasant’ and ‘caste’, that is highly stratified, system, England developed towards an individualized and open social structure. The similarity to Tocqueville’s account is striking.