There is not much difficulty in knowing what we mean by the “common law” when we contrast it with the “civil law”: we mean those legal systems which can trace their origins to the law of England as it was a mere three or four centuries ago. The “civil law” is more troublesome, for it is not the case that all those legal systems which English-speaking lawyers are prone to group together under that heading recognise their own membership of a single legal “family”: even in this short account it will be necessary to speak separately of France and Germany. However, from this side of the divide we think of “civil law” countries as being the countries of continental Europe and the countries outside Europe which have taken their law from continental Europe, and we probably regard their common features as being a relatively close connection with Roman law and an affinity for codes. It is to the “civil law” in this sense that this paper will refer.

It has been accurately said that the common law is a system which has been profoundly influenced by its history, and that that history is until the 17th or 18th century exclusively the history of English law. This is more than a repetition of the identification of the “common law” just given, for it indicates both that the common law systems of today have a common source in the law of England as it was actually applied in the English courts at some time in the past, and also that there is a high degree of continuity in its history: the law of England and the law of New York may not be in all respects the same today, but each has developed from the same source of living positive law. It is, of course, a mistake to suppose that the introduction of the codes marks a complete break with the past for the continental systems, but it would be an even greater mistake to suppose that the connection between Roman law and, say, modern French law is directly comparable to that between 17th or 18th century English law and the modern law of, say, Illinois. At a theoretical level Roman law retained a kind of authority in much of continental Europe during the Middle Ages because the “Holy Roman Empire” was considered the successor to the Roman Empire that came to an end in the West with the deposition of Romulus Augustulus in A.D. 476, and this was not unimportant to the “reception” of Roman law in