The European Legal Heritage

Cover of the Catalogue of the Library of the Wismar Tribunal in 1703. The catalogue was distributed all over Europe.Stadtarchiv Stralsund, Rep. 13, 2156.

The history of the European courts in Strasbourg and Luxembourg started long before their foundation after the Second World War. The legal history of Europe reveals a long common tradition of cooperation, integration and concepts of the juridical and appellate system, legal practice and legal education amidst a politically fragmented landscape. It is no exaggeration to state that the legal profession, legal education and judiciaries were much more ‘European’ 300 or 500 years ago than they are today.

Today, Europe knows many different national legal systems with profound differences between countries with regard to language, legal practice and the organisation and training of judiciary and advocacy. How much do we know about the legal and juridical systems of our neighbours or other members of the European Union and the Council of Europe? In a not-too-distant past, however, the bigger and smaller dynastic monarchies, along with city-states and the a few republics, had juridical and legal systems that had much in common. Students and scholars of law self-evidently worked and studied all over Europe, without visas, work permits or other bureaucratic hurdles; they corresponded in Latin as a universal language. Citizens and businesses had access to courts and routinely sued each other in trans-European disputes; case law was a prominent source of law and was commented upon and distributed in sometimes famous case-law collections and read in libraries, private collections and at universities throughout Europe. Some supreme courts had jurisdiction over vast areas, covering different regions, perhaps even equivalent to the 16 countries of today’s Europe in the case of the patrimony of the Holy Roman Empire and its Habsburg emperors. The supreme courts as highest courts of appeal functioned relatively well, organized by chanceries (secretariats), staffed by trained lawyers, and employing standard procedures and formalities. The European supreme courts shared, at least in theory, universal principles of legal unity, legal certainty, peace-keeping, conflict resolution, legal symbolism and the protection of minorities. Case law already had a unifying (political) role – as is the case today. Many lawsuits at the highest level had pan-European dimensions, with businesses, citizens and (local) governments drawn from different regions and nation groupings involved. An eighteenth-century advocate or judge from France was much more acquainted with the supreme-court system and legal practice in Germany, Sweden, Poland or Austria than lawyers or judges in present-day Europe.

Europe was politically fragmented, but to a high degree there was legal unity. The key rupture within the common legal European legacy came after the French Revolution and the Napoleonic wars with the rise of nationalism and the nation state in the nineteenth century. The codifications of law within national frontiers in national languages, and the prevalence of the nation state and national legal systems led to generations of students, officials, judges and advocates who were mainly trained in their own national case law and law, and who mainly worked within national boundaries and national legal systems. Though pan-European discussion and cooperation did not stop completely, several generations passed during which legal practitioners and students became unused to working, studying and thinking outside their own national scope. Further to this, the twentieth-century totalitarian ideologies and their concepts of judiciary, law and case law imposed a monstrous anomaly on the centuries-old European legal heritage. The role and function, even the definitions, of judiciary, law and case law had other meanings in these totalitarian ideologies that were quite different to those understood for many centuries previously. A large part of Europe faced this situation even until 1989 and the consequences of this legal history have yet to be overcome.

Nowadays, citizens, lawyers, judges, students and officials from (local) governments share the same European courts, the European Court of Human Rights in Strasbourg and the Court of Justice of the European Union in Luxembourg. At these European courts judges from various nationalities and national legal systems wear the same robes, apply the same law and speak the same language. Their case law is applicable across Europe. Although much has been accomplished the past sixty years, the break with the European legal heritage at the beginning of the nineteenth century has yet to be overcome. The European courts are a relative success, even if concerns about their role as ‘motors of integration’ remain a point of discussion and worry. The fact that judges from many different countries, languages and legal systems are able to deliver and to earn respect is a remarkable achievement. It is not a coincidence that the European courts function relatively well, while at the same time other European (monetary, political and economic) projects are highly debated, fragile and often lack public support. The sustainability of the European courts is due to centuries of legal cooperation, integration and exchange. This legal history goes back to Roman law, the unifying role of the Christian Church and canon law, the common concept of an appellate juridical system and legal integration and cooperation from medieval times onwards. (source: A. Wijffels, C.H. van Rhee (Eds.)The European Supreme Courts. A Portrait through History, London 2013).