LH0400 Procedure in England and on the Continent

A partly distinctive feature of the common law observed in the moment of its birth and following in its further developments was the centrality of procedure. As the house of laws pointed out in 1702, it is impossible to imagine a right without a remedy. As it was true that the other way around, it was impossible to imagine a remedy if not for protecting a right. Procedure did not stop to the initial phase of the trial. Its step of the pleading had to conform to a well-ordered process, where the judge played the role of the referee, guaranteeing that the two parties played regularly respecting the procedural rules. They had to confront legal arguments and pieces of evidence in a ritual way, following what was called later due process. If a judge failed in supervising this procedure, one of the parties could appeal to a superior court to review the trial. This does not mean that substantive law was neglected. But the rights of the subjects had to be claimed only in the four scene forms. This has been called by an historian Judiciary Abstraction. That means that real personal rights, existing in reality, existed at law only when expressed through the forms of the law, and the forms of the law are abstractions. Now, it is very difficult to get read of the biases created by a very well-established historography that since the 18th century insists by considering that the common law was an extraordinary unique development, completely isolated from the rest of Europe. This is typical English legal historical historiography. Now this historiographical bias affected both British historiography and continental European historiography. The British affirmed that England focused only on procedure. While Europeans on the other side largely adopted the idea that the revival of the Roman law had nothing to do with the practice of the courts, being aimed only at the understanding of the corpusuries by Justinian. So until some years ago, the historians of the common law did not pay attention to the use of scholarly literature in England. While continental legal historians did not even try to describe the systems of justice in news in the different political entities of Europe. But both these views are now overcome by new researchers. Some of the basic ideas of the common law, both in procedure as in substantial law, have been strongly influenced by the writings and the teaching of continental jurists. While on the other side in the continent, the so-called "learned lawyers" did not study the Roman text only for the sake of understanding Roman law. They were looking for good arguments to be used in trials. And procedure played a fundamental role also in continental European courts. Similarly, as Europe was divided in hundreds of political entities, the setting of procedures was less unitarian than in the Kingdom of England. But also in Europe there were kingdoms, one of which arose from a Norman occupation in the 11th century exactly as in England. It is the Kingdom of Sicily, whose procedure was the main subject of the great legislation of Friedrich II, the famous Liber Augustalis of 1231. The same importance of procedure we find in local statutes of some of the most powerful Italian cities. It is the case of Pisa, a city that issued a local statute very early around 1160. The statute ruled, first of all, on the local procedure and local courts.