Common Law & Civil Law: Response to a Review

Interesting review. A worthy analysis you present.

It seems we have different biases, but I appreciate the type of data you use to back up your argument. I largely agree that distinctions as you make are important such as between common law and civil law. The tricky party is teasing out what they mean in a diverse society like the US with a complex history and also what are their origins.

There is a complicating factor to your analysis. The English were divided by traditions of common law and civil law long before the colonial era. The Germanic tribes (Anglo-Saxons) brought their common law tradition which was syncretized with the prior Celtic traditions and they formed the early kingdoms. Later, the Romanized French (Normans) conquered England and brought the kingdoms under the civil law tradition. This created a conflict in English society from early on. It eventually led to the Glorious Revolution.

The conflict wasn’t created in America after the colonies gained independence, but was formed long before in England wherefrom Americans inherited it. In the early to mid 19th century, many Americans began to identify this conflict with the regionalism that had formed from settlement patterns of the earlier colonial immigrants. The Cavaliers of Virginia had an outsized influence on Southern culture, including the dialect. The word ‘cavaliers’ is of French Norman origin and the Cavaliers were of Norman nobility. The Puritans fought on the opposite side of the Glorious Revolution and, interestingly, they came from the regions of England originally settled by Anglo-Saxons. Northerners and Southerners prior to the Civil War had come to see themselves as defined by the respective cultures of Anglo-Saxons and Normans.

The British Isles had a close relationship with Europe for millennia. British societies were conquered and ruled by many different European groups, the most influential being those from Northern Europe: Germany, Scandanavia, Norway, Netherlands, etc. Also, the influence went the other way for at times British rulers held control or kingship over European territories. The English language is of German origins. The English in general are as German as they are Celtic. Even the later Normans who had a massive influence were originally Germans. albeit Germans with more of a Roman social and political structure. All of Europe, like all of the British Isles, were influenced by the competing interests of Germania and the Roman Empire, the two cultures forming various amalgamations.

The reason Germany had such outsized influence on the British Isles was because both areas were never fully conquered by the Romans. With the fall of the Roman Empire and the concomitant Mongol invasion, German tribes were forced South and West. Also, with the European wars, later Germans were forced to migrate in great numbers to the New World. From the beginning of the Pennsylvania colony, Germans were the majority there, not Scots-Irish. Germans are the largest ethnicity in the United States, beyond just the region of the former Quaker colony. The Union would have lost the Civil War without the massive German immigration, partly because many of these immigrants were seasoned revolutionaries who had stronger idealism of democracy than any other immigrant population. Along with radicalism, they also brought with them their Protestantism, work ethnic, highly skilled labor, and high levels of education.

The entire area influenced by the German migration included the Midwest and then down into Northern Texas. This is why the only socialist run city was in the Midwest and why socialism was even found in Texas in the 19th century. But many Americans don’t know what socialism is for these German immigrants were simultaneously mistrusting of big government because of the oppressive governments they escaped in Europe. So, the socialism they developed was more in the libertarian tradition of local democracy and self-rule. The reason Germans mostly settled in the Quaker colony was because it was one of the least oppressive colonies at the time.

By the way, socialism wasn’t a foreign concept to the British isles or no more foreign than the rest of Enlightenment thinking. The Welsh businessman Robert Owens built a socialist community in Southern Indiana during the early 19th century. Owens and his sons became some of the most influential politicians in their day. This isn’t surprising as radical leftism began to make it’s mark in London going back to before Thomas Paine which is what caused Paine to bring that English radical tradition to America, thus being a major force that inspired revolution and offered forth a vision alternative to colonial empire.

Germans were also known for their Enlightenment thinking which related to their revolutionary and radical idealism. One of the Germanic countries that influenced England greatly also influenced America greatly: Netherlands. Locke sought refuge in Netherlands when the English government sought to censor and imprison him. The Netherlands published more books than anywhere else in the world at that time. Spinoza, the founder of the radical Enlightenment, lived in Netherlands. The Dutch founded the New Netherlands colony which, even after being taken over by the British maintained its founding culture and politics which is what makes New York City unique to this day.

Also, you have to consider the French and Spanish. Modern Britain would be entirely different without the French Normans. The French Empire later had much influence on Canada, parts of Northeastern US, and Louisiana. The early explorer Champlain helped establish one of the most democratic visions ever brought to North America. The Quakers inherited the good relations with Native Americans that Champlain had helped to develop in the Ohio Valley. The Spanish Empire took over Louisiana along with the rest of their territory throughout the South such as Florida over to Texas, the Southwest and California. After the Spanish Empire receded, Mexico controlled much of the former imperial territory. Spanish and French demographics and culture were well established in these areas long before and long after the US took possession. One significant factor is that states like Louisiana and Texas have the remnants of the civil law tradition written into their constitutions and legal system.

The Catholic Church had it’s influence, but the early radical influences in America preceded any large immigration of Catholics to the Eastern seaboard. There are many other possible influences that might have undermined the common law tradition, besides of course the Norman influence. The Deep South plantation owners were the sons of Barbados plantation owners. They came to America looking for land to start their own plantations. Barbados was known as the most violent slave colony in the entire Western world and this was imported to South Carolina and then throughout the rest of the Deep South.

I don’t have any ultimate conclusion. I’m just suggesting that it is complicated.

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