Daniel R. Coquillette, Legal Ideology and Incorporation II: Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607-1676, 61 B.U. L. Rev. 315 (1981).
Abstract: This Article is the second in a three-part series entitled Legal Ideology and Incorporation. In this series, Mr. Coquillette demonstrates that although England has fostered a strong common law system, significant intellectual work was done in England during the sixteenth and seventeenth centuries by students of the civil law systems dominant on the Continent. Mr. Coquillette traces the development of the juristic works of these English civilians, and examines the civilians' intellectual influence on the English common law. It is his central thesis that the English civilian jurists never intended to achieve a direct "incorporation" of civil law doctrines into the common law. Rather, their lasting achievement has been the significant influence that their ideas about law-their "legal ideology"--have exercised on leading common lawyers. This Article discusses the second period of English civilian juristic development. This period includes the years from the publication of the civilian Sir Thomas Ridley's major work, A View of the Ecclesiastical and Civile Law in 1607 to the publication of the common lawyer Charles Molloy's great Treatise of Affairs Maritime and of Commerce in 1676. During this period, the common lawyers, initially led by Coke, mounted increasing jurisdictional and political attacks on the civilians and at the same time attempted to co-opt civilian methodology in those vital, growing fields in which the civilians had exhibited particular expertise, most notably the law merchant. In response, the civilians became defensive in their juristic attitudes. Instead of continuing previous attempts to synthesize civil and common law, they began to try to isolate and maintain whatever pockets of influence they had already established. The critical struggle was in important part literary and intellectual, and it centered on the traditional civilian strongholds of the international law merchant and the Admiralty jurisdiction.