European Legal History A Cultural And Political Perspective Pdf

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Global Legal History: A Methodological Approach

La conclusion est que les meilleures histoires du droit ont presque toujours un aspect comparatif ou transnational. The possibilities of national, European and transnational legal histories are discussed, with a conclusion that most good legal history has always had a comparative or transnational aspect. I think few, if any, would nowadays doubt the need to do so. Most law for most people still comes from the state, generally understood as a nation state. Yet, of course, even if in reality most such work is neither naive nor unsophisticated in its approach, exclusively national legal histories can potentially pose limitations and lead to misunderstandings.

For example, such legal histories can be written as means to explain modern rules — even to justify the current state of affairs. They can also be ways of justifying the nation state. At the same time it is worth recalling that some modern histories of law in Europe have the overt or covert ideological aim of supporting or opposing the development of a more unified law in the European Union. In this article I wish to examine the problems and advantages of various ways of approaching legal history.

No prescription will be offered. It is necessary to devote some preliminary attention to terminology. The remarks made here will be neither profound nor original, but will — I hope - be helpful. There will be no attempt to define meanings in any precise way, but rather an exploration of meanings. There are states with many nationalities, which nationalities can have separate legal systems. Indeed within these states individuals may have multiple nationalities. This is a complexity relatively common in modern Europe.

All kind of questions are posed or obscured or avoided by the term. Do we mean from Russia to Iceland, Norway to Gibraltar? Is Istanbul a European city? In one way of thinking they most definitely are. This of course makes it powerful, with ambiguities that scholars may find advantageous. The Oxford English Dictionary provides an example from as its earliest use of the term. It became popular in Anglophone legal circles after P. There was an important Forum on the topic in the American Historical Review in It obviously includes histories of circulations and connections.

These include not just movements of peoples or diaspora studies, as they are now increasingly called , but also of movements of ideas and practices such as political liberalism, terrorism, and the like.

A transnational legal history would be one that involved study of the transfer of legal ideas and concepts. Indeed, one could consider studies of the reception of Roman law as exercises in transnational legal history.

Most scholars would probably express a view along the lines that modern history descends from developments in the nineteenth century, and would relate these to conscious development of the nation state.

In this era the surviving formal historical records were used to construct national identities. At the same time, the type of universal philosophical histories associated with Enlightenment writers were replaced by historical emphases on the determinations of individuals by time and place, in short by the type of history associated with Leopold von Ranke.

Modern legal history has been seen as starting as a version of this national history. One can quarrel with aspects of this. This point aside, there is, however, much in favour of such a way of writing legal history.

One of the things these modern nation states did was acquire monopolies of legislation and decision-making in courts within a geographically-defined territory. In the continuing debate that is scholarship, this approach has created a lot of knowledge. There have been outstanding results, such as the new Oxford History of English law.

Indeed, some type of narrative in this fashion may be necessary for traditional comparisons. And most inhabitants of the world live in a nation state of some sort, even if it be unstable or one that persecutes its citizens. Parts that do not form aspects of this grand narrative may be ignored.

To take an example from my own research, the formal sources examined by lawyers reveal that, in , in Knight v. Wedderburn the Scottish courts decided that a man or woman could not be held as a slave in Scotland.

We can refer to the English case of Somerset v. Stewart , decided eight years earlier. To do so, focusing on the differences and similarities can help develop a greater explanatory schema.

This is definitely some type of transnational approach, chasing connections and similarities across the world. Comparison may be useful in achieving better historical understanding, but it can also hold dangers, depending on how it is used. It is easy to bring forward examples arising out of comparison of Scottish legal history with that of England — an obvious, very tempting, but not always appropriate comparison.

In early nineteenth-century Scotland, because the records did not seem to fit how it was thought Parliament, royal council and central courts should have developed, scholars rearranged the Council Records to reflect what they thought they ought to have been. Fortunately modern scholars have been able to work out how they were before. In the twelfth and thirteenth centuries, the Kings of Scots reconstructed the Lowland parts of their kingdom on models copied from Anglo-Norman England.

There already were in the Lothians — that is the South-East - some institutions similar to those of northern England, coming from Anglian settlement. Crucial in the development of Scots law in the early Middle Ages was the introduction of feudal tenures on the Anglo-Norman model.

In the next century, burgesses were called to such meetings, basically to justify taxing them. Of course, these are by now called Parliaments, though Scots tended to talk about them as meetings of the Estates, or indeed the Three Estates. Hannay in the first half of the twentieth century. In researching the men who are found pleading before the Lords of Session, or Senators of the College of Justice, he noticed that, after admission, some of them gave a lecture in the Edinburgh Tolbooth or Townhouse , where the Court sat.

It would have been tempting to look south and draw a parallel with readings at the Inns of Court. But this was once suggested to me at a conference. In fact, there was neither link nor indeed parallel development. The Scots were developing a procedure for admission as an advocate similar to that for taking a university degree in civil and canon law, which is indeed what around two-thirds of the men admitted as advocates in fact possessed.

The English comparison could not be used to explain and understand the Scottish position. Indeed, the Scottish legal profession, with its advocates, procurators, notaries, and writers, largely originated in those who had practised before the ecclesiastical courts, just as the College of Justice used a version of Romano-Canonical procedure. The wider European comparison helps to explain the Scottish developments.

There is no point in comparing cabbages with kings. The work of Alan Watson has shown that the most fruitful approach to comparison, certainly for legal history, is through the idea of legal transplants. Comparison shows that the College of Justice was in many ways analogous to other northern European conciliar courts, such as the Grand Conseil de Malines, which had developed out of the Council of the Dukes of Burgundy.

If placing national legal systems in a European context helps develop understanding, it is unsurprising that European legal histories have become very popular in recent years. Of course, there are many earlier precedents. Perhaps because of the generational difference between the two men that of Wieacker has undoubtedly been the more influential, with a second edition in , and a translation into English as recently as There can be little doubt but that many of the recent studies of European legal history reflect the development of the European Union, and have an overt agenda of arguing for — or against - unification of private law in Europe in some way.

Fair enough. Whether this means they are good histories or not is another issue. Douglas Osler raises many interesting and valuable points in his rightly sceptical articles on European legal history. But if one traces connections, links, and influences, one can write meaningful European legal histories. Networks of influence spread through Europe in the medieval and early modern periods. As Dogmengeschichte , however, is it to be classed as a work of European legal history, or of comparative legal history, or of transnational legal history?

This tends to indicate the difficulties inherent about being too rigid in classification. The second topic is suggested the complex legal history of Louisiana. This provides further interesting examples and questions. Although the law in Louisiana prior to the Purchase was basically Spanish colonial law, The Digest of the Civil Laws Now in Force in the Territory of Orleans popularly known as the Louisiana Code of was based mainly on the French Code of and its projet of Again it is difficult to pin this down.

Obviously, aspects of the study of Louisiana legal history relate to European colonisation, to Atlantic history, and to the history of the United States. The main drafter of the Digest of was from St Domingue, and had been educated in law in Paris before the Revolution of The Louisiana Code in its turn had a significant impact on other codes in Latin America. But it is important to note that so did the French code itself. This means that French law becomes part of the legal history of Central and South America.

Both these examples indicate the complex interconnectedness of much of the legal histories of Europe. Both indicate that a broad approach is advantageous. If there are still more questions than answers, I hope that perhaps we can see more clearly now. It is probably the case that most good legal history has always been at some level transnational or comparative.

Maitland, for example, was very aware of this. He was conscious of the dangers of a narrow, anachronistic focus and favoured comparative approaches. In Scotland, it has always been necessary to approach legal history in a transnational or comparative way. Indeed Scottish legal history has largely been constructed as a history of borrowings — from England, from Roman law and so on — and has been understood through a process of comparisons with Celtic Ireland, Anglo-Norman and Angevin England, and continental Europe.

Perhaps this has been overdone. It has certainly led to puzzlement when the history of Scots law has not been perceived to conform to some other pattern supposedly found elsewhere which has been generalised as a norm. Certainly the history of Scots law used always to be compared to that of England, resulting in either nationalistic self-satisfaction about some supposed superiority or breast-beating about how Scots law lagged behind that of England. Now there is a tendency to place it in a broader European framework, which is helpful, and does not prevent useful comparison with England and elsewhere, but which allows exploration of broader themes of influence and connection.

European legal history: A cultural and political perspective

La conclusion est que les meilleures histoires du droit ont presque toujours un aspect comparatif ou transnational. The possibilities of national, European and transnational legal histories are discussed, with a conclusion that most good legal history has always had a comparative or transnational aspect. I think few, if any, would nowadays doubt the need to do so. Most law for most people still comes from the state, generally understood as a nation state. Yet, of course, even if in reality most such work is neither naive nor unsophisticated in its approach, exclusively national legal histories can potentially pose limitations and lead to misunderstandings.

The article discusses Comparative Legal History from a methodological point of view, seeking to define comparison departing from historiography and demonstrating how the discipline of legal history emerged in the nineteenth century to validate the idea of a national legal science. Secondly, the article presents the traditional idea of comparison as a means of constructing new identities. Finally, it introduces a new method of Comparative Legal History, claiming that the research object can always be located in a wider perspective than the national one. This demonstrates that comparison could be understood as an innate instrument of the legal historian. Comparative legal history sounds fashionable, at least in some circles. But what does it mean when we say we write legal history comparatively?

Het systeem kan de bewerking nu niet uitvoeren. Probeer het later opnieuw. Citaties per jaar. Dubbele citaties. De volgende artikelen zijn samengevoegd in Scholar. De gecombineerde citaties worden alleen voor het eerste artikel geteld. Samengevoegde citaties.

(PDF) European Legal History by Randall Lesaffer

Spring There are four requirements for credit in the course: 1 a one-paragraph summary of the readings for each section turned in at the beginning of each section; 2 a short paper no more than five double-spaced typed pages exclusive of notes ; 3 an hour exam Fri. We will consider allowing students to write a term paper in lieu of taking the final exam. More about this below under Papers.

There is a growing demand for global legal history; however, there is neither a consensus as to what this history is, nor what objectives this legal historiography pursues, or even how it relates to other disciplines. In addition, global legal history reflects the traditional multiplicity of methods, aims, and forms present in current juridical historiographies. This is why it is difficult to speak about a method of global legal history.

Roman Law, Contemporary Law, European Law: The Civilian Tradition Today

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Between the twelfth and eighteenth centuries, a highly sophisticated legal science of a truly European dimension was developed. Since then the different European States have developed their own national legal systems, but with the exception of England and Ireland they are all heirs to this tradition of the ius commune. This historical introduction to the civil law tradition, from its original Roman roots to the present day, considers the political and cultural context of Europe's legal history. Political, diplomatic and constitutional developments are discussed, and the impacts of major cultural movements, such as scholasticism, humanism, the Enlightenment and Romanticism, on law and jurisprudence are highlighted. This contextual approach makes for a fascinating story, accessible to any reader regardless of legal or historical background. Between the twelfth and eighteenth centuries, a. Political, diplomatic and constitutional.

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