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LEGAL HISTORY:
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For a ‘printer-friendly’ version this syllabus (PDF), click here. |
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LEGAL HISTORY:
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For a ‘printer-friendly’ version this syllabus (PDF), click here. |
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Meeting times. |
This course is also listed in the Faculty of Arts and Sciences as Medieval Studies 119. The FAS students will meet together with the law students for classes on Mondays and Wednesdays from 4:30 to 6:00 (Room 100 in Pound Hall). There is a separate section for the undergraduate students in the FAS, time and place TBD. These meetings are for the undergraduates only. There is a slight difference in calendars of the FAS and the HLS. Law school classes meet on Presidents’ Day (Mon., Feb. 19), but those in the FAS do not. We’ll meet in the Law School that day in our regular classroom. FAS classes last a three days longer than do the Law School’s. We need the first of those days to finish the story. (If you have an exam on this day, let me know. I’ll post my notes on the web.) In the past, this course had two formal 55-minute lectures and a separate section for the law and graduate students in the FAS each week (and two separate classes for the undergraduates). That cannnot be done this year because of scheduling problems, so everything has to be fitted into two hour-and-a-half classes each week. The last time I gave the course I pre-recorded all of the 55-minute lectures, so that we can devote the classes to discussion of them and to discussion of the documents that we used to deal with in the sections. In the syllabus, all the topics have been assigned to one of the classes. We will take up the topics in the order shown on the syllabus, but some topics may be carried over into the next class, and the topics for that class correspondingly shortened. (The pre-recorded lectures are listed under the Lectures tab of this website, with links to them, to outlines of the lectures, and to packets of readings for each class.) |
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There are three requirements for credit in the course: (1) participate in the Canvas discussions of the prerecorded lectures before the class is given; (2) a short paper (no more than five double-spaced typed pages exclusive of notes); (3) a final exam (‘take-home’, distributed in the final class and due at the end of exam period). (I will consider allowing students to write a term paper in lieu of taking the final exam. More about this and the other requirements below under Discussions and Papers.) |
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None. See below under Background. |
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For a history course, the reading load is fairly light, but much of it is documentary material, and is thus relatively slow going. Give priority to the documentary materials. Almost all the classes have documentary assignments, and those which do will devote a considerable amount of time to the documents. You’ll be lost if haven’t read them in advance. They are in the multilithed Documents (see below under Readings). |
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This course is an attempt to discover how the distinctive features of the ‘civil’ law of the European Continent arose and why these distinctions persisted. It is also an attempt to discover how the legal systems of Continental Europe developed and were influenced by a group of ideas about politics and public order that are frequently invoked today when we speak of the ‘Western legal tradition’. In order to do this we have to conduct a ‘Cook’s tour’ of European legal history, to survey the sources and literature of the law from the fall of Rome (roughly 500 A.D.) to the codifications of the 19th century. That gives the course something of the quality of ‘if-this-is-Tuesday-it-must-be-Belgium’. I have attempted to give focus to the course by emphasizing three topics, the capture of wild animals as the foundation of property, the formation of marriage, and the rules about the use of witnesses in criminal and civil procedure. I wish there were a more strictly public-law topic that we could use as well, but no public-law topic has deep enough roots to allow us to trace it over this long period of time. Hence our examination of public law will have to come about as we unfold the history of institutions within which the law operated. For the Middle Ages, our geographic focus is on Western Europe, what eventually became Italy, France, Germany, Spain, and the Low Countries (with occasional references to England by way both of comparison and contrast). In the early modern period our focus is on France, while the other areas continue to give us examples. The rest of the European Continent will get only an occasional mention. We will proceed largely by way of narative and discussion interspersed with examination of documents that are contained in the multilithed Documents. These documents carry the story of wild animals, marriage and witnesses. In each period we will ask two questions: (1) how does the way people were thinking about law in this period proceed from what had gone before and lead to what was to come next (a largely diachronic question)? And (2) how was the way that people were thinking about law in this period relate to the broader political, social and intellectual developments in the period (a largely synchronic question)? The ultimate question is comparative: why did Continental law develop its distinctive features? |
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No one (including the instructor) comes to a course like this with all the necessary background information. I will try to say everything that I think you need to know to make sense out of what is going on, and so, I will assume that you do not have any of the relevant background. On the other hand, in a survey course as broad as this one, I can say things only once. For this reason, I would suggest, particularly if you have not taken a course in medieval and/or early modern European history, that you read a good textbook on one or both of these topics. In the past I have asked the Coop to stock H. G. Koenigsberger’s, Medieval Europe, 400–1500 (1987) and the same author’s, Early Modern Europe, 1500–1789 (1987). The books are now out of print, but second-hand copies are readily available. Both books are a relatively quick read, particularly if you’re not trying to memorize kings and battles and dates.
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The multilithed Documents contain a number of documents, legal sources in translation. These vary greatly in the length of their extracts. When they are long, try to get a sense for the overall structure; when they are short, you should focus on the detail. The syllabus contains some notes as to what is important. Outlines for most of the lectures are posted on this website under Lectures. I will be revising them as we go along, but you should bring the version that is there now with you to class either on your computer or in paper form. Having this kind of material already written down saves you time in taking lecture notes. |
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As can be seen from what is said above, I think that the best way to learn about legal history is by reading documents. There is a quite good textbook of European legal history that has just been published in English, Antonio Padoa-Schioppa, A History of Law in Europe (first Italian ed. 2007, first English ed. 2017). It is long and expensive, and more than half of it covers periods that we will be dealing with only lightly. For this reason, I am not recommending that you buy it. I have, however, given page references to Padoa-Schioppa in the syllabus. In the past I asked the students to buy either Manlio Bellomo’s, The Common Legal Past of Europe: 1000–1800 or Raoul van Caenegem’s An Historical Introduction to Private Law. Previous course evaluations suggested that the students found van Caenegem more helpful than Bellomo. Both are shorter and cheaper than Padoa-Shioppa. Neither is really a textbook. Prior to Padoa-Schioppa, the best textbook in English was probably Robinson, Fergus and Gordon, An Introduction to European Legal History (2d ed., 1994) [RFG2]. It is available in the Law School Library and in Lamont. (There is a third edition of RFG [RFG3], which is shorter and focuses more on the later period; it is available only in the Law School Library.)1 1 Two other recent textbooks, Randall Lesaffer, European Legal History: A Cultural and Political Perspective (2009) and Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia (2018) are also available in the Law School (and the latter also online). If you read either of them, let me know what you think. My initial impression is that they are interesting, but that they don’t give enough detail about the law. References to Bellomo, van Caenegem RFG, and Padoa-Shioppa are included in the syllabus. As an alternative to Bellomo and van Caenegem, I have also listed in the syllabus readings from three other books. One of them is a classic: Paul Vinogradoff’s, Roman Law in Medieval Europe. Two others are relatively new and controversial, Alan Watson’s, The Making of the Civil Law and Harold Berman’s Law and Revolution. Pdf copies of the extracts from Bellomo, Berman, van Caenegem, Padoa-Schioppa, Vinogradoff, and Watson are found under Lectures on the website. By and large, I think that the books other than RFG, or even Padoa-Schioppa, do a better job of covering the topics to which they refer than do RFG or Padoa-Schioppa. Some people, however, really like to have a textbook, and although none of the books is a textbook, Bellomo and van Caenegem come close. You might want to read some of the extracts for class, and others when you are reviewing the course for the exam. |
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There are discussion topics on Canvas for each of the classes. This seems to work particularly well for classes that have prerecorded lectures, and I’m asking you to participate in them at least once a week. The idea is to say something, a paragraph or two, about the prercorded lecture, a comment on the whole lecture, or on a piece of it, or a document in it, or a question about it. I’m asking to do this by noon on the day on which we are scheduled to discuss the lecture. That way we can devote the class to what interests you. There will be a short paper required for the course. It should be no more than five double-spaced typed pages exclusive of notes. It may analyze one or a couple of the documents in the Documents (or you can choose a document on your own). The basic idea is to pick a document, analyze it, and lead to a conclusion about what it tells us about some theme in Continental legal history. You may do the paper any time during the semester. You should have chosen a topic no later than Tue., Mar. 26 . You should turn in your first draft no later than Tue., Apr. 09 . I will comment on it, probably quite extensively, and return it to you. The final draft should be turned in before the beginning of the 1L exam period (Fri., May. 03 ). This is basically it, but I’ll distribute a memo on papers and paper topics later. The final exam will be a take-home exam distributed in the last class and due no later than Fri., May. 03 . (You do not turn in the exam to the registrar’s office; rather, you send it to me by email.) The exam will contain two questions (it may also contain some identification questions). The first question will give you a document drawn from the Documents (you may have a choice of documents) and will ask you to comment on the document and its significance. The second will call for a more wide-ranging essay. Once more, it will be due before the beginning of the 1L exam period (Fri., May. 03 ). If you wish to write a term paper in lieu of the final exam, you must get my approval of your term paper topic. The term paper should cover material in at least two of major time periods of the course (e.g., early medieval and late medieval, or late medieval and early modern). It may trace the history of a particular idea or institution from one period to another or it may compare ideas and institutions in two different periods. In order to get my approval of a term-paper topic, you will need to have completed your short paper and to turn in a one-page statement or outline of what you plan to write about by Tue., Apr. 09 . Students who have taken the paper option in the past thought that it was fun but that it involved more work than taking an exam. |
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My office is in Hauser 512 in the Law School. My assistant is Ms. Chaudhry-Muffuletto who will sit in Hauser 518. My office hours are currently scheduled from 1:30–3:30 on Tuesdays, or by appointment. I’ll be conducting my office hours via Zoom. Send me an email and I’ll send you a link. |
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In what follows Bellomo=Manlio Bellomo, The Common Legal Past of Europe: 1000-1800 (Washington, DC: Catholic U. Press, 1995); Berman = H. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge [MA]: Harvard Press, 1983); Documents = C. Donahue, Documents on Continental Legal History (unpublished, a PDF copy is available in the Files section of the Canvas site, and the assignments for each class can be found under Lectures on the website); Padoa-Schioppa = Antonio Padoa-Schioppa, A History of Law in Europe (Cambridge [Eng.]: Cambridge U. Press, 2017); RFG = O. F. Robinson, T. D. Fergus and W. M. Gordon, An Introduction to European Legal History, 2d ed. (London: Butterworths, 1994); van Caenegem = R. C. van Caenegem, An Historical Introduction to Private Law (Cambridge [Eng]: U. Cambridge, 1988); Vinogradoff = P. Vinogradoff, Roman Law in Medieval Europe, 2d ed. (Oxford: Clarendon, 1929); Watson = A. Watson, The Making of The Civil Law (Cambridge [MA]: Harvard Press, 1981). |
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A calendar follows the syllabus, which allows you to see at a glance the date, title of the class, the assignment number, and the various due dates. To navigate from the syllabus to the calendar click on the date; to navigate from the calendar to the syllabus click on the assignment number. |
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Secondary reading: Padoa-Schioppa, 3–23; Bellomo, 1–26; van Caenegem, 1–15; RFG2 vi-x; RFG3 v–vii, 285–319. RFG2 1–10; RFG3 1–11; Watson 1–38. |
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Introduction to the course. A basic chronology of three legal traditions: Roman, Continental European, and English. The legacy of the ancient world: Christianity. Paul’s letter to the Romans; marriage and witnesses in the Bible (Documents, Part II). |
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The legacy of the ancient world: Roman law. The structure of Roman law and of the European civil codes. How the story came out. Reflections on what we mean by the ‘Western legal tradition’. Assignment: Justinian’s Institutes; D.23.2; C.5.4; D.22.5; C.4.20 (Documents, Part I); selected 19th-century European codes on marriage, wild animals, and witnesses (Documents, Part XX). [Focus on the overall structure of Justinian’s Institutes (Outline for Lecture 2) rather than on the detail. In the case of the Digest and the Code, try to get a sense for how the material is organized. Try to think about ‘fundamental legal categories’: ius vs. lex, public vs. private, criminal vs. civil, persons vs. things vs. actions, property vs. contract vs. delict (tort). Then ask yourself how these categories are reflected in Justinian’s Institutes and in the 19th century codifications. Then try to figure out what the rules were about the capture of wild animals, marriage, and witnesses both in Roman law and in the 19th-century codes. Are the different codes more notable for their similarities or their differences?] |
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Secondary reading: Padoa-Schioppa, 24–37; K1500 1–66; RFG2 10–23; RFG3 11–25; van Caenegem, 16–29; Vinogradoff 11–42. |
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The ‘barbarian’ invasions. Two ‘Barbarian’ Law Codes: Aethelberht. Assignment: Aethelberht (Documents, Part III.A). [Ask yourself two questions: (1) What is the overall structure of this material? (2) What, if anything, does it have to say about wild animals, marriage and witnesses?] |
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Two ‘Barbarian’ Law Codes: Gundobad. Aethelberht and Gundobad compared. Assignment: Gundobad (compared with the Lex romana burgundionum) (Documents, Part III.B). [Same questions as Assignment 4.] Review Documents, Part IIIA. |
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Secondary reading: Padoa-Schioppa, 38–70; Bellomo, 27–43; RFG2 6–70; Berman 85–119, 273–332; RFG3 11–41; van Caenegem, 16–29; Vinogradoff 11–42. K1500 67–212. |
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Carolingian institutions and ‘feudalism’. Assignment: Documents on Continental feudalism (Documents, Part IV). (If you can get a start on Documents, Part V, that would help. They are not in the prerecorded lecture, but the next class is dense.) |
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Eleventh-century reforms and a glimpse at regnum and sacerdotium, to the end of the 13th century. The Collection in 74 Titles. ‘Eclectic’ sources of law. Assignment: Documents on the investiture controversy (Documents, Part V). The Collection in 74 Titles. (Documents, Part VI). [The key question here is what is the relationship between the basically political arguments that are found in the literature srrounding the investiture controversy and the legal rules (most of which are derived from forged documents) found in the Collection in 74 Titles?] Review Documents, Parts II.B, III, VI. [A bigger question: What are the sources of the law that we have looked at so far? This is an opportunity to review the types of sources of law at which we have been looking, and, perhaps, to ask the question ‘what is law’?] |
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Secondary reading: Padoa-Schioppa, 73–94; Bellomo 44–88; RFG2 71–99, 106–23; RFG3 42–58, 129–168; Vinogradoff 43–96. [review K1500 213–80]. |
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Reform and the ‘twelfth century renaissance’. The institutional history of the 12th and 13th centuries: England and France. Why Bologna? Assignment: None specifically, a chance to catch up. The why Bologna question is one that we could ask at the beginning or at the end of this unit. Here we might list possible answers. |
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The revival of academic law study: Roman Law. Assignment: Roman law glossators on wild animals (J.I.2.1.12–13, D.41.1.55) (Documents, Part VII). [We move here from the rather obvious politics of the investiture controversy to something that looks like ‘apolitical’ law. The question is ‘is it’? Try to see how Accursius twisting the Roman text to make it say things that it probably does not say or, at least, does not say so clearly as he does.] |
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Secondary reading: Padoa-Schioppa, 95–150; RFG2 122–152; RFG3 72–90; van Caenegem, 30–114 (this takes us quite a bit further in time, but it provides a good overview of where we’ve been and where we’re going). |
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Holiday in the FAS, but class meets. The institutions of canon law. Substantive canon law. Marriage. Assignment: J.I.1.10, D.23.2.5–6; Gratian C.27 q.2; Peter Lombard; selected decretals on marriage (Documents, Part VIII). [Many have seen in these decretals a development in Alexander III’s thought on the topic of the formation of marriage. Do you see such a development here?] |
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The revival of academic law study: Romano-canonical procedure. Witnesses. Assignment: D.22.5, Gratian C.4 q.3, Tancred 3.6 (Documents, Part IX). |
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Secondary reading: Bellomo 61–88; RFG2 179–207; RFG3 129–168; Vinogradoff 71–96; review K1500 213–80. |
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Marriage litigation in the High Middle Ages. Assignment: Smith c. Dolling (1271–1272) (Documents Part XIV.A). Adam Attebury c. Matilda de la Leye (1271–72) (Documents, Part XIV.B). |
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Coutumiers and fueros. Assignment: Extracts from the Usatges de Barcelona on witnesses, marriage, and wild animals (Documents Part X.A). |
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Secondary reading: Review K1500 213–80. |
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Courts and coutumiers in France. Assignment: Extracts from the coutume of Tourraine-Anjou and from Beaumanoir on witnesses, marriage and marital property, and wild animals (Documents Part X.B, C). |
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Political ideas of the 12th and 13th centuries. The formaton of a persecuting society? Assignment: Extracts from Bracton on kingship and from the glossators on sovereignty (Documents Part XI). Gandinus, Tractatus de maleficiis (Documents, Part XII.C). |
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Sat., Mar. 09 |
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Sun., Mar. 17 . Spring vacation. |
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Secondary reading: Padoa-Schioppa, 151–228; Bellomo 118–61; RFG2 100–121; RFG3 59–71, 107–24; K1500 281–387. |
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The 14th and 15th Centuries—political and constitutional developments. The commentators. Assignment: Extracts from the commentators (Documents, Parts XII and XIII). |
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Commentators on wild animals. Commentators on witnesses. Assignment: Bartolus on D.41.1.1, .5 (Documents, Part XIII.A–B); Portius and Faber on J.I.2.2.11–13 (Documents, Part XIII.C–E). Tractatus de reprobatione testium; Gandinus, Tractatus de maleficiis; Robertus Maranta, Speculum Aureum, (Documents, Part XII.A, C–D); Decisio S.R.R. (1574) (Documents Part XIV.E) |
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No secondary reading specific to this week. |
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Commentators on marriage. Courts and case reports. Assignment: Decisio S.R.R. (1360 X 1365) (Documents, Part XIV.C); Panormitanus, Consilia (15th c) (Documents Part XIV.D). The Rota Fiorentina (1780) (Gorla article) (Documents, Part XIV.F). |
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Secondary reading: Padoa-Schioppa, 229–293; Bellomo 162–73; RFG2 280––352; RFG3 169–212; K1789 1–94; Watson 53–82. |
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‘Renaissance’ Europe—political, intellectual and constitutional developments. Humanists, humanism and the law. Homologation of custom and reception. Assignment: Pithou on the Collatio; Bodin on Political Theory ( Documents, Part XV). Coutumes de la prevoste et vicomte de Paris (Documents, Part XVI.C). |
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Compilations, proto-codification, codification. The Grandes Ordonnances. Assignment: Decree, Tametsi; Ordonnance of Blois; Ordonnance pour la procédure civile (Documents, Part XVI.A, B, D (pp. 2–4, 5–6). |
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Secondary reading: Padoa-Schioppa, 294–402; RFG2 209–23 406–37; RFG3 249–67; K1789 161–281; Watson 83–125. |
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The 17th and 18th centuries—political, constitutional and intellectual developments. Intellectual developments and the law. The institutes of national law. Assignment: Extracts from French institutional treatises (Documents, Part XVII). |
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Spanish scholastics, ‘elegant jurisprudes’, the natural law school, and the usus modernus pandectarum. The academics in action. Assignment: Pufendorf on wild animals (Documents, Part XVIII). |
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Secondary reading: RFG2 261–92; RFG3 269–285; van Caenegem, 115–69; Watson 126–30. |
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The academics in action. Pufendorf on wild animals (cont’d). Domat and Pothier. Codification vs. Reform. (Documents, Part XVIII). Pothier on D.23.2; Pothier on the contract of marriage (Documents, Part XIX). |
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Some thoughts on the French Revolution and the Napoleonic Code. The Napoleonic codes, the pandectists, the historical school and the making of the BGB. The road away from codification? Assignment: The Napoleonic codes on marriage, animals and witnesses (Documents, Part XX). Windscheid (Documents, Part XX [Windscheid extracts]). |
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Secondary reading: van Caenegem, 170–97 |
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Final Lecture: The achievements and failures of the ancien régime. Take-home exam passed out. |
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Introduction to the course. Chronology. The legacy of the ancient world: Christianity. Marriage and Witnesses in the Bible. |
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The legacy of the ancient world: Roman law. The structure of Roman law and of the European civil codes. How the story came out. Reflections on the distinction between ‘common law’ and ‘civil law’ and on what we mean by the ‘Western legal tradition’. |
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The ‘barbarian’ invasions. Two ‘Barbarian’ Law Codes—Aethelberht |
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Two ‘Barbarian’ Law Codes—Gundobad. Aethelberht and Gundobad compared. |
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Carolingian institutions and ‘feudalism’. |
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Eleventh-century reforms and a glimpse at regnum and sacerdotium, to the end of the 13th century . The Collection in 74 Titles. Eclectic sources of law. |
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Reform and the ‘twelfth century renaissance’. The institutional history of the 12th and 13th centuries: England and France. |
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The revival of academic law study: Roman Law. Wild animals in the glossators. |
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The institutions of canon law. Substantive canon law: marriage. Marriage in the glossators. |
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The revival of academic law study: Romano-canonical procedure. |
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Marriage litigation in the High Middle Ages. Romano-canonical procedure on witnesses: Smith c. Dolling. |
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Coutumiers and fueros |
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Courts and coutumiers in France. Marriage and marital property. |
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Political ideas of the 12th and 13th centuries. The formation of a persecuting society? |
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Sun., Mar. 17 |
Spring Vacation |
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The 14th and 15th Centuries—political and constitutional developments. The commentators. |
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Commentators on wild animals. Commentators on witnesses. |
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Commentators on marriage. Courts and case reports. |
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How did medieval and early modern lawyers do their jobs? (If possible, class will meet in the Treasure Room of the HLS Library. Short paper topics must be chosen by this date.) |
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‘Renaissance’ Europe. Humanists, humanism and the law. Legal humanism. Homologation of custom and reception. |
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Compilations, proto-codification, codification. The Grandes Ordonnances. The institutes of national law. |
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The 17th and 18th centuries—political, constitutional and intellectual developments. Intellectual developments and the law. (Paper drafts must be handed in by this date.) |
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Spanish scholastics, ‘elegant jurisprudes’, the natural law school, and the usus modernus pandectarum. The academics in action. Pufendorf on wild animals. |
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Pufendorf on wild animals (cont’d). Domat and Pothier. Codification vs. Reform. |
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Some thoughts on the French Revolution and the Napoleonic Code. The Napoleonic codes, the pandectists, the historical school and the making of the BGB. |
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No assignment |
Final Lecture. Take-home exams passed out. |
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Take-home exam and final papers due by 4:30 p.m. by email or in Room 518, Hauser Hall. |
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| [Home] [Lectures] [Information and Announcements] URL: http://www.law.harvard.edu/faculty/cdonahue/courses/CLH/clhlaw/syllabus/index.html
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