Introducing legal history

Where to start when you want to know more about legal history? Is it the wisest thing to start with ancient law, or to go directly to Roman law? Should you start with looking at one aspect of a period in legal history or a legal system during a particular period, or is it better to cast your nets wider? After you have formed your own answers to these and similar questions another kind of question follows immediately: where to find introductions? On my old web pages and on www.rechtshistorie.nl I try to present introductions to some legal systems and to some periods. Of course more can be said and is present at other websites, and in learned books and articles.

When I decided to make my web pages on legal history I aimed in particular to present medieval canon law. The two books I want to mention in this post both deal with medieval canon law. In the first book, a volume of essays, The Creation of the Ius Commune. From Casus tu Regula, edited by John W. Cairns and Paul J. du Plessis (Edinburgh 2010) medieval canon law gets special attention in the first article. When Cairns and Du Plessis announced the book on the Edinburgh Legal History Blog in July 2010 they modestly only indicated the article’s title and authors, ‘The Sources of Medieval Learned Law’, by Harry Dondorp and Eltjo Schrage (pp. 7-56). What Dondorp and Schrage actually offer here is a condensed and updated version of their book Utrumque ius. Eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts (Berlin 1992) of which the first version was published in Dutch in 1987. At last you can read in English this introduction to medieval learned law, to both medieval Roman law and medieval canon law. Dondorp and Schrage focus on legal doctrine, but they do treat also medieval procedure and feudal law. One of its prominent features is the sketch of a research strategy. This is a clear and succinct guide, and you would have to search very hard to find a comparable guide on this scale and of this quality. Their contribution to the Edinburgh volume is reinforced by essays among others on the methods of the medieval civilians (James Gordley), medieval marriage law (Laurent Waelkens), feudal law (Magnus Ryan) and medieval procedure (Richard Helmholz). Articles by Kees Bezemer and Jan Hallebeek show here to a large extent the results of applying the research strategy advocated by Dondorp and Schrage.

Legal doctrine is at the heart of the Edinburgh volume. A rather different approach is offered in the volume Christianity and Law. An Introduction, John Witte, Jr. and Frank S. Alexander (eds.) (Cambridge, etc., 2008). Richard Helmholz contributed also to this volume for which he wrote a chapter on Western canon law. Mathias Schmoeckel tackles here procedure, proof and evidence. Medieval canon law is shown here in its context. Jewish religious law and early Christian law are treated to put canon law into perspective. The wide impact of canon law is for example shown in chapters on natural law and natural rights (Brian Tierney), the Christian sources of general contract law (Harold Berman), family law (Don Browning), Christianity and human rights (Michael Perry), Christian love and criminal punishment (Jeffrie Murphy), poverty, charity and social welfare (Brian Pullan), and property and Christian theology (Frank Alexander). Modern church law is the subject of Norman Doe’s contribution. The sixteen essays in this volume certainly offer an introduction to several aspects of law in the history of Christianity, but some contributions are simply too short. They give you a taste of things to explore, and not a plunge into detailed discussions of large or small questions. The great merit of Witte and Alexander is showing this variety of aspects involved in the study of law and its relations to Christian society.

This brief comparison of two volumes nicely shows that doing legal history is in fact researching legal histories in plural. You cannot safely neglect legal doctrine, and you have to face great perils when you leave out institutional history and the history of society at large. It is also true you ask for too much when you want an introductory volume to include all these things. Let’s hope both volumes briefly introduced here will guide and encourage people to set their own steps on the vast and sometimes very different territories of legal history.

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