Family law(s) under the Roman Empire

See our workshop announcement and call for PhDs to contribute to this workshop: Workshop CfA PhD Family Laws

 

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Alexander Mylne’s First Courtroom

Alexander Mylne, Abbot of Cambuskenneth (ca.1470-1548), is best known as the first President of the Court of Session, being appointed as President of the College of Justice, newly founded in 1532. Mylne was a learned churchman, who wrote a history of the Bishops of Dunkeld, described by Aeneas Mackay as “well written”, and certainly lively when it came to his discussion of his contemporaries.

Mylne, who was an Angus man, had many strong links with the Diocese of Dunkeld. After graduating B.A. from St Andrews in 1494, he acted as clerk and archivist to the Official (Ecclesiastical Judge) of Dunkeld for three years. By 1500 he was a notary public. Over a number of years he began to acquire offices in the diocese: Dean of the Christianity of Angus and Parson of Lundieff (now Kinloch) (1505); Canon of Dunkeld (by 1506); Prebend of Moneydie (Dunkeld Diocese), and of Philorth (in Diocese of Aberdeen) (1512); and finally Official of Dunkeld in 1513 (all these details are taken from the ODNB article by J. A. Gould). He was definitely a talented man on the rise.

He must have been very familiar with legal practice before the ecclesiastical court, given his work as clerk and archivist and then as Official. He was very evidently a lawyer trained in the ius civile and ius canonicum. In 1516, as Bishop’s Official and Canon of Dunkeld (according to his ex libris inscription), he acquired an Infortiatum: the middle part of the medieval Digest of the Emperor Justinian – see my earlier Blog Entry: http://wp.me/p6XGl6-9M. This copy is now the property of the Faculty of Advocates (pressmark A.90.2); it is an edition printed in Lyons in 1514.

Your blogger recently visited Dunkeld, which, being born in Strathearn, he once knew well. The medieval cathedral is beautifully situated by the Tay. Its choir is roofed and serves as the parish church of the Church of Scotland. The nave is ruined, but is currently undergoing major repair works. The north-west bell tower, attached to the nave, survives. Inside in the ground floor room has been revealed some late medieval wall paintings: a judgment of Solomon, and Christ with the woman taken in adultery. They are in two of the arched tympanums formed by the vaulting at the ceiling. No doubt there were two further paintings. the scheme is one suitable for a court room: judicial wisdom and mercy leading to a failure to condemn. And indeed the room in the north-west tower once housed the consistory court of the Diocese. The tower was built, according to the Perth and Kinross volume of the Buildings of Scotland, between 1470 and 1500. Thus, it was here that Mylne may have acted as Clerk to the Official and where certainly he later acted as Official himself, though the paintings may be from after his time as judge.

It is also worth noting that the site of the house at what is now 6b Cathedral Street was apparently that of the house for Mylne’s parish of Lundieff. Perhaps it is not too fanciful to imagine him bustling about the Cathedral precinct between his manse and the Tower, busy on his legal duties. He was also active in building, and from 1510 Master of Works to build a bridge over the Tay at Dunkeld, a project that was not to be completed. But this is interesting in a man who may have been the son of the master mason to James III and James IV, who later became master mason to the young James V, and who oversaw considerable building at Cambuskenneth. Mylne is a name evocative in Scottish building history.

From Mylne’s history in which there are descriptions of some of his contemporaries, one can see that in the early sixteenth century there was a very significant reservoir of legal talent in the clergy attached to Dunkeld Cathedral, operating as lawyers and judges not only in Dunkeld but also in the diocese of St Andrews as commissaries and advocates (Rentale Dunkeldense). One gets the impression of industry and activity.

In 1970, John Durkan showed that the consistory court of Glasgow was similarly in its Cathedral’s north-west tower before the Reformation. One can readily imagine there a similar activity and regret its demolition.

But with Dunkeld we can see an actual room used as a consistorial court in Scotland before the Reformation and indeed one which is linked to an important individual in the history of Scots law. Scotland lacks visual representations of court scenes in this era; study of remaining court rooms such as this can start to allow us to have some sense of late-medieval courts and their operation in Scotland. Its location in a high tower attached to a great Cathedral allows us to have a sense of the authority the Church courts claimed. Not only were the lawyers learned, but the surroundings were impressive. With the murals and other paintings, litigants and sinners in Dunkeld were bound to feel some awe in the presence of the Official and his retinue. The power of the jurisdiction of the church with its learned law was made evident in stone and paint.

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Wolfgang Ernst, LL.D. honoris causa, Edinburgh, July 2017

On 6th July 2017, the University of Edinburgh awarded the degree of LL.D. honoris causa to Professor Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford. The Laureation address was given by Professor John W. Cairns, Professor of Civil Law in the University of Edinburgh. Professor Cairns’s address is given below:

Laureation Address – Wolfgang Ernst

Mr Vice-Chancellor, in the name of and by the authority of the Senatus Academicus, I have the honour to present for the Honorary Degree of Doctor of Laws

Professor Wolfgang Hermann Wernher Ernst

Those of us who were privileged in June 2014 to hear Professor Ernst’s MacCormick Lectures in Edinburgh will remember their elegance and erudition, as well as the lecturer’s gentle humour. In a period in which we seem to be voting at least once a year, it is worth noting that Professor Ernst brilliantly expounded in these lectures the history and nature of voting, ranging with ease over the ancient, mediaeval and early-modern worlds. In what was the year of the Scottish Referendum, he did not shy away from an analysis of the nature and fairness of the question posed.

It was a brave topic for a German scholar of Roman law and legal history; but Professor Ernst is no ordinary German professor. Though he followed the traditional, rigorous, German cursus honorum of state examinations, doctorate, and Habilitation, he also engaged with what the French call les pays anglo-saxons, studying for the degree of LL.M. at Yale. After call to the Chair of Roman and Civil Law in Tübingen in 1990, he returned to his alma mater of Bonn in 2000, before moving to the University of Zurich in 2004.

But Professor Ernst continued his engagement with the world outside German-speaking academia, as Arthur Goodhart Professor of Legal Science in Cambridge, and as a Visiting Professor in Jerusalem.

His wide-ranging scholarship in Roman law and in legal history has led to his development of path-breaking work on the legal history of money: research that has been as elegant and erudite as his continuing work on voting, which is part of his legal historical research on choice and decision-making. But in this innovative and cross-disciplinary research scholarly rigour has not been sacrificed for fashion.

It was undoubtedly this variety of intellectual engagement that specially suited Professor Ernst for the Regius Chair of Civil Law in Oxford, perhaps the most significant chair in Roman law in the Anglophone world. His awareness of the strange attitudes of les pays anglo-saxons, and of the nature of their laws, which possess a significant cultural component beyond mere rules, made him an especially suitable choice.

Many distinguished individuals have held the chair in Oxford; Professor Ernst is at least their equal and brings his own unique distinction to the chair. He is, as they used to say, an ornament to the University. Since he is an unassuming man, I hope I do not embarrass him; but as he is also a kindly man, I am sure he will forgive me.

I therefore have the honour, Mr Vice Chancellor, to invite you to confer on Professor Wolfgang Hermann Wernher Ernst, the degree of Doctor of Laws, honoris causa

After the Vice-Chancellor had conferred the degree on Professor Ernst, the new graduate responded.

Professor Ernst’s Response

As a contrarian, I am greatly tempted to first of all disprove the flattering laudatio you have just heard, point by point, but I won’t do this here,or today.

It is not necessary for me to express thanks, for on my face, the pen of happiness must have written an ode of gratitude. (This was a quotation)

It is doubly pleasant but perhaps also a paradox to be honoured for activities which in themselves have been, and continue to be, a joy to pursue.

Where does this joy come from? A colleague recently said “This makes academic work worthwile – when you actually discover something that people don’t know. That’s what we are meant to be doing!” If the lust of knowing what is not yet known is to flourish, we need a culture of doubt and controversiality. Of the mistakes I have made, there is one I have come to regret recently:

I have taken for granted living and working in an open society, an environment which liberally allows and invites debate, with a regard for thought-through arguments, however provocative.

If it now turns out that we need to more vigilantly protect and cultivate such an open society this is what we should do,what we must do. More than ever we should try to project the virtues of scholarship into society at large: openness to reality – advancing and testing ideas in a transparent, methodological manner – overcoming biases – giving attention to detail – remaining conscious of the ever-preliminary nature of our findings.

In all these characteristics, our work is a repudiation of both, authoritarianism, but also of the attitude that you can float everything as ‘true’, if only this ‘truth’ suits your agenda.

We in turn, like Pontius Pilate, another lawyer, presumably, cannot offer “truth”:

The opposite of propaganda is not truth, the opposite of propaganda is debate.

By maintaining a civilized debate, we thus make a contribution transcending the microscopic subject matters which are our immediate concerns.

Thank you & all the best!

Some photos (which also include our two PhD graduates, Asya Ostroukh & Ilya Kotlyar):

 

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Conference: Directions in Legal History and Roman Law

On 6 July 2017, the University of Edinburgh awarded the degree of LL.D. honoris causa to Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford. At the same ceremony two Ph.D. students in legal history graduated with their doctorate: Asya Ostroukh, whose thesis is entitled “Reception of the French Civil Code in Francophone Switzerland, Louisiana, and Quebec: A Socio-Legal Study”, and Ilya Kotlyar, who thesis is entitled “The Influence of the European Jus Commune on the Scots law of succession to moveables: 1560-1700”. These three happy events encouraged the Centre for Legal History, with the support of the School of Law, to organise a small conference entitled “Directions in Legal History and Roman Law”, involving the new graduates and some current PhD students, to showcase the diversity of the research in the Centre.

Asya Ostroukh, now Senior Lecturer in Law, University of the West Indies, gave a paper entitled “Exclusion and Inclusion of the French Law on Neighboring Plots of Land in the Civil Codes of Quebec, Louisiana and Francophone Switzerland: Some Reflections on the Relation between Law and Society”. She explored the way in which none of the codes she discussed copied the detail of the French law and discussed the reasons why this was so.

The second paper, “The Northern Circuit of the Justiciary Court and the Regality of Grant, 1708-1750”, was delivered by Charles Fletcher, a current, full-time, Ph.D. student just finishing his first year. His thesis focuses on the regality court; but he explored how its work was affected by the development of the Justiciary jurisdiction, after the institution of regular circuit courts in 1708. The paper highlighted the continuing significance of the regality court, while also showing why certain prosecutions were taken to the Justiciary court.

Ilya Kotlyar, currently Postdoctoral Researcher, University of Tilburg, the Netherlands, spoke on “The Historical Scots Law of Succession in a Civilian Perspective”. Along with some general remarks, and discussion of the impact of politics on the Commissary Court, the paper discussed testamentary practices and the use of various devices to avoid the effects of Scots common law, as in many ways Scots sought methods to achieve freedom in disposing of their moveable and heritable property.

This was followed by a paper entitled “The Economics of Property Rights in the Ship in Roman Law”, delivered by Peter Candy, a Ph.D. student about to enter his third year of study. He explored how New Institutional Economics can be deployed in a subtle and nuanced way to understand issues in Roman law, in particular how Roman law provided incentivise to possessors to behave as owners.

The final paper was given by Professor Wolfgang Ernst and was entitled: “Insulam exurere – reading Coll. 12,7,1-3 closely”. Professor Ernst provided a close discussion of the text of Ulpian as found in both the Collatio and the Digest, suggesting that there were changes in the Digest version that reflected neither the textual history but rather an editing decision of the compilers. He also explained what he thought was the original context of part of the text, as a responsum of Labeo.

The conference aimed to give plenty of time for speakers and discussion, and indeed there was much debate over the papers. Notable amongst those attending were Professor Jean-Jacques Aubert of the Université de Neuchâtel and Professor Emeritus Laurens Winkel of Rotterdam. It was a successful exercise in discussion of their research by scholars from junior to senior, which benefited all.

 

 

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Monastery and Book of Deer

Scottish legal historians who have an interest in the Middle Ages are all familiar with the importance of the Book of Deer. The Book of Deer is an illuminated manuscript of the Gospels (though not in their entirety, now held in Cambridge University Library. It had once belonged to the great collector, Bishop Moore, who acquired some of manuscripts, notably the Moore Bede, through the Scots scholar and dealer, Alexander Cunningham. There is no reason to associate Cunningham’s activities with Moore’s acquisition of the Book of Deer. Indeed the good Bishop probably acquired it from his friend Thomas Gale.

The Book of Deer is a tenth century manuscript written by a single scribe in an Irish hand. What makes it of interest to legal historians is the legal material inserted into it when the MS was at Deer. Some of this is in Gaelic, making the Gaelic notitiae the earliest surviving medieval Scots Gaelic, as well as a Latin brieve of David I.

In 2009 Katherine Forsyth edited a new collection, Studies on the Book of Deer, published by the Four Courts Press of Dublin. This contains new editions and translations of the legal material. It is an important work.

What has inspired your blogger to revisit this is the note in today’s BBC Scotland website that a search is on again for the old monastery, the one referred to in the Book of Deer. Its site has never been located, though the ruins of the later Cistercian monastery are known and, indeed, charming, though it is many years since your blogger, one side of whose family comes from Buchan, has visited them.

But in the collections in the Book of Deer, Gaelic, Pictish, and Norman Scotland all come together. It is of tremendous importance.

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Professor Norma Dawson: Legal Historian, C.B.E.

 (photo QUB)

The Blog is delighted to note that the distinguished legal historian, Professor Norma Dawson, of Queen’s University Belfast, has been honoured by Her Majesty with appointment as C.B.E. in the recent Queen’s Birthday Honours list. Professor Dawson’s services to legal education have been varied and many, but here it is worth recording her work as a legal historian.

Professor Dawson is also a distinguished property lawyer with a strong specialism in trade marks. This has also been reflected in her work as a legal historian, with interesting work on trade marks in the eighteenth century, as well as on matters such as treasure trove. As well as her own research, she is a past president of the Irish Legal History Society and been a major force in that Society’s programme and publications. She has facilitated and guided the work of others, as well as carrying out her own research.

Here in Scotland she is remembered for her Address to the AGM of the Stair Society on 17 November, 2012. Her topic was entitled “Letters from Inverarary – the Eighth Duke of Argyll’s correspondence with the Marquis of Dufferin and Ava, with particular reference to Gladstone’s Land Acts”. It was a tour de force. It can now be read in the Stair Society’s seventh volume of miscellany.

If your blogger may be permitted a personal note, he started his career as a lecturer at the Queen’s University. Professor Dawson, then herself a young lecturer, was notably welcoming and helpful, and always willing to guide and advise. It is important to note that Professor Dawson, as well as brilliant as a scholar is also wise, an attribute, which, alas, not all scholars possess. It is this wisdom and experience which no doubt explains the calls on her service in the Presbyterian Church in Ireland, the Advisory Council of the Institute of Advanced Legal Studies, and as an Honorary bencher of the Inn of Court of Northern Ireland.

 

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Alan Watson seminar in legal history – 26 May

Details of our last event for the academic year below: A paper by a visitor to the centre, Wouter Druwé.

In the early modern period, the Low Countries performed a key role in trade and commerce on the European continent. In their golden ages, Antwerp in the sixteenth and Amsterdam in the seventeenth century attracted merchants from all over Europe and even beyond. The massive development of commerce and finance within this transregional reality raised new normative questions on how to deal with novel financial techniques. Most often, the answers were multifold. Different layers of normativity were at stake: apart from learned legal treatises and commentaries, also moral theological literature, princely or local ordinances, and customary law had to be taken into account. The Netherlandish published volumes of consilia and decisiones – together coined as ‘learned legal practice’ – form two types of legal sources which offer an excellent insight into the combined application of these different normative layers. In consilia, learned lawyers gave their opinion on specific disputes, either before or in the course of legal proceedings. Volumes of decisiones contain reports of decisions by the superior courts of the Low Countries.

After an introduction into the sources and a short overview of the overall Ph.D. project, this paper will deal with the Netherlandish learned legal practice regarding the sale of annuities (emptio-venditio redituum), a common technique to circumvent the prohibition against usury. Someone in need of credit sold an annuity to a buyer-financier who in return paid a purchase price. As of the mid-sixteenth century learned authors accepted that the seller could unilaterally redeem the annuity, even though discussion remained as to the possibility of contractual clauses which temporarily limited that right. As this possibility was only guaranteed in case of pecuniarily constituted annuities, debates also concerned the burden of proof of an annuity’s emptitious nature. Furthermore, this contribution deals with the possibility by a public debtor to mitigate its own annual liabilities through the enactment of legislation. Finally, it is shown that the buyer-creditor was generally denied a right to claim restitution of the capital.

Wouter Druwé (FWO / KU Leuven)

26 May – Legal History Poster

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Paris: histoire, droit, et lois

For the legal historian, walking around central Paris is always of interest. For example, close to where your blogger had his flat in the Marais, is an elegant house on which there is a plaque stating that Raymond (or Roumain) de Sèze (1748-1828), one of the lawyers of Louis XVI at his trial, had lived in 1793. He was noted for his spirited defence of the unfortunate king. He had earlier acted for Marie-Antionette in the affair of the Queen’s necklace. After the King’s trial de Sèze was imprisoned for a while, though released on the fall of Robespierre. After the Restoration, he became Président of the Cour de Cassation in 1815. His tomb is to be found in the  Père Lachaise Cemetery.

The Palais de Justice in Paris is very grand complex of buildings on the Île de la Cité.

One of its interesting features is the Salle des Pas Perdus, which has a function rather similar to that of Parliament Hall in Parliament House, Edinburgh, as a giant vestibule connecting parts of the building, in which one one often sees avocats in their robes walking and discussing. Attached to this elaborate complex is the Conciergerie, the medieval royal palace that was used as a prison, for, among others, Marie-Antoinette. At the end of the Conciergerie is the grand classical, or perhaps rather baroque, pile of the Cour de Cassation. This functions as the court of appeal in civil matters.

Nearby is the Tribunal de Commerce, not attached to this grand complex.

On the tower at the end of the Conciergerie is a remarkable clock, which has given its name to the nearby quai, the Quai d’Horloge. The clock here dates from the late fourteenth century, and was the first public clock in France. It has been repaired, restored and acquired a new dial several times through the centuries; and it was beautifully restored again in 2012. What is interesting to the legal historian are the allegorical figures. These were restored in the mid-nineteenth century, after being burned during the Revolution. They are mannerist in style, and represent law and justice.

The iconography of figures of justice is always very interesting. This figure has no blindfold are even. The Latin inscription on the top alludes to Henry III of France; that on the bottom is more interesting here: it states that “This machine that divides the hours into twice six warns us to protect justice and uphold the laws.” It is tempting to reflect on the deeper meanings that this suggests in the context of a clock. But it is interesting to reflect on them in the context of de Sèze’s defence of Louis XVI, before the Convention, which de Sèze described as full of accusers but not of judges, and in which he remarked that Louis seemed to be the only Frenchman without rights.

Codification, of course, emphasised that in France droit is expressed in lois. One can think of the projects of Henri François d”Aguesseau (1668-1751), Chancellor, commemorated with a statue outside the Assemblée Nationale, and eventually of the various projets of

Cambacérès during the 1790s, as attempts were made to unify and reform French law.

This, of course, eventually brings us to Napoleon Bonaparte. He is too famous to need much discussion. (It is worth noting here that the University of Edinburgh owns a table he used in imprisonment in St. Helena.) The significance of the Code civil des Français (later Code Napoléon) as one of the most important legal texts hardly needs stating. Napoleon’s remains were eventually returned to France from St Helena and buried in a huge new crypt in the Eglise du Dôme, the splendid baroque church, added for Louis XIV to the Hôpital des Invalides in Paris. It is a matter of taste, but to your blogger the tomb and its associated walk-way and other statuary and paraphernalia, all in a heavy, almost vulgar, Greek-revival style, form an unfortunate contrast with the baroque Louis XIV church, and indeed seem artistically to be at war with it.

This said, the tomb is fascinating. The walkway round it contains huge sculptures representing significant non-military achievements of Napoleon. The sculptor obviously had in mind Greek commemorative sculptures of the Hellenistic period. One, for example, commemorates the Code de commerce. One inevitably is devoted to the Code civil. Napoleon is portrayed as Greek lawgiver, perhaps a Solon, surrounded by acolytes and allegorical figures. On his right, the viewer’s left, is a tablet referring to Roman law and Justinian’s Institutes. Napoleon grips its corner. On his left, the viewer’s right, is a tablet referring to the Code civil, on which is an inscription, to which he points with his finger, stating “justice égale et intelligible pour tous”. It is as if the ancient imperial law of Rome has traveled through and been transformed by his body into the modern Code. The stone tablets also make the legal historian think of Moses and of the Twelve Tables (even if the last were not initially carved in stone). Perhaps he is a new Moses leading his people from the bondage of the old law to a new dispensation. Below his feet is the rather hubristic inscription: “My Code alone, by its simplicity, has done more good in France than the mass of previous laws.” Other books and scrolls of law are found discarded below the Emperor’s feet. These include the works of Domat and Pothier, whether discarded as replaced, or after use in drafting the code, or both, is for the viewer to decide!

 

 

 

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Alain Wijffels: Chaire Européenne, Collège de France

During his time in Paris, your blogger was lucky enough to receive an invitation to the inaugural lecture that our friend and colleague Professor Alain Wijffels gave for his chair in European History at the Collège de France,  which he holds for 2016-17. The lecture is now available for downloading on the website of the Collège de France. The theme was whether there was a European legal history and whether one was needed. See https://www.college-de-france.fr/site/alain-wijffels/inaugural-lecture-2017-04-20-18h00.htm

It is important to stress the very significant but well deserved honour achieved here by Professor Wijffels. Your blogger believes that Professor Wijffels is the first legal historian or lawyer to have been awarded this chair. The word “prestigious” is now embarrassingly over-used in an academic context, as universities exaggerate the often trivial achievements of their academic staff. But Professor Wijffels’ appointment to this chair at one of the world’s leading academic research institutions (one far more important intellectually than some bizarre “world” rankings may suggest) is indeed a real mark of prestige and honour. And it should be a real source of pleasure and delight to all legal historians.

The intellectual life of Paris puts a great emphasis on such lectures at the Collège de France, and Professor Wijffels has also been interviewed on the radio on France Inter, and next month he will be interviewed by Antoine Garapon on France Culture. Garapon is an interesting figure, a magistrat, as well as secrétaire général de l’Institut des Hautes Etudes sur la Justice. He is noted for his intellectual discussions and interviews, late-night on Thursday, on France Culture. Considerable public exposure of the ideas behind the lectures is thus achieved.

It was an excellent lecture, a positive tour-de-force, which your blogger found very stimulating. The theme raises all kind of historical and indeed political questions. It is worth noting that Professor Wijffels extensively discussed and analysed the recent Scottish case of Holdich v. Lothian Health Board (2013). This was one of the many recent cases dealing with the personal tragedies arising out of the failure of electricity supplies leading to the degrading of sperm stored in a sperm bank, often deposited by young men who have stored their sperm because forthcoming medical treatment will render them infertile. The case was taken before Lord Stewart on the procedure roll for debate on the relevancy and specificity of the averments. This issue has been litigated around the world, as the very learned and wide-ranging judgment of Lord Stewart demonstrates. But one can be confident that the discussion in the opinion of the role of the praetor, his edict, the actio indirecta in Aquilian liability, and the views of Ulpian on ownership of the body, as well of the Roman rules on acquiring ownership of property by occupatio is rather unique to Scotland. Professor Wijffels’ elegant discussion brought all this together in a European historical context.

Your blogger had hoped to attend the next lecture, but, alas, he was laid low by some type of viral attack; the following week he could not attend, as he had to prepare for his own leçons at the École normale supérieure.

Professor Wijffels’ inaugural lecture was followed by an elegant reception with champagne and canapés. Your blogger was delighted to find there more old friends than he had anticipated. The publication is anxiously awaited.

 Image: Collège de France

 

 

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Law in Theory and History – a Neglected Dialogue

Guest blog by Peter Candy.

On Friday 28 April the Law School at the University of Edinburgh was delighted to host a workshop dedicated to the theme of ‘Law in Theory and History: A Neglected Dialogue’. The conference, which was convened by Prof. Claudio Michelon and Dr. Paul du Plessis (both Edinburgh), followed the recent publication of an important volume edited by Michael Lobban and Maks Del Mar, entitled Law and Theory in History: New Essays on a Neglected Dialogue (Hart Publishing, 2016).
Michael Lobban (LSE) began proceedings by with an exploration of the tension between the instinct of the theorist to reach for the universal, and that of the historian to find meaning in context. Michael suggested that, if we are to follow Milsom’s proposal that the aim of the legal historian is to establish what legal actors at any given time thought they were doing, then we should look to theory to help us understand the life of the legal concepts with which they were engaged.
The relationship between philosophical inquiry and historical inquiry was further interrogated by Maks Del Mar (Queen Mary). While the former, he argued, is characterised by the ‘pursuit and identification of distinct units’, historical inquiry is acutely sensitive to ‘affecting variables’. This latter expression refers to any number of real-world factors that can impact upon the patterning of legal thought: for example, archival practices, the architecture of legal spaces, and the medium through which that thought is communicated.
After a short break, Maks was followed by John Hudson and Caroline Humfress (both St. Andrews). John explored how different definitions and conceptions of law shape the dialogue between theory and history, each of which is attended by the respective pitfalls of over-generalisation and hyper-nominalism. Caroline, meanwhile, set out to provide a fresh understanding of how legal historians engage with legal concepts. Expressing an unease with the dichotomy of ‘law-in-theory’ as opposed to ‘law-in-practice’, she introduced Hart’s appeal to Wittgenstein as a possible alternative. If, as Hart suggests, “we wish to understand our concepts”, “we must consider them when they are ‘at work’, not when they are ‘idling’ or ‘on holiday’”. Building on the critique of how we understand concepts ‘at work’ contained in Lobban and Del Mar’s Law in Theory and History, Caroline offered her own view that concepts are both at work when they are applied in determinate circumstances and when they are used in juristic discourse.
Stephen Bogle (Glasgow) finished the morning session with a critique of James Gordley’s The Philosophical Origins of Modern Contract Doctrine (Clarendon Press, 1991). Stephen identified three analytical approaches to historical sources: rational reconstructions, historical reconstructions, and, finally, Hegelian appreciations of the place of the text within a given Geistesgeschichte (loosely, cultural history). While in the first approach scholars are apt to ask modern questions of the text, an historical reconstruction seeks to understand its meaning in a way that could have been within the original author’s contemplation. Looking to The Philosophical Origins, Stephen argued that Gordley’s approach seems to have been inspired by Hegelianism; that is, a method of bringing together theory and history as part of the Geist (or, spirit) of the culture by which it was produced.
After lunch, Dan Carr (Edinburgh) gave an illuminating paper on the role of narrative in judicial decision making in modern Scots law. Tracing a thread back to the influential 20th century professor of Scots law, T. B. Smith, Dan showed how a narrative concerned with the perceived corruption of Scots law by foreign (and, particularly, English) influence has taken hold over time. In a number of important judicial decisions this narrative has been used to justify one particular outcome over another. Consequently, it represents a form of judicial reasoning that deserves closer scrutiny and attention.
Finally, Chloë Kennedy (Edinburgh) returned to the tension between theory and history by looking more closely at whether legal concepts are best understood in their ‘immanent’ (i.e. contextual) or ‘transcendent’ state. Turning to the concept of criminal responsibility, Chloë argued for a ‘middle way’ (following John Hudson), by which legal concepts could be better understood through theory and history without positing a conflict between them.
All the papers provoked energetic discussion, which continued over dinner at the ever-dependable Ciao Roma. Also in attendance: Thomas Gallanis (Iowa), Neil Walker (Edinburgh), Martin Kelly (Edinburgh), Paul Burgess (Edinburgh), and Peter Candy (Edinburgh).

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