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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Les rues et les jurisconsultes de Paris: Streets and Lawyers in Paris

Your blogger is currently spending some time in Paris. He has noticed that there are some streets named after famous jurists in the fifth arrondissement, the quartier latin, where some famous educational institutions, such as the Sorbonne, the Collège de France, and the École Normale Supérieure are situated. Close by the building of the Faculté de droit on the Place Panthéon are rue Cujas and rue Toullier.

Rue Cujas is named for  the great sixteenth-century Roman lawyer, Jacques Cujas (1522-1590), known for the humanistic or elegant study of Roman law. His thinking about Roman law remains relevant for modern scholars. He has recently been the subject of an important book by our colleague, now of Bordeaux, Xavier Prévost. The street is a large, busy street, with some grand buildings.

Rue Toullier is rather smaller. It is named for Charles Bonaventure Marie Toullier (1752-1835). He is little known outside France. Like Cujas, Toullier lived through very stormy times. After the reorganisation of the universities in the Napoleonic period, he again became a professor at Rennes (he was from Brittany), where he had occupied a chair before the Revolution. He survived the Restoration. What he is known for is his multi-volume Droit civil français suivant l’ordre du Code Napoléon, ouvrage dans lequel on a tâché de réunir la théorie à la pratique, Paris, 1811-1831. It is an important early commentary on the Code civil des Français of 1804. It became very familiar to your blogger when he worked on his doctoral studies in the late 70s. These concerned codification in Louisiana in 1808 and Quebec in 1866 (see now John W. Cairns, Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866), Talbot Publishing, 2015). The redactors in Quebec consulted Toullier’s work regularly, as indeed did those who revised the Louisiana Code in 1825.

Rather removed from the Law School, closer to the Seine and the Île de la Cité, opening out of Rue Dante, is rue Domat. This is named for Jean Domat (1625-96). Domat was from Clermont-Ferrand in the Auvergne. He studied arts in Paris and law in Bourges (where Cujas had once taught, and where, apparently, Domat was taught by a follower of Cujas), and then worked in Clermont. He is best known for Les lois civiles dans leur ordre naturel (1689). This rationalist account of a universal law went through a great many editions, and was one of the most influential law books of the next 100 or so years, exercising significant influence on the Code civil des Français as well as on, for example, both the Louisiana and Quebec codes. The most important work recently on Domat is by David Gilles, now of the université de Sherbrooke, Sherbrooke, Québec.

Indeed, though not immediately obvious, what links these streets together, is the Code civil des Français of 1804, one of the most influential law texts ever, almost approaching the significance of Justinian’s Digest. The most interesting work on it recently has been by our colleague Jean-Louis Halpérin, now of the ENS in Paris.

One does wonder if the grandeur of the street is a reflection on the perceived status of the jurist when the street was named after him! But that would perhaps be to make too much of the minimal evidence. It is nonetheless worth mentioning that there is a Place Cujas in Bourges and a rue Cujas in Toulouse, a rue Toullier in Rennes and another in St Malo, as well as a rue Domat in Clermont-Ferrand.

These streets in Paris acquired these names in the 1860s during the second Empire. The same era in Britain also saw the start to create national histories through naming and creating monuments to the great dead. For example, in much the same period, St Giles Kirk in Edinburgh, which had been divided into a number of different churches at the Reformation, was recreated as its original medieval space, and started to be filled with monuments as a type of Scottish history, while Parliament Hall became a reading of Scottish legal history.

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PhD candidates sought

The Centre for Legal History in the University of Edinburgh has considerable experience in successfully supervising students for the degree of Ph.D. Supervision can be offered in Roman law, Roman and Canon law in the middle ages and early modern period, the history of Scots law, law and the Enlightenment, and slavery and law in the eighteenth century. Recent theses successfully examined include topics as diverse as legal transplants in Francophone Canada, sixteenth-century French legal practice, and moveable succession in the ius commune and Scots law.
Anyone interested should consider contacting Dr Paul du Plessis, Director of the Centre. Help can be given in finding funding to support the studies of appropriate candidates.

Posted in Legal History, Louisiana, Old Books, Opportunities, Roman Law, Slavery | 1 Comment

Conference on Leibnitz

Our blogger has recently been made aware of the publication of a new translation of Leibnitz’s famous treatise on the teaching of law. Details about the conference here.

A short blurb by the author of the translation below:

About the Leibniz’s The New Method of Learning and Teaching Jurisprudence

“This book, small in relation to its size, but considerable if we look at the aim which Mr. Leibniz pursues, became an extraordinary rarity. I would have done certainly useless movements to find it in bookshops, or at friends, if the case would not have dropped it in my hands in an unforeseen way” .[ M. L. de Neufville (1734), Histoire de la Vie et des Ouvrages de Mr. Leibnitz. Amsterdam chez François Changuion, 25,my transl.].
Indeed, after the first issue in Frankfurt 1667, published only with the initials of the Author , the Nova Methodus will be reprinted only in 1748 with a short preface by Christian Wolf (or Wolff, 1679–1754) . This edition will be reused twenty years later by Luis Dutens in the first critical publication of Leibniz’s works.
At the end of the XVII century, Leibniz added in late revision the so called note “D” , now printed in footnote to the critical edition of Nova Methodus by Paul Ritter [1872–1954], Willy Kabitz [1876–1942], Heinrich Schepers (eds.) of the German Academy of Science.
As for translations of Nova Methodus in modern languages , to my knowledge the only one complete is mine in Italian and here in English. I tried to give the most comprehensive framework of the juridical thought of Leibniz not only in philosophical sense, but also in juridical technical sense, which is the most important in this booklet, because the same is specifically devoted to the Right.
The other translations in modern languages contain only selected passages, pursuing different aims, so that a judgment about cannot be expressed, except that in some cases they inaccurately translate juridical terms, for they are made by philosophers not by jurists, and this is an unacceptable limit for a juridical book.

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Honorary Doctorate – Professor Wolfgang Ernst

It gives me great pleasure to announce that the Senatus Academicus of the University of Edinburgh has voted to bestow upon Professor Wolfgang Ernst, Regius Professor of Civil Law, the University of Oxford, the degree of Doctor of Laws (honoris causa). The degree will be conferred at our graduation ceremony on Thursday 6 July 2017 at 10.30 am. Details here:
http://www.ed.ac.uk/student-administration/graduations/honorary/future-honorary-grads. For those who cannot attend in person, the ceremony will be broadcast online in real time. Details to follow later.

Professor Ernst is a leading and brilliant scholar of Roman law and legal history with a close association with the University of Edinburgh. His postgraduate studies at Yale have made him familiar with US and British scholarship, giving his academic work a breadth and quality that is beyond the often more dogmatic scholarship in Roman law and legal history found on the Continent. This undoubtedly contributed to his appointment to one of the most renowned chairs in Roman law in the world – the Regius Chair of Civil Law at Oxford.as successor to a line of such distinguished scholars as David Daube, Tony Honoré and Peter Birks. His approach to research has led him to go beyond typical doctrinal categories, and explore themes such as the legal history of money and the legal history of social choice (on one aspect of which he delivered the MacCormick Lectures in Edinburgh), in which he draws on his profound knowledge of Roman law and its Reception in the Middle Ages to illuminate important social and historical questions. Related to this is recently published book on decision-making in collegiate courts. But his work draws its strength from the fact it is grounded in disciplined textual understanding and analysis. He has thus written important studies of periculum (risk) (on which he wrote his doctoral dissertation) and other aspects of contracts, both Roman, historical and modern, which have demonstrated a finely nuanced and subtle understanding of the law and its development. His scholarship also reflects his important work on modern German law. In all of this, he has also emphasised the role of procedure as significant to our understanding of ancient and modern substantive law.

Please join us in the Centre for Legal History in congratulating him on this great honour.

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Next meeting of the Edinburgh Roman law group

The next meeting will take place on Friday 7 April at 5.30 pm in the New Neil MacCormick Room [floor 9 of the David Hume Tower]. Our speaker is Professor Lorena Atzeri from the University of Milan.

Details of the talk below and a brief cv attached:

“Britain and Interpolation Criticism: Periphery or Center?”
L. Atzeri

The most recent surveys of interpolation criticism in Roman law concentrate almost exclusively on its main actors – exponents and opponents – from those European countries in which this new research method had been developed and enthusiastically applied: Germany, Italy and to a lesser extent France. Great Britain has either been left out of the story altogether or considered (e.g. by Talamanca) to have been influenced by the methodology of interpolation criticism brought by German Roman law scholars of Jewish origin (Schulz, Pringsheim, Daube) who had migrated to Britain during the Nazi régime. Both representations need revision. The subject of interpolation criticism was in fact dealt with by both Francis de Zulueta and above all by William W. Buckland, Regius Professors of Civil Law at Oxford and Cambridge respectively, not always as we might expect. This paper will discuss the development of their points of view.

We hope to see many of you there,

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The First Female Lawyer in Scotland: Paper L.S.E.

Madge Easton Anderson (1896-1982) was the first woman in Scotland and the UK to qualify as a lawyer. Later, she became the first woman to qualify in both Scottish and English jurisdictions. Yet very little is known about her, unlike her English contemporaries. As part of the LSE Legal Biographies Project, Alison Lindsay of the National Records of Scotland will talk about her research into Anderson’s life and career.

Easton took the degrees of M.A. and LL.B. at the University of Glasgow. She had attended Hutchesons’ Girls’ Grammar School in Glasgow. She was not, however the first female law student in Scotland. That honour goes to two Edinburgh graduates: http://www.sln.law.ed.ac.uk/2009/04/04/first-women-llbs-centenary/

The first woman graduates the United Kingdom came from England and Ireland in 1888.

Alison Lindsay has worked as an archivist in the National Records of Scotland for 25 years, most recently as Head of the Legal and Historical Search Rooms where every day she helps people seeking access to the 80km of records held there. She is currently researching early Scottish women in the law as part of the 2019 Women’s Legal Landmarks project.

Her talk will be at 7pm, Moot Court Room, New Academic Building, LSE

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Doctoral Studentships: Max Planck Institute for European History

Positions for Doctoral Students at the Max Planck Institute for European Legal History
Several positions are currently open for doctoral students at the Max Planck Institute for European Legal History in Frankfurt:
up to four doctoral students – Research Group: Transitions and Translations
one doctoral student – Research Group: Governance of the Universal Church
up to two doctoral students – Law and Diversity (German proficiency required)
Further information on these positions and application deadlines are available on the institute’s website: http://www.rg.mpg.de/job_offers

The Max Planck Institute for European Legal History in Frankfurt is a world leader in researching the history of law in Europe and beyond. Its two research departments with more than 60 scholars, the unrivaled collections of its specialized library and its numerous national and international co-operations make it the central research hub for a global scientific community investigating the past, present and future of legal regimes.

The Institute belongs to the Max Planck Society, Germany’s most successful research organization. Since its establishment in 1948, no fewer than 18 Nobel laureates have emerged from the ranks of its researchers, putting it on a par with the most prestigious research institutions worldwide. The mission of the Max Planck Society is to conduct fundamental (i.e., non-applied) research in the natural sciences, life sciences, social sciences and the humanities at the highest possible level. Its 83 Institutes are scattered across Germany and beyond, and they focus on research fields that are particularly innovative and require unusually extensive resources.

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Max Planck Summer Academy for Legal History 2017

Special Theme: Conflict Regulation

Date: 25 July – 04 August 2017
Deadline: 31 March 2017

The Course
The Max-Planck Summer Academy for Legal History provides a selected group of highly motivated early-stage graduates, usually PhD candidates, an in-depth introduction to methods and principles of research in legal history.
The academy consists of two parts. The first part provides an introduction to the study of sources, methodological principles, as well as theoretical models and controversial research debates on basic research fields of legal history.
In the second part the participants discuss the special research theme and develop their own approach to the theme.
The course will take place at the Max Planck Institute for European Legal History in Frankfurt am Main, Germany.

Special Theme 2017: Conflict Regulation
Conflict is not just a constant challenge for the law, but also a key means of access to its history. Each society develops its own set of means of conflict regulation. The diversity ranges from different forms of dispute resolution and mediation to traditional juridical procedures at local and global level. The way conflicts are regulated reveals the normative options chosen by the parties involved in the conflict. Thus, conflicts and their regulation can provide an insight into local contingencies, traditions, as well as the pragmatic contexts and leading authorities of the law, the living law. Research projects to be presented at the Summer Academy should concentrate on historical mechanisms of conflict regulation and offer a critical reflection about the methods used for analyzing the conflicts and the way they are dealt with.
Eligibility Requirements
• Early-stage graduates, usually PhD candidates
• Working knowledge of English is required, German is not a prerequisite
Application
Required documents for the application are a CV, a project summary (approx. 10 pages) and a letter of motivation.
Fees
There is no participation fee. Accommodation will be provided by the organizers. Participants, however, will be responsible for covering their travel expenses. There will be a limited number of scholarships available.
For further information please visit the Max Planck Summer Academy’s website: http://www.rg.mpg.de/summer-academy-2017
Contact
Max Planck Institute for European Legal History
Dr. Stefanie Rüther, e-mail: summeracademy@rg.mpg.de

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Leibniz, Nova methodus discendae docendaeque jurisprudentiae – new translation from Talbot Publishing

Gottfried Wilhelm Leibniz is nowadays best remembered as an inventor of calculus (in rivalry with Isaac Newton) and as the man lampooned by Voltaire as Pangloss. But of course, there was much more to him than that. He deserves further study.
Your blogger has visited the charming university buildings at Altdorf near Nuremberg where Leibniz gained his doctorate in law (and where Hugues Doneau had earlier taught); he has also explored some of Leibniz’s correspondence with Alexander Cunningham, a Scots scholar, involving kind and energetic assistance from the Leibniz Archive in Hanover. Cunningham spent much of his life working on an unfinished new edition of the Digest; this was a topic of interest to the German polymath – hence their correspondence. But it also indicates the importance of law to Leibniz, an importance often overlooked and perhaps overshadowed by his other achievements as mathematician and philosopher. His very definition of justice as the “charity of the wise” is novel and unique, suggesting the interest in his works on law, and the depths of Leibniz as an original thinker.
In 1667, a year after Leibniz gained his doctorate, he published his Nova methodus discendae docendaeque jurisprudentiae, which he dedicated to the Elector of Mainz – an ambitious work for a newly fledged jurist. The aim of the book was practical. It also contained an important essay on the law of nature. This discussion is still important. Leibniz reflected on the various and conflicting understandings of natural law in the ancient world, while also engaging in an anlysis of modern scholars, most notably Grotius and Hobbes. This is not the place to explore in detail this important work; but it is an interesting exemplar of a rationalist approach, in which, for example, he calls for a logical restructuring of the Corpus iuris (which explains his interest in the work of Cunningham) as well as for a revision of legal education.
Of course, the second half of the seventeenth century saw a considerable amount of discussion of the teaching of law, with new subjects introduced into legal education, such as the law of nature and nations, and new methods, such as the methodus compendiaria. This means that it is important that we contextualize Leibniz’s work as a work on legal education as well as reflecting on it as an exemplar of his legal thought. This means it is necessary to compare it with other contemporary works on the method of legal education, such as Ulric Huber’s famous dialogue of 1684, De ratione juris docendi & discendi diatribe, recently translated by Margaret Hewett (Nijmegen 2010). After all, the theme is hardly original; what is original is the treatment.
In 2014, Professor Matthias Armgardt of Konstanz, the noted expert on Leibniz’s legal philosophy, remarked that for proper study of Leibniz’s legal thought, translations were necessary of a number of the great German scholar’s works, including a translation of the Nova methodus; Armgardt noted, however, that this work had very recently been translated into Italian by Carmelo Massimo de Iuliis. The same translator has now produced an English version of the 1667 Frankfurt edition of the Nova methodus with notes and an introduction. For all interested in thinking about legal education and legal study in the Baroque age, this will be an invaluable publication, making more accessible the thoughts—if youthful—of an intellectual giant of the age. The volume contains a useful introduction to Leibniz, as well as annotations. The distinguished comparatist, William E. Butler of Pennsylvania State, best known for his work on the Soviet Union and Russia, has provided a preface.
While the Nova methodus is readily available in Latin in libraries or on the internet, the new translation will hopefully encourage greater engagement with Leibniz’s legal work in the Anglophone world. The days where proper study can be expected of works in Latin is passing. This translation should make it easier both to place the Nova methodus contextually in a consideration of legal education in Europe and to assess its impact.
The new translation has been published by Talbot Publishing, an imprint of the Lawbook Exchange, at what is now a very modest cost for a hardback book: $85.00 (ISBN 978-1-61619-547-2). This must encourage further study of this important figure in the world of English-language scholarship.

 

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