Legal Method: Legal Problems

The Blog is interested to see the publication by Dale McFadzean and Gareth Ryan of the volume Legal Method by DUP in the series Law Essentials. The work is full of all kinds of useful assistance in finding legal materials and the correct way to cite them. It should be of great help to undergraduates working on dissertations.

What this Blog finds curious, even worrying, is the potential misrepresentation of Scots law that could result from uncritical reading of this otherwise admirable work. On p. 3, it analyses legal systems into Civil law ones, common law ones and hybrid. So far so good. Civil law ones are described as having been influenced by Roman law and are largely identified with codified systems; common law ones  "have developed quite independently of the influence of Roman law." Instead of being codifed, they are characterised by use of precedent. Common law systems have been "greatly influenced by English law". Scots law is hybrid and has developed "in such a way that it does not conform exclusively to either civil or common law". Instead it is a mixed system, which is described as one "in which one can discern elements of civil or Roman law but also the influence of common law and precedent". Fair enough; the crudity is necessary in such a work. The authors add: "This is certainly true of Scotland where, for example, the branch of criminal law is almost wholly derived from common law whereas other branches, such as company law, rely almost entirely on Acts of Parliament which codify them." The naive reader might now think that Scots criminal law is of English origin and that Scots Company law is civilian.

In the discussion of primary sources, Insitutional Writings are described as "codifications of Scots law" (p. 5). This might suggest they are statutes. The role of Institutional Writings is more subtle and nuanced. No mention is made of Roman or civil law which turns up with some frequency in Scottish litigation. In neither the chapter on using a Scottish Law Library nor in the chapters on other sources is there mention of Roman law. Though recognised as a "primary" source, Institutional writings are curiously discussed with secondary sources; nor is their use particularly explained.

This is a very simple, elementary work; one does not wish to turn an elephant gun on it. But the very fact it is so useful, means that students will use it. That it is so misleading about aspects of Scots law is therefore unfortunate. In a future edition, the authors would be advised to reflect on these points.

Creation of the Ius Commune: From Casus to Regula

The above book has just been published, edited by John W. Cairns and Paul J du Plessis, and copies should soon be generally available. Dealing with the techniques used by jurists to move from the casuistic style of Roman law to the regulae that underpin modern legal systems, it provides an innovatory approach, and constitutes a major and novel contribution to the literature.

After an introduction by the editors, the chapters are as follows: "The Sources of Medieval Learned Law" by Harry Dondorp and Eltjo Schrage; "The Infrastructure of the Early Ius Commune: The Formation of Regulae, or Its Failure" by Kees Bezemer; "Ius Quaerens Intellectum: The Method of The Medieval Civilians" by James Gordley; "Medieval Family and Marriage Law: From Actions of Status to Legal Doctrine" by Laurent Waelkens; "The Roman Concept of Ownership and the Medieval Doctrine of Dominium Utile" by Thomas Rüfner; "Succession to Fiefs: A Ius Commune Feudorum?" by Magnus Ryan; "Towards the Medieval Law of Hypothec" by Paul J du Plessis; "The Ignorant Seller’s Liability for Latent Defects: One Regula or Various Sets of Rules?" by Jan Hallebeek; "The Glossators’ Monetary Law" by Wolfgang Ernst; "Citations and the Construction of Procedural Law in the Ius Commune" by R H Helmholz; "Doctoribus bona dona danda sunt: Actions to Recover Unpaid Legal Fees" by James A Brundage.

The book is based on the papers delivered at a small, highly successful, expert conference held in the University of Edinburgh on 12-13 December 2008, and organised by the Edinburgh Roman Law Group and the Centre for Legal History. Support was generously given by the School of Law and the Edinburgh Legal Educational Trust, while publication was undertaken in the Edinburgh Studies in Law Series edited by Mrs Elspeth Reid. 

The

See http://www.amazon.co.uk/Creation-Ius-Commune-Edinburgh-Studies/dp/0748638970/ref=sr_1_1?ie=UTF8&s=books&qid=1280243987&sr=8-1

Ulric Huber – New Book

The Gerard Noodt Instituut of Nijmegen, as no 52 of its series, Rechtshistorichse Reeks van het Gerard Noodt Instituut, has just published M. L Hewett, Ulric Huber (1636-1694), De Ratione Juris Docendi & Discendi Diatribe per Modum Dialogi (2010) ISBN 978-90-71478-79-6, at 40 euros. A doctoral dissertation of the University of Amsterdam, it contains the Latin text and translation of Huber's Dialogus, very important for understanding the history of legal education, with introduction and chapters discussing the work in context. Dr Hewett is well known to legal historians for her translations of the old Dutch authorities. This is an important addition to the literature. It can be ordered through a bookshop or by email to t.vandendobbelsteen@jur.ru.nl

 

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Louisiana: Legal History Reprinted Works with new Editions – Dargo

The celebration of the Bicentenary of the Digest of the Civil Law of the Territory of Orleans in 1808 inspired, as well as a number of conferences and symposiums, both publications and republications of some important works. Thus, Claitor's in Baton Rouge reprinted R. H. Kilbourne's important study of the History of the Civil Code of Louisiana and Alain Levasseur's informative biography of Louis Moreau Lislet, certainly the main redactor of the Digest, as well as producing a bicentenary reprint of the de la Vergne volume.

In the 1970s, one of the most important works developing a new approach to Louisiana's legal history, an approach that brought more to the attention of mainstream historians of US law, a field that was in itself rapidly developing under the influence of pupils of the scholarship of Willard Hurst, was George Dargo's Jefferson's Louisiana: Politics and the Clash of Legal Traditions (1975). This was based on Dargo's history Ph.D. thesis from Columbia University in New York and was pubished by Harvard UP in the series, Studies in Legal History.

The Lawbook Exchange has now produced a revised edition of Dargo's book. This has a very nice new essay by Dargo on the current of the legal history of Louisiana, as well as a warm and generous intorduction by Stanley Katz. While the original volume has a certain charm in its 70s-style presentaton, this is a much more handsome book. The typeface is clear, the notes are now at the bottom of the page, all-in-all this is a much more "user-friendly" volume, also enriched with some maps and illustrations. Dargo's biographical essay of 1975 was one of my starting points for research in 1977, when I embarked on a study of aspects of the legal history of Louisiana: it is still useful as such, along with his new introductory essay.

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Cambridge: Eminent Scholars Archive

One of the most interesting sources of information about the recent past in the British world of scholarly law is the Cambridge Eminent Scholars Archive of photographs and interviews located at http://www.squire.law.cam.ac.uk/eminent_scholars/

Reading it reminds one of how much British academic life was stimulated by the arrival of refugees from Nazi Germany. But it has also other fascinating material, and is to be recommended.

Clio/Themis

The second issue of this new online journal devoted to legal history has been published. The first was noted on this Blog on 23/01/2009 (below)

Founded at the initiative of several researchers from the Centre National de la Recherche Scientifique (CNRS), joined by a number of University Lecturers, this new journal aims to contribute to the development of debates and scientific exchanges with regard to the history of law. Its creation stems not from any crisis or sense that this subject, taught and coordinated by Law Faculties, is isolated. On the contrary, its basis is to enlarge and enrich those aspects with which we’ve assisted for several years already.

ISSN 2105-0929

http://www.cliothemis.com/

The Contents of issue 2 are:

HISTOIRES DES CULTURES JURIDIQUES
Circulations, connexions et espaces transnationaux du droit N°2, novembre 2009

– SERGE DAUCHY
Ouverture : Histoires des cultures juridiques
– PATRICK ARABEYRE
Culture juridique et littérature européennes chez les derniers bartolistes français (première moitié du XVIe siècle)
– HEIKKI PIHLAJAMÄKI
Europäische Rechtskultur ? Rechtskommunikation und grenzüberschreitende Einflüsse in der Frühen Neuzeit
– HERMAN NÉBIAS BARRETO
Legal Culture and Argumentation in the Vice-Reign of Peru from the 16th to the 18th centuries
– MIA KORPIOLA
On the Reception of the Jus Commune and Foreign Law in Sweden, ca. 1550-1615
– PER ANDERSEN
Elegant Jurisprudence in Seventeenth Century Denmark. Crosss-Border-Influences on the Autorship of Scavenius, Resen and Bornemann
– PER NILSÉN
The Influence of Foreign Legal Literature in the Works and Teachings of David Nehrman Ehrenstråle
– RICCARDO FERRANTE
Cultura giuridica e codificazione
– DAVID DEROUSSIN
Le Projet de Code des obligations et des contrats franco-italien de 1927 : chant du cygne de la culture juridique latine ?

 

It also contains some translation iform the work of O W Holmes

Home of Moreau Lislet, no 2.

It turns out that the house mentioned earlier as the house of Moreau Lislet was not in fact his. The address is correct, as Professor Levasseur has in his book, but the current house was built later. The blog is informed by Georgia Chadwick that the New Orleans' archivist Sally Reeves has pointed out that the current house was described as unfinished in 1857. Moreau Lislet's house was set 38 feet back from the street and fronted by a garden. It is always possible that parts of Moreau's house were used in the rebuilding, of course.

This said, this is still an important historical site for the legal history of Louisiana. Might it not be appropriate for a plaque to be put up to that effect, just as his grave has already been beautifully restored? It was on this property, after all, that Moreau lived from 1809, and it is where he took his last breath.

Home of Louis Moreau Lislet, drafter of the Louisiana Code, for sale

This blog has a keen interest in the legal history of Louisiana. Georgia Chadwick of the State Law Library of Louisiana has drawn to its attention the discovery by Daphne Tassin, a member of her staff, that the home into which Moreau moved in 1809, and lived until he died in 1832, is currently for sale at 1027 Chartres Street, New Orleans, formerly Condé Street. See Levasseur's biography of Moreau Lislet at p. 123. Pictures of this large property can be found on a New Orleans realtor's website: http://www.fqr.com/index/listings/multi-family/details/807729

Freedom of the Seas

Readers of ths blog may be interested in the new Exhibition in the Rare Books Department of the Yale Law School Library. This is devoted to Freedom of the Seas, focusing around the publication of Mare Liberum on behalf of the Dutch East India Company, some four hundred years ago. For those who cannot visit, pictures of the exhibits will be displayed on the Yale Law Library, Rare Books Blog (which can in general be recommended as excellent).

Selden famously replied to Grotius with Mare Clausum; less well known is the response of the Scotsman, and sometime Professor of Law at St Andrews University, William Welwood. Welwood, who had studied at St Andrews and Wittenberg, replied in his Abridgement of All Sea-Lawes of 1613 and later in De dominio maris (1615). It is interesting to note that Welwood's critique was the only one to which Grotius in fact composed a reply. Some of Welwood's arguments were adopted by Grotius when he came to write De iure belli ac pacis (1625), in which he now agreed with Welwood that territorial waters could be possessed.

For the Scots, one of the continuing anxieties about Grotius' arguments was protection of the herring fisheries off the shores of Scotland from Dutch fishermen. These were of enormous economic importance to Scotland, and this anxiety was often reflected in the Scottish records from the middle ages onwards.

See http://blogs.law.yale.edu/blogs/rarebooks/archive/tags/Freedom+of+the+Seas+1609+exhibit/default.aspx

See also Hugo Grotius, The Free Sea, ed. by David Armitage, Liberty Fund, 2004, available online at http://oll.libertyfund.org/title/859

Professor Mario Talamanca

Readers of the blog will be saddened to hear of the sudden death on 11 June of Professor Mario Talamanca of the University of Rome (La Sapienza).

Professor Talamanca was one of the leading scholars of Roman law in the last fifty years. A prolific author, Talamanca was a charismatic man of very considerable charm. He was a regular at the annual Roman law conference of the Société internationale 'Fernand de Visscher' pour les Droits de l'Antiquité  (SIHDA). In 2001 a Festschrift was published in his honour: Iuris vincula: (studi in onore di Mario Talamanca).  For some recent photographs of Professor Talamanca, see http://www.unav.es/catedragarrigues/english/events/lawjurisprudenceroman.html

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