Category: Legal History

The Helsinki Legal History Series will be taking place again this autumn. The events are open to all and will be held at the University of Helsinki, organized by the Eurostorie and Cocolaw research units. The sessions will be streamed live, allowing participants from around the world to join.

The series this Fall is called Identities and Legal History, and more information here. 

Seminars:

Emily Prifogle (University of Michigan) 24.9, 3PM-4:30pm (UTC+3, Helsinki time)
“Making Rural America: A Legal History”

Anne Orford (University of Melbourne) 8.10, 3PM-4:30pm (UTC+3, Helsinki time)
“The Promises and Perils of Interdisciplinary Encounters”

Luisa Brunori (CNRS) 5.11., 3PM-4:30pm (UTC+3, Helsinki time)
“The Identity of Partners and the Anonymity of Capital in Transatlantic Trade during the Early Modern Period”

Pedro Cardim (Universidade Nova de Lisboa) 10.12. 3PM-4:30pm (UTC+3, Helsinki time)
“Corporations and Jurisdictional Culture: Exploring the Political Identity of Early Modern Iberian Monarchies.”

The Annual General Meeting of the Scottish Legal History Group will be held in the Reading Room of the Faculty of Advocates Library in Edinburgh on Saturday 5^th October 2024. There is a full programme of outstanding speakers who will discuss topics ranging from the early mediaeval to the late modern periods.

This year’s Selden Society and Four Inns of Court Annual lecture, hosted by Lincoln’s Inn, will be given by Lord Neuberger, on the topic: ‘”A Scotsman Caught Young”: the influences which shaped Lord Mansfield’. It will be held on Tuesday 22 October 2024 in the Ashworth Centre at Lincoln’s Inn at 18.00.

To attend the lecture, you will need to book via the Lincoln’s Inn website.

Land and Power in Scotland: History, Law and the Environment

A two-Day International Conference

Where: Paris, Paris-Panthéon-Assas University, salle des Conseils

When: 26-27 June 2025

Who: Université Paris-Panthéon-Assas (Centre d’Études et de Recherches de Sciences Administratives et Politiques, CERSA, CNRS UMR 7106) and Université de Picardie Jules Verne, Amiens (équipe CORPUS)

Breathes there the man, with soul so dead,

Who never to himself hath said,

This is my own, my native land!

Immediately after these famous lines, their author, Sir Walter Scott, went on to describe his ‘nativeland’ as ‘O Caledonia! stern and wild/… Land of brown heath and shaggy wood/ Land of the mountain and the flood’. Although part of a wider romantic nationalist tradition of professing love for one’s native land through love of its landscape, Scott’s words reflect the special place of the land in Scotland’s identity. Scottish landscape defines Scottishness both within and beyond its borders. Indeed, it is no coincidence that Donald Dewar chose to quote Scott’s words at the opening of the new Scottish Parliament on 1st July 1999.

There are few nations where views of the land are both so fundamental and so fraught. Historically, Scotland combined a high proportion of harsh and often marginally productive land with the need to maintain an effective warrior class to resist English expansionism. The solution was a heavily militarised aristocracy endowed with vast territorial estates and innumerable retainers, over which it exercised almost princely power. While by no means unique when it originated in the Norman period, the resulting pattern of concentrated landownership has persisted to this day, even as social, economic and legal relationships have undergone dramatic change. Most notably, the 18th-and 19th-century Clearances upended the mutual obligations that underpinned the old feudal order, as the great landowners sought to transform their estates for intensive agricultural exploitation. The Clearances’ enduring legacy of social conflict, environmental degradation, and vast material inequality has given land a uniquely complex and controverted role in Scotland’s contemporary cultural, political and legal life. Scotland now has one of the most concentrated patterns of land ownership in the world with an estimated 432 families owning half of all private land. Reflecting this situation, land reform has, since devolution, become a key issue in Scottish politics. Successive legislative initiatives have focused mainly on ending feudal tenure and simplifying titles to land, as well as creating a celebrated ‘right to roam’ and establishing a ‘community right to buy’ from existing landowners. Further legislation, the Land Reform (Scotland) Bill, was introduced to Parliament on 14th March 2024 to, inter alia, increase the influence of local communities when large landholdings of over 1,000 hectares which represent more than 50% of Scotland’s land are being sold.

The aim of this international and pluri-disciplinary two-day conference is to explore the current concern for land reform in its social, cultural, legal and environmental contexts. The intention is to gather specialists from a range of disciplines including history, geography, law, literature, political science, economics, sociology, and the arts, as well as environmental and climate change specialists, to explore the interactions between land and power in Scotland along three main axes:

-History: historical and symbolic roots of land and identity/power in Scotland, and their past and contemporary implications, the (mis)use of history to claim or retain rights, the history of Scottish landscapes in art and science, the history of environmentalism in Scotland, etc.

– Law: land law and policy reform in Scotland, its origins and current concerns, such as the ‘right to roam’ and the Scottish Outdoor Access Code, land reform, community ownership, transmission and inheritance, the notion of ‘environmental justice’, etc.

– The environment: eco-activism and sustainable development, for example rewilding, reforesting and repeopling, renewable energy, eco-tourism and rural development, the environment as a source of wealth and power, green nationalism, nature and Scottish identity, etc.

The conference will be held in English and French, and a selection of papers will be published in an academic publication after the conference.

Please send your proposals (300 words), a title and a short biography (in French or English) to the scientific committee by 30 January 2025:

– Clarisse Godard Desmarest, Professor at Picardie Jules Verne University,

clarisse.godarddesmarest@u-picardie.fr

– Juliette Ringeisen-Biardeaud, Associate Professor at Paris-Panthéon-Assas University

juliette.ringeisen-biardeaud@u-paris2.fr

– Aurélien Wasilewski, Associate Professor at Paris-Panthéon-Assas University,

aurelien.wasilewski@u-paris2.f

There were two graduations involving the Law School in July, one on 10 and the other on 12 July.

At the first graduated Maria Ithurria Benevente, who had written a thesis entitled”Taking Legal Change Seriously: Examining Calls for Modernising the Rules, Providing of Seller’s Liability for Defective Goods in the Chilean Civil Code”. Her primary supervisor was Professor Paul du Plessis.

The second ceremony was to allow those who wished to graduate in person, but who had completed their degree during the period of Covid lockdowns, to take their degree. One such was Julien Bourhis from France, who has the good fortune to live in Brittany. The title of Julien’s thesis was “Criminal Procedures in Early Seventeenth-Century Scotland: A Medieval Legacy? Pleading and Proving in the Case of Isobel Young, Prosecuted for Witchcraft (1629)”. The photo is of Julien with his primary supervisor, Professor Cairns.

The first questions any historian asks of a document are: who produced it? why? what was its purpose? has it been altered? is it an original? and so on. Answers to such questions determine the faith to put on it and how to approach its interpretation. They can often be rather difficult questions to answer. Closely related or even implicit in these questions isthat of the transmission of documents. Where has this document come from? Who has used it? Does the answer to such questions affect our interpretation?

One interesting issue connected with this is that of archives. Most historians come to love archives (though some individual archives can deservedly be cursed). There are few who  work in archives who do not come away with stories about them. But most who work in archives would recognise the wonder and insight conveyed by Arlette Farge’s  Le Goût de l’archive of 1989, published in English translation in 2013.

These unremarkable musings are prompted by Martine van Ittersum’s brilliant book, the Working Papers of Hugo Grotius: Transmission, Dispersal, and Loss, 1604-1864, in which she traces the history of Grotius’ working papers and manuscripts across three centuries. 1604 is the date when he started the work that became De jure praedae; 1864 is that of a major auction of his papers. She shows how the history of these papers, their preservation, use, and disposal affected understanding of Grotius and his oeuvre through the centuries, and how they were used to construct different Grotii.

This is not the place for a review of this outstanding work; but it is important to mention it, not just because of what it tells us about a major figure of intellectual history, but also because it shows what can be done, and perhaps needs to be done for other figures, and what can be gleaned from such an approach.

See here.

Readers of this blog will be interested in receiving advance notice of the publication of Ancient Maritime Loan Contracts by Peter Candy. This will be published in January 2025 by University of Michigan Press in its series, Law and Society in the Ancient World. Drawing on epigraphic, papyrological and legal sources, this work addresses the issue of how maritime trade was financed in the ancient economy. Maritime loan contracts recorded the terms of agreement on which a creditor lent a sum of money to a merchant or carrier to finance the purchase of a cargo for a trading expedition overseas. They were the lifeblood of the long-distance trade in bulk commodities that flourished in the Mediterranean and Black Seas and were also among the first private agreements to be fully committed to writing. The book can be ordered in advance.

The work originated in Dr Candy’s Edinburgh Ph.D. thesis.

The University of Edinburgh School of Law has just advertised a post to teach legal history. See details here 

This blog has long been interested in the law and court cases concerning enslaved men, women, and children. The well-known cases tend to be those that concern freedom or claims of freedom, such as Knight  v. Wedderburn or Somerset v. Stewart. All European countries had such cases, and similar became important in “free” states in the USA. 

An important source of information for legal historians can be the catalogues of rare book sellers. This blog has a number of entries that derive from such catalogues. A recent Catalogue of the Lawbook Exchange was categorised as dealing with “Apparently Unrecorded” works. It contained a Mémoire produced during litigation in a pre-Revolution French Court concerning the Estate of a deceased individual, namely M. Garnier, who headed the Cape High Council in St Domingue. Unsurprisingly the estate included enslaved individuals as well moveables and land. It refers to the famous Roman ruling that the children of enslaved women were not counted as “fruits”.

Such mémoires resemble the printed Scottish Session Papers.

In a debate about restricting the access to the House of Commons of M.P.s arrested or charged with certain offences, Sir Michael Ellis, K.C., former Attorney General, referred to Roman Law. See Hansard vol. 750, col. 95. He cited the Digest of Justinian as well as the Emperor Antoninus Pius to support the principle that an accused is innocent until proven guilty. He quoted in Latin the well known Roman maxim about proof generally: Ei incumbit probatio qui dicit, non qui negat. This is a text of the jurist Paul in his commentary on the Edict. One would hope that the principle is generally well-enough established in modern legal systems; but it is nice to see that Roman Law is thought to give some extra weight to an argument in a Parliamentary debate. Sir Michael also referred to the Talmud, Islamic law, and Blackstone to support his argument. Sir Michael refers to this as the general rule of evidence he was taught in his law degree (taken at Buckingham), but has undertaken some comparative research to support his argument.