Peter Birks and the Roman Law of Obligations

When this blogger returned to the then Faculty of Law of the University of Edinburgh as a young lecturer, Peter Birks held the Chair of Civil Law. A man of fearsome energy, Birks founded the Edinburgh Roman Law Group, as well as being behind the then Legal History Discussion Group (now the Alan Watson Seminar) and the Roman Law Club (now the Henry Goudy Seminar). He was also the senior colleague whom this blogger found most most supportive and encouraging.
In Edinburgh Peter’s duties were to deliver (along with other colleagues) the lectures on Civil (i.e. Roman) Law ordinary (three lectures per week through the three terms), classes on comparative law, and the twenty, two-hour honours seminars in Civil Law. Peter was a charismatic man to whom some students became completely devoted; others found his standards too high, and his lectures were certainly not for duffers or the idle.
Our colleague Eric Descheemaker, who was Peter’s doctoral student at Oxford, has just edited for publication Peter’s lectures in Edinburgh on the Roman Law of Obligations (Peter Birks, The Roman Law of Obligations (Oxford: University Press, 2014). This is the first fruit of a project to publish collected works by Peter, including unpublished works. Your blogger had a copy of part of these in his possession and drew them to the attention of Eric some time ago. The whole was discovered by Eric in Peter’s papers. My recollection was that Peter prepared these for the assistance of the students, and he made the text available to students through the law library. Indeed, our first-year Civil Law course is still essentially the same in structure, and we even still share in our Course Guide some of the questions here included at the end.
It is both pleasurable and sad to read these. Reading some of them, I can actually hear Peter’s voice, they are so much his. One gets a real sense of him and his enthusiasms from this book. He was fascinated by taxonomy, as even those who only know him from his work on unjust enrichment will also be aware. Eric is to be congratulated on publishing these. I shall certainly be recommending them to our first-year students, so once more they can have the benefit of Peter’s fierce intellect.

303 Years of Civil Law

An Enlightened Duke: new Biography of Archibald, 3rd Duke of Argyll

Your Blogger has long been interested in Archibald Campbell, third Duke of Argyll, and indeed in his writings has touched more than once on Argyll's influence on appointments to law chairs in Scotland. Roger Emerson, Professor Emeritus at the University of Western Ontario, and a pre-eminent intellectual historian of eighteenth-century Scotland, has just published a splendid new biography of the Duke: An Enlightened Duke: The Life of Archibald Campbell (1682-1761), Earl of Ilay, 3rd Duke of Argyll. Kilkerran: humming earth, 2013. ISBN 978 1 84622 039 5 (PBK); ISBN 978 1 84622 040 1 (HBK). That there has been no earlier book-length assessment of the man would in itself mean that this was an important publication; but Emerson has produced a thoroughly researched and well-written book. The work makes a convincing case for the Duke as having a central role in promoting the Scottish Enlightenment, and, indeed, as a major Scottish figure of the eighteenth century. The Duke was an able and wily politician; but he was also a significant scientist, intellectual, book collector, improving landlord, with patriotic aims of improvement of his native land. He was so much more than just a politician aligned with Walpole.
Given Emerson's interests, Argyll's role in intellectual life is a major theme. Given that this is a legal history blog, it is important to note that there is an excellent chapter on Argyll and Scots law (the Duke had studied Roman law in Utrecht); Argyll liked to exercise his right to sit on the bench of the Court of Session in Edinburgh, and was also Lord Justice General. Indeed Allan Ramsay produced a splendid portrait of him wearing his judicial robes. Throughout the book there is much to interest legal historians.

The cover, reproduced below, shows him wearing his robes as Earl of Ilay.



New Frontiers: Law and Society in the Roman World

One of the research themes and interest of the Centre for Legal History in Edinburgh has long been Roman Law and Society as a search back through this blog or the Website of the Centre ( would easily confirm. This blogger's colleague, Dr Paul du Plessis, is shortly to publish an edited book with the above title above with Edinburgh Univeristy Press, building on earlier work. Your blogger has the privilege of receiving an advance copy, and it is a handsome work, full of interest to ancient historians and Roman lawyers alike.


Tamm, The History of Danish Law

As an undergraduate, the only work of any Danish legal scholar with which I was familiar was that of Alf Ross, classed as a "Scandinavian Realist". Ross, of course, features in a very interesting essay in Ditlev Tamm, The History of Danish Law: Selected Essays and Bibliography (Copenhagen, 2011). As well as discussing his scholarly achievements, the essay places him a political and academic context and explores some of his academic disputes and the revenge he took years later on one whom he considered had unfairly blocked his doctorate.
To a Scottish legal historian, the set of essays is fascinating. It ranges from medieval law collections – the old Nordic law books – through to issues arising out of collaboration during Hitler's War. One can see parallels with Scottish legal history, but yet again some very significant differences. Scotland had more of a reception of Roman law in the later middle ages, and developed a legal profession earlier than Denmark; unlike Denmark, despite the best efforts, or at least aspirations, of the Stuarts in the seventeenth century, Scotland did not have an absolute monarchy. Denmark was much more influenced by German legal science in the nineteenth century. One could list other matters. But among the parallels one can note, first, the significant continuity of legal history that marks both Denmark and Scotland, a continuity perhaps threatened now in both countries by the legal expansionism of the E.U., second, that both countries have an ancient monarchy, and so on.
Denmark is now a small country with a small population, but it was once an imperial power, controlling Norway, owning German Duchies, Iceland, the Faroe Islands and Greenland, and possessing West Indian colonies. Here it was interesting to this blogger to note a slavery freedom case from 1802. Like all European powers with slave-colonies, Denmark faced the issue of the status of colonial slaves in the "home" country. The Danish Court decided in favour of the slave-owners. Coming to Denmark did not free a slave. The case is fascinating with some subtle discussion. It is notable that Blackstone was cited!
Professor Tamm finishes with some thoughts on comparative law. These are important. He raises rightly the insufficiency of the old "legal families" approach. He proposes a global approach. I shall not discuss this, but his points are well taken. Certainly this blogger has always been puzzled by the disciplinary claims of comparative law and how they should be pursued.


The Community of the College of Justice

Study and understanding of the history Scottish central court continues apace. In 2009, this blog noted the publication of Mark Godfrey's magisterial work on the College of Justice in the Renaissance period Civil Justice in Renaissance Scotland: The Origins of a Central Court (although such a description does not really do justice to the richness and complexity of the of the work). Godfrey's colleague at Glasgow, John Finlay, has just published a work on the College in the eighteenth century, entitled The Community of the College of Justice: Edinburgh and the Court of Session, 1687-1808, Edinburgh University Press, ISBN  978-0748645770, £75. This is an important study of an institution at the time of the Enlightenment. It deserves to be widely read.



George Dargo, Essays in American Legal History

At the beginning of this year, this Blog had the sad task of reporting the death of George Dargo. Professor Dargo was one of the kindest men with a wry sense of humour whom this blogger has ever met, though, he never knew him well.  For a man of his ability and distinction as a scholar, he was remarkably lacking in pomposity and self importance.


In the last few months of his life, Professor Dargo had worked on a collection of some of his more important essays. These have now been published in a handsome volume by the Lawbook Exchange Ltd.,  who had already published in 2009 the new edition of his 1975 classic, Jefferson's Louisiana.

The essays included cover the full scope of Professor Dargo's scholarship, which ranged from colonial America to Sunday trading laws and the constitutional position of Puerto Rico (the last two reflecting on the significance of Calvert Magruder, whose papers were the foundation of Professor Dargo's  History of the United States Court of Appeals for the First Circuit (1993)). All are learned; all reflect the man. Given this Blog's interest in Louisiana, it is good to see reproduced the important article from 2009 in which he revisited the background to the Digest of 1808, as well as his account of Edward Livingston and the Batture Controversy from Jefferson's Louisiana and his essay on the legal-legal significance of shipping on the Mississippi (a rather pedestrian way of describing a profound piece).

On the back of the dust-jacket, which shows on the front a fine paddle-steamer (this blogger writes from the country from which sails the last sea-going paddle steamer in the world), there are two interesting laudatory quotations. The first, from Dean Greenberg of Suffolk University College of Arts and Sciences, describes the book as "a monument to an extraordinary historian" and as reflecting  "the depth of his background in law and history", thereby representing "the work of an impressive life in scholarship". In the second, Professor Emeritus Hecht of Boston University writes that "Multiculturalism is a misapplied buzz-word today. For a true understanding of its role and application, many of the chapters in this book provide a useful corrective. … Its broad reach and wide scope provide a critical new perspective on the role of law in American history."

But the essays generally demonstrate a humane and humanistic approach to law and legal history; in this they also reflect the man.


Leasing gladiators in Rome – a problem solved

A text with which those of us who teach Roman law like to tease our students is Gaius, Institutes, 3.146. Gaius poses to his students what appears to be a hypothetical problem. If I provide gladiators to you on the understanding I get 20 for each who come unharmed and 1,000 for those who are killed and maimed, is this lease or sale? He says the received opinion is that it is lease of those who return and sale of those killed or maimed. Events determine the result: it is either a conditional sale or lease of each.

This text has generated much discussion, which I shall ignore. But your blogger’s colleague, Dr Paul du Plessis, has posited an elegant solution to this conundrum in his new book, Letting and Hiring in Roman Legal Thought, 27BCE-284CE (Leiden/Boston: Brill, 2012), at pp. 106-8. He points out that contracts for gladiators were for a show and that the Lanista (the owner, agent or venture capitalist) was not letting out the enslaved gladiators under a contract to let a res, but rather was contracting to provide gladiators to put on a show: it was a contract for the performance of a task, a contract for operae.
Crucial here, of course, is that one must recognise that in practice the Romans went in for recording their contracts in detail in writing, called leges, and Gaius’ discussion is expressly in the context of discussing the lex or written contract.



Review of Mixed Jurisdictions Compared: Private Law in Lousiana and Scotland

The Legal History Blog has posted exerpts from George Drago’s review of Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (Edinburgh: EUP, 2009).

This collection of essays, edited by Elspeth Christie Reid (Edinburgh Law School) and Vernon Valentine Palmer (Tulane University Law School), is described by Drago as an ‘excellent but challenging’ book, one which ‘reminds us of our debt to legal sources, traditions, and modalities that lie beyond our shores’.

The full review is available here.

Two books edited by John Cairns and Paul du Plessis in the Edinburgh Studies in Law series also get a mention in the review: Beyond Dogmatics: Law and Society in the Roman World (2007) and The Creation of the Ius Commune: From Casus to Regula (2010)


Sir John Macdonald, Lord Kingsburgh: New Biography

Macdonald on Crimes is a title on Scots law that had a long life, as indeed did its author (1826-1908). It did not achieve lasting approbation, though it was clearly found useful enough by bench and bar. One of his contemporaries said that he was a man about whom little was known (see ODNB); but his great grandson, Norman Macdonald, a retired WS, has produced a readable and full biography of his distinguished ancestor.

Macdonald was born into the minor landed classes who dominated the professional classes of Edinburgh in the early nineteeth century. His father was a WS, descended from two distinguished lines of Highland gentry, his mother daugther of a baronet. His father was later to marry (as a third wife) the Hume heiress of Ninewells, making an interesting intellectual link.

The biography covers Macdonald's varied and interesting life, including politics; the bar; the Catholic Apostolic Church; motoring. The impression is of an engaging and active man, devoted to his family, interested in military and indeed practical, technological and mechanical pursuits. He wrote autobiography, childrens stories and much else.

The nicely written new biography is to be welcomed: Norman Macdonald, Sir John Macdonald, Lord Kingsburgh (ISBN 978-0-9566149-0-2), Lumphanan Press, £7.99

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.

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