A Companion to Intellectual History by Whatmore Richard; Young Brian; & Brian Young

Author:Whatmore, Richard; Young, Brian; & Brian Young [Whatmore, Richard & Young, Brian]
Language: eng
Format: epub
Publisher: John Wiley & Sons, Incorporated
Published: 2015-12-21T00:00:00+00:00

European legal history more generally

The work on the idea of ius commune taken with the influence of the writings of Wieacker and others led by the 1980s to an attempt to write European legal history, one integrating discussions of national laws with the development of patterns of similarity and difference, with England as the obvious example of greatest departure from a supposed common pattern, although the Nordic countries also offer examples of interesting divergence.

The traditional story of European legal history that the conventional intellectual history of the discipline has produced tends to separate the legal history of England from that of the rest of Europe after, say, around 1200 (whether one accepts the views of Lupoi or not). Before that date, the two are seen as similar, with their early codes and customs being seen as comparable and indeed related. The big rupture is understood as coming from the progressive ‘reception’ of the texts of Roman law inherited from antiquity on the Continent, together with the development of English common law from the reign of Henry II (1154 –89) onwards. Next, European legal history has traditionally been written as a history of ‘schools’ of jurists of Roman law: Glossators; School of Orléans; Commentators; Humanists; Natural Lawyers; the German Historical School. After this comes codification in Germany with the end of the traditional history. This is obviously linked back to the work of Wieacker and others, as well as finally to Savigny. This is fundamentally unconvincing, as Osler has pointed out (Osler, 1997: 396–404).

There are some obvious further problems with the European approach that are often left unexamined. As Thomas Duve has argued, the development of European legal history as a discipline is in many respects simply the expansion of what was a German agenda into the rest of Europe (Duve, 2014: 25). This remark could be applied even to those studies that have attempted to refine it conceptually, through emphasising politics and culture, such as that by Randall Lesaffer (2009). Europe is often assumed to be western Europe. The legal systems in, say, North America or other former European colonies such as Australia or Chile, are not generally classed within European history, though in some ways it would make sense to do so.

This does not mean that a European approach to legal history is impossible; it is both feasible and potentially fruitful, but it needs both to get beyond an inherited narrative that tends to exclude England and Scandinavia, and sometimes even Spain, and to shed its potentially teleological aspects. It needs to go beyond the traditional focus on ‘schools’ of jurists: and, indeed, the best work has done so. Zimmermann has attempted to some extent to incorporate the history of English law into his narrative of the history of obligations (Zimmermann, 1996a). This raises the issue of whether this incorporation is only plausible in his field of obligations; and Ibbetson’s brilliant study of the history of obligations in England raises very interesting questions about comparability in this context (Ibbetson, 1999).

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