2018 Comparative Legal History Workshop

On 11 and 12 May 2018, the St Andrews Institute of Legal and Constitutional Research held a workshop on the theme of comparative legal history. The aim was to explore the ways in which comparative legal history could be approached, and to hear examples of these approaches from the variety of papers delivered throughout the workshop.

The first day began with a keynote paper delivered by Alice Rio (King’s College London) which explored comparative approaches to studying early medieval legal culture. Papers were then given by Susanne Brand (vice-administrator of the Anglo-American Legal Tradition project) on the early history of bills of privilege in the Common Law, and Felicity Hill (Cambridge) on the use of general excommunication of unknown malefactors. This allowed a comparison to be made between the creative use and development of legal process within secular and ecclesiastical spheres.

The afternoon sessions began with papers from Danica Summerlin (Sheffield) and Ashley Hannay (Cambridge) on a panel discussing the nature and emergence of sources of legal authority, from the impetus behind the Statute of Richard III (Hannay) to the emergence of decretal collections in the twelfth century (Summerlin). This was followed by a panel discussing lordship and law in twelfth and thirteenth-century England and Normandy. Hannah Boston (Oxford) gave a paper on private charters and seigneurial courts in twelfth-century England, and Cory Hitt (St Andrews) discussed the nature of twelfth and thirteenth-century Anglo-Norman and Old French legal texts, and what we can learn about their authors through a close reading of the texts.

Next was a panel featuring the postdoctoral researchers on the Civil Law, Common Law, Customary Law project. Each researcher outlined their research and the directions they intend to take during the course of the project. Andrew Cecchinato spoke about Blackstone, English law and Roman law; Sarah White discussed the potential influence of Roman Law on English Common Law through the medium of procedural treatises used in the English church courts; Will Eves spoke about the Roman Law concepts of possession and proprietas in Roman law, and their potential influence on the early English Common Law; Attilio Stella discussed feudal law in twelfth and thirteenth-century Italy and the way in which feudal practices were framed in reference to Roman legal categories.

The day concluded with a roundtable which offered thoughts on comparative methodology and issues emerging from the preceding papers. The panellists were: John Hudson (St Andrews); Thomas Gallanis (Iowa); Jacqueline Rose (St Andrews); and Danica Summerlin (Cambridge). This was then followed by a wine reception at the University of St Andrews Department of Medieval History.

The second day began with a panel discussing various aspects of community involvement in legal process. Anna Peterson (Pontifical Institute of Medieval Studies, Toronto) discussed procedures concerning corruption in hospitals in Narbonne, 1240-1309. Gwen Seaborne (Bristol) then discussed the role of women as witnesses in medieval English law, with reference to the evidential problems raised by claims to tenancy by curtesy if an infant died shortly after birth.

The second panel of the day compared different types of legal literature in early modern England. Jacqueline Rose (St Andrews) discussed the writing of the English lawyer Bulstrode Whitelocke and his attitude to legal change in seventeenth-century England. Mary Dodd (St Andrews) then discussed pamphlet literature and constituent power in the English Civil Wars.

Following the lunch break, delegates had the opportunity to take a walking tour of St Andrews, kindly offered by medieval historian and expert of the medieval history of the town, Alex Woolf (St Andrews).

There followed two keynote lectures. George Garnett (Oxford) discussed the great English legal historian F. W. Maitland’s approach to legal history, and the nature of legal history as practiced by historians and as practiced by lawyers. The second keynote lecture was given by Magnus Ryan (Cambridge) on the Libri Feodorum and the practice of medieval lawyers in the later middle ages.

The workshop concluded with an interview forming part of the St Andrews Institute of Legal and Constitutional Research’s ‘Law’s Two Bodies’ project. This project investigates the question of ‘what is law’ from the perspective of legal practitioners. As befitting the workshop’s focus on legal history, William I. Miller (Michigan) was interviewed by John Hudson about the nature of law and legal practice in medieval Iceland. The answers were given from the imagined perspective of Njáll Þorgeirsson, a tenth and eleventh-century Icelandic legal expert featured in the eponymous thirteenth-century Njáls Saga.

A wine reception and workshop dinner were then held at the Byre Theatre in St Andrews.

The workshop organisers are grateful to the European Research Council, whose funding of the Civil Law, Common Law, Customary Law project (Grant agreement number: 740611 CLCLCL) provided the genesis of this workshop. They are also grateful to the St Andrews Institute of Legal and Constitutional Research for the financial support it provided.

The next workshop, Legal History, Legal Historiography, will take place 12 and 13 June, 2020 in St Andrews.

CLCLCL Roundtable at Roma Tre

On 7 March 2018, Andrew Cecchinato, Attilio Stella, Sarah White and Will Eves took part in a roundtable at the University of Roma Tre to discuss their work and the nature of the Civil Law, Common Law, Customary Law project.

The paper Andrew presented in Rome outlined the general purpose of the project and presented an overview of his individual research. Andrew took this opportunity to present a select reading of the Introduction to the Commentaries, by focusing on Blackstone’s analysis of the relationship existing between English municipal law and the ius commune. He then compared Blackstone’s analysis with a number of English and Continental sources equally addressing the relationship between ius commune and municipal laws and highlighted their commonalities. During the discussion, Andrew was able to expand on Blackstone’s engagement with Medieval and Early Modern European jurisprudence

Sarah outlined the main area of her research: specifically, how the development and implementation of Romano-canonical procedure in England, mainly through treatises, may have influenced elements of the developing Common Law. She discussed the treatises used in this investigation and outlined some possible avenues of inquiry relating to theory and practice. Sarah received questions concerning the use of Roman law actions in both Romano-canonical and Common Law treatises, and discussed how this could affect the understanding and organisation of procedure in either system

Will spoke about the concepts of possession and proprietas in Roman law, and their potential influence on the legal reforms introduced by Henry II in England in the twelfth century. He highlighted the problems we encounter when we try to describe actions introduced in England during this period as either ‘possessory’ or ‘proprietary’, and discussed whether the Roman law idea of ‘ownership’ could be used to describe landholding in England during the High Middle Ages. During the discussion Will considered the terminology of ‘right’ in English law, and spoke more on the relationship between lordship, tenure, and ideas of ownership in medieval Europe.

In his talk on the making of feudal law in 12th- and 13th-century Italy, Attilio developed three major points: (1) the question of how practice and real litigation related to the Libri Feudorum and later legal literature on fiefs; (2) how practices which were foreign to the Roman law tradition could be framed into Roman law categories, in particular the legal actiones; (3) the contextual construction of the ius commune, from real facts and actual court cases to universal rules.