Wednesday, February 25, 2009
Yesterday's New York Times article about the once again feared imminent demise of humanities departments reminds me that I wanted to blog about the legal history course I am teaching this semester. It is called Western Legal Tradition. We start with the Twelve Tables of the Roman law, go through classical Roman law, Germanic law, feudal law, the medieval rediscovery of the Roman law, classical canon law, medieval customary law, then the early modern reception and eventual rejection of the Roman law, natural law, some English common law, and codification and the 1804 French Civil Code. The readings are narrative (legal) histories of these periods with primary source translations of legal texts of all different sorts embedded. I enjoy teaching contracts and feel that I am helping the students learn to be lawyers, but in this class I feel as though I am educating them, and it's pretty exciting. We talk about big problems, such as how law is written, how it comes to be organized, what writing means about how societies think about law, where law comes from and what difference it makes whether it is derived bottom up from practice or top down from legislation, how custom functions as law, how lawyers think and reason about legal problems, how judges work, what role discretion plays in a legal system, how law interacts with economic, social, and political conditions, and many other issues that have seemed to get the students thinking about many of their assumptions. We turn into problems things that in a modern law course we never even think to question. It has been a tremendous amount of fun, and I am lucky to have excellent students. I usually try to convince the students on the first day that the value of legal history is that it is a form of comparative law. We get to see how other societies have solved similar legal problems. But given the thought that my students are putting into the questions raised in the course, I am beginning to believe that there is also value in simply confronting them with the big issues and asking them not to take for granted the way our law operates.