Puder on Thibaut and Von Savigny's Codification Debate

Markus G. Puder, Loyola University New Orleans College of Law, has posted Dystopian or Not: Alternate Realities for Thibaut and Von Savigny's Codification Debate:

Friedrich Carl von Savigny (wiki)

In 1814, after Napoleon’s military defeat and with major European political re-alignments afoot, two German law professors of Huguenot lineage—Anton Friedrich Justus Thibaut and Friedrich Carl von Savigny—debated the question of whether Germany was ripe for a national code that could replace the motley patchwork of legislated and customary laws swirling amidst the German law and language space.

Savigny—with his position that neither the German legal profession nor the German language was ready for such a leap—initially prevailed, at least inasmuch as the remainder of the nineteenth century is concerned. Still, the private law codification so vigorously fought by Savigny ultimately emerged with the German Civil Code of 1900.

In addition to delving deeply into the legal, political, and cultural contents of the Thibaut-Savigny debate, this Article enquires about the consequences of alternate outcome realities—whether dystopian or not. These alternatives include a much earlier codification as well as the possibility of no codification at all. Both scenarios are vetted against the themes of law and language, code and unity, and codification and democracy.

Both Protestants.

--Dan Ernst

Losano on War Prohibitions in Postwar Constitutions of Japan, Italy and Germany

The Max Planck Institute for European Legal History announces a new publication, Three constitutions against war: Japan, Italy, Germany, by Mario G. Losano.  It is Volume 14 of the Open Access series Global Perspectives on Legal History:

The three defeated powers from the Second World War incorporated provisions prohibiting wars of aggression into their post-war constitutions, which are still in force. The first part of the book covers the difficult years for Japan, Italy and Germany between the end of the war and the start of peace (with the Nuremberg and Tokyo Trials, denazification, reparations and the renewal of the school system), analysing the birth of the three constitutions between 1947-49.

The consequences of defeat were different in each of the three countries, and hence each followed its own path in formulating the prohibition on war. However, the division of the world into two hostile blocs required the three countries to rearm, thus launching a process that resulted in the watering down of the original prohibition on war. In fact, the three countries’ involvement in international bodies requires each of them to participate in new wars, which are now branded as “peacekeeping” missions. There have thus been increasingly frequent calls to modify or even revoke these pacifist articles, above all in Japan (due to its geopolitical position).

The second part looks at three extensive annexes of documents that detail a specific aspect of each of the three states’ constitutional pathways. Japanese pacifism is examined with reference to the Allied documents that laid the groundwork for the post-war constitution. This leads to a consideration of current political debates concerning the amendment of the pacifist article, under pressure from Russian and Chinese interests coupled with the threat of North Korean aggression. With regard to Italy, its interest in Japan through the figure of the soldier-poet Gabriele D’Annunzio and his “samurai brother” is considered, alongside the now-forgotten “Partisans for Peace” movement, drawing on two unpublished documents. Germany, on the other hand, was divided into two countries after the World War II, with West Germany adopting a “Basic Law”, which has now been extended to the reunified Germany. The book considers excerpts from the reports of the constituent assembly concerning the adoption of the pacifist article. The equivalent East German legislation is documented in more summary terms, as that legal system is now little more than a historical footnote.

This threefold historical-constitutional inquiry provides an account of the birth and development of the pacifist article imposed by the victorious Allies, thus allowing for a better understanding of current debates concerning its impending modification.

--Dan Ernst

Colloquium: Legal History of Epidemics

The Legal History of Epidemics: A Colloquium, will take place on Monday, May 25, 2020.  It is
sponsored by the David Berg Foundation Institute for Law and History, Buchmann Faculty of Law, Tel Aviv University and will be conducted (and recorded) on Zoom.  To register, please email berg@tauex.tau.ac.il

Session 1 (15:00 GMT/11:00 EDT):
Mario Ascheri (Rome 3): Treatises on Plague Law in the Italian Renaissance
Tamara Morsel-Eisenberg (Harvard): Early Modern Jewish Legal Sources on Epidemics
Noga Morag-Levine (Michigan State): Pestilence and Governance in Early Modern England
Alex Chase-Levenson (Penn): Lazaretto Law in the Early Nineteenth-Century Mediterranean
Felice Batlan (Chicago-Kent): Rights, Quarantines, and Inequality in U.S. History
John Witt (Yale): American Contagions: A Short History of Law and Democracy in Crisis

Session 2 (16:15 GMT/12:15 EDT):
Roundtable discussion: Issues and challenges in the legal history of epidemics
Moderator: David Schorr (Tel Aviv)

--Dan Ernst

Jahner, "Literature and Law in the Era of Magna Carta "

New from Oxford University Press: Literature and Law in the Era of Magna Carta (Dec. 2019), by Jennifer Jahner (California Institute of Technology). A description from the Press:

The monograph series Oxford Studies in Medieval Literature and Culture showcases the plurilingual and multicultural quality of medieval literature and actively seeks to promote research that not only focuses on the array of subjects medievalists now pursue -- in literature, theology, and philosophy, in social, political, jurisprudential, and intellectual history, the history of art, and the history of science -- but also that combines these subjects productively. It offers innovative studies on topics that may include, but are not limited to, manuscript and book history; languages and literatures of the global Middle Ages; race and the post-colonial; the digital humanities, media and performance; music; medicine; the history of affect and the emotions; the literature and practices of devotion; the theory and history of gender and sexuality, ecocriticism and the environment; theories of aesthetics; medievalism.

Literature and Law in the Era of Magna Carta traces processes of literary training and experimentation across the early history of the English common law, from its beginnings in the reign of Henry II to its tumultuous consolidations under the reigns of John and Henry III. The period from the mid-twelfth through the thirteenth centuries witnessed an outpouring of innovative legal writing in England, from Magna Carta to the scores of statute books that preserved its provisions. An era of civil war and imperial fracture, it also proved a time of intensive self-definition, as communities both lay and ecclesiastic used law to articulate collective identities. Literature and Law in the Era of Magna Carta uncovers the role that grammatical and rhetorical training played in shaping these arguments for legal self-definition. Beginning with the life of Archbishop Thomas Becket, the book interweaves the histories of literary pedagogy and English law, showing how foundational lessons in poetics helped generate both a language and theory of corporate autonomy. In this book, Geoffrey of Vinsauf's phenomenally popular Latin compositional handbook, the Poetria nova, finds its place against the diplomatic backdrop of the English Interdict, while Robert Grosseteste's Anglo-French devotional poem, the Chateau d'Amour, is situated within the landscape of property law and Jewish-Christian interactions. Exploring a shared vocabulary across legal and grammatical fields, this book argues that poetic habits of thought proved central to constructing the narratives that medieval law tells about itself and that later scholars tell about the origins of English constitutionalism.

More information is available here.

-- Karen Tani

Thoughts from the Trenches: How to Make the Longue Durée Manageable

Thoughts from the Trenches: How to Make the Longue Durée Manageable

In 1967, the Lord Chamberlain’s Office refused to license German playwright Rolf Hochhuth’s new play, Soldiers: An Obituary for Geneva, for London’s National Theatre. The play, which decried strategic bombing during WWII, also held Winston Churchill responsible for the death of Polish General Sikorski. Sikorski had led the Polish government in exile and died in a plane accident off of British Gibraltar in 1943. Citing concerns for the Churchill family (Churchill died in 1965), the LCO first hedged on offering the license, then refused it. It would be one of the LCO’s last decisions before the end of theatre censorship in Britain the following year.

The play became the subject of intense external scrutiny for the better part of two years; libel suits stemming from the play extended the debate into the 1970s. The controversy pitted a self-professed new generation of Britons against older board members, a number of whom had not only fought in the war but were personal friends of the Churchill family. Was the play a libel on Churchill’s memory? On the nation and those involved in the war effort? Was personal reputation sacrosanct enough to justify censorship? Whose account of history was even right in the first place? And whose story was this to tell?    

Then Director of the National Theatre, Sir Lawrence Olivier, eventually backed away from the play, though the National Theatre’s Literary Director, Kenneth Tynan, continued as Hochhuth’s champion. Tynan eventually staged the play at another theatre in December 1968. The play ended up being performed in London for only a few months. The Churchill family never sued for libel, but others involved in the account of the crash did. As Tynan’s biographer notes: focused on the end of theatre censorship, Tynan had not taken into account a simultaneous strengthening of the laws of defamation [1].

When heading to London earlier this summer, there was but one single mention of Soldiers in my list of archives to see at the British Library. I knew there was some issue of libel involving Churchill, but nothing more. The case does not feature in accounts of defamation law. Indeed, the Churchill family never sued and, as I have learned since, the suits that were filed did little to influence case law. Yet, the play has quickly become a central example for my project. Beyond its intrinsic narrative interest, the Soldiers controversy enables me to tackle the interrelated threads of a very big project whose scope requires taming. Finding the case was thus something of a relief; but it was a studied find, not just a lucky one. I’ll try to explain what I mean so as to offer some suggestions about managing what can seem like ever-proliferating narrative threads when undertaking a new topic.

*          *          *

For my dissertation and first book, I read every item with “refugee” in the title I could find in the British Library catalogue and in the National Archives at Kew. From there, I worked to establish whom Britons identified as refugees over time as well as key turning points in the use of the category. Zeroing in on these moments, I extended my research on these cases in other archival and periodical sources. The research for Beyond Sticks and Stones has tested this method to the extreme. I could not hope to read everything in the British Library on reputation. How would I even find those pieces? The topic is simply too large and nebulous. What nineteenth-century novel does not hinge on matters of reputation or attempts to know character? All court cases involve “libels” – or charges. “Defamation” itself regularly refers to attacks on personal character, and seditious, blasphemous, and obscene libel. So, what to do…?  For me, the answer lies in sampling primary material early and, through those early samples, establishing initial patterns and breaking the project into more manageable pieces.

Once I had my initial research question -- What shaped the quasi-right to personal reputation? -- I began to build my bibliography and to read the secondary literature on defamation and reputation. While this is critical, to be sure, secondary reading cannot be done in isolation from primary material when defining a topic of one’s own. I start with a patch of evidence that I hope will help to establish the parameters of my subject, seeing how contemporary actors wrote about it, not just scholars in the years since.

1.     Sampling. Unable to read everything on reputation, I began with a sample from the Times of London. Over several months, I read all editorials and correspondence with the keywords “defamation,” “slander,” “libel,” “calumny,” and “reputation” between 1785, when the newspaper began, and the present. This task familiarized me with the major controversies over reputation over the past two hundred and fifty years, when the defense of reputation became a topic worthy not just of law reports, but of mainstream public commentary. I could derive from this a working timeline as well as basic patterns of debate.    

2.     The Fields of Scholarship. There are histories of the defense of reputation, but they are piecemeal. In British history, one finds key elements in accounts of privacy, celebrity, scandal, and of the media more generally. Even in the few legal histories of defamation, authors have tended to separate out different elements. We have books on obscene libel and on blasphemy, as well as a large literature that examines seditious libel and radical reform. Within the few texts on personal defamation, chapters tend to take aspects like fair comment, slander, and damages to write about their evolution separately. Sampling primary material helps, I find, to see better which seemingly separate swatches of scholarship are actually part of the same broader public conversation. This work itself ramifies, of course. I did not know when I first read that subset of Times commentary in 2016 that by 2019 I would need to track down literature on the Lord Chamberlain’s Office.

3.     Making Selections, Establishing Core Points. The task of the historian is not that of the chronicler and it shouldn’t be, even if the list of patterns and key moments were well-behaved enough that they could be included in a single volume. We seek explanations of change over time. I only half tease my students that they need to ban the words “also,” “additionally,” “furthermore” and so on – the connectors that so often stand in for stepping back to make a coherent argument. To change history by narrative accretion into history as explanation, the task is to organize chapters around the core episodes that move the argument along thematically and chronologically. This takes time and, for me, usually involves writing through several cases at a time, brainstorming comparisons along the way to help forge a compelling argument from a list of cases, points, or threads. I still remember vividly the day I first read about the Fugitive Slave Circulars for my dissertation in the summer of 2005. The contest over these Circulars crystallized issues of right, intervention, humanitarian need, and the very nature of life in British asylum and helped furnish a key turning point in my account of modern refuge. I had a hunch that I could use the material as a tool for thinking through the project as a whole. Indeed, I used it as one of my earliest conference papers and, later, for fellowships and the job market. It is still early, but the 1967-1968 question of whether to stage Soldiers feels like it has similar promise. 

Notes:

[1] Dominic Shellard, Kenneth Tynan: A Life (New Haven: Yale University Press, 2003), p. 314. 

--Caroline Shaw

Edited Collection in Honor of Sir John Baker ("English Legal History and its Sources")

Cambridge University Press has released English Legal History and its Sources: Essays in Honour of Sir John Baker, edited by David Ibbetson (University of Cambridge), Neil Jones (University of Cambridge), and Nigel Ramsay (University College London). A description from the Press:

Sir John Baker
(Credit: St. Catharine's College, Cambridge)

This volume honours the work and writings of Professor Sir John Baker over the past fifty years, presenting a collection of essays by leading scholars on topics relating to the sources of English legal history, the study of which Sir John has so much advanced. The essays range from the twelfth century to the nineteenth, considering courts (central and local), the professions (both common law and civilian), legal doctrine, learning, practice, and language, and the cataloguing of legal manuscripts. The sources addressed include court records, reports of litigation (in print and in manuscript), abridgements, fee books and accounts, conveyances and legal images. The volume advances understanding of the history of the common law and its sources, and by bringing together essays on a range of topics, approaches and periods, underlines the richness of material available for the study of the history of English law and indicates avenues for future research.

More information, including the TOC, is available here.

Relatedly, Oxford University Press has just published the fifth edition of Sir John Baker's Introduction to English Legal History.

-- Karen Tani

English Legal Exceptionalism Revisited: English vs. Common Law

The wish to tell a history of European law that is coherent yet recognizes the wide variety of systems and solutions across the continent (see previous blog), led me to question English legal exceptionalism. In their mildest form, claims for English legal exceptionalism affirm that English law is different from Continental law. In their most obnoxious form, these claims also assume English superiority. Despite their prevalence, historians making such claims rarely agree on what makes English law different and they point to different periods as essential in this parting of ways. For some, England was different because the Roman conquest was short lived and left no enduring legacies. For others, differences emerged because England was conquered successively by Northern peoples that had distinct legal traditions. Yet other historians point to legal developments after the Norman invaded Britain in the eleventh century, including the institution of royal courts and the elaboration of writs. For some, early common law was profoundly Continental. Distinctions only emerged over time because the English monarchs turned to use juries rather than inquisitorial processes and employed the services of non-university-trained individuals. For another group, English exceptionalism was particularly clear in the seventeenth century, when the English began portraying common law as a system of immemorial customary arrangements which included, inter alia, an ancient constitution. In the nineteenth century, England again took a distinct path when most of its experts rejected Continental-style codifications and turned to modernize their law in a distinct English manner.  

    

Although this telling of the past is based on meticulous research, it is nonetheless problematic. One problem is the insistence on comparing the Continent to common law and common law only. This comparison turns all other jurisdictions present in England, most importantly, the feudal courts that until the seventeenth century handled most of the adjudication, into the exception rather than the rule and it also dismisses the importance of royal legislation. A second problem (which I will tackle in the next blog) is the profound lack of familiarity with the Continent, which often serves as a straw-man, against which England is compared and contrasted.

Common law vs. English law

Asked in the abstract, we would all agree that besides common law courts, England had a variety of other courts: local courts, feudal (manorial) courts, ecclesiastical courts, courts of equity, merchant courts, and so forth. We would therefore concede that common law was not the only legal system operating on the island and we might even concur that until a certain point in time (which we may have difficulties to identify) it was hardly the most important one. As is well known, common law was applied only by royal courts that initially dealt with very few cases and were open only to subjects who could (and wanted) to afford litigating there. Although the jurisdiction of these courts expanded over time, throughout the Middle Ages and the early modern period, the number of judges sitting in common law courts was extremely small and they could not hear appeals from other courts or force these other courts to relinquish their jurisdiction.

While this story is well known, in the history-telling of English particularism, this part tends to be forgotten. This mostly happens because it is generally assumed that Manorial courts, for example, came under the influence of common law if not earlier than at least by the late sixteenth century. As a result, these court can be treated as part of the common law system and, in practice, be forgotten.

Yet, scholars who study manorial courts disagree. They argue that they were mainly geared towards keeping other powers (including royal powers) at bay and therefore had absolutely no incentives to emulate royal jurisdiction or allow royal standards to affect their rulings. If anything, manorial courts placed themselves in opposition to royal jurisdiction, their judges and litigants constantly invoking the power of local rather than royal norms. Scholars of manorial courts also maintain that their judges sought to identify the most convenient and consensual ad hoc solution depending on place, parties, and time. There were hundreds of feudal courts in England and none was like the other. If there was no uniformity within each court and there was none across the different courts, why assume that they were all subservient to common law?

Insisting on the importance of manorial courts (rather than common law courts) to English legal history is essential in evaluating the singularity of the English legal system because courts, similar to manorial courts, also existed on the Continent and, according to scholars, they followed a nearly identical trajectory. In the Continent as in England, these courts strove to solve conflicts by adopting what seemed just and efficient according to parties, subject matter, and place and their lay judges implemented solutions, which were ad hoc rather than scholarly or doctrinal.

If the routine telling of English legal history tends to ignore the contribution of manorial courts, it also tends to undermine the importance of legislation. To fit the narrative of the prominence of common law (that is portrayed as a customary yet judge made law), the contribution of legislation to legal development is often undervalued, even ignored. Yet, here too, historians affirm that legislation was an important legal source from as early as the twelfth century and throughout the Middle Ages and the early modern period. Indeed, it was so important that even common law judges and teaching at the Inns of Court could not afford to ignore it.

During the Middle Ages and the Early Modern period, in short, common law might have been an important, even essential, component of the English legal system, but it was not the only one. Nor did it absorb all other jurisdictions and normative orders present on the island. Giving it retrospectively a special status or making it “the law of the land” because to some degree or the other this was what eventually happened is therefore extremely anachronistic. If anything, this reading, which is not obvious, nor was ever foretold, requires an explanation. We need to ask how common law came to dominate, indeed to symbolize and stand for, the entire English legal system, when and why this happened, and what were the results.

Viewed in its entirety, it is probable that the history of English and Continental law mostly coincided rather than diverged.  But what would happen if we centered our attention on common law? Could we argue the same thing? (to be continued)