Legal History — Overview
Discussion Groups
These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.
Publications
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Journal Articles
2012
J S Getzler, 'Brian Simpson's Empiricism' (2012) 3 Transnational Legal Theory 127 [...]
Brian Simpson's critique of Herbert Hart's The Concept of Law confronts abstract attempts to analyse law using the tools of linguistic philosophy with Simpson's preferred approach of dense historical narrative which strives to reconstruct the mentalities of past legal actors. Simpson's approach can be seen as a species of 'thick description' that ultimately shares much with the intellectual world of linguistic philosophy that he assails. Simpson's quarrel with Hart can thus be redrawn as a quarrel between two variant forms of British empiricism; Simpson's purposes are not so radically different to Hart's as he claims. The main difference is that Simpson relies on a shared (and often parodic) understanding with his audience of the nuances of common-law culture, whilst Hart is more interested in how linguistic usage common to contemporary lawyers can reveal general qualities of law. These are not rival enterprises.
A J B Sirks, 'Das Dotalprivileg in den deutschen Gebieten im 19. Jahrhundert' (2012) 129 Zeitschrift der Savigny-Stiftung Rom. Abt. 522 [...]
Abstract: During the preparations for the German Civil Code, the Women's Association petitioned in 1876 for the insertion of the Roman dotal system. The paper analysed the reasons for it and sets out, that this system indeed provided women the best security of their properties in case of marriage, divorce and insolvency.
Die Petition des Allgemeinen Deutschen Frauenvereins, 1876 eingereicht beim Reichstag, das römische Dotalrecht in das zukünftige bürgerliche Gesetzbuch einzuführen, war keine Nostalgie oder pandektistischer Enthusiasmus, sondern eine Wahl für ein den Frauen günstiges Ehegüterrechtssystem. Theoretisch bedeutete es vollständiger Gütertrennung, und insoweit dem Ehemann eine Dos überlassen worden war, konnte die Frau diese schon bei drohender Missverwaltung zurückziehen. Dazu kam ihre privilegierte Dotalhypothek. In der Praxis war die Dos sicherlich nicht nur eine Gepflogenheit des Adels und höheren Bürgerstands, sondern auch ein Mittel für die ärmeren Schichten, im Falle eines wirtschaftlichen Zusammenbruches oder einer Insolvenz, noch etwas für sich zu retten. Das war möglich, weil und solange die Frau ihre privilegierte Dotalhypothek hatte. Dabei half auch, dass die Dosbestellung im 19. Jh. sehr aufgelockert war. Die Rechtsprechung zeigt vielfältige Anwendungsformen, wobei die Kollision mit dem sogenannten Kaufgeldhypothek oder reservatio dominii, über die Frage, welche Vorrang haben sollte, besonders hervortrat.
2011
M R Macnair, 'Free Association versus Juridification' (2011) 39 Critique 53 [...]
DOI: 10.1080/03017605.2011.537453
The article argues that the 'unlawfulness' of industrial action at common law is the product of judicial bias; and that there are institutional reasons in the structure of the legal system to suggest that such bias is ongoing and will be applied to any legislative framework
A J B Sirks, 'Cornelis van Bijnkershoek as author and elegant jurist' (2011) 79 Tijdschrift voor Rechtsgeschiedenis 229 [...]
Bijnkershoek wrote next to his three works on international law a series of books on Roman law and on the private law of Holland and Zeeland. Those on Roman Law deal with various aspects, mostly with textual criticism of the Corpus juris, while a part consists of essays on specific subjects. The book on private law combines analyses of certain legal problems with jurisprudence of courts. Are all these texts obsolete by now? A modest exploration of these essays suggests that is not the case as far as textual criticism is concerned; at least some of the essays in Roman law are still actual for present-day research. The essays on private law are of course of value for historical research.
2010
J S Getzler, 'Richard Epstein, Strict Liability, and the History of Torts' (2010) 3 Journal of Tort Law #3 [...]
Epstein's strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein's historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.
ISBN: 1932-9148
Courses
The courses we offer in this field are:
Undergraduate
FHS - Final Year (Phase III)
The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.
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This option studies the history of the principal features of the branches of law that are today known as tort, contract, land law, and trusts. The course is taught using a selection of primary sources (in translation where necessary) and of academic literature. Students are expected in the course of study to acquire knowledge of the sources of law and of the judicial system. The timespan covered is roughly between the fifteenth and the nineteenth century. This period, of course, contains a large number of separable issues, and the course is designed so that individuals can follow to some extent their own preferences, both amongst and within the major heads of study.
The examination paper contains an above average number of questions, (currently 12), which reflects this flexibility. The treatment of the subject is primarily legal, though the political, social and economic constituents in the story are referred to whenever this assists our perception of specifically legal ideas.
The teaching presumes a familiarity with the notions of property, tort and contract law and is virtually exclusively taught as a final year option. The legal history does not serve as an introduction to the modern law; if anything, the converse is the case. It is in this sense an advanced course; the feedback to the modern law is conceptual or theoretical, though a study of the history may occasionally illuminate a modern problem. There is, however, absolutely no need to have studied any other kind of English history, nor is familiarity with foreign languages necessary since the course is designed around translated materials.The course delivery will be on a ‘long thin’ model, entailing five two-hour seminars in each of Michaelmas and Hilary terms, generally co-taught by Dr Macnair and Dr Getzler, which will be focussed on primary texts. Each term will also contain three sets of tutorials, interspersed between the seminars and enabling students to research and write about controversies in connection with the main seminar topics. By close of Hilary students will have received ten seminars and six tutorials; in Trinity term there may be further revision seminars and classes in Weeks 1-3.
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Diploma in Legal Studies
A one-year sample of courses from our BA programmes, aimed only at students visiting from our partner universities.
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This option studies the history of the principal features of the branches of law that are today known as tort, contract, land law, and trusts. The course is taught using a selection of primary sources (in translation where necessary) and of academic literature. Students are expected in the course of study to acquire knowledge of the sources of law and of the judicial system. The timespan covered is roughly between the fifteenth and the nineteenth century. This period, of course, contains a large number of separable issues, and the course is designed so that individuals can follow to some extent their own preferences, both amongst and within the major heads of study.
The examination paper contains an above average number of questions, (currently 12), which reflects this flexibility. The treatment of the subject is primarily legal, though the political, social and economic constituents in the story are referred to whenever this assists our perception of specifically legal ideas.
The teaching presumes a familiarity with the notions of property, tort and contract law and is virtually exclusively taught as a final year option. The legal history does not serve as an introduction to the modern law; if anything, the converse is the case. It is in this sense an advanced course; the feedback to the modern law is conceptual or theoretical, though a study of the history may occasionally illuminate a modern problem. There is, however, absolutely no need to have studied any other kind of English history, nor is familiarity with foreign languages necessary since the course is designed around translated materials.The course delivery will be on a ‘long thin’ model, entailing five two-hour seminars in each of Michaelmas and Hilary terms, generally co-taught by Dr Macnair and Dr Getzler, which will be focussed on primary texts. Each term will also contain three sets of tutorials, interspersed between the seminars and enabling students to research and write about controversies in connection with the main seminar topics. By close of Hilary students will have received ten seminars and six tutorials; in Trinity term there may be further revision seminars and classes in Weeks 1-3.
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Postgraduate
BCL
Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds
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Law and Society in Medieval England
This course offers an in-depth study of core areas of property and obligations law in later thirteenth and early fourteenth century England and their relationships - through legislative and judicial change and legal writing - to the medieval society of which they were part.
The topics covered are: law and the family; family settlements; lordship and ownership; property remedies; the enforcement of tenurial obligations; debts and securities; contracts, leases and property management; wrongs; problems of jurisdiction.
This course was formerly run as Legal History: Legislative Reform of the Early Common Law.
The materials studied are statutes, case reports, and treatises and instructional literature from the period, together with the modern academic literature on the topics. All the sources used are provided in translation, so that knowledge of Latin and French is not required. Prior knowledge of the history of English law is not required.
The primary teaching method is by eight fortnightly seminars running from mid Michaelmas to early Trinity terms.
This course is taught by Dr Paul Brand and Dr Mike Macair.
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MJur
Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.
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Law and Society in Medieval England
This course offers an in-depth study of core areas of property and obligations law in later thirteenth and early fourteenth century England and their relationships - through legislative and judicial change and legal writing - to the medieval society of which they were part.
The topics covered are: law and the family; family settlements; lordship and ownership; property remedies; the enforcement of tenurial obligations; debts and securities; contracts, leases and property management; wrongs; problems of jurisdiction.
This course was formerly run as Legal History: Legislative Reform of the Early Common Law.
The materials studied are statutes, case reports, and treatises and instructional literature from the period, together with the modern academic literature on the topics. All the sources used are provided in translation, so that knowledge of Latin and French is not required. Prior knowledge of the history of English law is not required.
The primary teaching method is by eight fortnightly seminars running from mid Michaelmas to early Trinity terms.
This course is taught by Dr Paul Brand and Dr Mike Macair.
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People
Legal History teaching is organized by a Subject Group convened by:
Mike Macnair: CUF Lecturer
in conjunction with:
Paul Brand: Professor of English Legal History
Joshua Getzler: Professor of Law and Legal History
Also working in this field, but not involved in its teaching programme:
Alexandra Braun: CUF Lecturer
Jeffrey Hackney: Retired. Formerly Fellow and Tutor in Law at Wadham and St Edmund Hall
Peter Hayward: Retired. Formerly Fellow of St Peter's
Charles Mitchell: Visiting Professor
Andelka Phillips: DPhil Law student
Stefan Vogenauer: Linklaters Professor of Comparative Law
