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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2013
M R Macnair, 'Arbitrary Chancellors and the problem of predictability' in Willem Zwalve & Egbert Koops (eds), Law and Equity: Roman Law and Common Law approaches (Brill 2013) (forthcoming) [...]
Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors. The remedies adopted, however, are profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern ‘Chancery bar equity’ is perhaps the least ‘equitable’, in the Aristotelian ἐπιείκεια sense of ‘flexible’, branch of English law.
J S Getzler, 'Faith, Trust, and Charity' in A Burrows, D Johnston, and R Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013) [...]
Lord Rodger's last book examined constitutional issues arising from the Disruption of the Church of Scotland of 1843. This essay in honour of Lord Rodger looks at the Disruption anew through the lens of private law. It examines problems arising where a court is vested with jurisdiction over issues of religion by the regular operation of secular law as a source of private rights created at will by private actors. This is quite distinct from cases where religious practice collides with secular law created directly by coercive public command so as to bind all subjects. For example, where a group forms an association based on civil institutions of contract, co-ownership and trust in order to pursue a common religious life, then regular enforcement of those private-law agreements and shared property rights can give the courts a lever to decide matters of religion enshrined in the original constitution of the group. Thus if A and B vest property into common or entrusted ownership and agree that this will be used to support a certain form of religious practice, creed, and ritual, then A may sue B to force him by law not to vary the practice, creed, or ritual, as a matter of contract, property, or trust law. Successors may perpetually rely on the original agreements to enforce religious forms many generations later. And a religious form of life may be "double-entrenched" by making the original means of governance of the religious community a fundamental condition of the association and so immune to normal majoritarian vote. These issues were fought out in many great cases before and after the Disruption, and this jurisprudence forms a backdrop to Lord Rodger's important dissent in the Jewish Free School Case of 2009.
ISBN: 978-0-19-967734-4
S Vogenauer, 'Lenel and Daube: a Cross-channel Friendship' in A Burrows, D Johnston and R Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earslferry (OUP 2013) (forthcoming) [...]
pp 277-96. This contribution explores the relationship between two outstanding Roman law scholars, Otto Lenel and David Daube, on the basis of their correspondence in 1933 and 1934. It also discusses the influence of Daube on Alan Rodger.
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.
M R Macnair, 'Coke v Fountaine (1676)' in Charles Mitchell & Paul Mitchell (eds), Landmark Cases in Equity (Hart 2012) (forthcoming) [...]
Though commonly cited in modern equity books, Lord Nottingham's decision in Coke v Fountaine was only reported by Lord Nottingham himself and was not cited until Swanston printed Lord Nottingham's report in 1827 - though other aspects of the litigation were reported and cited. This chapter examines why this was the case, working through the background to the litigation and its complex multiple character, concluding that Lord Nottingham's decision 'turned on its own facts,' and in so far as it was worth citing, was obscured by the passage in the following year of the Statute of Frauds.
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
