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The Oxford Handbook
EUROPEAN LEGAL
HISTORY
THE OXFORD HANDBOOK OF
EUROPEAN
LEGAL HISTORY
Edited by
HEIKKI PIHLAJAMAKI
Professor ofC omparative Legal History, University of Helsinki
MARKUS D. DUBBER
Professor ofL aw and Director of the Centre for Ethics, University of Toronto
MARK GODFREY
Professor ofL egal History, University of Glasgow
OXFORD
UNIVERSITY PRESS
The Oxford Handbook of European Legal History
The Oxford Handbook of European Legal History
The Oxford Handbook of European Legal History
Edited by Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey
Print Publication Date: Jul 2018 Subject: Law Online Publication Date: Aug 2018
(p. iv)
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Preface
Preface
The Oxford Handbook of European Legal History
Edited by Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey
Print Publication Date: Jul 2018 Subject: Law Online Publication Date: Aug 2018
Preface
(p. v)
The editors started this work with the conviction that the concept of European legal histo
ry needed updating. As several of the contributions to this volume show, European legal
history is essentially a product of the twentieth century and closely entangled with the
political history of the Continent. The iconic manifestations of early European legal histo
ry include works such as Paul Koschaker’s Europa und das Römische Recht (1947),
Francesco Calasso’s Introduzione al diritto comune (1951), and Franz Wieacker’s Priva
trechtsgeschichte der Neuzeit (1952). Their conception of European legal history as the
history of the European heartland has come to form the essence of European legal history
in course books and standard classroom teaching everywhere.
However, we no longer live in the post-Second World War period, when the still prevalent
conception of European legal history emerged. As decades have passed, the limitations of
this approach have become clear. The traditional European legal histories, built largely
around the concept of ius commune, tend to omit large areas of Europe, such as Scandi
navia and eastern Europe, where ius commune exerted less influence. These peripheral
areas were absent from the dominant narrative of European legal history. English com
mon law made occasional appearances, but mainly as an exotic contrast to continental
law.
Similarly, European law has been the law of geographic Europe only. As the chapters of
this Handbook show, ancient Roman law owed much to the Near Eastern legal orders.
Later on, from the fifteenth century onwards, the major European legal orders gradually
spread to all continents. Indeed, most of the globalization of law has taken place by way
of European legal systems turning global.
Finally, the shift from national legal histories to comparative methods has profoundly af
fected the way we understand legal transformation at the local, national, regional, Euro
pean, and global level. Legal historians see legal change in terms of the continuous flow
and exchange of influences, which take place within complicated combinations of cultur
al, political, and social networks.
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Preface
The present Handbook captures this revised conception of European legal history; it not
merely reflects the state of the discipline, but also aims to shape it. The Handbook con
sists of forty-eight chapters in six parts. Part I starts with an assessment of the world his
torical significance of European legal history and then takes us through some of the cen
tral historiography in the field, from national to (p. vi) European and global approaches.
Part II follows with a presentation of ancient and early medieval legal systems; Part III
shifts to the Middle Ages. Combining a chronological approach with sufficient geographi
cal and substantial coverage proved challenging. Whereas Parts II and III mostly follow a
geographical logic, Part IV considers some of the major fields of law in the early modern
period. Part V again takes a geographical approach, but this time from the point of view
of the early modern territorial expansion of European law—both inside and outside Eu
rope. Part VI tells the story of the nineteenth-century modernization of European law, and
then shifts to the darker legacies of the twentieth century. This Part, and the Handbook,
end with a chapter on the law of the European Union.
In the end, whilst this volume aims to update the concept of European legal history, it al
so reflects a discipline already in the process of updating itself. We may have done no
more, and no less, than present some of the multifaceted ways in which European legal
history has begun to find its place within global legal history.
A work of this scope would never have been possible without decisive help from the right
people at crucial moments. Of course, we wish to thank our wonderful authors. Our edi
tors at Oxford University Press, first Elinor Shields and then Imogen Hill, made sure that
the process of turning a pile of manuscripts into a printed volume ran smoothly. Dr Sara
Elin Roberts, a legal historian herself, took care of much of the language editing with
great speed and accuracy, as always. Dr Kathy Saranpa translated some of the texts from
German with admirable efficiency and expertise. Last, but certainly not least, we wish to
thank Sofia Söderholm, our editorial assistant at the University of Helsinki, who did much
of the technical editing and managed to keep our lists of authors and articles in order
throughout a complex and long-running editorial project.
Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey
Helsinki, Toronto, and Glasgow, November 2017 (p. vii)
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date: 16 June 2021
CONTENTS
List of Contributors xiii
PART I APPROACHES TO EUROPEAN LEGAL
HISTORY: HISTORIOGRAPHY AND METHODS
The World Historical Significance of European Legal History: An
1.
Interim Report 3
JAMES Q. WHITMAN
The Invention of National Legal History
2. 22
JOACHIM Ri.icKERT
3. The Birth of European Legal History
RANDALL LESAFFER
4. Abandoning the Nationalist Framework: Comparative
Legal History
100
A.
KJELL MODEER
5. Global Legal History: Setting Europe in Perspective 115
THOMAS DUVE
PART II THE ANCIENT LAW AND THE EARLY
MIDDLE AGES
6. Ancient Greek Law 143
M ICHAEL GAGARIN
viii CONTENTS
7. Early Roman Law and the West: A Reversal of Grounds 162
PIER GIUSEPPE MONATERI
8. Classical and Post-Classical Roman Law: The Legal Actors and
the Sources 186
PAUL DU PLESSIS
9. Institutions of Ancient Roman Law 201
LUIGI CAPOGROSSI COLOGNES!
10. Byzantine Law: The Law of the New Rome 229
BERNARD STOLTE
11. Germanic Law 249
KARL SHOEMAKER
PART III THE LAW IN THE HIGH AND THE LATE
MIDDLE AGES: THE LEARNED IUS COMMUNE AND
THE VERNACULAR LAWS
12. Western Canon Law in the Central and Later Middle Ages 265
PETER D. CLARKE
13. Structure of Medieval Roman Law: Institutions, Sources,
and Methods 286
JAN H ALLEBEEK
14. Substance of Medieval Roman Law: The Development
of Private Law 309
THOMAS RUFNER
15. Southern Europe (Italy, Iberian Peninsula, France) 332
ANTONIO MANUEL H ESPANHA
16. Holy Roman Empire of the German Nation 358
MATHIAS SCHMOECKEL
17. High and Late Medieval Scandinavia: Codified Vernacular Law
and Learned Legal Influences 378
MIA KoRPIOLA
CONTENTS ix
18. Customary Law and the Influence of the !us Commune in High
and Late Medieval East Central Europe 404
MIA KORPIOLA
19. The Beginnings of the English Common Law ( to 1350) 430
PAUL BRAND
20. The Scottish Common Law: Origins and Development,
c.1124-c.1500 450
ANDREW R.C. SIMPSON
Urban Law: The Law of Saxony and Magdeburg
21. 474
HEINER LUCK
Extra-Legal and Legal Conflict Management among Long-
22.
Distance Traders (1250-1650) 509
ALBRECHT CORDES AND PHILIPP HOHN
23. Feudal Law 528
DIRK HEIRBAUT
PART IV EUROPEAN LAW IN THE EARLY
MODERN PERIOD: FIELDS OF LAW AND
THE CHANGING SCHOLARSHIP
24. Legal Scholarship: The Theory of Sources and Methods of Law 551
JAN SCHRODER
25. Natural Law in Early Modern Legal Thought 566
DAVID IBBETSON
26. Law and the Protestant Reformation
JOHN WITTE, JR
27. Law of Property and Obligations: Neoscholastic Thinking and
Beyond 611
WIM DECOCK
28. Criminal Law: Before a State Monopoly
MASSIMO MECCARELLI
X CONTENTS
29. Civil Procedural Law, the Judiciary, and Legal Professionals 655
ALAIN WIJFFELS
30. Jurisdiction, Political Authority, and Territory
ULRIKE MOssIG
31. Public Law before 'Public Law'
BERNARDO SORDI
PART V EUROPEAN LAW IN THE EARLY MODERN
PERIOD: THE AGE OF EXPANSION
32. The Law of the Holy Roman Empire of the German Nation 731
PETER OESTMANN
33. French Law and its Expansion in the Early Modern Period 760
SERGE DAUCHY
34. Spanish Law and its Expansion
M.C. Mrnow
35. Scandinavian Law in the Early Modern Period 806
HEIKKI PIHLAJAMAKI
36. English Law and its Expansion
KEN MACMILLAN
37. Russian Law in the Early Modern Period
MARIANNA MURAVYEVA
38. Colonial and Indigenous 'Laws' - The Case of Britain's Empires,
~1750-1850 876
MARK HICKFORD
