For a “printer-friendly” version of the revised proper syllabus (pdf), click here.
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LEGAL HISTORY:
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SYLLABUS – 2d REVISE
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In what follows Bellomo=Manlio Bellomo, The Common Legal Past of Europe: 1000-1800 (Washington, DC: Catholic U. Press, 1995); Berman = H. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge [MA]: Harvard Press, 1983); K1500 = H.G. Koenigsberger, Medieval Europe, 400-1500 (Harlow: Longman, 1987); K1789 = H.G. Koenigsberger, Early Modern Europe, 1500-1789 (Harlow: Longman, 1987); Documents = C. Donahue, Documents on Continental Legal History (unpublished, first installment available in class or in Room 518 of Hauser Hall); RFG = O. F. Robinson, T. D. Fergus and W. M. Gordon, An Introduction to European Legal History, 2d ed. (London: Butterworths, 1994); van Caenegem = R. C. van Caenegem, An Historical Introduction to Private Law (Cambridge [Eng]: U. Cambridge, 1988); Vinogradoff = P. Vinogradoff, Roman Law in Medieval Europe, 2d ed. (Oxford: Clarendon, 1929); Watson = A. Watson, The Making of The Civil Law (Cambridge [MA]: Harvard Press, 1981).
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A calendar follows the syllabus, which allows you to see at a glance the date, title of the class, and the assignment number. To navigate from the syllabus to the calendar click on the lecture, section, or discussion number. |
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Assignment |
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Introduction to the course. A basic chronology of three legal traditions: Roman, Continental European and English. Introduction to Roman law. Bellomo, 1–26; van Caenegem, 1–15; RFG2 vi-x; RFG3 v–vii, 285–319. |
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The structure of Roman law and of the European civil codes. RFG2 1–10; RFG3 1–11; Watson 1–38. Justinian’s Institutes; D.23.2; C.5.4; D.22.5; C.4.20; selected 19th-century European codes on marriage, wild animals, and witnesses (Documents, Parts I, XX). [Focus on the overall structure of Justinian’s Institutes (Outline for Lecture 2) rather than on the detail. In the case of the Digest and the Code, try to get a sense for how the material is organized. Try to think about “fundamental legal categories”: ius vs. lex, public vs. private, criminal vs. civil, persons vs. things vs. actions, property vs. contract vs. delict (tort). Then ask yourself how these categories are reflected in Justinian’s Institutes and in the 19th century codifications. Then try to figure out what the rules were about the capture of wild animals, marriage, and witnesses both in Roman law and in the 19th-century codes.] The legacy of the ancient world: Christianity. Paul’s letter to the Romans (Documents, Part II.A). |
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Reflections on the distinction between “common law” and “civil law” and on what we mean by the “Western legal tradition.” The legacy of the ancient world: Roman law. RFG2 1–10; RFG3 1–11; Watson 1–38. Justinian’s Institutes (Documents, Part I.A). [Focus on the overall structure of Justinian’s Institutes and on the specifics about wild animals and marriage (there’s nothing about witnesses).] How the story came out. (Documents, Part XX). [Ask yourself about the overall structure and the rules about wild animals, marriage and witnesses in the 19th century codifications. Are the different codes more notable for their similarities or their differences?] |
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Two “Barbarian” Law Codes—Aethelberht (Documents, Part III.A). [Ask yourself two questions: (1) What is the overall structure of this material? (2) What, if anything, does it have to say about wild animals, marriage and witnesses?] |
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The basic structure of Roman law (cont’d). Justinian’s Institutes; D.23.2; C.5.4; D.22.5; C.4.20; selected 19th-century European codes on marriage, wild animals, and witnesses (Documents, Parts I, XX). [Review the first part of Assignment 2. After a week in the course are your thoughts on these topics any different?] New Testament extracts on marriage (Documents, Part II.B). Witnesses in the Bible (Documents, Part II.C). [K1500 1–66.] |
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Two “Barbarian” Law Codes—Gundobad (compared with the Lex romana burgundionum) (Documents, Part III.B). [Same questions as Assignment 4.] |
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Carolingian institutions and “feudalism.” Bellomo, 27–43; RFG2 23–70; RFG3 26–41; Documents on Continental feudalism (Documents, Part IV). [K1500 67–135.] |
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The “barbarian” invasions. van Caenegem, 16–29; RFG2 6–25; RFG3 11–25; Vinogradoff 11–42. Two “Barbarian” Law Codes: Aethelberht and Gundobad compared. (Documents, Part III). The Collection in 74 Titles. (Documents, Part VI). [Same questions as Assignment 4.] |
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Eleventh-century reforms and a glimpse at regnum and sacerdotium, to the end of the 13th century. Berman 85–119, 273–332. Documents on the investiture controversy (Documents, Part V). [K1500 136–212.] The Collection in 74 Titles (cont’d). (Documents, Part VI). [The key question here is what is the relationship between the basically political arguments that are found in the literature srrounding the investiture controversy and the legal rules (most of which are derived from forged documents) found in the Collection in 74 Titles?] |
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Holiday, President’s Day. The institutional history of the 12th and 13th centuries. Bellomo 61–88; RFG2 106–23; RFG3 129–168; Vinogradoff 71–96. [review K1500 213–80]. |
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Eclectic sources of law: the Bible, Aethelberht and Gundobad, the Collection in 74 Titles (Documents, Parts II.B, III, VI). [Same questions as Assignment 4.] [This is an opportunity to review the types of sources of law at which we have been looking and at some of those at which we will be looking in the next couple of weeks, and, perhaps, to ask the question ‘what is law’?] |
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The revival of academic law study: Roman Law. Bellomo 44–61, 89–117; RFG2 71–99; RFG3 42–58; Vinogradoff 43–70. Roman law glossators on wild animals (J.I.2.1.12–13, D.41.1.55) (Documents, Part VII). [We move here from the rather obvious politics of the investiture controversy to something that looks like ‘apolitical’ law. The question is ‘is it’? Try to see how Accursius twisting the Roman text to make it say things that it probably does not say or, at least, does not say so clearly as he does.] |
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The institutions of canon law. RFG2 122–152; RFG3 72–90. Substantive Canon Law. Marriage (J.I.1.10, D.23.2.5–6, Gratian C.27 q.2; Peter Lombard; selected decretals on marriage) (Documents, Part VIII). ). [Many have seen in these decretals a development in Alexander III’s thought on the topic of the formation of marriage. Do you see such a development here?] |
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Wild animals and marriage in the glossators. Documents, Parts VII and VIII (selected decretals on marriage). |
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The revival of academic law study: Romano-canonical procedure. Witnesses (D.22.5, Gratian C.4 q.3, Tancred 3.6) (Documents, Part IX). Read van Caenegem, 30–114 (this takes us quite a bit further in time, but it provides a good overview of where we’ve been and where we’re going). |
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Marriage litigation in the High Middle Ages. Smith c. Dolling (1271–1272) (Documents Part XIV.A). Adam Attebury c. Matilda de la Leye (1271–72) (Documents, Part XIV.B). |
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Romano-canonical procedure on witnesses. ( Documents, Part IX) Smith v. Dolling (1271–72) (Documents, Part XIV.A). Adam Attebury c. Matilda de la Leye (1271–72) (Documents, Part XIV.B). |
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Coutumiers and fueros. Extracts from the Usatges de Barcelona on witnesses, marriage, and wild animals (Documents Part X.A). |
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Courts and coutumiers in France. Extracts from the coutume of Tourraine-Anjou and from Beaumanoir on witnesses, marriage and marital property, and wild animals (Documents Part X.B, C). |
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Marriage and marital property in the Usatges, Tourraine-Anjou and Beaumanoir. Documents, Part X. Reform and the “twelfth century renaissance”: England and France in the 12th and 13th centuries. [review K1500 213–80.] |
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Political ideas of the 12th and 13th centuries. Extracts from Bracton on kingship and from the glossators on sovereignty. (Documents Part XI) |
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Mar. 14 |
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Mar. 18. Spring vacation. |
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The 14th and 15th Centuries—political and constitutional developments. Bellomo 118–61. [K1500 281–387.] The commentators. RFG2 100–121; RFG3 59–71, 107–24. Documents, Parts XII and XIII. |
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Political ideas of the medieval lawyers. Extracts from Bracton on kingship and from the glossators on sovereignty. (Documents Part XI). The formation of a persecuting society? Gandinus, Tractatus de maleficiis (Documents, Part XII.C). |
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The commentators (cont’d). RFG2 100–121; RFG3 59–71, 107–24. Documents, Parts XII and XIII. Commentators on witnesses: Tractatus de reprobatione testium; Gandinus, Tractatus de maleficiis; Robertus Maranta, Speculum Aureum, (Documents, Part XII.A, C–D); Decisio S.R.R. (1574) (Documents Part XIV.E) |
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Commentators on wild animals: Bartolus on D.41.1.1, .5 (Documents, Part XIII.A–B); Portius and Faber on J.I.2.2.11–13 (Documents, Part XIII.C–E). |
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Courts and case reports: The Rota Fiorentina (1780) (Gorla article) (Documents, Part XIV.F). |
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Commentators on marriage: Decisio S.R.R. (1574) (Documents, Part XIV.C); Panormitanus, Consilia (15th c) (Documents Part XIV.D). |
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“Renaissance” Europe—political, intellectual and constitutional developments. Bellomo 162–73. [K1789 1–94.] Humanists, humanism and the law. RFG2 280–310; RFG3 169–187. Pithou on the Collatio; Bodin on Political Theory ( Documents, Part XV). |
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Legal humanism. Documents, Part XV. Homologation of custom and reception. RFG2 311–352; RFG3 188–212; Watson 53–82. Coutumes de la prevoste et vicomte de Paris (Documents, Part XVI.C). |
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Compilations, proto-codification, codification.The Grandes Ordonnances. Decree, Tametsi; Ordonnance of Blois; Ordonnance pour la procédure civile (Documents, Part XVI.A, B, D (pp. 2–4, 5–6). |
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The 17th and 18th centuries—political, constitutional and intellectual developments. RFG2 209–23 406–37; RFG3 249–67. [K1789 161–281.] |
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Intellectual developments and the law (Outline for Lecture 20) The institutes of national law (Documents, Part XVII). Domat and Pothier. Watson 99–125. |
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Spanish scholastics, “elegant jurisprudes,” the natural law school, and the usus modernus pandectarum. Watson 83–98. The academics in action. Pufendorf on wild animals (Documents, Part XVIII). |
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The academics in action. Pufendorf on wild animals (cont’d) (Documents, Part XVIII). |
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Domat; Pothier on D.23.2; Pothier on the contract of marriage (Documents, Part XIX). Codification vs. Reform. Some thoughts on the French Revolution and the Napoleonic Code. The Napoleonic codes on marriage, animals and witnesses (Materials, Part XX). van Caenegem, 115–69. |
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The pandectists, the historical school and the making of the BGB. RFG2 261–92; RFG3 269–285; Watson 126–30. Windscheid (Documents, Part XX [Windscheid extracts]). The road away from codification? |
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Final Lecture. The achievements and failures of the ancien régime.van Caenegem, 170–97. Take-home exam passed out. |
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Assignment 1 |
Introduction to the course. Introduction to Roman law. |
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Assignment 2 |
The structure of Roman law and of the European civil codes. The legacy of the ancient world: Christianity. |
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Assignment 3 |
The legacy of the ancient world: Roman law. How the story came out. |
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Assignment 4 |
Two “Barbarian” Law Codes—Aethelberht |
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Assignment 5 |
The basic structure of Roman law (cont’d).New Testament extracts on marriage. |
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Assignment 6 |
Two “Barbarian” Law Codes—Gundobad |
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Assignment 7 |
Carolingian institutions and “feudalism.” |
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Assignment 8 |
The “barbarian” invasions. Aethelberht and Gundobad compared. The Collection in 74 Titles. |
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Assignment 9 |
Eleventh-century reforms and a glimpse at regnum and sacerdotium, to the end of the 13th century . The Collection in 74 Titles (cont’d). |
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Assignment 10 |
The institutional history of the 12th and 13th centuries. |
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Assignment 11 |
Eclectic sources of law. |
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Assignment 12 |
The revival of academic law study: Roman Law. |
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Assignment 13 |
The institutions of canon law. |
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Assignment 14 |
Wild animals and marriage in the glossators. |
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Assignment 15 |
The revival of academic law study: Romano-canonical procedure |
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Assignment 16 |
Marriage litigation in the High Middle Ages |
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Assignment 17 |
Romano-canonical procedure on witnesses: Smith c. Dolling. |
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Assignment 18 |
Coutumiers and fueros |
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Assignment 19 |
Courts and coutumiers in France |
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Assignment 20 |
Reform and the “twelfth century renaissance.” Usatges, Tourraine-Anjou and Beaumanoir. |
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Assignment 21 |
Political ideas of the 12th and 13th centuries |
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Fri., Mar. 22 |
Spring Vacation |
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Assignment 22 |
The 14th and 15th Centuries—political and constitutional developments |
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Assignment 23 |
Political ideas of the medieval lawyers.The formation of a persecuting society? |
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Assignment 24 |
The commentators. (Short paper topics must be chosen by this date.) |
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Assignment 25 |
Commentators on wild animals |
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Assignment 26 |
Commentators on marriage. Courts and case reports. (Section will meet in the Root Room of the HLS Library) |
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Assignment 27 |
Courts and case reports (cont’d). |
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Assignment 28 |
“Renaissance” Europe . Humanists, humanism and the law . |
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Assignment 29 |
Legal humanism. Compilations, proto-codification, codification. |
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Assignment 30 |
Homologation of custom and reception |
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Assignment 31 |
The 17th and 18th centuries—political, constitutional and intellectual developments. The Grandes Ordonnances. |
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Assignment 32 |
Intellectual developments and the law. Domat and Pothier; Codification vs. Reform. (Paper drafts must be handed in by this date.) |
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Assignment 33 |
The institutes of national law. Intellectual developments and the law. |
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Assignment 34 |
Spanish scholastics, “elegant jurisprudes,” the natural law school, and the usus modernus pandectarum. The academics in action. |
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Assignment 35 |
The pandectists, the historical school and the making of the BGB |
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Assignment 36 |
The academics in action (cont’d). |
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Assignment 37 |
Final Lecture. Take-home exams passed out. |
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Take-home exam and final papers due by 4:30 p.m. in Room 518, Hauser Hall. |
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| [Syllabus Introduction] [Lectures] [Information and Announcements] URL: http://www.law.harvard.edu/faculty/cdonahue/courses/CLH/clhlaw/syllabus/syllProperCLHLaw.html Copyright © 2013 Charles Donahue, Jr.
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