For a “printer-friendly” version this syllabus (PDF), click here.
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LEGAL HISTORY:
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Fall, 2023 |
Professor Donahue |
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The syllabus is on two web pages. This page describes the course. The second page has daily assignments and a calendar. |
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This is a survey course on the legal history of England from the time of the Anglo-Saxon invasions to the 18th century. We begin with a barely literate, largely pagan, people, whose laws and institutions are best studied with the techniques of anthropology and historical linguistics, and we end with a world power, whose laws and institutions, though different from our own, are recognizably the ancestors of those of Great Britain and the United States today. Our chronological span covers roughly 1100 years, from Aethelberht (r. ?584–616) to Queen Anne (r. 1702–1714), and we have 24 classes (Mon. and Wed. 4:30 to 6:00) in which to do it. Obviously we cannot cover in depth all aspects of English legal history in this long period. One way to handle the problem would be to deal with a few topics in depth and ignore the rest. Such an approach is tempting particularly for an historian who believes that legal history can only properly be understood in its social, economic, and political context and who also believes that no one should study history after grade school without looking at primary source material. On the other hand, there is something about that great sweep of development from the early Middle Ages to the early modern period that is irresistible. Some place in the university someone ought to try to “put it all together.” Indeed, the need for such a course as part of general liberal education has led the Faculty of Arts and Sciences to ask that this course be made available to the undergraduates. Hence, this course is also being offered as Medieval Studies 117. There will be a separate section for the undergraduates. On Mondays and Wednesdays, we will meet with the FAS students (both graduates and undergraduates) for classes devoted both to “constitutional” and to legal developments. | ||
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Materials and Procedure |
While I believe that an overall survey is called for, I do not want to sacrifice my belief in the relationship between legal history and other kinds of history and my belief in primary materials. The assigned text book, John Baker’s An Introduction to English Legal History (5th ed., Oxford, 2019) [the book is available online through HOLLIS, and may be purchased at the Coop; the 4th ed. of 2002 is equally good] seems to me to be deficient in these regards. (Otherwise, the book is first-class.) Baker is writing for English students. He can assume that they know who Edward I was, just as we know who George Washington was. Since Baker is writing for undergraduate law students, however, he cannot assume that they know much about the modern law of contracts, torts, etc. The book, therefore, is organized in two parts.The first traces the history of English legal institutions against an assumed background knowledge of the broader history. The second part of the book deals with the principal headings of substantive law, property, contract, tort, family, and criminal law, each with its chronological development. Except for some sample writs and pleadings, Baker offers no primary materials. The organization of this course is quite different from that of Baker’s book. I have divided our 1100 years into four major periods: Anglo-Saxon, High Middle Ages, Later Middle Ages, Early Modern. In each period we will consider first the major historical developments, particularly the “constitutional” developments, in the period, then the legal institutions (courts, procedure, legal profession, legal literature) and, finally, one or more of the central themes of the substantive and procedural law in the period. Thus, the first part is devoted to the emergence of a concept of a legal wrong in the Anglo-Saxon period. The second part is devoted to how institutions of royal governance interacted with the lords, tenants, and the church to produce notions of private property in land in feudal England. The third part is devoted to how the notion of wrong split into what today we call contract and tort, against a backdrop in which Parliament emerged as a major force in English governance. And the fourth part is devoted to how ideas of equity shaped property, contract, and tort during the political, social and religious conflicts of the late medieval and early modern periods. The focus on particular substantive topics in each period involves a judgment that these topics best illustrate our overall theme of how the relationship between “law,” on the one hand, and politics, society, and economics, on the other, changed over 1100 years. It also involves distortions. The first of these has to do with the topics themselves. Our story of how the ideas of tort and contract came to separate does not come to a head until Slade’s Case in 1602, considerably after our “age of trespass” has formally come to an end. In order to see how equity shaped the law of property in the early modern period, we are going to have to go back and pick up a story that we will have left at the Statute De donis in 1285. These discontinuities, however, are not so troubling as what we will have to omit: Criminal law is the principal first-year law-school topic that we will barely cover (basically, one class). The older views on this topic have been largely upset, but the modern research is too disparate and inchoate to summarize in a survey course. (My colleague Elizabeth Kamali is a specialist in this field, and when she offers the course, as she probably will next year, she spends more time on criminal law.) Nor will we deal with any other “public law” topic in depth. A diachronic study of any of the modern public-law topics, with the possible exception of tax law, is fraught with difficulties, while a synchronic study of public law in any given period leaves us, at least in the present state of research, without much that we can carry over to the next period. We will, however, consider a number of public law topics in our surveys of constitutional developments. In the course of covering our topics we will read all of Baker, but in a very different order from that in which he wrote it. We will also examine in class a number of documents and read a few supplementary articles that are contained in the ‘course-pack’ Materials on English Constitutional and Legal History (available on Canvas in the Files section, where it is called ‘Mat21elh.pdf’). (There is also a book of documents J. H. Baker [ed.], Baker and Milsom’s Sources of English Legal History: Private Law to 1750, 2d ed. [Oxford, 2010] [the first edition, Butterworths, 1986, is equally good]. It gives some more documents to play with and is good for finding primary materials from which to write papers if you don't like the ones that are in the course-pack.) Baker himself used to teach his own textbook somewhat out of order, and the sections of the book are designed to be read pretty much independently of each other; so the order should not be too much of a problem. You might, however, want to read Baker through, either at the beginning or at the end of the course, to see how he puts it all together. The advantage of proceeding out of topic order will, I hope, be that we will be able to see more clearly what the law really was in any given period, how it changed, and maybe even why it changed. | |
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All three groups in the course, the undergraduate and graduate students in the FAS, and the law students will be reading the same books and will have the same assignments in the multilithed materials. You will find, however, that the former ask somewhat different questions of the same materials. If that fact leads you to want to sit next to a student in the FAS during the classes so that you can share insights, that’s fine. One of the things that I hope comes out of this experiment is a notion that people on one side of Cambridge Street have something to say to those on the other. For many years, I taught this course with a separate section for the FAS graduate students and the law students. We got together with the undergraduates for classic 55-minute lectures, but then the two groups went their separate ways. This year we are much more together. Organizing separate sections in two different faculties and a separate discussion class for the undergraduates was more than the administration seemed able to handle. Also, as suggested in the previous paragraph, the FAS students and the law students ask different questions, and their questions lead the other group to insights that they might not otherwise have had. The end result is that we have ended up with two hour-and-a-half classes per week. There will be lots of discussion in the classes. If we learned anything from our Zoom experience, it is that there is nothing more boring than an hour-and-a-half lecture. Most of the classes are divided into halves by subject-matter. For exammple, the very first class deals the legacy of the ancient world, both Roman law and Christianity, and we’ll spend roughly half of the class on each topic. In order to have something to discuss in each class, you need to be prepared. (That will not come as a surprise to the law students; it may be a bit more unfamiliar for the FAS students.) You not only need to be prepared, you need to have formed some questions and/or thoughts about the material so that we can have an intelligent discussion. How to prepare? There is a section in this website called Lectures. For each class there is an outline of what we might discuss in class and a link to the section of the Materials that has the documents, and, in some cases, secondary readings. Some students prefer to look at the secondary materials first. I can‘t stop you from doing that, but I would urge you at least to try doing it the other way. Look at the documents first and see if you can make up your mind about what is going on. Then record your thoughts and/or questions on the Discussion Board in Canvas. It is a requirement of the course that you post at least two comments/questions on the discussion board every week. It need not be for every class, but if you skip doing it for one class that week, there should be two comments/questions for the other class. The comment/question for any given class has to be posted by 9:00 A.M. on the day of the class in order to fulfill the requirement. I will grade them, but only on a pass/fail basis. If you made a sincere effort, you pass. Last year I prerecorded a number of lectures for this course. That is probably the best way to prepare for class. Listen to the precorded lectures, read the documents on which the lectures were based, and post questions/comments on the Discussion Board on Canvas. The Lecures tab on the website has links to the Zoom lectures. |
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There are no prerequisites for the course. Probably everyone in the course has some pieces of the necessary background knowledge – Chaucer, for example, is a good introduction to much of what we will be doing, as is, in a somewhat different way, Shakespeare – and no one, including myself, has all the necessary background knowledge. I will assume that you have never taken a course in English history and that you know no Latin and no French. We will explain what you need to know of these topics in the prerecorded lecures and/or in class. At the beginning of each section of the syllabus there is a list of “general readings.” These are not required readings for the course, but are designed to allow you to explore some of the topics in more depth. If you feel that the “straight history” part of the course is going too fast for your knowledge, you might want to look at some of the books suggested in these lists. In particular, Bryce Lyon’s A Constitutional and Legal History of Medieval England (2d ed., Norton, 1980) is recommended as a solid, if somewhat uninspiring, introduction to the constitutional history of medieval England. I have included some page references to Lyon and to a number of other books in the general readings. I have also put a few extracts from Lyon in the Materials to help us through the narrative history of our periods. |
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Workload and Requirements |
For the law students the reading load is fairly heavy. (I tell the FAS students just the opposite, because for a history course, the reading load is fairly light.) Give priority to the documentary materials. Most of the classes have documentary assignments, and those that do will devote a considerable amount of time to the documents, and you’ll be lost if haven’t read them in advance. In the syllabus and in the Lecture tab on the website, I have tried to flag the documents on which we will focus in class. As mentioned in the previous section, it is a requirement of the course that you post at least two comments/questions on the discussion board every week. They will count for 10% of your grade. I am asking you to write a five-page paper, exclusive of footnotes, that analyzes some document in the Materials or in Baker and Milsom. It may be a case or a statute or a piece of medieval or early modern writing about the law. The paper should analyze the document leading to idea supported by evidence (the document that you analyzed). Try to email (rspang@law.harvard.edu) to me the first draft of the paper in around the time when we take up your topic in class. I will return the draft with comments. The final draft is not due until the end of the course, but submitting a first draft and reacting to the comments is part of the requirement. There will be a take-home exam during the exam period, distributed on the last day of class, Wed., 29 Nov., and to be returned to me by email (rspang@law.harvard.edu) (not to the Registrar’s Office) no later than 4:30 p.m. on Fri., 15 Dec. The exam will probably have two questions, one of which will focus on a document, like those contained in the Materials and Baker and Milsom, and the other of which will allow you to range quite broadly. (A copy of some of the previous exams are posted on the website.) The paper and the two questions on the exam each count for 30% of your final grade, but I break ties on the basis of the paper. You may write a term paper in lieu of taking the exam. The paper must cover at least two of our four periods, and it must use primary materials. Students who have chosen the term-paper option in previous years enjoyed it but agreed that it involved more work than just taking the exam. If you want to take the term-paper option, please let me know no later than Wed., 31 Oct. I will need to approve your topic. I am unlikely to approve it if you have not already submitted a draft of your first paper. The term papers, as a general matter, contain an analysis of two documents from two different periods with an attempt to tie it all together. So how much work is it really? With this much material one could obviously spend much more time than you would on a regular three-hour course. But you don’t have to. A couple of years ago, I asked a student who had done particularly well in the course to tell me honestly how much work he had done. “Quite frankly, Professor,” he said, “not that much. I read the outlines that you have posted on the website quite carefully before each class. I also looked at the documents that were cited in the outlines. I think I looked at Baker a couple of times during the semester when I was having trouble with the doctrine that seemed to be reflected in the documents. I also read Baker’s sections on property, torts, and contracts before I took a crack at the exam. I’m not sure that really figured out what the method was until I wrote the paper, but that was a real eye-opener.” |
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My office is in Hauser 512 in the Law School. My assistant is Ms. Chaudhry-Muffuletto. Her email is smuffuletto@law.harvard.edu. My office hours are currently scheduled from 1:30–3:30 on Tuesdays, or by appointment. Unlike classes, which I’m not sure worked very well in Zoom, I thought that office hours worked quite well in Zoom, so I’m going to try that, at least to start off with. Email (rspang@law.harvard.edu) me, and I’ll send you a link. |
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To see the syllabus proper, click here.
To see the calendar, click here.
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Please send comments to Rosemary Spang URL: http://www.law.harvard.edu/faculty/cdonahue/courses/ELH/elhlaw/syllabus/index.html Copyright © 2000–2023. Charles Donahue, Jr. |
