Justinian in the Hinterlands: Roman Law as an Introduction to a Standard Curricular Course on English Legal History

Abstract

[Extract] Most English-language law schools offer one or more courses on legal history. The courses usually focus on English legal history — especially the development of common law doctrines and institutions. In the United States the courses may also cover Anglo-American legal history or there may be a separate course on American legal history. In contrast, Roman Law is offered infrequently as a substantive course, and the history of Roman legal doctrines and institutions is not usually included in the course or courses on legal history. Shunning Roman Law is often justified on historical and pedagogical grounds. Knowledge of Roman Law is not of immediate practical importance for the professional education of the modern American lawyer and its study was discouraged by no less an authority than Justice Holmes. The perception of the common law tradition as insular and autonomous is rooted deeply and efforts to challenge it have been controversial. Nevertheless, I would like to suggest that Roman Law can provide an important introduction to the historical study of English law and can be incorporated successfully into the law school curriculum as part of the standard course treatment of English legal history. Including a course on Roman legal history faces several obstacles. The first is self evident: time devoted to Roman Law reduces time available for English legal developments. As it is, one must cover one year every three minutes if one hopes to get from 1066 up to the present century in a course that meets three hours weekly for fifteen weeks. Still more powerful resistance to including Roman Law may stem from professional academic historical training. Steeped in historicist values, serious students of history form an almost instinctive antipathy to the sort of overarching comparative and retrospective undertaking that combining. common law and Roman Law history suggests. Historians — perhaps more in the United States than in England — learn and internalise a historical version of Heisenberg’s principle: the accuracy of historical description is inversely proportional to the duration of events described. Legal history is suspect enough already, often used to exemplify “tunnel history.” Yet, for better or worse, legal history is taught as a survey in which the historian communicates the kind of comparative and general discourse that he or she learns to suspect. The historian tries, of course, to instil cautious and critical attitudes towards the process of generalisation. But the historian generalises nonetheless, and some of the best generalising is done by those most guilt-ridden about doing so. Indeed, legal history provides an opportunity to explore the problems of reconstruction and anachronism as one means of developing historical understanding as well as deepening thought about present-day law. To the extent that such reflective appreciation of historical methods is a valid goal of a course on legal history, it would not appear to be hindered by raising the more extreme kinds of comparative problems inherent in a treatment of Roman Law.