1. Legal history and legal histories
It is well known that legal systems across Europe comprise a number of fields which exhibit great variety in their structures and priorities and have been subject to very different processes of development. There is not only a great diversity of legal fields outside private law, but also within it. There are special and quasi-autonomous areas such as consumer (consumers and consumer protection law) and insurance law (insurance contracts), or commercial law, company law and labour law. Alongside this multiplicity of substantive systems of law, there is an equally multifarious arsenal of approaches to them that has given rise to many, and occasionally very lively, scholarly disputes. They range from traditional doctrinal ways of arguing, which focus on interpretation of statutes (interpretation of statutes, history of) and usually aim to achieve systematic coherence, across functionalist comparative law and empirical or sociological ‘legal realism’ to economic analysis of European private law in its various guises. In light of this, it is not surprising that there is no unitary history of law. Legal history can be written not only for each area but also from a variety of viewpoints. It may deal with legal rules or institutions with a long tradition (eg defective performance in sale), or it may be concerned with the development of comprehensive, almost philosophical concepts (such as the emergence of the idea of the subjective right). Legal history may be an account of the development of legal institutions within a given society (such as the law of marriage and divorce) or of political strategies for the maintenance of public order and punishment for deviant conduct (historical criminology), but it may also encompass many other perspectives. In doing so, legal history exposes the historical contingency of allegedly timeless elements such as legal doctrine, case law or legislation.
2. The European dimension of the history of private law
One of these many legal histories concerns the development of modern private law in Europe. It constitutes one of the most important legal developments in western civilization, for it saw the rise of a scholarly and doctrinal tradition of law which proved to be unique and particularly successful. This tradition had its origins in classical antiquity, when Hellenistic scholarly methods were absorbed by Roman legal culture, allowing the development of ever more refined legal rules as well as to specialist legal literature and a new profession—the jurist. The primary concern of so-called classical Roman law was what we would regard today as private law. Many of the relevant texts were compiled in the Corpus Juris Civilis and were thus preserved, allowing them a ‘second life’, which began in the High Middle Ages. As their study began again in Italy in the 11th century, the Roman body of texts attracted much interest. Glosses on the texts multiplied with the foundation of universities. Later, commentaries were written on the legal rules and principles of Roman law. This new learning spread across the whole of Europe, although its impact was greater on the Continent than in the United Kingdom.
No less important for the structure of European private law was the other major legal development of the High Middle Ages: the emancipation of the church from the Empire which culminated in the Investiture Controversy. It provided a new systematic understanding of the case law tradition of Roman law, giving rise to the concept of a secular political system, but it also allowed the church to develop into a hierarchical, carefully regulated institution of a previously unknown type. In the ius canonicum (canon law), the church developed the first modern system of courts and law in Europe (Harold Berman). The Roman, and supposedly imperial, legal traditions combined with ecclesiastical ideas based on the church’s conception of theological truth. This combination allowed consideration of new questions and moulded the new learned jurisprudence which spread across Europe, leading to the creation of the ius commune.
The authority of the Roman tradition was challenged by humanism, and rejected altogether by proponents of natural law. However, the doctrines of the early modern ius commune lived on, albeit in a state of constant transformation, until the great European codifications and the renewal in legal scholarship brought about by the historical school in the 19th century. Even the Anglo-Saxon common law was not as isolated from the European tradition as we might first expect. Despite major differences in legal culture and doctrine, there was also some impact of the ius commune continental influence on the English legal development (Reinhard Zimmermann). Within the framework of the ius commune the evolution of many modern legal doctrines can be traced. Over the centuries, concepts at both the centre and the periphery of private law were constantly refined, and reinterpreted, sometimes also merely developed or abandoned. Many examples may be mentioned: the doctrinal development of the Roman paradigm of sale of goods; the gradual formation of a general law of delict (law of torts/delict, general and lex Aquilia); the growing influence of the will theory in thinking about private law; the doctrine of error (mistake) in all its forms along with many other ‘minor histories’. But there was also an array of further factors that had significant influence on the modern European understanding of private law. Apart from the world of the common law, there was a multiplicity of regional legal traditions across Europe alloyed with the learned law in varying proportions. The most important of these were the usus modernus and the municipal laws (Stadtrechte (town laws)), which led to extensive regional differences and legal rules influenced by Roman law in very different degrees. The wider changes brought about by the rise of modern capitalism had a significant impact on private law across Europe. The many practical innovations in European commerce included the emergence of modern banking and insurance and the great trading companies of the 17th and 18th centuries with their complex, nascent commercial and company law doctrines. Finally, the 19th century saw the spread of wide-ranging freedom in private law and the formation of legal institutions under the influence of a bourgeois ideology. As a result of the industrial revolution private law experienced further upheavals, for instance, by manufacturing and commercial practices and the legal standardization of wage labour.
The history of private law in Europe is thus marked by both striking structural parallels and a great number of national peculiarities. The dominance of the latter has been counteracted in recent decades by the growing influence of EU private law and through discussions about a possible European Civil Code. Yet one feature particular to private law thinking can be traced back to Roman times: through all changes and upheavals it has never lost its anchor in academic teaching. It is based on an autonomous body of terminology and gives expression to its own sophisticated concept of social order, which is not obvious but has to be appreciated by way of legal training. If European private lawyers look for ‘solutions’, they do not so much look for pragmatic answers to real confrontations, but rather design refined doctrinal concepts which can assist the understanding of legal questions within a legal system. This process, the so-called ‘scientification’ of law (Franz Wieacker) can be regarded as a motor for the process of rationalization of western society since the High Middle Ages.
3. The history of private law and European legal unification
The fact that many European private law doctrines can be traced back to common pre-national, social and intellectual roots may invite us to ask how far legal history can assist and help direct the Europeanization of private law. Historical (so-called vertical) comparative law can highlight and explain structural differences and their origins, just as (horizontal) comparative law does for the present. Comparative-historical analyses of this type can attempt to overcome the nationalization of private law in Europe and to develop a sustainable vision of a common private law for Europe. This has been ongoing for some time, primarily in Germany and the Netherlands but also in Anglo-Saxon discussions. Such cooperation between comparative law and legal history may seem obvious because of the proximity of the two academic disciplines, the former having borrowed several techniques from the latter in the early 20th century. However, the extent to which a common European history of private law will prepare the way for a Europeanization of private law remains open to question. Objections do not only arise from the epistemological concerns in both legal historical and comparative law discourse: some argue, for instance, that a narrow focus on the development of private law, to the exclusion of other aspects of legal history, gives a distorted picture which denies other areas of law their proper historical and contemporary importance. Others claim that legal history ought not to focus on legal doctrine but should pursue an empirical research agenda firmly rooted in the social sciences, a debate also known in comparative law. The most significant obstacle, however, probably consists in the existing diversity of approaches to and traditions of writing legal history within Europe. It will be no easier to find a common European view of legal history than to create a unified European private law.
4. The scholarship of legal history in Europe
For while studies in legal history across Europe began with very similar questions, they developed within various national contexts. As a result, all of them display many peculiarities. Humanism may be taken as the starting point for reflection on legal history as its proponents recognized the contemporary relevance of a reflection of the legal past. In a narrower sense, new questions concerning the background of the particular national legal traditions (for instance, the work of Sir Matthew Hale in England, or Claude Fleury in France) or the reception of Roman law (as with Hermann Conring in Germany), and addressed for the first time in the 17th century focused on the legal past as an independent object of study. Later, the German historical school gave a powerful boost to historical legal thinking, and drove the movement towards specialization across Europe. Critical research into the history of the law, sustained by a philologically-informed scrutiny of the sources became an extensive and independent scholarly discipline. By the turn of the 20th century, however, it lost much of its immediate political and practical significance owing to the influence of Leopold von Ranke’s historical method on one hand, and the drafting of the German Bürgerliches Gesetzbuch (BGB) of 1900 on the other. It was now, ie between 1870 and 1930, turned into a purely philological and historical discipline, still located in university law faculties. The intensity of historical legal research stimulated by this change of focus has never been matched. It spurred the professionalization of legal history in some countries (for instance by Frederick William Maitland in England or Eduardo de Hinojosa in Spain), but it did not lead to a uniform approach to historical scholarship. Rather, different national perspectives have dominated until the present day.
However, some of the common questions in European legal history arose from common external influences, which predetermined the understanding of the law and its history. Thus the 20th century saw a massive decline in interest in ancient and medieval history across Europe. Although both continue to be taught and studied, they have been overshadowed by an emphasis on early modern and modern legal history, particularly on developments in the 19th century. This reflects an apparently foreshortened view of the past. Equally, legal histories across Europe were under the spell of the great European codifications, which led to a focus on the history of legal rules. Just as, in the course of the 20th century, French legal history slowly rediscovered its sources concerning judicial practice, the focus of legal history in Germany also shifted to the law in action. This was matched by corresponding changes in comparative law; in Italy, this change of perspective was even driven by a comparatist (Gino Gorla). In contrast, the United Kingdom, unaffected by codification, did not experience a similar development. Finally, we may observe that legal historical study across Europe in the second half of the 20th century began to lose its fixation on national law as a result of the gradual growth of political interest in a common Europe. Both French legal history, at times marked by autarky, and the somewhat isolationist English tradition began to consider general and supranational questions. Similarly, whereas German and Italian scholarship had been dominated by national, even nationalistic themes for a long time, they now began to adapt comparative perspectives. On the other hand, scholarship from smaller countries (such as those in Scandinavia, the Netherlands, Scotland, Austria or Switzerland) had been much more open for a long time. Naturally, such changes facilitate the development of a common European history of private law. All the same, there is still only a small number of works which combine deep analysis with genuinely supranational coverage.
These common tendencies should not hide the fact that the approaches of scholarship in legal history remain disparate. They correspond to particular national legal identities and subject the past and the historical development of the law to a variety of different preconceptions. This has major methodological consequences. Whereas the French obsession with the quasi-mythological watershed of the French Revolution and the Code civil is gradually fading, some parts of Europe, such as Slovakia and Lithuania, have been considering their own legal history and identity for the first time since 1989. Some eastern European states have seen very little research in legal history while others, such as Poland or Hungary, can look back on a long tradition. In the German legal culture, legal doctrine has traditionally been accorded a great deal of respect. This has led German legal historians to take a great interest in the learned law of the past. Another approach can be found in English legal history, where a long established and essentially uncodified law inspired an emphasis on the earlier case law and judicial reasoning rather than on academic doctrine. Indeed, compared with continental Europe, this is seen less as a form of historical study than as an attempt to find authority and normative force in the past. Thus legal history’s role in England is very different from the one it plays in continental Europe (particularly in Italy, Spain and France).
Alongside these differences, which are rooted in the particular legal cultures, we see legal history’s fundamental dilemma, ie the problem of its position between legal and historical scholarship. Frederick William Maitland summarized the problem thus: ‘What the lawyer wants is authority, what the historian wants is evidence … The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms.’ Only at first sight, this dilemma seems identical to a second question: to what extent should cultural and sociological categories dominate the study of legal history, and how much emphasis should be given to legal concepts strictu sensu? The various scholarly traditions imply particular answers to this question. There are differences between the French and the Italian view of what constitutes institutional history, and legal history in the United States, despite belonging to the common law tradition, is much more heavily influenced by sociological ideals than its British counterpart. However, the major fronts in these methodological disputes about how to regard the legal past are not between the different national legal cultures. Rather, they exist within these cultures. When taken together, they reflect the diversity within modern legal scholarship at large. Any history of private law must choose its frame of reference and this choice will have inevitable consequences. The acceleration of change in legal culture which we perceive today often entails the loss of any consciousness of continuity, and thus research into doctrinal legal history can lose much of its appeal. On the other hand, however, it may serve as a spur for such research which seeks to build a contemporary vision of law with greater coherence and a deeper understanding of its own traditions. Such ideologically loaded alternatives provide a temptation, particularly when combined with an unquestioned faith in the power of the scientific method, to engage in passionate theoretical debates, which can take on a quasi-religious character. Whatever vision of European legal history wins out, it will only be possible to mould the diverse European histories into a common European scholarly endeavour to the extent that the process of Europeanization of the law itself continues to develop.
Helmut Coing, ‘Die europäische Privatrechtsgeschichte der neueren Zeit als einheitliches Forschungsgebiet’ (1967) 1 Ius Commune 1; Francisco Tomás y Valiente, ‘Escuelas e historiografía en la historia del derecho español (1960–1985)’ in Bartolomé Clavero and others (eds), Hispania entre derechos proprios y derechos nacionales (1990) 11; Reinhard Zimmermann, ‘Der europäische Charakter des englischen Rechts’ (1993) 1 ZEuP 4; Jean Hilaire, ‘L’approche historique d’un système juridique: l’enjeu français’ (1994) 62 Tijdschrift voor Rechtsgeschiedenis 35; Peter Stein, ‘Legal History: The British Perspective’ (1994) 62 Tijdschrift voor Rechtsgeschiedenis 71; Mathias Reimann and Alain Levasseur, ‘Comparative Law and Legal History in the United States’ (1998) 46 Am J Comp L Supplement 1; Pio Caroni and Gerhard Dilcher (eds), Norm und Tradition. Welche Geschichtlichkeit für die Rechtsgeschichte?/Fra norma e tradizione. Quale storicità per la storia giuridica? (1998); Jean-Louis Halpérin, ‘L’histoire du droit constituée en discipline: consécration ou repli identitaire?’ (2001) 4 Revue d’histoire des sciences humaines 9; Kjell Å Modéer (ed), Rättshistoria i förändring. Olinska stiftelsen 50 år /Legal History in Change. The Olin Foundation for Legal History 50 Years (2002).