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Preface

Source:
The Oxford International Encyclopedia of Legal History

Preface

Legal history is one of the oldest fields of scholarly inquiry, although the study of the legal past was not always conceptualized as “history.” The earliest historical study of law probably consisted of the analysis of religious texts that carried legal authority, such as the Pentateuch or the Qur’an, but by the early years of the Common Era the primary focus of European legal history was the study of the Codes of Justinian, which formed the basis of the emerging civil law. The serious history of law in England began to emerge in the sixteenth century, while there were comparable developments in France during the seventeenth century. However, what probably should be considered the scholarly origins of the modern history of law took place in Germany in the nineteenth century, a development quickly imitated in France and England (as well as elsewhere in Europe). In contrast, the legal history of the United States (apart from studies of colonial law) did not begin to take form until after World War II. There were codes and complex legal traditions of many different sorts in other parts of the world, some much earlier than the formal legal systems of Europe and North America. And, of course, these diverse legal traditions have continued over the centuries, with some dying and other new traditions emerging.

This multifold development of legal systems, each with its own historical tradition, continues to this day, necessitating the study of multiple (frequently national) legal histories. But synthesizing and integrating developments have also occurred at many points over the centuries. Religious law spread far beyond the boundaries of the places in which the particular religions originated—Jewish law, the law of the Roman Catholic Church, and shariʿa, for instance. The civil law itself was an artifact of empire, administered throughout the Roman world. By the sixteenth century, secular notions of “the law of nations” began to be articulated, and thus began the steady development of what we now call “international law,” a legal system potentially enforceable without respect to national legal jurisdictions.

In planning this Encyclopedia, the editors decided to concentrate on eight areas of scholarly research for which extensive scholarly literatures exist. They are, in alphabetical order: ancient Greek law; ancient Roman law; Chinese law; English common law; Islamic law; medieval and post-medieval Roman law; South Asian, African, and Latin American law; and United States law. Each of these legal systems has its own history, though some have been more fully recorded by scholars than others. The problem for the modern observer of the history of law is that each of these histories exists in its indigenous culture, language, and scholarly tradition—there is no universal consensus on what constitutes “legal history.” Another problem is that law is a highly technical science, using its own specialized language. William Blackstone referred to “the mysterious science of the law,” and wrote his great treatise on the laws of England in part to demystify the science for lay persons. Every legal system presents comparable technical problems of interpretation, so legal historians must be expert enough to understand the intricacies of the system they study. But they must also be equally learned in the more general history of the societies that generated the law they study.

The challenge of coping with specialized knowledge characterizes the history of every profession. Law as a field is, in this respect, no different from medicine or other scientific fields. There has been controversy over whether or not historians needed appropriate professional certification in each of these areas of knowledge. Does the historian of medicine need to be an M.D.? Does the historian of chemistry need a Ph.D. in chemistry? Does the legal historian need a law degree? More importantly, traditional histories of the professions were internal histories, focusing on the development of ideas and institutions immediately related to the professions. In many current national traditions of legal history, this is still the dominant mode. However, for the past half century, especially in the United States, there has been a transition to the external history of law, viewing law as the product of social, economic, intellectual, and political change rather than as a self-contained and autonomous process. Many of the leading legal historians in the United States, therefore, hold both law degrees and doctorates in history.

The Oxford International Encyclopedia of Legal History reflects the wide variety of approaches to writing legal history, although (especially in the articles relating to the United States) it is particularly sensitive to the role of external forces in the creation of legal systems. What is also new about the academic study of legal history is the rapidly developing interest in the history of law of more recent centuries. The “old” legal history, while hardly antiquarian, tended to focus on the founding eras of modern legal systems. The United States provides the best example of this trend. Prior to World War II, there was practically no body of scholarship on the legal history of the country. Such interest in legal history as existed was almost entirely devoted to the first two centuries of our colonial existence, which was treated as an offshoot of the legal history of our mother country, England. It was only in the early 1950s that scholars, led by Professor J. Willard Hurst of the University of Wisconsin Law School, began the intensive investigation of American law during the national period of our history.

Willard Hurst was the originator of the externalist approach to legal history. He studied law as a general social phenomenon, and defined it very broadly as the system of functional rules and institutions by which the people of the United States regulated their behavior. For Hurst, this meant studying statutes and administrative rulings as well as judicial decisions, legislatures, agencies, and courts. He saw law as process rather than as a formal normative structure, and viewed law as a creative as well as a limiting force in social change. He urged legal historians to think of the impact of society on law, rather than (as they had traditionally done) confining themselves to try to determine the impact of an autonomous legal system on the larger society. The Hurstian approach thus enlarged the conception of legal history, and compelled legal historians to study rules, institutions, and processes that had previously not been thought of as “legal.” The professional response to Hurst's challenge has been to increase dramatically the number of scholars active in legal history, to explode the amount of publication in the field, and to turn legal history into an interdisciplinary field.

This new tradition in legal history has been most firmly rooted in scholarship in the United States and on the American legal experience. It has, however, begun to take root in the United Kingdom, and there are examples of the “new” legal history in Europe and also in non-western countries, though in most countries outside the United States more traditional and formal approaches to the history of law are still the norm. Perhaps the other development in western legal historical research to note is that for about thirty years we have begun serious investigation of the legal history of Asian societies. The legal history of China is probably the best developed, but serious work has also been done on the legal histories of Japan and even Vietnam. We know a great deal more about the development of legal systems around the world than we did a generation ago.

But, as I have already suggested, language and local culture determine the character of legal systems. It is difficult for those who do not command the languages of particular legal systems to understand them, for law more than most fields is dependent upon precise linguistic distinctions. And yet the globalization of everything has made us more aware of the necessity to compare across legal systems, to try to understand the commonalities in the ways that different societies have solved the legal dilemmas that confront all societies. This encyclopedia is one of the first attempts to make world legal knowledge generally available to English-speaking readers.

For the encyclopedist, this makes for an interesting and complicated problem. We have created an encyclopedia of legal history that aspires to cover most parts of the world and most periods of time. But even six large volumes are not sufficient to provide universal coverage. We could have done more with twice the number of volumes, but we feel sure that this Encyclopedia is by far the most comprehensive available in English—or so far as we know, in any other language.

We have therefore tried to provide a combination of broad and detailed coverage. To some extent, our choices have been driven by the fact that existing scholarship in legal history is quite unevenly distributed as to geography and time periods. We know the most about the United States, Europe, Islam, and China, and we know more about earlier periods of history than the “modern” era. We have therefore emphasized many of the fields in which good scholarship is readily available. Therefore, not every topic is covered in every legal tradition. We have also responded to the reality that as our audience is by definition English-speaking, some bias in favor of the United States and the other countries in the English legal tradition is appropriate. Finally, we have decided to emphasize other areas in which there is little currently existing English-language reference material, although limitations of space have also limited our geographical coverage.

In general, the encyclopedia favors depth over breadth. It offers extensive coverage of both the English common law and the laws of the United States. It also contains thorough coverage of civil law (both ancient and medieval/post-medieval Roman law); Islamic law; ancient Greek law; Chinese law; and South Asian, African, and Latin American law. Most of the other great systems of law are covered by general articles, since we could not account for them in depth. There are more than 950 entries and subentries in The Oxford International Encyclopedia of Legal History, arranged in alphabetical order letter by letter. Composite entries gather together discussions of similar or related topics under one headword. For example, under the entry “Agency” the reader will find three subentries: “English Common Law,” “Medieval and Post-Medieval Roman Law,” and “United States Civil Law.” A headnote listing the various subentries introduces each composite entry.

The contributors have sought to write in clear language with a minimum of technical vocabulary. The articles give important terms and titles in their original languages, with English translations when needed. A selective bibliography at the end of each article directs the reader who wishes to pursue a topic in greater detail to primary sources, the most useful works in English, and the most important scholarly works in any language.

To guide readers from one article to related discussions elsewhere in the encyclopedia, cross-references appear at the end of many articles. Blind entries direct the user from an alternate form of an entry term to the entry itself. For example, the blind entry for “Church Law” tells the reader to look under “Canon Law.” The encyclopedia includes more than 350 illustrations.

Volume 6 contains the topical outline, the directory of contributors, a case index, and the subject index. Readers interested in finding all the articles on a particular legal tradition (e.g., ancient Greek law or Islamic law) may consult the topical outline, which shows how articles relate to one another and to the overall design of the encyclopedia. The comprehensive index lists all the topics covered in the encyclopedia, including those that are not headwords themselves.

The quality of the work is of course a function of the expertise of our contributors. But we could not have planned our complicated coverage and identified the appropriate authors without an extraordinarily distinguished and hard-working group of area editors. They are:

Barbara Aronstein Black, George Welwood Murray Professor Emerita of Law, Columbia University

United States law

Lawrence M. Friedman, Marion Rice Kirkwood Professor of Law, Stanford University

United States law

Michael Gagarin, Professor of Classics, University of Texas, Austin

Ancient Greek law

David Ibbetson, Regius Professor of Civil Law, Corpus Christi College, Cambridge

English common law

Baber Johansen, Professor of Islamic Religious Studies, Harvard Divinity School, and Acting Director of the Islamic Legal Studies Program, Harvard Law School

islamic law

Laura Kalman, Professor of History, University of California, Santa Barbara

united states law

Andrew D. E. Lewis, Professor of Comparative Legal History and Vice Dean of Law, University College London

ancient roman law

Klaus Luig, Professor of Law, Universität zu Köln

medieval and post-medieval roman law

Geoffrey MacCormack, Emeritus Professor of Jurisprudence, University of Aberdeen

chinese law

Werner Menski, Professor of South Asian Laws, School of Oriental and African Studies, University of London

south asian, african, and latin american law

M. C. Mirow, Professor of Law, Florida International University College of Law

advisory editor for latin american law

It has been a pleasure to serve as editor in chief with such a superb and agreeable group of scholars, and also to work with a dedicated and expert group of colleagues at the Oxford University Press office in New York. I wish to thank especially our project editor, Mary Funchion, without whom this work would never have been completed. I have been specially assisted in the later years of the project by Stephen Wagley and Tanya Laplante, and earlier by Christopher Collins, whose original idea it was.

Stanley N. Katz

Lecturer with the rank of professor, and former Class of 1921 Bicentennial Professor of the History of American Law and Liberty, Princeton University

Princeton University, December 2008