Five Seminars in Comparative Legal
History
Spring 2013, period B
Instructions to the seminars
1
Themes
3
Seminar 1:
Searching for the origins of modern Western Law
4
Seminar 2:
A seamless web? The ways of Common Law
6
Seminar 3: The Great Codifications I.
Napoleon and the Mouth of the Law
8
Seminar 4: The Great Codifications II.
The triumph of the Law Professor
10
Seminar 5: The Legitimacy of Law
– Law, Religion and Human Rights
12
1
Instructions to the seminars
1. The oral presentations aim at developing the students’ ability of making
comparisons in an independent and competent way, to identify and concentrate on
the relevant parts of the questions and to make a well balanced division between
different parts of the assignment.
o Moreover, the presentations are intended to prepare the students for the final
essay (a take-home exam). In particular, it is important to exercise in
collecting and analyzing information from different parts of the literature
and the lectures.
o The presentations ought to be elaborated in a pedagogical manner. Every
member of the sub-group must take part during the presentation. The
different contributions should be tied together, in order to create a “subgroup-totality”.
o Address yourselves to the other students, rather than to the teacher.
o The presentations ought to connect to the theme of the seminar in a way that
is clear to the other participants.
o Please, inform the other students about what literature and other sources that
you have consulted.
o Make use of maps, the white board and overhead transparencies. Be careful
that the visual and oral presentations run simultaneously (try to avoid that
one concept/word, etc. is written while a different one is discussed). If
necessary, prepare a hand-out. The teacher will assist you in copying it.
2. All students of the non-presenting groups must be ready to ask questions and
make comments. Could the question be answered in a different way? Is there
anything that you miss or do not understand? Has the presenting group missed any
literature that might be relevant to the question? Prepare at least one comment.
3. When reading and discussing the original texts (the Digest, Magna Carta, etc.):
- What are the relevant topics of the text?
- In what historical context did the text emerge? This is the main point of the
interpretation.
- What kind of text is it (statute, treatise, court decision, etc.)?
- Who is speaking?
- What values are expressed (political, religious, etc.)?
- What purpose might have supported the text?
- Whom does the text address?
- Is the text relevant to a lawyer of today? Are there any comparable topics or
problems? Are there any differences between the present and the past?
- What personal reflections do you make?
2
Themes
The following list contains examples of themes which may be of use when
working with the seminar assignments. Please fell free to add your own! The
list is no strict order and some themes may seem arbitrary. Some themes are
given in dichotomies. Choose the themes that you find helpful in
understanding and presenting the assignments!
universal – local
general – particular
nationalism
centralisation
center – periphery
rural – urban
antiquity – modernity
old – new
auctoritas – reason
systematic – casuistry
formalism – pragmatism
dogmatism
written – unwritten
organic – dynamic
static
legal certainty
flexibility
(legal) pluralism – (legal) monism
reception
tradition
continuity – change
religious – secular
code – compilation
technical
divergence – convergence
deduction – abduction
subsumption
collectivism – individualism
liberalism
industrialism
family – individual
men – women – children
Rechtstaat – Rule of law
aristocracy – autocracy – oligarchy – democracy
power
legality – legitimacy
3
Seminar 1
Searching for the origins of modern Western Law
Texts
o
o
o
o
o
o
o
o
o
Justinian’s Digests
Magna Carta, 1215
The law of Upland (Upplandslagen), Confirmation letter and Preface
Caenegem, An Historical Introduction to Private Law
Caenegem, An Historical Introduction to Western Constitutional Law,
Chapter 1, Chapter 4 (Feudalism, the Empire, the Church), Chapter 5
Zweigert & Kötz, Chapters 20–21
Glenn, Legal Traditions of the World
Koopmanns, “Towards a new ‘Ius Commune’” (first two pages only)
Search on the Internet for facts about Corpus Iuris Civilis and Justinian
1. Group A. Is West the best?
“West is West and East is East, and never the twain shall meet”, Kipling claimed.
What do we mean by a ‘Western’ and an ‘Eastern’ conception of law and social
order? Compare the ideas that are expressed in Magna Carta and the Preface and
the Confirmation letter of the law of Upland with the traditional conceptions of
social order in China and Japan. Who, exactly, was granted what rights and
liberties in Magna Carta?
A, B & C: Can West learn anything from the Eastern conception? Discuss the
dominating position of Western legal concepts in a historical perspective. Is the
Western conception worth defending? Are Westerns essentially fundamentalists?
Why? Why not?
2. Group B. The Corpus Iuris Civilis
When, where, how and why did the Corpus Iuris Civilis (CIC) come about? Give a
brief account of the historical background. What kind of project and aspirations
was it a part of? What did it consist of? Why is it such an important legal historical
document? What impact has it had on constitutional law? Please, don’t treat
Bologna – glossators, commentators, humanists and ius commune – that is for the
next group!
A, B & C: Select one sequence from the excerpt of the Digest and one from the
Confirmation letter & Preface of the law of Upland that you find relevant today!
Use three key-words or concepts (see “Themes”, p. 3) in order to argue why the
texts that you have chosen are still relevant.
4
3. Group C. Ius Commune
What is actually understood by ius commune? Place it in time and space. What
happened in Bologna? The development of ius commune has sometimes been
described as a “legal revolution” – why, do you think? Why was Roman law so
successful? Was (is) your own country influenced by ius commune? How, and
why/why not?
A, B & C: What are the most important similarities and differences between ius
commune and European law of today concerning the sources of law, the practice
of law, the theory of law and legal education? How would you explain the
similarities and differences?
Iustinian
Corpus Iuris Civilis Glossa Ordinaria
5
Seminar 2
‘A seamless web’. The ways of Common Law
Texts
o
o
o
o
o
o
o
o
o
Magna Carta, 1215
Habeas Corpus Act, 1679
Bill of Rights, 1689
The Constitution of the United States of America
Constitutional Reform Act 2005: see
http://en.wikipedia.org/wiki/Constitutional_Reform_Act_2005
Caenegem, An Historical Introduction to Western Constitutional Law,
Chapter 1, Introduction, Chapter 4 (Feudalism, the Empire, the Church),
Chapter 5, Chapter 7
Zweigert & Kötz, pp. 180-275, 313-319
Glenn, Legal Traditions of the World
Search on the Internet for information about Lord Denning
First of all: Group A, B & C: Be prepared to sum up in a few sentences the
most important things that you learned at Seminar 1! Reflect, and prepare
at least three well-grounded arguments why you find these things most
important!
1. Group C. Are the English different?
The English legal history and the development of common law are different from
the legal history and the development of civil law on the European continent. Use
at least three key-words from the list of themes on p. 3 to distinguish and explain
the significant particularities in the historical development of common law.
Define the following words, explaining their importance for the development of
common law and placing them in the historical context of common law:
Common law, writs, equity, Inns of court, stare decisis
barrister, solicitor, jury, Q. C., rule of exclusion
6
A, B & C: Did the English courts manage to maintain their independence during
the time of royal absolutism? What particular aspects of a legal system are
stronger/weaker in common law compared to civil law do you think? What was
Lord Denning’s opinion about the courts being bound by precedents and
legislation? What is your opinion?
2. Group A. A world wide web?
Common law is the most spread legal system in the world. Why? How did
common law spread over the world? Don’t forget to use the map!! Describe two
examples of the encounter of common law and local law and custom. What
factors influenced the outcome of this meeting? How has “de-colonization”
affected the common law-tradition? Use both Zweigert & Kötz and Glenn!
A, B & C: “Western culture has a big mouth and small ears” is an African saying.
Can you relate this to the spreading of common law and civil law in Africa and
India?
Four Fabulous Lawyers:
Mahatma Gandhi,
Gujarat, Delhi
(1869-1948)
Perry Mason, L. A.
(1957-1966)
Sisters in Law, Kumba Town,
Cameroon
3. Group B. A modern common law?
Though the law of the United States clearly has its point of departure in common
law, it is now different from common law in many ways. What are the main
differences, and what are the historical reasons? What about the separation of
powers and judicial review? Do England and the Unites States really belong to the
same legal family?
A, B & C: How has the use of a jury in the United States influenced the
procedural law – what is the role of the judge and the role of the lawyer in
American courts, compared to the role of the judge and of the lawyer in
continental courts? According to you: to what extent should laymen be allowed to
influence legal practice?
7
Seminar 3
The Great Codifications I
Napoleon and the Mouth of the Law
Texts
o Code civil, 1804
o The French Declaration of the Human Rights of the Citizen, 1789
o Zweigert & Kötz, pp. 74-131 and pp. 276-285
o Caenegem, An Historical Introduction to Western Constitutional Law,
Chapters 4–7
o Glenn, Legal Traditions of the World
o de Beauvoir, The Second Sex
o Kumlien, An Introduction to Swedish Legal History. Some Outlines
o Sandström, The Swedish Model – Three Aspects of Legal Methodology
First of all: Group A, B & C: Be prepared to sum up in a few sentences the
most important things that you learned at Seminar 2! Reflect, and prepare
at least three well-grounded arguments why you find these things most
important!
1. Group B. La bouche de la loi
Give an account of the legal historical background of the Code civil. Was it
principally a revolutionary product, or was there continuity with the Ancien
Régime? What was the ‘key for success’ of the Code civil? Give two examples!
What is the role of the judges and the courts in Code civil – formally and in
reality? Did it pay attention to the legal position of women and workers? What
does Simone de Beauvoir say?
Simone de Beauvoir
Elsa Eschelsson
8
Emmeline Pankhurst
A, B & C: Do you think it is possible or desirable to create a ‘judge-safe’ law?
What changes in the view of law, legal sources and the role of judges did the
idea of an ‘enlightenment codification’ bring about? How was the Code Civil
influenced/not influenced by the rationalist ideas of the Enlightenment?
2. Group C. Reception and imposition
Describe how the Code civil was spread around the world. What were the
reasons for its reception in different parts of the world? Don’t forget to use the
map!
A, B & C: How was the encounter between French law and local law and
custom, in comparison with the spreading of common law? What are the reasons
behind the different approaches – if they really are that different? Use both
Zweigert & Kötz and Glenn!
3. Group A: The Swedish Model
The Swedish students will explain the meaning of the word lagom. Summarise
the main characteristics of the Swedish legal history. What are the main
influences? The Swedish code of 1734, Sveriges rikes lag, is 70 years older than
Code civil. How does that show? Give some examples and try to comment also
on its structure. Are there any traces of Enlightenment ideas in the Swedish Code
of 1734?
A, B & C. What influenced the attempts to reform the Code of 1734, and what
happened to the reform proposals? Is there anything left of the Code of 1734
today except isolated paragraphs? According to you, are there other more
important (and recent) characteristics or ‘items’ to the Swedish legal identity
today than the old code?
“The spirit of moderation should also be the spirit of
the lawgiver.”
Charles de Montesquieu
9
Seminar 4
The Great Codifications II
The triumph of the Law Professor
Texts
o
o
o
o
o
o
o
o
o
o
o
Bürgerliches Gesetzbuch (BGB), 1900 (excerpt)
Zivilgesetzbuch (ZGB), 1912 (excerpt)
Zweigert & Kötz, pp. 132-179 and 257-275
Caenegem, An Historical Introduction to Western Constitutional Law,
Chapters 4–7, Chapter 9 (Germany and the Third Reich)
Legrand, Against a European civil code
Forshamn, Legrand dictionary
Koopmanns, Towards a New ‘Ius Commune’
Müller, Hitler’s justice
Kumlien, An Introduction to Swedish Legal History, Some Outlines
Sandström, The Swedish Model
www.sgecc.net
First of all: Group A, B & C: Be prepared to sum up in a few sentences the
most important things that you learned at Seminar 3! Reflect, and prepare
at least three well-grounded arguments why you find these things most
important!
1. Group A: The last Great Codification
Give an account for the background and drafting of the Bürgerliches Gesetzbuch
(BGB). What is meant by ‘Professorenrecht’? How did Roman law and ius
commune influence German legal history? What was the influence of the
Historical School? Compare the BGB with the Code civil with reference to both
form and substance. What are the legal ‘pros and cons’ with the style of the BGB
compared to the Code civil? Evaluate the role of the judge in the BGB, the Code
civil, the ALR, the ABGB and the ZGB.
10
A, B & C: How did BGB and ZGB spread over the world? What influence has
German law in general, and BGB in particular, had on Swedish law? Consider
legal science, courts of appeal and legislation, including acts on sales and
contract. Did French law influence Swedish law in any way?
2. Group B: The BGB was the last great codification project. Do you think it is a
good idea to create a common European code or other international codes? What
does Koopmans say? What does Legrand say? If Koopmans and Legrand were to
meet von Savigny and Bentham at a legal historical conference, who would like
go for a beer with whom, do you think?
A, B & C: What is going on? Describe the activities of the Study Group on a
European Civil Code (SGECC www.sgecc.net). Is there anything worth
considering from the history of the European codification projects? Try to find
historically well-grounded arguments for your conclusions!
3. Group C:
Describe the Weimar Constitution – when and under what circumstances was it
adopted, and when was it de facto eliminated? How could Hitler come to power
in a formally legal way under the Weimar Constitution? What happened to
citizenship and to civil liberties during his Nazi regime? What happened to the
Courts and the Law Faculties? Did the general clauses of the BGB play any role
– why, why not? Do you think jurists had a tendency to be loyal to Hitler, why?
A, B & C
What are the essential elements for the Rule of law, and what can we learn from
legal history?
“There is no crueller tyranny than that which is perpetuated
under the shield of law and in the name of justice. “
Charles de Montesquieu
11
Seminar 5
The Legitimacy of Law
Law, religion and human rights
Texts
o The Holy Quran (excerpt)
o Magna Carta, 1215, Habeas Corpus Act, 1679
o The Constitution of the United States of America 1791 (excerpt)
o The French Declaration on Human Rights and Liberties, 1789 (excerpt)
o The Botolf case
o Zweigert & Kötz, pp. 303–319
o Caenegem, An Historical introduction to Western Constitutional Law,
Chapters 1, 4, 5, 6, 7, and 9
o Anderson & Zinsser, A history of their own
o de Beauvoir, The Second Sex
o Hussain, Islamic law and society
o Articles of your own choice selected from matches you got from a
Google-search with the key words ‘war on terrorism’.
First of all: Group A, B & C: Be prepared to sum up in a few sentences the
most important things that you learned on Seminar 4! Reflect, and prepare
at least three well-grounded arguments why you find these things most
important!
1. Group C. Islamic law What are the main factors in the historical
development of Islamic law, on the one hand, and “Western” law, on the other?
Are there common origins? Try to summarise the essence of Islamic legal
history in three themes or key words. Explain your choice! What attitude does
Islam take to the state and to secular law? Is this an important issue? What is the
status of Islamic Law in Western societies? What influence has religion had on
Western law?
A, B & C: What is meant by the ‘purdah-zone’, where is it and what religions
are concerned? What is the requirement of the Quran (as cited in Hussain)?
12
2. Group B. A fair trial
What was the Botolf case about? Who is the prosecutor, who is the judge, who
executes the verdict? What does an inquisitorial order of procedure mean? What
is the contribution of Canon law? Another legal historical document concerning
what we today call a fair trial is the Habeas Corpus Act. What is it about?
A, B. & C: Can you see any connections between the Botolf case, the Weimar
Constitution and the ‘War on Terrorism’? What arguments have generally been
used – and are used today – to limit human rights and civil liberties, as the right
to a fair trial? Try to find examples and pro- and con-arguments from history
(the course literature) and from present debates (the Internet)! Do you think that
there are situations which justify limitations to human rights?
3. Group A: Human rights for all?
Give a brief account of the development of human rights including what you
believe are the historical origins and the crucial turning points. In what sense are
human rights instruments adopted after World War II different from their
predecessors? Does ‘equal rights’ include everybody “of all colours,
everywhere”? Consider the history of civil rights of black Americans. Describe
the position of women in relation to human rights using de Beauvoir and
Anderson & Zinsser.
A, B & C: Is the situation today satisfactory? Who is ‘in’ and who is ‘out’? Can
we learn something from legal history?
4. The End: Course evaluation
Martin Luther King, Atlanta & Memphis
13
Eleanor Roosevelt, New York
Napoleon’s personal copy of Code Civil
14