It's tough to write good legal history. On the one hand, the author needs to connect with the historians in the audience; on the other, the author must maintain credibility with the lawyers, whose BS tolerance is way low. Each discipline has its own way of looking at the question under examination; each discipline has its own jargon and specialized vocabulary. Readers who are familiar with one discipline are often strangers to the other and therefore struggle with vocabulary, methods and sources with which they are not familiar. Pity the poor reader who's neither lawyer nor historian; that person already has two strikes against her--if you don't believe me, then pick up a copy of S.F.C. Milsom's
Historical Foundations of the Common Law
, or Anders Winroth's important study,
The Making of Gratian's Decretum (Cambridge Studies in Medieval Life and Thought: Fourth Series)
, and see if you can make heads or tails of them. These are important works by world-class scholars, writing on matters of vital interest for their respective disciplines (Milsom writes on the history of English Common Law; Winroth on the history of the medieval canon law of the Roman Catholic Church); I didn't pick out obscure titles, or works authored by middling scholars who fell back on jargon and technical vocabulary because in the last analysis they had nothing valuable to say.
There's a third difficulty in writing good legal history. The author isn't writing a history of events so much as a history of ideas. Most historians usually start with the event itself--a happening, something concrete on which to hang one's hat. An event occurred, at a particular place, on a particular day, involving a definable cast of characters. Determining the causes leading up to the event, and the effects emanating from the event, can be difficult, controversial, occasionally hazardous to the historian's health. But all of these things can usually be accomplished. Histories of ideas, on the other hand, involve intangibles, puffs of smoke, mists, incorporeal thoughts and feelings. There's plenty to grab, if only one could. To borrow a phrase from Justice Potter Stewart's attempt to reach a legal definition of "pornography," "I can't define it, but I know it when I see it." Even if the author and his or her readers agree that a certain idea exists, the author faces a threshold difficulty: How to convey the limits, contours, and content of his or her idea to those same readers? It can be extremely difficult. The mark of a superior historian of ideas is the ability to convey the idea under examination with precision and clarity, so that the idea finally appears in the reader's mind somewhat akin to a beautiful piece of crystal, sharply etched and brilliantly polished.
Raoul Charles von Caenegem was for many years a professor of legal history and medieval history in the University of Ghent, in Belgium. He has mastered the legal history of the European countries, whose law derives in greater (Germany) or lesser (France) degree from the ancient Roman law, or which combines its own customs with Roman law (so-called Roman-Dutch law in effect in the Netherlands and in South Africa), as the Roman Law was finally epitomized in Justinian's Corpus Juris Civilis. Not content with that, von Caenagem also mastered the very different legal history of England and the Anglophone countries, all of which derive from the ancient common law of England (except Quebec and Louisiana, which derive from the French Code Civile). Two very different legal families; two very different legal histories. He also understands medieval Roman Catholic canon law and the medieval ius commune, which developed from a fusion of Roman, canon and feudal law and held sway in Europe for centuries as a type of European "common law." Von Caenegem understands all of these well, and conveys this understanding to the reader in effortless, clear prose.
Because von Caenegem has mastered the histories of these legal families, he is the ideal of a comparative legal historian, able to compare and contrast the different legal systems in those aspects where such comparison is important. He is an engaging writer, witty, intelligent, incisive, with little need to hide behind obscure jargon or ponderous bloviating. I have only one complaint. Regardless of which of his books I'm reading, they all end too soon. He's one of those rare writers who leaves you wanting more--more details, more anecdotes, more information, more!
This book was derived from a course on European legal history von Caenegem taught at the University of Maastricht, in that university's Magister Iuris Communis Programme. This was a graduate level course for lawyers who already held their first law degrees from universities in their home countries, and were seeking either a master's degree or a doctorate in some aspect of law (international law, comparative law, etc.) or legal philosophy. (So the reader knows, I hold a J.D., and also an M.A. in legal philosophy, both from an American university). Von Caenegem explains the different national legal codes in effect (or not) in the various European countries, the circumstances leading up to codification, the effects of codification, and the potential for conflict or change in the future based upon the current European political status. He discusses different methods of legal reasoning and interpretation in effect in Western legal reasoning, including the "original intent" hermeneutics now current in American constitutional exegesis. One fascinating chapter discusses the formation and application of the European "ius commune," a story that is little-known in America. I suspect our English cousins--both countries deriving their law from ancient English common law--may know more about Europe's collective adventures with the ius commune, if for no reason other than proximity to Continental Europe. (I first read the story in Manlio Bellomo's great book,
The Common Legal Past of Europe: 1000-1800 (Studies in Medieval and Early Modern Canon Law)
, but von Caenegem tells the tale in a most interesting fashion.) Another interesting chapter discusses the rule of law in Nazi Germany, and the role that judges and jurists played in legitimizing Nazi lawlessness by extolling the German past. He discusses in detail the careers of several prominent German jurists and legal philosophers during the time the Third Reich was in power--all of this was new information to me.
There are other fascinating discussions as well, all of them worthwhile. Von Caenegem also provides fairly comprehensive bibliographic information. As is to be expected, many of the books he cites are in German, Dutch, Italian, or French. But there are many books listed in English as well, most of them still in print.
In summary, a fine book by a great legal historian. I only wish it had been longer; it was thoroughly enjoyable from start to finish. Highly recommended.
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