Saturday, January 19, 2019

Weekend Roundup

  • Here’s the amicus brief filed in November 2018 in Chicago v. Whitaker, a sanctuary cities case, by legal historians at the Stanford Law School and Princeton University in defense of we explain that nationwide injunctions.  "History is a notoriously difficult subject."  H/t: Andrew Zimmerman
  •  “With interviews completed of more than 40 women law professors . . . , the Women in Legal Education Oral History Project is seeking additional subjects in order to capture the voices of the first true generation of women professors.”  H/t: Karen Sloan on Law.com
  • Harvard Law Today has posted a Q&A with Christine Desan, the Leo Gottlieb Professor of Law at Harvard Law School, on the conference, “Money as a Democratic Medium,” held at HLS on December 14 and 15, 2018.  The event challenged “a diverse group of lawyers, economists, and scholars . . . to re-examine the history of money in America, and to redefine its future.”
  • The Call for Proposals for the 134th Annual Meeting of the American Historical Association is here.  Deadline for submissions is February 15, 2019.
  • ICYMI: The Rochester Democrat & Chronicle on the landmark commercial likeness case of Abigail Roberson (on which see also Samantha Barbas's Laws of Image).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, January 18, 2019

Find a Co-Panelist for ASLH 2019!

The Call for Papers of the Program Committee for the next annual meeting of the American Society for Legal History, to be held in Boston on November 21-24, 2019, states in part:
Given the number and high quality of panel and other complete sessions submitted, individual papers are much less likely than full sessions to be accepted.  Would-be individual paper submitters are encouraged to connect with other scholars (through H-Law, etc.) to coordinate the submission of complete session proposals.
We here at Legal History Blog are happy to be such a matching service.  Comments to this post are open any of you with individual papers seeking like-minded presenters for a panel.  Feel free to post your paper topic and/or panel idea in a comment, with an email address or other contact information.  And please feel free to spread the word about the annual meeting.  (The conference hashtag is #ASLH2019.)  The deadline for submissions is March 15, 2019.

An Unplanned Interlude on Reading (and Writing) Recommendation Letters


In the last two weeks, I spent many hours reading applications for graduate school. As is habitual, these applications were accompanied by recommendation letters. As I was reading those, a few questions came to mind.

In my over- 20- years’ teaching in American universities, I can only recall one negative recommendation letter, which I read some 15 or 16 years ago. Authored by an elderly professor, it suggested that the applicant might seem terrific but, in reality, was not. All other letters I have read before and since were either enthusiastic or very strong, even if and when they included important cautionary remarks. Of course, I form part of this crowd. If I feel I cannot write a strong letter, I urge those requesting the letter to go elsewhere. Nonetheless, I was shocked when, recently, a student asked me outright whether my letter would be strong because if it were not, they would request someone else to write it.

Because all letters are positive, we are often reduced to reading between lines. Is “recommending” different from “enthusiastically recommending,” and from “enthusiastically and emphatically recommending,” or does this word choice correspond to individual temperament and style?  Is a work classified as “excellent” stronger than another that a different letter writer identified as “brilliant,” or is it on the inverse? 

I was quite stunned to learn, as I read these letters, that many of my colleagues are now seriously concerned about the future of history. The affirmation (verbatim) that, given the state of the field (or jobs in the field), they rarely recommend pursuing a PhD in history repeated this year in most letters authored by North-American scholars. These scholars of course suggested that they diverted from this general rule in the case of that specific candidate whom they recommended because of their excellence, yet I remained worried. I wondered whether this concern is genuine, whether it is a cliché that my colleagues use, or whether it is a rhetorical tool meant to stress the exceptionality of the student (or some, or all of the above?).

Many letters contained a clause, which can be interpreted as self-congratulatory. It includes a detailed account of the nature of the program that the candidate has completed and to which the recommender belongs. This usually entails a description of courses and requirements, but also a statement about how rigorous, how difficult, the program is or how amazing are its students. On occasions, such as in letters written by foreign scholars, the reason to include such a clause may be the need to explain how a different system operates. Nonetheless, in both such letters and in others, it also serves to stress the enormous potential of the candidate, who had endured successfully and complied with these demanding conditions. Yet, while it celebrates the accomplishment of the candidate, it also elevates the letter writer and their program. In some odd way, it congratulates, perhaps even praises, both at the same time. Logically, the implication should be that most other programs are not vigorous, and/or their students are not amazing, or else, why would the vigor of these be exceptional? 

I would not pose these questions, had I not spent much of my time, now almost year-round, writing such letters for my students, my peers, and my former mentors. As a reader, I tend to dismiss most. As a writer, I wonder: is the effort we put into them worthwhile? Is there a way to write them differently?

Siddiqi on insolvents in Bombay

Asiya Siddiqi, University of Mumbai, published Bombay's People, 1860-98: Insolvents in the City with Oxford University Press in 2018. From the publisher: 

Bombay’s People, 1860–98Caught in the web of global economic fluctuations, Bombay experienced a cataclysmic financial crisis in the 1860s. Before the crash the city’s economy was heavily dependent on the trade in cotton. By 1865 the price of cotton plummeted, and with it the fortunes of Bombay’s people. Even people not directly involved in the cotton trade were affected. Thousands declared themselves insolvent and sought the protection of the Bombay High Court. Drawing on almost twenty thousand petitions of insolvents, Asiya Siddiqi explores a crucial phase of transformations in Indian economy and society.  
Situating her study in the early colonial period of constant negotiations between local, colonial, and global relationships, Siddiqi maps patterns of income, literacy levels, and connections between religion and occupation. She not only analyses the finances of the wealthy and the powerful but also of working people, including women insolvents—a majority of whom were courtesans and dancing and singing girls. From this scrutiny is revealed the workings of the complex and dynamic financial relationships among Bombay’s people in the late nineteenth century. 
Here is the Table of Contents: 

  • 1. Business and Social Relationships in Nineteenth-Century Bombay 
  • 2. The Bigger Merchants 
  • 3. Reading the Records: Literacy and Social–Occupational Stratification 
  • 4. Religion and Occupation 
  • 5. Insolvent Women 
  • 6. Ayesha’s World: A Butcher’s Family in Nineteenth-Century Bombay 
Further information is available here.



Thursday, January 17, 2019

NHC Briefing: How Congress Reforms Itself

The National History Center has announced a briefing on How Congress Reforms Itself: Historical Perspectives on Rules Changes, Wednesday, February 6, 2019 from 10:00-11:00 am, Cannon House Office Building, Room 122:
As recent changes in the Senate's filibuster rule have shown, the rules that govern the two bodies of Congress are not fixed: they have repeatedly undergone revision and reform.  What has brought about major rules changes in the past?  How have these changes altered how Congress works?  What unintended consequences have they caused?  Leading historians of Congress will discuss these questions.
Speakers: Matthew Wasniewski, Historian, US House of Representatives; Daniel S. Holt, U.S. Senate Historical Office; John Lawrence, University of California Washington Center.  Moderator: Michele Swers, Georgetown University.

Moran on the Three Ages of the Modern American Legal Profession

Rachel F. Moran, Dean Emerita and Michael J. Connell Distinguished Professor Law, UCLA School of Law, has published The Three Ages of Modern American Lawyering and the Current Crisis in the Legal Profession and Legal Education, which is available from the website of the Santa Clara Law Review.  There is no abstract, but there is a table of contents:

I. The First Age of Modern American Lawyering: The Rise of Corporate Law and the Emergence of the University Law School
A. The Innovation of Social Trustee Professionalism: The Organized Bar’s Push for Ethical Canons and Educational Reform
B. Analytical Legal Education, Expert Professionalism, and the “Harvardization” of Law Schools
C. Legal Aid Societies and the Limited Vision of Social Trustee Professionalism

II. The Second Age of Modern American Lawyering: The Rise of the Administrative State and the Assault on Langdellian Formalism
A. The Rise of the New Deal and the Anxiety of the Organized Ba
B. Dueling Elites: Government Lawyers and the Corporate Bar
C. Legal Realism, New Deal Activism, and the Triumph of Incremental Curricular Reform

III. The Third Age of Modern American Lawyering: The Rise of Cause Lawyering and the Push for Clinical Legal Education and a Pedagogy of Diversity
A. Civil Rights: From Law-Centric Credo to Backlash from the Left and the Right
B. Legal Services: From the War on Poverty to the War on Lawyers
C. Making It Real: Cause Lawyering and the Growth of Clinical Education
D. Desegregation, Affirmative Action, and the Compromised Pedagogy of Diversity

IV. The Current Crisis: Are We Entering the Fourth Age of Modern American Lawyering?
A. A Profession Under Stress and the Prospect of a Fourth Age of Modern American Lawyering
B. The Future of Professionalism in an Uncertain World
C. The Way Forward: Deepening Our Understanding of the Symbiotic Relationship Between Social Trustee and Expert Professionalism

O'Brassill-Kulfan, "Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic"

New from NYU Press: Vagrants and Vagabonds: Poverty and Mobility in the Early American Republic (Jan. 2019), by Kristin O'Brassill-Kulfan (Rutgers University). A description from the Press:
Vagrants. Vagabonds. Hoboes. Identified by myriad names, the homeless and geographically mobile have been with us since the earliest periods of recorded history. In the early days of the United States, these poor migrants – consisting of everyone from work-seekers to runaway slaves – populated the roads and streets of major cities and towns. These individuals were a part of a social class whose geographical movements broke settlement laws, penal codes, and welfare policies. This book documents their travels and experiences across the Atlantic world, excavating their life stories from the records of criminal justice systems and relief organizations.

Vagrants and Vagabonds examines the subsistence activities of the mobile poor, from migration to wage labor to petty theft, and how local and state municipal authorities criminalized these activities, prompting extensive punishment. Kristin O’Brassill-Kulfan examines the intertwined legal constructions, experiences, and responses to these so-called “vagrants,” arguing that we can glean important insights about poverty and class in this period by paying careful attention to mobility. This book charts why and how the itinerant poor were subject to imprisonment and forced migration, and considers the relationship between race and the right to movement and residence in the antebellum US. Ultimately, Vagrants and Vagabonds argues that poor migrants, the laws designed to curtail their movements, and the people charged with managing them, were central to shaping everything from the role of the state to contemporary conceptions of community to class and labor status, the spread of disease, and punishment in the early American republic.
A few blurbs:
"Americans in the early republic believed that their ability to move—geographically, socially, economically—was the essence of their freedom. They trusted that capitalism offered upward mobility and that an expansive republic would prove an empire for liberty in which law would protect property rights. Vagrants and Vagabonds offers an important corrective to these ideas. Capitalist transformation forced poor Americans to move often and in ways they did not necessarily choose. Vagrancy law limited their movements and curtailed their freedom. O’Brassill-Kulfan's important book reminds us that mobility helped to entrench inequality in the United States as much as it enabled American dreams." —Brian Luskey

"Kristin OBrassill-Kulfan’s study of the mobility of poor and otherwise unwanted members of society, and the efforts of authorities to dictate and control their movement, tells us much about the life of multiple subaltern groups in the antebellum U.S. in a way that is especially relevant today. She addresses forced migration, incarceration, and exclusion, bringing all of these issues of mobility together in a multifaceted study that should be required reading for anyone interested in early U.S. history, the carceral state, and poverty in the U.S. Her important book adds much to the historiography of a number of fields, including early U.S. history, labor history, racial and ethnic history, and poverty studies. It is essential reading for policy makers and political scientists today who want to understand the history of race- and class-based exclusion in the U.S." —Beverly Tomek
More information is available here.

Wednesday, January 16, 2019

Walker on Structural Racism and Structuralist History

Anders Walker, Saint Louis University School of Law, has posted Freedom and Prison: Putting Structuralism Back into Structural Inequality, which appeared in the University of Louisville Law Review 49 (2011): 267 : “Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field. “

Kahn, "Islands of Sovereignty: Haitian Migration and the Borders of Empire"

New from the University of Chicago Press: Islands of Sovereignty: Haitian Migration and the Borders of Empire (Jan. 2019), by Jeffrey S. Kahn (University of California, Davis). A description from the Press:
In Islands of Sovereignty, anthropologist and legal scholar Jeffrey S. Kahn offers a new interpretation of the transformation of US borders during the late twentieth century and its implications for our understanding of the nation-state as a legal and political form. Kahn takes us on a voyage into the immigration tribunals of South Florida, the Coast Guard vessels patrolling the northern Caribbean, and the camps of Guantánamo Bay—once the world’s largest US-operated migrant detention facility—to explore how litigation concerning the fate of Haitian asylum seekers gave birth to a novel paradigm of offshore oceanic migration policing. Combining ethnography—in Haiti, at Guantánamo, and alongside US migration patrols in the Caribbean—with in-depth archival research, Kahn expounds a nuanced theory of liberal empire’s dynamic tensions and its racialized geographies of securitization. An innovative historical anthropology of the modern legal imagination, Islands of Sovereignty forces us to reconsider the significance of the rise of the current US immigration border and its relation to broader shifts in the legal infrastructure of contemporary nation-states across the globe.
A few blurbs:
“This remarkable book chronicles the making of the US maritime border as a dialectic of sovereign will and legal reason. Using an impressive array of historical and ethnographic materials on Haitian interdiction, Kahn illuminates the tensions between water and land, refugee and migrant, and imaginaries and practices of jurisdiction that have shaped the legal and political geographies of asylum in the United States and beyond. This is a brilliant and timely intervention in contemporary debates around border securitization.” -- Ajantha Subramanian

“Kahn’s astonishing ethnography of the law and politics of America’s interdiction of Haitian refugees at sea is heartrending, insightful, and necessary. No one concerned about the frightening history of the country’s relationship to others at another troubling moment—and no one who cares about the discretionary sovereignty of the modern state and its borders—can afford to look away from the story Kahn tells in this major intervention.” -- Samuel Moyn
More information is available here.

Special issue: Merchants and commercial conflicts in European history

Continuity and Change has a special issue out on "Merchants and Commercial Conflicts in Europe, 1250-1600," 32 (2017): special issue 1. Here is the line-up with abstracts:
    Continuity and Change
  • Alain Wijffels, "Introduction: Commercial quarrels--and how (not) to handle them," 1-9: The settlement of structural commercial conflicts of interest cannot be exclusively subsumed under the heading of dispute resolution. Even when a particular conflict opposing specific individuals or groups of interests could be settled, the broader underlying conflicts of interest would subsist and re-emerge. Both commercial and institutional or political actors would therefore rely on various techniques of conflict management, a process imposing restraint on the opposing parties while allowing sufficient leeway for business to be continued. Both conflict resolution and conflict management were devices of public and corporate governance, and therefore, following the late medieval tradition, instruments more or less based on established patterns of legal or quasi-legal models legitimised by accepted or conventional parameters of ‘justice’.
  • Flávio Miranda, "Conflict Management in western Europe: the case of the Portuguese merchants in England, Flanders and Normandy, 1250-1500," 11-36: Recent historiography argues that the legal autonomy of municipal governments created the necessary conditions for successful commercial transactions and economic growth in certain parts of Europe in the later Middle Ages, and that these features attracted foreign merchants. This article uses empirical data from England, Flanders and Normandy to test the following questions: were there significant differences in rules, laws and institutions between one place and another in late medieval western Europe? Were the Portuguese merchants drawn to markets that hypothetically had more effective institutions? The findings demonstrate that legal institutions and conflict management were very similar across western Europe, and that there is no evidence that the Portuguese opted for trading in a certain market because of its effective institutions. Moreover, the article claims that the merchants seemed to prioritise protection and privilege while trading abroad, and it highlights the role of commercial diplomacy in conflict management.
  • Thomas K. Heebøll-Holm, "Law, order and plunder at sea: a comparison of England and France in the fourteenth century," 37-58: This article addresses the management of maritime plunder and conflict in the waters of England and France in the fourteenth century. It argues that during this century a fundamental change occurred. Around 1300, maritime conflict was handled by recourse to the strictly civil law merchant and law maritime, or by Marcher law. However by the 1350s and 1360s the kings of England and France, moved by contemporary political events and theories of sovereignty at sea, created courts of Admiralty that challenged the previous systems’ jurisdiction. These initiatives eventually paved the way for the criminalisation of private maritime conflict.
  • Justyna Wubs-Mrozewicz, "The late medieval and early modern Hanse as an institution of conflict management," 58-84: Ever since research on the Hanse began in the nineteenth century, there have been repeated efforts to redefine the boundaries and the core of the phenomenon. Views of the Hanse have evolved, and it has been seen by turns as a profoundly German league of towns, and as a network or organisation of towns and traders that was present in commercial centres and harbours from Novgorod to Portugal, and from Norway to Italy. In more general discussions on the institutional development of commerce in Europe, many of them influenced by the New Institutional Economics, the Hanse has even appeared as a mega-guild. The revival of the field of institutional economics and the history of commerce in pre-modern Europe has recently spawned a reappraisal of Hanseatic sources. The present article contributes to this debate by arguing that from the perspective of conflict management, the late medieval and early modern Hanse was an institution. There were several institutional mechanisms, such as a strong preference for mediation and arbitration in conflicts between individuals, as well as a mediation strategy for internal conflicts between towns. All of these mechanisms combined in a multifaceted institution of conflict management, which represented the added value of Hanse membership for traders, and for their towns.
  • Andrea Caracausi, "A reassessment of the role of guild courts in disputes over apprenticeship contracts: a case study from early modern Italy," 85-114: This article analyses the mechanisms of conflict resolution in apprenticeship contracts using a large database of disputes from early modern Italy. It finds that the guild court under investigation (the Padua Woollen Guild court) did not enforce training contracts, but rather sought to improve on incomplete contracts by adding clauses, thereby helping individuals renegotiate and redefine the contractual arrangements into which they had decided to enter. However, power relations within the court operated largely in favour of employers, both merchants and master craftsmen. The article concludes that alternative contract enforcement systems, such as municipal or state courts, were probably better suited than corporative systems for resolving disputes surrounding apprenticeship.
Further information is available here

Tuesday, January 15, 2019

Lesaffer on Roman and International Law

Randall Lesaffer, Tilburg Law School and KU Leuven Faculty of Law, has posted Roman Law and the Intellectual History of International Law, which appeared in the Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann (2016), 38-58:
The pivotal role of Roman law is well established in the historiography of the civil law tradition. Compared to this, its role in the intellectual history of international law is a marginal subject. This paper maps the place and role in the intellectual development of international law from Antiquity to the present.

Miller on Indian Slavery in Virginia

Robert J. Miller, Arizona State University-Sandra Day O'Connor College of Law, has posted Virginia's First Slaves: American Indians:
A little known fact of American history and law is the ubiquitous legal enslavement of Indian peoples over much of what is now the United States during colonial and early American times. In the Virginia colony, it seems that the first slaves of the English settlers were local Indian peoples and then large numbers of Indians captured elsewhere and transported to Virginia to serve as slaves on plantations. Much of this activity appears to have occurred before Virginian planters and traders began importing Africans to be enslaved. Complicating this history is that several Indian nations and many individual Indians actively participated with the English in raiding, enslaving, and trading Indians from other tribes and cultures and transporting them to Virginia, other American colonies, and even to the Caribbean.

A Classic in Newfoundland Law: Archibald's Digest

The SS Daisy Legal History Committee announces its latest publication, Edward M. Archibald’s Digest of the Laws of Newfoundland (1847), edited with an Introduction and Notes by Christopher Curran.  Published in 1847, the work was “a staple on Newfoundland judges and lawyers’ bookshelves for more than 100 years" and is the second in the Committee’s reprint series, “Classics in Newfoundland Law.”   More.

Monday, January 14, 2019

CFP: Autonomy in Private Law

[We have the following CFP.  Please note: the deadline is January 20, 2019, midnight EST.]

Autonomy in Private Law: Past, Present, Future.  Organization: The Private Law Junior Scholars Conference.  June 19-20, 2019, Tel Aviv University Faculty of Law, Safra Center for Ethics.  @PLJS_conference

The Private Law Junior Scholars Conference is a collaboration between the law faculties of the University of Toronto and Tel Aviv University. It aims to create a forum for junior researchers from around the world to exchange about private law and different aspects of private law scholarship. The conference provides a select number of doctoral candidates, post-doctoral researchers and junior faculty (pre-tenure) with a unique opportunity to present their work and receive meaningful feedback from senior faculty members and peers. Last year’s conference, themed ‘Public Aspects of Private Law’, received 70 submissions. A total of seven presentations were selected by the organizers and leading private law scholars from the universities of Tel Aviv, Toronto and Yale, which included Hanoch Dagan, Avihay Dorfman, Larissa Katz, Daniel Markovits, Ariel Porat, and Arthur Ripstein.

This Year’s Topic
: Autonomy in Private Law: Past, Present, Future  .Autonomy has long stood as the central pillar of conventional scholarship in private law. Much of private law, as depicted in these accounts, is built around the ideal-typical vision of autonomous agents as the relevant legal subjects, and frequently, private law is also claimed to realize and enhance autonomy. The assumption of the existence and desirability of autonomous agents and agency appears to be shared by widely diverging approaches to private law.

Private law’s autonomy-paradigm is, however, increasingly challenged by alternative theoretical accounts of the field that identify freedom as private law’s central pillar, and/or stress the relational dimension of private law. Additional challenges emanate from societal and technological developments that create new areas of power imbalances. At the same time, precisely because of its perceived emphasis on autonomy, private law might seem to offer a promising normative framework for addressing some pressing societal problems.

These challenges and promises invite further reflection about the place of autonomy in private law’s past, present and future. The 2019 Private Law Junior Scholars’ Conference aims to explore these issues, shed light on resulting tensions, and develop possible future perspectives. We invite papers that explore the overall conference topic from different theoretical and methodological vantage points, including historical, comparative, empirical, and critical perspectives.

Miller on Brandeis in Erie and in INS v. AP

Joseph Scott Miller, University of Georgia School of Law, has posted Brandeis’s I.P. Federalism: Thoughts on Erie at Eighty, forthcoming in the Akron Law Review:
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associated Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.”
H/t: Legal Theory Blog

Thornberry on Rape in South Africa

Out this month with Cambridge University Press is Colonizing Consent: Rape and Governance in South Africa's Eastern Cape by Elizabeth Thornberry, Johns Hopkins University. From the publisher: 
Colonizing ConsentElizabeth Thornberry uses historical evidence to shed light on South Africa's contemporary epidemic of sexual violence. Drawing on over a thousand cases from a diverse set of courts, Thornberry reconstructs the history of rape in South Africa's Eastern Cape, from the precolonial era to the triumph of legal and sexual segregation, and digs deep into questions of conceptions of sexual consent. Through this process, Thornberry also demonstrates the political stakes of disputes over sexual consent, and the ways in which debates over the regulation of sexuality shaped both white and black politics in this period. From customary authority to missionary Christianity and humanitarian liberalism to segregationism, political claims implied theories of sexual consent, and enabled distinctive claims to control female sexuality. The political history of rape illuminates not only South Africa's contemporary crisis of sexual violence, but the entangled histories of law, sexuality, and politics across the globe.
Here is the Table of Contents:

  • Introduction: writing the history of rape
  • 1. Custom and consent in Xhosaland
  • 2. Sex and spiritual power
  • 3. Liberalism and the colonial law of sexual violence
  • 4. Rape and racial boundaries
  • 5. Navigating the politics of consent
  • Conclusion: rape and the postcolony.
Further information is available here.

Sunday, January 13, 2019

Patricia Wald (1928-2019)

The New York Times's obituary of this great American lawyer and judge is here.  The Washington Post's, here.

English Exceptionalism Revisited II – The Continental Strawman


In English Exceptionalism Revisited, published previously on this blog, I argued for the need to reexamine the convention that English law was different from Continental law. I suggested that claims for English exceptionalism are often based on privileging the history of common law over the history of other jurisdictions and legal systems that co-existed in England. In this second part, I would like to examine yet another issue: how narratives of English exceptionalism use Continental law as a strawman. Because of considerations of space, I focus my attention on the claim that common law was different because (contrary to Continental law) it included an immemorial customary law. This claim became central to English legal thinking in the late sixteenth and the seventeenth centuries, but it also persists to-date. It is based, inter alia, on the (silent) assumption that Continental law was not an immemorial customary law, but instead a system based on scholarly debates, legislation, and Roman law.

Historians of Continental law would disagree. In their telling, customs were a central element also in the continent. From as early as classical Roman law and into the nineteenth century, Continental jurists habitually identified local law as customary. They suggested that it was a legitimate expression of a legal diversity that allowed for different local solutions despite the existence of an overreaching common core uniting all Romans (first), Christians (second) and Europeans (third). Jurists’ main role was to explain how this was possible, that is, how thousands of local legal arrangements (“customs”) could nevertheless form part of a single global system. This was what Roman jurists did, but it was also what medieval jurists accomplished as they slowly elaborated a system that, while validating local laws, also created a ius commune (a common law, a system that scholars of England identify as “Roman” or “Civil” precisely in order not to call it common law as Continental jurists would).

The effort to harmonize local and global were criticized by some sixteenth-century jurists. These jurists, known as legal Humanists, insisted on identifying an authentic local customary law that would stand in opposition to (rather than in harmony with) the common framework.  Because they believed that customary law could counter monarchical pretensions at absolutism, these jurists turned to identify what this law included. Thereafter, the main question they asked was not if customs existed and were important (of course they were) but who would be charged with identifying them. In France, where this struggle was particularly strong, the kings succeeded to have the upper hand. They gained control over the identification of customs by instituting committees that purportedly “wrote down” the customary laws of France but that, in reality, greatly modified them according to royal desire as well as tied them to royal validation.   

Because it was difficult to prove that certain practices were customary, late medieval and early modern Continental jurists adopted the convention that customs were, by definition, immemorial. In their telling, immemoriality was a category of proof, not a historical fact. It embodied a presumption identified as juris et de jure that, contrary to all other presumptions, admitted no proof to the contrary. As far as these jurists were concerned, at stake was not the distinction between what could be remembered and what had been forgotten, but a policy decision regarding what should be proved and what could be assumed without proper proof. This decision hinged on evaluating what society wished to protect (local law) and how much (as strongly as possible). It represented, perhaps better than anything else, the important place of customs in Continental juridical elaboration.

English sixteenth- and seventeenth-century descriptions of common law as immemorial customary law were thus part of a much larger European conversation. This conversation initiated in the Roman empire but continued throughout the Middle Ages and into modernity. Nonetheless, in the late sixteenth and in the seventeenth century, English lawyers insisted that their system was radically different, and they expressed fear of “foreign” influence. They suggested that Europe followed Roman law, while England had a genuine customary law of its own, which reflected the spirit of its people.  This portrait omitted the important contribution of ius commune jurists to the formation and institutionalization of common law, including ideas regarding customs and immemoriality. It assumed English lawyers were ignorant of developments in Europe (all evidence to the contrary) and it constructed a Continental strawman, against which England was compared. The result was often, to paraphrase the words of Chris Wickham, a “cultural solipsism” that led scholars to believe in exceptionality where not much of it existed.