Methods, Sources, Aims of Legal History

Question 1

Aims of Legal history

Answer 1

1) better understanding of legal system in place and sheds light on the conditions of its mutability (“learning from history”; development does not automatically lead to perfection –> Relativity of positive law + contingency of the present; where are we going in the future?)
2) Legal history has a serving function towards the applicable law
(example: Deal of 1666: Fisheries Privileges given to Belgian fishermen suddenly relevant if no agreement between the EU and the UK would have been found)
3) reveal ideological, social, economic & other political factors that “lead to the development of the law as the life-conditioning order of every community” (Heinrich Mitteis)
–> “understanding and explaining past realities” (Franz Wieacker)

Question 2

What is law when we deal with Legal history?

Answer 2

Objects and methods of regulation are – especially historically – often difficult to distinguish from one another (e.g. LAW VS. MORAL, CUSTOMS, RELIGION, TECHNICAL STANDARDS)
–> Law is a “special case of social norms” (Thomas Raiser)

Vienna School of Thought Theory (the “pure theory of law”:
- law = “regulatory system, created by humans for humans and is generally effective, and which may apply organized coercion” (Robert Walter)
–> focus on law that was “lived”
–> at least chance of coercion being applied

–> this definition confined to positive law (norms posited by humans –> Hans Kelsen!)
BUT disregards notion of justice (subjective element + “unjust” legal systems can archive effectiveness and are therefore relevant)

Question 3

“State”

Answer 3

• Turn from the 4th to the 3rd millenium BC: beginning of higher civilization
  –> State formation took place in Central and Western Europe
  –> Parallel state formations and rule formations outside Europe
• “three-element-doctrine”: state power, state territory & state people only of limited use in historical context (especially outside of Europe)
• “Social organizations with a claim to rule”, partly with monopolization of power and the expansion of a bureaucratic administrative apparatus
• State-building and rule-building are closely linked: Central authorities are created for an area of rule, the periphery is tied down
• Europe exported “the State” through imperialism, colonialism and capitalism all over the globe, making it a standard
  –> what does not correspond to the European norm of statehood does not have to be a deficit or be interpreted as a development problem!
  –> Historical reality is more pluralistic and needs other terminology
  (danger of “epistemic statism” & “epistemic eurocentrism”)

Alternatives: “settlement enclaves” (= pre-state entities), “settlement conglomerates”, “dominions”, “city states”, “patrimonialism”, “protostates”, “segmentary states”, “empires”, “great empires”, “vassal states”

Question 4

sources of legal history

Answer 4

1) Texts or other written sources (legal texts, medieval chronicles, documents,
litigation documents, legal literature)
2) Factual sources or material sources (legal archeology)
3) image sources (legal iconography)
4) oral transmission

Question 5

challenges with the research on the basis of such sources

Answer 5

1) overabundance (modern bureaucracies produce large quantities of documents, the digital world showers us with data of which a large percentage never gets useably saved or utilised)
+ shortage of sources (a large percentage of Civilisations, Cultures and political forms left us little to no sources)
2) Certain sources can only be handled by specialists –> one must rely on colleagues
3) The reflection on law, as a special case of normativity, is especially challenging when it occurs in a completely different historical context.
–> every legal construct is influenced by our own prejudices, for example its connection to religion, rituals, performances, social convention, morals etc.

Question 6

Main method of legal history:
The Exegesis

Answer 6

= critical explanation or interpretation of a text
1. Read the legal source slowly and carefully. Then look carefully at what is given as the source of the text passage and what the heading of the source passage is!
2. What do you know in general about the source from which the text excerpt was taken?
3. What topics does the source passage in question address?
→Try to pick out keywords to determine what the source passage is about.
4. Highlight the legal terms that appear in the source passage and try to explain them.
5. Now analyse the legal terms in question from a legal point of view and try to put them in a historical context.