Andrew Lewis and
The real question is not whether we should teach
legal history but whether we can give to students law, and nothing but
law, and still call it a liberal education. (Plucknett)
Legal history may be only one way of contexturalising
the law but it is amongst the more satisfying ways of relating law to
other human achievements. This course is an introductory one in the sense
that it requires no previous detailed knowledge of English legal history
and is tolerant (up to a point) of relative ignorance of the English political,
social and constitutional history with which the history of law is necessarily
connected. It will however be necessary to undertake a modest amount of
undirected learning of general English history in order to provide this
context. Furthermore it is to be noted that English legal history is a
very lively field of study at present so that those who would apply themselves
to it must expect not only to have to master the accepted details of its
development but also to absorb and express judgement upon a range of possible
interpretations of these phenomena.
Legal history is a field which attracts the attention
both of legally-trained legal historians and historically-trained historians:
their differences of perspective give rise to interesting questions of
interpretation. Serious work by large numbers of legally-trained historians
is a relatively recent phenomenon and the pioneers in the field, including
Baker and Milsom, are still amongst the leaders in the field. In addition
to occasional publications in the leading general English law journals
(particularly OJLS and CLJ) and American journals (especially Chicago
LJ and Michigan LR) there is a dedicated Journal of Legal History (edited
at UCL) as well as the American Journal of Legal History.
The course is taught on a seminar basis
for two hours a week: participants are expected to write at least three
(not for assessment) during the session. Assessment of the course is
by a three and a quarter hour written examination
in the summer.
Outline of course
I. Institutions of English Law (Professor Lewis and Dr Schofield)
The common law and its predecessors and rivals: the emergence of the Royal
courts; procedure - bills and writs; modes of proof - the origin of the
jury; Equity and the conciliar courts. The Civil and Canon law in England.
Legal Education. Common Law theory and its critics. The development of
appeal in Common Law procedure and the systematic reforms of the nineteenth
II. The History of land law (Professor Lewis)
Feudal origins; Estates - for life, fee simple, fee tail; leases for years;
copyhold; uses and trusts; perpetuities and settlements.
III. The History of tort and contract (Professor Lewis)
Debt and detinue; covenant; trespass and case; assumpsit; doctrine of
Recommended introductory reading
(all of which will be of general use during the course itself):
R C van Caenegem, The Birth of the English Common Law (2nd edn 1988 CUP
The text of four lectures on the origins of the Common
law, the first three of which provide the basic themes of the opening
seminars of the course.
J H Baker, An Introduction to English Legal History
(3rd edn 1990 Butterworths
A far from basic textbook by the acknowledged master
of the largely unpublished sources for English legal history (and a UCL
S F C Milsom, Historical Foundations of the Common Law
(2nd edn 1981 Butterworths p/b) An attempt to write an intellectual history
of the common law in terms of its basic ideas and their operation. Although
subject to challenge in recent years by historians it remains a most stimulating
source of interpretative understandings.
A W B Simpson, A History of the Land Law (1986 OUP p/b)
A no-nonsense and fairly positivist account of the rules
of the developing land law.
J H Baker & S F C Milsom, The Sources of English
Private Law to 1750 (Butterworths p/b) Lacking any commentary, this extremely
useful collection of materials is difficult to use unaided but gives a
good idea of what needs to be understood during the course.
J M Kelly, A Short History of Western Legal Theory (1992
While taking a broad European perspective, this
book remains a stimulating introduction to many of the themes which dominated
thinking about the English Common Law. Chapters 6-8 are of most immediate