Faculty Bibliography
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"This volume honours the work and writings of Professor Sir John Baker over the past fifty years, presenting a collection of essays by leading scholars on topics relating to the sources of English legal history, the study of which Sir John has so much advanced." -- Cambridge University Press
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Modern comparative lawyers tend to date the foundation of their discipline to the nineteenth century and to the promulgation of the great European codes. This article claims that one could make an argument that comparative law is to be found in the ancient world, with some suggestion of it in the early writings of Aristotle’s Politics; that despite the multiplicity of legal sources it is not often found in the early or high middle ages; that there are hints of it in the commentators of the later middle ages; that in a very real sense it can be found in the ideas of the French legal thinkers of the sixteenth century; and that one can trace a relatively clean line of sources from the sixteenth century to whatever nineteenth-century authors one chooses to focus on as the founders of the discipline that produced the First International Congress of Comparative Law in 1900.
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Delloyd J. Guth Visiting Lecture in Legal History: September 17, 2015.
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Ecclesiastical justice has aroused renewed historiographical interest in recent years, both as specific temporal jurisdictions and in the manifestation of justice competent in "spiritual" matters. It was specifically on the "courtyards of the Church", the officialities, that this conference was held, bringing together historians and jurists, medievalists and modernists, for a report in the form of an invitation to continue the investigations. The history of officialities was thus clarified in its diversity and in its evolution, from a comparative perspective. Their competence and the way in which they exercise their jurisdiction, graceful, contentious, criminal, has been highlighted, attesting to their daily role with the populations. Finally, the study of their activity allows an approach to the history of women and of the couple which, in turn, highlights the richness of the sources of officialities, organs of "discipline of morals" still partly unknown.
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This catalogue lists all currently known colonial cases appealed to the Privy Council from the 13 colonies, plus the other "American" colonies in Canada and the Caribbean. For each appeal, the report gives: the colony from which the case was appealed; full and short name of the appeal as compiled from the entry in the "Acts of the Privy Council, Colonial Series" (APC); the names and dates of lower court actions; the names of participants; the subject matter and disposition of the case; and more. Lists include case names and parties to the cases, counsel retained in England, vessels, preliminary lists of appeals from Canada and from the Caribbean and a brief list of Caribbean printed cases found in three major libraries. The printed catalog is accompanied by a website (http://ames-foundation.law.harvard.edu/ColonialAppeals/) that provides links to original documents.
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This book focuses on medieval legal history. The essays discuss the birth of the Common Law, the interaction between systems of law, the evolution of the legal profession, and the operation and procedures of the Common Law in England.
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(1) This article explores the uses made of the Biblical story of Malchus's ear in the debate in the eleventh and twelfth centuries about the validity and efficacy of the sacraments of simoniacs. (2) It uses that exploration to argue that an important change occurred in the thirteenth century in the kinds of arguments that canonists made and that the type of argument made about Malchus' ear was also not characteristic of canonical argument prior to the eleventh century. (3) It concludes by suggesting that the type of argument that was made about Malchus' ear is more like the types of arguments made in Jewish and Islamic law than are the types of arguments that are made in canon law in the thirteenth and later centuries. Possible reasons for the difference, in most periods, between canon law, on the one hand, and Jewish and Islamic law, on the other include: the streak of antinominianism that can be found in early Christian writing, the different relationship between religious and secular authority throughout most of the history of the three religions, the difference in the ways in which religious authority is structured in Christianity as opposed to Judaism and Islam, and the tendency of Christianity to separate law and morals more sharply than do Judaism and Islam.
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Those who work with the papyri or stone inscriptions from the ancient world frequently are faced with incomplete texts. Papyrologists or epigraphers will attempt to fill in the missing parts of the text, relying on their knowledge of what similar documents say. Sometimes a later find will provide a missing piece. Experience with such finds has been that an expert reconstruction normally will get the basic sense of the document right, but rarely gets the exact wording right when anything more than a few letters needs to be filled in.
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It is possible to have private law without the state. Indeed, it is possible for a society to develop a system of private law without the state in the modern sense. When we come to the Western Middle Ages, however, we have to qualify. Though there were no nation-states, the systems of private law that began to be created in the twelfth century made use of the existing structures of power and authority. If one does not want to call these structures proto-states, then one has to say that they performed in some measure the functions of the later state, most notably in establishing and supporting a system of courts and in promulgating legally binding decrees that can be called, without too much anachronism, legislation. With the rise of the nation-state in the sixteenth century, changes did take place, but they were more subtle and initially less dramatic than some have thought. There was more focus on the national level. National legislation became more common in this period, and more elaborate. Despite these facts, I suggest that the basic developmental mechanism of private law, juristic discussion, remained largely unchanged in this period. That characteristic may have changed with the codifications of the nineteenth century, but that story is beyond of the scope of this piece.
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Charles Donahue, Jr., Reflections on the Editing of Medieval Church Court Records, in Iuris Historia: Liber Amicorum Gero Dolazalek 345 (Vincenzo Colli & Emanuele Conte eds., 2008).
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