A change for the better?

Many of us teaching in Scottish law schools will have received a recent email from the Law Society of Scotland announcing a series of planned discussions with various stakeholders about the content of the law degree and the diploma in professional legal practice. On balance, a proactive Law Society is an excellent Law Society as it ensures that those undertaking legal training are equipped with the necessary knowledge and skills to become fully-fledged members of the legal profession in its various forms. The task of the Law Society is not an easy one, however, and, given the sheer diversity of the profession, it must be difficult selecting future priorities. In the latest round of proposed discussions, three topics are worthy of comment:

1. Legal technology. The nub of this part of the proposal is to investigate whether the current levels of “technology skills” across the degree and diploma are too “generic” and could/should be changed. Of course, this is in a sense “blue sky and apple pie”, since no one could argue against the position that the lawyers of the future will be required to make greater use of technology. But technology can never replace a sound and critical knowledge of the law, no matter which database one has access to or how sophisticated one’s word processing programme might be (not that this is being suggested of course). To understand the law, one must have the skills not only to find the law but also to process it intellectually using one’s knowledge of certain rules and procedures learnt through a period. Greater use of technology can, of course, assist with and improve upon this process but it is not an end in itself. It certainly can never replace “black-letter law” in a degree.

2. Critical non-black letter law skills. While the current configuration of the degree and the diploma deals with skills extensively, this proposal suggests that other matters (e.g. “project management”) could be added. Again, it is difficult to argue against this since skills are important. But what these “critical non-black letter law skills” are, for example, and on whose judgement certain skills will be judged to be “critical”, remain open to question. One might ask, for example, whether “project management” is something that everyone needs and whether, in light of the requirement of CPD, this could not be offered in a more targeted fashion. Perhaps rather than focusing on “critical skills”  disassociated from “black-letter law”, more attention should be given to the “critical black-letter law skills” that law students require. Based on nearly two decades of law teaching, my view is that law students need a. More time to think; b. More time to write and more opportunities to develop their writing; and c. Better research skills (not merely the use of databases). To understand the law, one cannot just learn it by rote or hope to find it by plugging some keywords into a database. Whichever belief one holds about the nature of law, it cannot be denied that law is about argumentation and that much of it plays out across the pages of books, articles, and court decisions. Critical reflection on arguments pro and contra are required. This takes time. Of course, one might argue that the aim of a law degree is to form lawyers who apply the law rather than jurists who reflect upon the law critically, but these two aims cannot and should not ever be mutually exclusive. The best lawyers are those who can reflect on the law critically when applying it.

3. Other matters. According to the email from the Law Society: “Some have suggested that as we move towards exiting the European Union that this should see an increased focus on language skills, trade law, international arbitration, private international law etc.” These topics of discussion are to be welcomed, since they represent attempts, at the very least, to maintain relations with our European neighbours post Brexit. There is, however, one topic which is sadly lacking from this list, namely legal history (both Scottish and European). In a country with such a rich history of intellectual exchange in the field of law with our continental neighbours (especially via Roman law), it is regrettable that the Law Society does not view legal history as a priority, especially during this time. Of course, a professional regulatory authority is primarily concerned with equipping lawyers with up-to-date knowledge of the law, but in an uncodified legal system such as that of Scotland, knowledge of what the law is cannot be separated from knowledge of what the law was. To any student of law, Scottish or otherwise, the past is never “… a foreign country” (L.P. Hartley). And few people today still believe that “history is just one damn thing after another” (whoever the author of this quotation may be). The past changes regularly and is therefore in continuous dialogue with the present. As such, one suspects the time has come for legal history to form a more critical part of the curriculum, rather than merely as an elective at honours level or as a few sparse comments on Institutional Authority in a first-year survey course. No one can, of course, deny that the study of history is both ideological and political. But it is precisely these features that make the study of history, and legal history in particular, so much more critical as we head towards Brexit and beyond.

ERC-project REDHIS – position for a post-doctoral researcher: “A study of Roman legal writings in Late Antiquity: manuscripts and papyri”.

From our friends in Pavia:

Deadline for application: November 27th, 2017

The research project REDHIS (“Rediscovering the Hidden Structure. A New Appreciation of Juristic Texts and Patterns of Thought in Late Antiquity”) is opening a position for a post-doctoral researcher. The appointment will be for two years.

REDHIS is an interdisciplinary research project hosted by the Università di Pavia (Italy) and funded by an ERC-advanced grant (Principal Investigator: Prof. Dario Mantovani; Senior Staff: Prof. Luigi Pellecchi). The project studies the continued existence of a high-level legal culture in Late Antiquity, as shown among other things by the copying and continued use of the writings of the classical jurists. A comprehensive understanding of legal culture includes, therefore, the study of the transmission of these texts and the reception of their contents. To learn more about the REDHIS Project, visit our website at http://redhis.unipv.it/

In line with the goals of the project, the appointee will be asked to contribute several well-researched chapters, written in English, to an extensive collaborative volume on the circulation, use, and reception of Roman juristic writings in Late Antiquity. Depending on her/his precise qualifications, the appointee may also be asked to contribute to the project’s annotated corpus of juristic papyri.

In pursuing her/his research, the appointed applicant will be supervised by the Principal Investigator. She/he will collaborate with other staff and post-doctoral researchers in an interdisciplinary working group. Place of work: the University of Pavia, Pavia (Italy).

Preference will be given to applicants who hold a PhD awarded by a University from outside Italy, with a doctoral dissertation in one of the following scholarly areas: Classical Philology, Palaeography, Papyrology, Ancient History, Latin, and/or Roman law. The doctoral dissertation has to show that the applicant is competent in and comfortable with applying a philological approach to the study of Roman legal texts, in Latin and Greek, in order to contribute fruitfully to the research objectives of REDHIS. We are looking for someone with experience in writing in (and translating into) English.

The closing date for applications is 27 November 2017. Applicants are advised to make sure that their applications comply with Italian regulations as laid out in the official “bando” of this post, which can be found in Italian and English at http://dsg.unipv.it/home/bandi-assegni-di-ricerca-e-co-co-co/progetto-redhis-bando-n-9-2017-per-il-conferimento-di-n-1-assegno-di-ricerca-call-for-award-of-n-1-type-b-research-grant.html

In case you have any questions or require the assistance of any kind with the formalities, please do not hesitate to contact Dr Matthijs Wibier (mh.wibier@unipv.it).

Further informal enquiries may be directed to Prof. Dario Mantovani (dario.mantovani@unipv.it)

Doctoral and post-doctoral positions in Legal History

We have received the following notice from our friends in Helsinki:

We are excited to begin work with the Academy of Finland Centre of Excellence that will continue to work of the “Revisiting the Foundations of European Legal Culture 1934-1964” project (found law.org). The CoE will begin its activities on January 1st, 2018, but we will begin recruitment for researcher positions already now. In the first phase, we are hiring 3-4 postdocs for a period of four years each and three doctoral candidates also for a four year period. For the postdocs, the main rule is that one should not have more than five years of research activity behind her or him. The doctoral student positions will be opened next month.

What we would like to ask you is to distribute the job ad to your networks and especially to people who would be suitable candidates. For more information about the CoE and its different subprojects, check out our fledgeling website at eurostorie.org

Each of the subprojects (Law and the uses of the past, Discovering the limits of reason and Migration and the narrative of Europe) has a different focus, but they are tied thematically. Legal historians, lawyers, intellectual historians, philosophers, anthropologists, political scientists and the like are strongly encouraged to apply! The ads are here:

https://www.helsinki.fi/en/open-positions/postdoctoral-researcher-law-and-the-uses-of-the-past

https://www.helsinki.fi/en/open-positions/postdoctoral-researcher-migration-and-the-narrative-of-europe-as-an-area-of-freedom-security-and-justice

https://www.helsinki.fi/en/open-positions/postdoctoral-researcher-discovering-the-limits-of-reason-europe-and-the-crisis-of-universalism

Thank you very much for your help! We look forward to having you as our guest in one or more of our events.

With all the best,

Kaius Tuori, Reetta Toivanen and Pamela Slotte
Directors, CoE for Law, Identity and the European Narratives

Alan Watson seminar in legal history – 26 May

Details of our last event for the academic year below: A paper by a visitor to the centre, Wouter Druwé.

In the early modern period, the Low Countries performed a key role in trade and commerce on the European continent. In their golden ages, Antwerp in the sixteenth and Amsterdam in the seventeenth century attracted merchants from all over Europe and even beyond. The massive development of commerce and finance within this transregional reality raised new normative questions on how to deal with novel financial techniques. Most often, the answers were multifold. Different layers of normativity were at stake: apart from learned legal treatises and commentaries, also moral theological literature, princely or local ordinances, and customary law had to be taken into account. The Netherlandish published volumes of consilia and decisiones – together coined as ‘learned legal practice’ – form two types of legal sources which offer an excellent insight into the combined application of these different normative layers. In consilia, learned lawyers gave their opinion on specific disputes, either before or in the course of legal proceedings. Volumes of decisiones contain reports of decisions by the superior courts of the Low Countries.

After an introduction into the sources and a short overview of the overall Ph.D. project, this paper will deal with the Netherlandish learned legal practice regarding the sale of annuities (emptio-venditio redituum), a common technique to circumvent the prohibition against usury. Someone in need of credit sold an annuity to a buyer-financier who in return paid a purchase price. As of the mid-sixteenth century learned authors accepted that the seller could unilaterally redeem the annuity, even though discussion remained as to the possibility of contractual clauses which temporarily limited that right. As this possibility was only guaranteed in case of pecuniarily constituted annuities, debates also concerned the burden of proof of an annuity’s emptitious nature. Furthermore, this contribution deals with the possibility by a public debtor to mitigate its own annual liabilities through the enactment of legislation. Finally, it is shown that the buyer-creditor was generally denied a right to claim restitution of the capital.

Wouter Druwé (FWO / KU Leuven)

26 May – Legal History Poster

Law in Theory and History – a Neglected Dialogue

Guest blog by Peter Candy.

On Friday 28 April the Law School at the University of Edinburgh was delighted to host a workshop dedicated to the theme of ‘Law in Theory and History: A Neglected Dialogue’. The conference, which was convened by Prof. Claudio Michelon and Dr. Paul du Plessis (both Edinburgh), followed the recent publication of an important volume edited by Michael Lobban and Maks Del Mar, entitled Law and Theory in History: New Essays on a Neglected Dialogue (Hart Publishing, 2016).
Michael Lobban (LSE) began proceedings by with an exploration of the tension between the instinct of the theorist to reach for the universal, and that of the historian to find meaning in context. Michael suggested that, if we are to follow Milsom’s proposal that the aim of the legal historian is to establish what legal actors at any given time thought they were doing, then we should look to theory to help us understand the life of the legal concepts with which they were engaged.
The relationship between philosophical inquiry and historical inquiry was further interrogated by Maks Del Mar (Queen Mary). While the former, he argued, is characterised by the ‘pursuit and identification of distinct units’, historical inquiry is acutely sensitive to ‘affecting variables’. This latter expression refers to any number of real-world factors that can impact upon the patterning of legal thought: for example, archival practices, the architecture of legal spaces, and the medium through which that thought is communicated.
After a short break, Maks was followed by John Hudson and Caroline Humfress (both St. Andrews). John explored how different definitions and conceptions of law shape the dialogue between theory and history, each of which is attended by the respective pitfalls of over-generalisation and hyper-nominalism. Caroline, meanwhile, set out to provide a fresh understanding of how legal historians engage with legal concepts. Expressing an unease with the dichotomy of ‘law-in-theory’ as opposed to ‘law-in-practice’, she introduced Hart’s appeal to Wittgenstein as a possible alternative. If, as Hart suggests, “we wish to understand our concepts”, “we must consider them when they are ‘at work’, not when they are ‘idling’ or ‘on holiday’”. Building on the critique of how we understand concepts ‘at work’ contained in Lobban and Del Mar’s Law in Theory and History, Caroline offered her own view that concepts are both at work when they are applied in determinate circumstances and when they are used in juristic discourse.
Stephen Bogle (Glasgow) finished the morning session with a critique of James Gordley’s The Philosophical Origins of Modern Contract Doctrine (Clarendon Press, 1991). Stephen identified three analytical approaches to historical sources: rational reconstructions, historical reconstructions, and, finally, Hegelian appreciations of the place of the text within a given Geistesgeschichte (loosely, cultural history). While in the first approach scholars are apt to ask modern questions of the text, an historical reconstruction seeks to understand its meaning in a way that could have been within the original author’s contemplation. Looking to The Philosophical Origins, Stephen argued that Gordley’s approach seems to have been inspired by Hegelianism; that is, a method of bringing together theory and history as part of the Geist (or, spirit) of the culture by which it was produced.
After lunch, Dan Carr (Edinburgh) gave an illuminating paper on the role of narrative in judicial decision making in modern Scots law. Tracing a thread back to the influential 20th century professor of Scots law, T. B. Smith, Dan showed how a narrative concerned with the perceived corruption of Scots law by foreign (and, particularly, English) influence has taken hold over time. In a number of important judicial decisions this narrative has been used to justify one particular outcome over another. Consequently, it represents a form of judicial reasoning that deserves closer scrutiny and attention.
Finally, Chloë Kennedy (Edinburgh) returned to the tension between theory and history by looking more closely at whether legal concepts are best understood in their ‘immanent’ (i.e. contextual) or ‘transcendent’ state. Turning to the concept of criminal responsibility, Chloë argued for a ‘middle way’ (following John Hudson), by which legal concepts could be better understood through theory and history without positing a conflict between them.
All the papers provoked energetic discussion, which continued over dinner at the ever-dependable Ciao Roma. Also in attendance: Thomas Gallanis (Iowa), Neil Walker (Edinburgh), Martin Kelly (Edinburgh), Paul Burgess (Edinburgh), and Peter Candy (Edinburgh).

PhD candidates sought

The Centre for Legal History in the University of Edinburgh has considerable experience in successfully supervising students for the degree of Ph.D. Supervision can be offered in Roman law, Roman and Canon law in the middle ages and early modern period, the history of Scots law, law and the Enlightenment, and slavery and law in the eighteenth century. Recent theses successfully examined include topics as diverse as legal transplants in Francophone Canada, sixteenth-century French legal practice, and moveable succession in the ius commune and Scots law.
Anyone interested should consider contacting Dr Paul du Plessis, Director of the Centre. Help can be given in finding funding to support the studies of appropriate candidates.

Conference on Leibnitz

Our blogger has recently been made aware of the publication of a new translation of Leibnitz’s famous treatise on the teaching of law. Details about the conference here.

A short blurb by the author of the translation below:

About the Leibniz’s The New Method of Learning and Teaching Jurisprudence

“This book, small in relation to its size, but considerable if we look at the aim which Mr. Leibniz pursues, became an extraordinary rarity. I would have done certainly useless movements to find it in bookshops, or at friends, if the case would not have dropped it in my hands in an unforeseen way” .[ M. L. de Neufville (1734), Histoire de la Vie et des Ouvrages de Mr. Leibnitz. Amsterdam chez François Changuion, 25,my transl.].
Indeed, after the first issue in Frankfurt 1667, published only with the initials of the Author , the Nova Methodus will be reprinted only in 1748 with a short preface by Christian Wolf (or Wolff, 1679–1754) . This edition will be reused twenty years later by Luis Dutens in the first critical publication of Leibniz’s works.
At the end of the XVII century, Leibniz added in late revision the so called note “D” , now printed in footnote to the critical edition of Nova Methodus by Paul Ritter [1872–1954], Willy Kabitz [1876–1942], Heinrich Schepers (eds.) of the German Academy of Science.
As for translations of Nova Methodus in modern languages , to my knowledge the only one complete is mine in Italian and here in English. I tried to give the most comprehensive framework of the juridical thought of Leibniz not only in philosophical sense, but also in juridical technical sense, which is the most important in this booklet, because the same is specifically devoted to the Right.
The other translations in modern languages contain only selected passages, pursuing different aims, so that a judgment about cannot be expressed, except that in some cases they inaccurately translate juridical terms, for they are made by philosophers not by jurists, and this is an unacceptable limit for a juridical book.

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