MAKING LEGAL HISTORY Approaches and Methodologies Drawing together leading legal historians from a range of jurisdictions and cultures, this collection of essays addresses the fundamental methodological underpinning of legal history research. Via a broad chronological span and a wide range of topics, the contributors explore the approaches, methods and sources that together form the basis of their research and shed light on the complexities of researching into the history of the law. By exploring the challenges posed by visual, unwritten and quasi-legal sources, the difficulties posed by traditional archival material and the novelty of exploring the development of legal culture and comparative perspectives, the book reveals the richness and dynamism of legal history research. professors anthony musson and chantal stebbings both hold Chairs in Legal History at the University of Exeter and are co-directors of the Bracton Centre for Legal History Research. Anthony Musson specialises in the evolution of the English legal system and culture during the Middle Ages and in the history of crime, while Chantal Stebbings specialises in the doctrinal and social legal history of the nineteenth and early twentieth centuries, especially the law and practice of taxation and property. Both have published extensively in their respective fields.
MAKING LEGAL HISTORY Approaches and Methodologies Edited by ANTHONY MUSSON AND CHANTAL STEBBINGS
cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, SãoPaulo,Delhi,Tokyo,MexicoCity Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York Information on this title: /9781107014497 C Cambridge University Press 2012 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2012 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Making legal history : approaches and methodologies / edited by Anthony Musson and Chantal Stebbings. p. cm. ISBN 978-1-107-01449-7 (hardback) 1. Law Historiography. I. Musson, Anthony, 1966 II. Stebbings, Chantal. K140.M45 2012 340.072 2 dc23 2011041593 ISBN 978-1-107-01449-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
CONTENTS List of figures page vii List of tables viii List of abbreviations ix 1 Introduction 1 anthony musson and chantal stebbings 2 Reflections on doing legal history 7 sir john baker 3 Editing law reports and doing legal history: compatible or incompatible projects? 18 paul brand 4 The indispensability of manuscript case notes to eighteenth-century barristers and judges 30 james oldham 5 Judging judges: the reputations of nineteenth-century judges and their sources 53 patrick polden 6 Benefits and barriers: the making of Victorian legal history 72 chantal stebbings 7 Methodologyinlegalhistory:fromthehistoryoffree speech to the role of history in transatlantic legal thought 88 david m. rabban 8 The methodological debates in German-speaking Europe (1960 1990) 108 marcel senn v
vi contents 9 Exploring the law in medieval minds: the duty of the legal historian to write the books of non-written law 118 dirk heirbaut 10 Comparative legal history: a methodology 131 david ibbetson 11 They put to the torture all the ancient monuments : reflections on making eighteenth-century Irish legal history 146 seán patrick donlan 12 The politics of historiography and the taxonomies of the colonial past: law, history and the tribes 164 paul mchugh 13 Lay legal history 196 wilfrid prest 14 Antiquarianism and legal history 215 michael stuckey 15 Re-examining King John and Magna Carta: reflections on reasons, methodology and methods 244 jane frecknall-hughes 16 Visual sources: mirror of justice or through a glass darkly? 264 anthony musson 17 Sanctity, superstition and the death of Sarah Jacob 284 richard w. ireland Index 303
FIGURES 15.1 The research process onion (adapted from Saunders, Lewis and Thornhill, 2009, p. 108) page 255 15.2 Path through the research onion, demonstrating the inductive/deductive process adopted 257 16.1 Oakham Castle 267 16.2 Judge in session (detail of illuminated initial in British Library, MS Harley 947 fol. 107r) (Copyright British Library Board) 275 16.3 Window commemorating medieval lawyers (Pygot, Haugh and Howard) in Long Melford, Suffolk 276 16.4 Brass of Sir William Yelverton (Justice of King s Bench) in Rougham, Norfolk 281 17.1 A representation of the Fasting Girl in the press (detail from The Illustrated Police News 1 January 1870) (Copyright British Library Board) 286 vii
TABLES 4.1 Reports, 1730s and 1740s, with eighteenth-century King s Bench cases page 33 4.2 King s Bench reports published 1750 66 (before Burrow) 34 15.1 Rates and frequency of scutage and TOM levies 253 15.2 Comparison of scutage levies Henry II, Richard I and John 254 15.3 The surety barons 260 viii
ABBREVIATIONS AJLH BJRL CLJ DNB EHR HLR HMSO JLH LQR ODNB OJLS PRO SS TNA VUWLR YB American Journal of Legal History Bulletin of the John Rylands Library Cambridge Law Journal Dictionary of National Biography English Historical Review Harvard Law Review Her Majesty s Stationery Office Journal of Legal History Law Quarterly Review Oxford Dictionary of National Biography Oxford Journal of Legal Studies Public Record Office Selden Society The National Archives Victoria University of Wellington Law Review Year Book ix