LOYOLA UNIVERSITY CHICAGO
FALL 2000
HISTORY 300-605
W: 6:00-8:30—LT-507
HISTORY OF LEGAL
SYSTEMS
Zouhair Ghazzal
LT-926: W: 5:00-6:00
(or by appointment)
(312) 915-6524
Despite
the fact that law is a big institution in American society, there is little
general interest in the history and anthropology of legal systems. Thus, law
students typically solely focus on the practical aspects of law such as codes
and statutes, the duties and responsibilities of lawyers, the work that goes
beneath the preparation of a case, and the role of judges in making the law. As
to history and anthropology departments, they rarely manifest any interest in
the legal aspects of the societies they normally cover, not so much because
they cannot see the importance of law in society, but because such a task is
delegated to professional judges and scholars, lawyers, and law schools. Yet,
an abundant literature does exist which essentially covers the following
aspects of law.
·
legal
theory.
Studies the epistemological, philosophical, moral and ethical (normative)
aspects of law as manifested in law-making (legislation), judicial decision
making (rulings of judges), and the practice of law in general. Legal theory
thus raises questions on the foundations of a particular legal system—or
its jurisprudence, if you wish to call it so: Is it founded on a systematic set of codes, statutes,
and normative values, or is it impossible for any system to be coherent and
rational? In the last two decades, legal theory has vacillated between two
opposing poles. On the one hand, law in its two basic components of law-making
and decision making (both of which in the British and American common-law
traditions are intimately related) is looked upon as a quasi-philosophical and
moral (normative) system whose practice ought to be autonomous from the
political and economic passions and di-visions of the times. On the other, more
“realistic” theories such as the Critical Legal Studies (CLS) look
upon law as an ideological system that is deeply political and social in
nature. Thus, in the American case, the judicial decision-making process of,
say, appellate judges reflects their inner deeper beliefs either as
conservatives or liberals even though the American legal system poses itself as
“above” social divisions (Kennedy 1997). In short, we’re more
into a process of judicial policy making, not only in the sense of judges making
the law, but also in creating social policies and the like: that’s
particularly true of policies created for the American penitentiary since the
1960s (Feeley & Rubin 1998).
·
history
of law.
A history in the strict sense of the term aims at describing the transformations of a particular legal
system over a period of time. It is therefore concerned in explicating why and
how a change became manifest in a system during a specific period. For example,
what kind of changes did the New Deal era force upon the legal system? A more
ambitious legal history would be based on legal theory in the sense that it
would ask itself the very same questions that the latter poses: What were the
foundations of that particular system in that specific period? The assumption
here is that the foundations are not the same from one period to another.
·
anthropology
(and sociology) of law. Concentrates on the practice (praxis) of legal systems: How
do judges adjudicate? How do social actors (disputants) make use of the court
system, and how do they learn the language of the courts (the transition from
daily language to the legal)? What is the role of the lawyers? How do the
various parts of the system connect together (or fail to connect)? To be sure,
an anthropology of law might include some history and legal theory, in the same
way that legal theory might rely on anthropological and sociological field
studies, often used in conjunction with a comparative perspective (comparing
various societies and periods).
·
That
should bring us to the topic of our last reading on comparative law (Zweigert &
Kötz). As its name indicates, comparative law is indeed concerned into
comparing various legal systems with one another, usually with a blend of
history, anthropology, and legal theory. Roman law typically occupies a
privileged place in comparative anthropology due to the fact that such a
dispersed body of practices, spanning over a millennium, beginning with the
Twelve Tables and culminating with Justinian’s Digest, was the first system
ever to pose itself as coherent, abstract, and rational. Beginning with the
publication of the Digest, and since the sixth century up to the Middle Ages,
follows a period of the Reception of Roman law in many of the
“barbaric” or “civilized” western societies of the
time. Supposedly, only the Anglo-Saxons managed to create, since the Norman Conquest
in 1066, a common-law system which allegedly did not have to undergo, unlike
its Continental counterparts, the influence of Roman law (van Caenegem 1988
[1973]).
This
course, which could be described as an historical anthropology of law, aims at a broad
discussion of some of the questions raised above. We’ll be primarily
concerned with the division within all western legal systems between
continental code-law and the British and American case-law. By going back to
the historical origins of both legal systems—namely, Rome—we shall
be able to ask, how genuine is that claimed division? Do the two systems
operate that differently, or is it a common misconception among legal scholars?
GENERAL
There
are weekly readings that we’ll discuss collectively in class. Your
participation is essential for the success of the course. You might be also
occasionally requested to prepare a presentation on a chapter or book which are
part of the weekly assignments. Presentations should be improvised and 5 to 10
minutes long. Do not prepare a written presentation. You’re also
requested, after submission of a first-draft, to make a short presentation of
your term-paper.
Besides
the two-draft research paper (see below the section on papers), you’re
expected to submit three interpretive essays. The final grade will be
calculated on the basis of one-fifth for each paper draft and one-fifth for
each interpretive essay. All interpretive essays are take-home and
you’ll be given a week to submit them. The purpose of the
interpretative essays is to give you the opportunity to go “beyond”
the literal meaning of the text and adopt interpretive and
“textual” techniques. A failing grade in all interpretive essays
means also a failing grade for the course, whatever your performance in the
paper is. All essays and papers must be submitted on time according to the
deadlines set below.
|
First
Interpretive Essay |
20% |
|
Second
Interpretive Essay |
20% |
|
Final Interpretive Essay |
20% |
|
Preliminary paper draft |
20% |
|
Term Paper: In case the term paper grade is superior to
the preliminary draft, it will count as 40%. |
20% |
READINGS
•
Weeks 1, 2, 3 (in part): August 30, September 6 & 13
van
Caenegem, Birth of the English Common Law (Cambridge, 1988 [1973]).
•
Weeks 3, 4, 5: September 13 (in part), 20 & 27
Feeley
& Rubin, Judicial Policy Making and the Modern State (Cambridge, 1998).
September 27: first interpretive essay
•
Weeks 6 & 7: October 4 & 11
Richard
Posner, The Economics of Justice (Harvard).
•
Weeks 8 & 9: October 18 & 25
Richard
Epstein, Takings: Private property and the power of the imminent domain (Harvard).
October 25: second interpretive essay
•
Weeks 10, 11, 12 & 13: November 1, 8, 15 & 22
Zweigert
& Kötz, Introduction to Comparative Law (Oxford).
November 8: first draft deadline
November 18: preliminary
presentation of first-drafts
November 22: final interpretive essay
(deadline to be
announced)
•
Week 14 (November 29):
Discussion and
presentation of term-papers
(if you’re
unable to meet for this last session, make an appointment: you’ll not
receive a grade unless you’ve completed a presentation of your paper.)
November 29: final draft deadline
submit your final
draft with your preliminary corrected one
PAPERS
You
are requested to write one major research paper to be submitted during the last
session, Wednesday, November 29. You will have to submit, however, a first
draft of this paper on Wednesday, November 8. The first draft should be as
complete as possible and follow the same presentation and writing guidelines as
your final draft, and it will count as 20% of your total grade unless the final
draft is of superior quality. The purpose of the first draft is to let you
assess your research and writing skills and improve the final version of your
paper. It is advisable that you choose a research topic and start preparing a
bibliography as soon as possible. I would strongly recommend that you consult
with me before making any final commitment. It would be preferable to keep the
same topic for both drafts. You will be allowed, however, after prior
consultation, to change your topic if you wish to do so.
You
may choose any topic related to the social, economic, political, or cultural
legal history of any society or civilization. Papers should be analytical
and conceptual.
Avoid pure narratives and chronologies and construct your paper around a main
thesis.
Kate L. Turabian, A Manual for Writers of
Term Papers, Theses, and Dissertations, 5th ed., Chicago: University of Chicago Press,
1987. Intended for students and other writers of papers not written for
publication. Useful material on notes and bibliographies.
Keep
in mind the following when preparing your preliminary and final drafts:
·
once
you’ve decided on a paper-topic and prepared a preliminary bibliography,
send an abstract and bibliography of your topic to the class-list
<h300-l@luc.edu> (see below). Your abstract should include: (i) title;
(ii) description; (iii) sources; (iv) methodology (e.g. suggestions on how to
read sources). Your preliminary draft will not be accepted unless
you’ve submitted an on-line abstract.
·
preliminary
drafts should be submitted on time, November 8.
·
preliminary
drafts should be complete and include footnotes and an annotated
bibliography.
(The Turabian reference above is annotated: it briefly spells what the book is
about and to whom it might be useful.)
·
do
not submit an outline as a first draft.
·
incomplete
and poorly written first drafts will not be accepted, and you’ll be
advised to revise your first draft completely.
·
if
you submit a single draft throughout the semester, you’ll receive F for
20% of the total and your final grade will be averaged accordingly.
·
the
oral presentation is an essential aspect of your grade; if you can’t
attend the last session, request an appointment.
·
your
final draft should take into consideration all the relevant comments provided
on your earlier draft:
·
all
factual and grammatical mistakes should be corrected, in addition to other
stylistic revisions.
·
passages
indicated as “revise” or “unclear” or
“awkward” should be totally revised.
·
when
specific additional references have been suggested, you should do your best to
incorporate them into your material.
·
there
might be several additional suggestions in particular on your overall
assumptions and methodology. It will be up to you to decide what to take into
consideration.
·
Submit
the final draft with your preliminary corrected one.
·
if
you’re interested in comments on your final paper and interpretive essay,
request an appointment by e-mail.
Please
use the following guidelines regarding the format of your papers:
·
use
8x10 white paper (the size and color of this paper). Do not use legal size or
colored paper.
·
use
a typewriter, laser printer or a good inkjet printer and hand in the original.
·
only
type on one side of the paper.
·
should
be double spaced, with single spaced footnotes at the end of each page and an annotated
bibliography
at the end.
·
keep
ample left and right margins for comments and corrections of at least 1.25
inches each.
·
all
pages should be numbered and stapled.
·
a
cover page should include the following: paper’s title, course number and
section, your name, address, e-mail, and telephone.
E-MAIL
DISCUSSION LIST
An
open e-mail discussion list is available: each message—whether mine or
from any student—will reach anyone else on the list, so that every subscriber
could directly write to the list.
H300-L@luc.edu
The
purpose of this electronic listserv is to discuss issues relevant to both
courses, and current political and social matters as well. The focus, however,
shall be primarily on the readings themselves since they represent our primary
source for dealing with the complexities of these civilizations.
To
join the list, please send an e-mail message to:
listproc@luc.edu
and
include as your e-mail message (leaving the Subject: field blank, if possible):
subscribe
H300-L first-name last-name
e.g.,
Janine Doe—you would type in:
subscribe
H300-L Janine Doe
GroupWise
Users at Loyola University Chicago: Please preface the 'listproc' address (or
subscription address) with 'internet:' in the To: field. For example:
To:
internet:listproc@luc.edu
Once
you’ve successfully subscribed (you’ll receive a confirmation
message with instructions), send all messages to the list’s address:
H300-L@luc.edu
Your
message will be automatically forwarded to all the list’s subscribers.
You should also receive a duplicate of your own message.
To
unsubscribe send an e-mail to listproc@luc.edu with the following message:
unsubscribe
h300-l first-name last-name
Do
not send any mail to my private address <zghazza@luc.edu>, except for
appointments or personal problems regarding the course. Suggestions for
term-papers topics should be posted directly at the class-list.
Problems
in joining the list? Questions? Send an e-mail to Brian Kinne
<bkinne@luc.edu>.
notes from it services:
From:
"Jack Corliss, Loyola University Chicago"
<jcorlis@orion.it.luc.edu>
Please
note that about 96% of all registered students have e-mail accounts, on the
GroupWise e-mail system (university e-mail system). We no longer encourage
students to obtain Orion accounts unless they plan to do personal web page
design and development.
Of
course, students can use whatever e-mail account they have to subscribe and
post to the class discussion list including AOL and Entereact. If you want to
send attachments to the students on the list then they should find out their
e-mail system handles attachments.
You
should also know that as of May 1997, anyone using the computer workstations in
any of the University computing centers and public-access labs are required to
have university network access account (which we call the UVID). This is
required whether the student plans to access the Internet resources, their
GroupWise or Orion e-mail, use word-processing to write their papers, whatever.
Therefore,
students are assigned these accounts automatically. However, if a student does
not remember his or her university network access account/password, and
registered late this year, then the student will need to go to the computing
center to have the password reassigned or a network access account set up
(usually takes 24 hours).
WHAT
I HAVE JUST PRESENTED ABOVE IS VERY IMPORTANT INFORMATION. Please be prepared
to direct the student to one of the computing centers if he or she does not
know nor remember the network access account or password.
Please
note that some students may know this network access account as the GroupWise
account and password—an unfortunate nomenclature—but most likely
this is one and the same. Previously, we referred to these as GroupWise
accounts but now we are calling them university IDs (or UVID), or university
network access accounts.
The
computing centers have had to deal with this last semester, so please do not
hesitate to refer any students to the computing centers for assistance, or they
can call the Help Desk at 4-4444 and the Help Desk staff will re-assign a
network access password.
REFERENCES
(*) indicates recommended reading
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*Conley, John M. and William M. O’Barr. Rules
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