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Abstract
The ESCLH will celebrate the 10th anniversary of its foundation in the Hague on 5 December 2019. The following pages describe and reflect on the contribution of the ESCLH to comparative legal history, analysing the past and the present, while looking to the future, before concluding with some final considerations on what I call the ‘Spirit’ of the ESCLH.
Notes
1 Text available at http://esclh.blogspot.com.es/p/about-esclh.html.
2 Olivier Moréteau, Aniceto Masferrer and Kjell Å Modéer (eds), Comparative Legal History (Edward Elgar Publishing 2019) xiv: ‘Both [the Comparative Legal History journal and the cited volume] are crafted as beacons of an emerging discipline and confidently await the critical judgment of their readership and history.’ italics are mine.
3 ‘The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.’ Ibid.
4 See http://esclh.blogspot.com/.
7 Aniceto Masferrer, Kjell Å Modéer and Olivier Moréteau, ‘The Emergence of Comparative Legal History’ in Olivier Moréteau, Aniceto Masferrer and Kjell Å Modéer (eds), Comparative Legal History (Edward Elgar Publishing 2019) 15.
8 Comparative Legal History, volume 1 (2013), Issue 1, Preface (by Seán P Donlan & Aniceto Masferrer): ‘Born out of frustration with the narrow nationalism and geographical segregation of legal history in contemporary European scholarship, members of comparative law and legal history networks across Europe came together in late 2009 to formally establish the European Society for Comparative Legal History (ESCLH).’
9 Needless to say that these pages contain my personal perception of how the ESCLH was created, what it is for and what has done throughout the last decade. It contains my view and not an official or corporate one. As historians and legal historians, we know that history might be looking for an objectivity (‘wie es eigentlich gewesen ist,’ as Leopold von Ranke expressed it), but there is always a certain degree of subjectivity since the historian himself is a subject.
10 Seán P Donlan (secretary-general), Jan Hallebeek, Dirk Heirbaut, and Remco van Rhee (vice-presidents), and Aniceto Masferrer (president). The first treasurer was Leandro Martínez Peñas; in 2012, Seán P Donlan and Dirk Heirbaut left their offices and were replaced by Matt Dyson and Mia Korpiola, respectively; in the same year Juan B Cañizares replaced Leandro as treasurer; as a result of the general elections of 2014 (Macerata), the Executive Council was composed of Janwillem Oosterhuis (secretary-general), Mia Korpiola, Matt Dyson, and Phillip Hellwege (vice-presidents), and Aniceto Masferrer (president); in 2018 Guido Rossi was appointed to serve as Senior Treasurer, cooperating with Juan B Cañizares (Treasurer); the current Executive Council is the result of the last general elections (Paris, 30 June 2018): Matt Dyson (president), Janwillem Oosterhuis (secretary-general), Mia Korpiola, Phillip Hellwege and Annamaria Monti (vice-presidents); to all of them I show my heartfelt and sincere gratitude, as I said in the Final Speech of gratitude in leaving the ESCLH Presidency.
11 The first Advisory Board was composed of Kjell Å Modéer (Chair), Richard Helmholz, David Ibbetson, Antonio Pérez Martín and Thomas Duve; the ESCLH statutes provide that ‘Advisory Board members include: all those members who held a position on the Executive Council for a period of eight years and those elected unanimously to the Advisory Board by the Executive Council. Those elected to the Advisory Board remain members during the term of the President and may be replaced when a new President is elected’ (art 19); within the current Presidency, the Advisory Board today is composed of Aniceto Masferrer (Chair), Séan P Donlan, Thomas Duve, Dirk Heirbaut, Jan Hallebeek, Richard Helmholz, David Ibbetson and Remco van Rhee; the ESCLH is very grateful to all of them, particularly Kjell Å Modéer, who was part of the ESCLH from the very beginning and witness how the Society was born, grew up and matured throughout its first decade.
12 See Dirk Heirbaut, Opening Address, ESCLH Inaugural Conference, Valencia, 5 July 2010 (see Appendix).
13 ‘These two factors, namely, the greatness of all the members of the Society (particularly those who invest considerable time in its different initiatives such as the journal, the blog, organization of conferences, etc.) and the high human and academic profile of the members of the Executive Council, are what really explain the growth and the consolidation of the Society. I just made a small contribution to a big enterprise that is common to all of us.’ (Aniceto Masferrer, Final Speech of gratitude in leaving the ESCLH Presidency, Paris, 30 June 2018).
14 See Appendix, where Dirk Heirbaut defended the advantages of the blog for being fast, cheap and democratic.
15 I am both thankful and indebted to Frederik Dhondt, the current Director of Communications, who was so kind to send me this information.
16 The blog is currently run by Frederik Dhondt (Director of Communications), Filip Batselé (blogger) and Cheryl Bresnark (webmaster). As said, Sean P Donlan initiated the blog in May 2010, being Stefania Gialdroni the first webmaster, who was replaced later on by Flavia Mancini. When Seán P Donlan left the blog in 2013 to run the Comparative Legal History journal, Dirk Heirbaut took over that responsibility until the Fifth Biannual ESCLH Conference, in which Frederik Dhondt – who had been working in the blog from 2010 – was appointed as director of communications. Both Filip and Cheryl joined the blog in September 2017. The ESCLH is indebted to all of them, and now I want to express, on behalf of its membership, my most sincere gratitude for their enduring commitment and generous dedication.
17 The ESCLH blog welcomes new contributors, in order to ensure a steadfast dissemination of all relevant scientific announcements. Suggestions for publication can be posted to [email protected] or directly to one of the bloggers. All visitors can subscribe to the daily mailing, sending out a daily summary in the early afternoon.
18 See Appendix.
19 Ibid.
20 As said, there were 10 panels, 38 papers and 60 participants from 18 countries.
21 A brief report after the Inaugural conference was published in the blog (available at http://esclh.blogspot.com/2010/07/report-european-society-for-comparative.html); a Spanish report was written by Gabriela Cobo del Rosal and published in (2011) Anuario de Historia del Derecho Español 1163.
22 For a more developed account of this ESCLH conference, see Aniceto Masferrer, ‘The Longing for Comparative Legal History’ (2012) 9 GLOSSAE. European Journal of Legal History 206.
23 Kjell Å Modéer, Dinner Address to the Participants of the ESCLH Conference, VU Amsterdam, 9 July 2012.
24 The program is available at http://giurisprudenza.unimc.it/en/research/conferences/esclh2014/call-for-papers-and-programme/programme; for a Spanish resumé of this conference by Juan B Cañizares, see (2014) 11 GLOSSAE. European Journal of Legal History 195; on the general elections that were celebrated and its results, see n 13, as well as the text written by Isabel Ramos Vázquez, in (2014) 11 GLOSSAE. European Journal of Legal History 197.
25 The ESCLH is grateful to the organizing committee of that conference, and particularly for its main organizers, Antonella Bettoni and Luigi Laccè, who was then the Chancellor of the University of Macerata. I want also to thank the latter for passing on to me a synthesis of that conference.
26 The program is available at www.ihd.cnrs.fr/IMG/pdf/program_konferencji.pdf; for a Spanish resumé of this conference by Juan B Cañizares, see (2016) 13 GLOSSAE. European Journal of Legal History 732.
27 The ESCLH is grateful to the organizing committee of that conference, and particularly for its main organizers, Tadeusz Maciejewski, Anna Klimaszewska and Michał Gałędek. I also thank the latter for passing on to me a synthesis of that conference.
28 Viktória Gyönki won the Best Poster Presentation Prize (donated by Springer) for her ‘Verðr sekr – Different Narrations of Outlawry in Medieval Icelandic Sources.’
29 The program is available at www.ens.fr/sites/default/files/2018-06/esclh_welcome.pdf; for a Spanish resumé of this conference by Juan B Cañizares, see (2018) 15 GLOSSAE. European Journal of Legal History 352.
30 Murat Burak Aydin won the poster competition. The ESCLH is grateful to the small legal team directed by Jean-Louis Halpérin, to whom I also thank for passing on to me these figures. The Conference was supported by the Cité internationale universitaire de Paris, which kindly offered its hospitality in two venues in front of the ENS Campus Jourdan. The sponsors were the Institut Universitaire de France, the Ecole normale supérieure and Cité internationale universitaire de Paris.
31 Catharine MacMillan, ‘Why English law is not codified: the unsuccessful efforts of Victorian jurists’; Pedro Barbas Homem, ‘Science of legislation and codification. The preparation of codification by legal literature in Portugal and Brazil.’
32 Masferrer, Modéer and Moréteau (n 7) 5–6.
33 Thomas Duve, ‘Legal Traditions: A Dialogue between Comparative Law and Comparative Legal History’ (2018) 6 Comparative Legal History 15.
34 Kjell Å Modéer, ‘Abandoning the Nationalist Framework: Comparative Legal History’ in Heikki Pihlajamäki, Markus D Dubber and Mark Godfrey (eds), The Oxford Handbook of European Legal History (Oxfor University Press 2018) 100.
35 Heikki Pihlajamäki, ‘Comparative Contexts in Legal History: Are We All Comparatists Now?’ in Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Hart Publishing 2014) 121.
36 EJH Schrage, ‘Source of Law, the Comparative Legal History of a Concept’ (2005) 11 Fundamina 275.
37 Aniceto Masferrer, Spanish Legal Traditions: A Comparative Legal History Outline (Dykinson, 2nd edn 2012); Aniceto Masferrer, ‘Codification of Spanish Criminal Law in the Nineteenth Century: A Comparative Legal History Approach’ (2009) 4 Journal of Comparative Law 96; Aniceto Masferrer, ‘The Current Move towards Comparative Legal History’ (2012) 3 Romanian Journal of Comparative Law 151; see also Aniceto Masferrer, ‘The Longing for Comparative Legal History’ (2012) 9 GLOSSAE: European Journal of Legal History 206.
38 Martin Löhnig, ‘Vergleichende Rechtsgeschichte: Bestandsaufnahme und Perspektiven’ (2010) 32 Zeitschrift für Neuere Rechtsgeschichte 82.
39 Massimiliano Granieri, Il tempo e il contratto: itinerario storico-comparativo sui contratti di durata (Giuffrè 2007).
40 See, for example, Andrew Lewis, ‘On Not Expecting the Spanish Inquisition: The Uses of Comparative Legal History’ (2004) 57 Current Legal Problems 53, 57; Marie Seong-Hak Kim, Law and Custom in Korea: Comparative Legal History (CUP 2012); Richard H Helmholz and W David H Sellar (eds), The Law of Presumptions: Essays in Comparative Legal History (Dunker und Humblot 2009); JLL Gant, ‘Constitutions and Crises: Balancing Insolvency and Social Policy Through the Lens of Comparative Legal History’ in JLL Gant (ed), Harmonisation of Insolvency law in Europe (INSOL Europe 2017).
41 Its program is available at www.gla.ac.uk/media/media_282282_en.pdf.
42 See the journal at www.tandfonline.com/loi/rclh20.
43 See the text on the aims and the scope of the journal (available at www.tandfonline.com/action/journalInformation?show=aimsScope&journalCode=rclh20).
44 Heikki Pihlajamäki and Aniceto Masferrer, Editorial, CLH Volume 4 (2016), Issue 2: ‘This issue includes exciting articles on themes which once again show legal history’s relevance for contemporary discussions. Thomas Mohr’s article ‘The United Kingdom and Imperial Federation, 1900– 1939′ is an account of a ‘movement in the late nineteenth and early twentieth centuries that sought to turn the British Empire into a global federal state’, the motto of the federalists being ‘federate or integrate’. From the point of view of European contemporary discussions, Aniceto Masferrer’s comparative contribution on the Spanish nineteenth-century codification movement is more than topical. Dror Goldberg’s article is an important, interdisciplinary addition to the exciting history of money. Cultural encounters are very much present in Omer Aloni’s contribution, which discusses the fate of polygamy in early Israeli law. In addition to the articles, we have, as always, a fine selection of book reviews.’
45 Heikki Pihlajamäki and Aniceto Masferrer, Editorial, CLH Volume 5 (2017), Issue 2: ‘This issue contains three outstanding articles. Jan Hallebeek and Andrea Zwart-Hink (Vrije Universiteit Amsterdam) tell the history of an early modern civil remedy called amende honorable. This legal institution was aimed at retraction and apologies for insults and reputational injuries, and it had its roots in medieval canon law and indigenous law. The amende honorable disappeared in the nineteenth century. Interestingly, a suggestion was recently made for the introduction of a civil remedy for apologies in the Netherlands. Karwan Fatah-Black (University of Leiden) offers an important contribution to colonial legal history with his article on Suriname’s Governing Council in the early modern period. The author reconstructs the way various forums for arbitration related to the Governing Council, and how this relationship changed during the long eighteenth century. Edward Cavanagh’s (University of Cambridge) fascinating article also contributes to colonial legal history by explaining how the function of the colonial charters changed in the longue durée history from the Middle Ages to the nineteenth century.’
46 Heikki Pihlajamäki and Aniceto Masferrer, Editorial, Volume 6 (2018), Issue 1: ‘This issue opens with a note on the legal historiography of Latin America by Abelardo Levaggi, one of the grand old men of Argentine legal history. We are delighted and honoured to have his important text in the Journal. The articles section consists of three outstanding contributions. Addressing some vital methodological questions, Thomas Duve discusses the different uses of the term legal tradition by authors such as John Henry Merryman, Harold J. Berman and Patrick Glenn. Adding to the growing body of global legal history, Niranjan Casinader, Roshan De Silva Wijeyaratne and Lee Godden explain the role of the Colebrooke-Cameron Reforms (1831) in the modernization process of Sri Lanka. Gavin Byrne, in his article, argues that the ideals of National Socialist law of Germany remained far from complete by the time the war ended. In addition, the volkish vision of Nazi law fitted poorly with any Western conception of law. The reviews section opens with Geoffrey Samuel’s review article, in which he explores the relationship between legal history and legal theory. In another review article, Robert Brett Taylor explains the role of the courts in the evolution of UK public law. Informative reviews on two recent books follow.’
47 Heikki Pihlajamäki & Aniceto Masferrer, Editorial, Volume 6 (2018), Issue 2: ‘This issue opens with two important contributions to the history of commercial law. First, Maurits den Hollander demonstrates how a new culture of probatory accountability spread in North-Western Europe between 1477 and 1515. The study is based on a thorough archival study on the Scottish Exchequer and the Audit Chamber of Holland. In the next article, Dave De ruysscher discusses the fate of pre-insolvency proceedings in the nineteenth century. He shows how Belgium, France and the Netherlands followed the same route to the 1860s. In the following two decades, however, Belgium and France reformed their proceedings while the Dutch proceedings remained the same. In another outstanding article, Adam Reekie and Surutchada Reekie present an interesting case of transplanting the English doctrine of vicarious liability into the Thailand’s Civil and Commercial Code of 1925. The fourth article of this issue is Elisabetta Fiocchi Malaspina’s contribution to colonial legal history, a theme that is extremely important for the Journal. Using the example of Italy, the author examines how European states used colonies to experiment with the legal frameworks of land ownership.’
48 As a small sign of gratitude, I took the trouble – with Heikki Pihlajamäki’s helpful assistance – to reconstruct the whole team of the journal from its beginning until today. If there is any mistake or I had have unintentionally missed someone, it would be my fault:
Volume 1 (2013), Issues 1–2: Editor: Seán P Donlan; Articles Editor: Heikki Pihlajamäki; Reviews Editor: Agustín Parise; Editorial staff: Wim Decock, Dolores Freda, Nir Kedar, Richard McMahon, Zülal Muslu, Allison Tirres, Adelyn Wilson.
Volume 2 (2014), Issues 1–2 (copy editor was appointed) : Editor: Seán P Donlan; Articles Editor: Heikki Pihlajamäki; Reviews Editor: Agustín Parise; Copy Editor: Adelyn Wilson; Editorial staff: Wim Decock, Dolores Freda, Nir Kedar, Richard McMahon, Zülal Muslu, Allison Tirres, Adelyn Wilson
Volume 3 (2015), Issues 1–2 (the editorial staff was notably reduced): Editor: Seán P Donlan; Articles Editor: Heikki Pihlajamäki; Reviews Editor: Agustín Parise; ESCLH Copy Editor: Adelyn Wilson; Editorial staff: Ernest Caldwell, Richard McMahon
Volume 4 (2016), Issue 1 (editorial staff was reduced to one): Editor: Seán P Donlan; Articles Editor: Heikki Pihlajamäki; Reviews Editor: Agustín Parise; ESCLH Copy Editor: Adelyn Wilson; Editorial staff: Ernest Caldwell
Volume 4 (2016), Issue 2 (changes: editor, articles editor, Reviews editor and editorial staff): Editor: Heikki Pihlajamäki; Articles Editor: Agustín Parise; Reviews Editor: Adelyn Wilson; Editorial staff: Craig Newbery-Jones, Joe Sampson
Volume 5 (2017), Issues 1–2 (no changes): Editor: Heikki Pihlajamäki; Articles Editor: Agustín Parise; Reviews Editor: Adelyn Wilson; Editorial staff: Craig Newbery-Jones, Joe Sampson.
Volume 6 (2018), Issue 1 (no changes): Editor: Heikki Pihlajamäki; Articles Editor: Agustín Parise; Reviews Editor: Adelyn Wilson; Editorial staff: Craig Newbery-Jones, Joe Sampson.
Volume 6 (2018), Issue 2 (changes in reviews editor and editorial staff): Editor: Heikki Pihlajamäki; Articles Editor: Agustín Parise; Reviews Editor: Marianne Vasara-Aaltonen; Editorial staff: Craig Newbery-Jones, Marc Bourrie, Emmanuel van Dongen.
The gratitude also is extended to members of the International Editorial Board, which consists of 44 members from all continents, and that has remained practically the same all the time, with minor changes; its members can be seen in www.tandfonline.com/action/journalInformation?show=editorialBoard&journalCode=rclh20.
49 Participants and their papers can be seen in the program (available at www.ens.fr/sites/default/files/2018-06/esclh_welcome.pdf).
50 Jean-Louis Halpérin, Mia Korpiola, Jan Hallebeek, Phillip Hellwege and Aniceto Masferrer.
51 I had the fortune to attend the first Postgraduate Conference and could somehow realize how much work this might have entailed. The ESCLH, and the Executive Council in particular, is most grateful for such generosity and commitment.
52 The rules of the Van Caenegem Prize are available at http://esclh.blogspot.com/p/the-van-caenegem-prize.html.
53 The paper is available at www.tandfonline.com/doi/abs/10.5235/2049677X.1.1.45.
54 The paper is available at www.tandfonline.com/doi/abs/10.1080/2049677X.2015.1041730?journalCode=rclh20.
55 The paper is available at www.tandfonline.com/doi/abs/10.1080/2049677X.2017.1311548?journalCode=rclh20.
56 These are the Van Caenegem Prizes’ Committees of the three editions until today: 2014 Committee: Kjell Å Modéer, Dick Helmholz, Thomas Duve, Bruno Debaenst; 2016 Committee: Kjell Modéer (President), Richard Helmholz, Thomas Duve, Doreen Lustig, Astron Douglas; 2018 Committee: Kjell Å Modéer (President), Sean P Donlan, Judit Beke-Martos, Andreja Katancevic, Virginia Amarosi. I also want to thank Phillip Hellwege, who has been in charge of steering the work of the Committees of the last two editions (2016 and 2018).
57 Text available at http://esclh.blogspot.com/2010/03/ius-commune-casebook-on-western-legal.html.
58 See ‘Project Description of the Western Legal Traditions: Cases, Materials and Texts (Seán P Donlan, Remco van Rhee, and Aniceto Masferrer, eds) (updated March 2013).’
60 Moréteau, Masferrer and Modéer (n 2).
61 Ibid xiv: ‘When Olivier Moréteau was invited to act as Editor of the Comparative Legal History volume in the Research Handbooks in Comparative Law Series, he only accepted after having secured the cooperation of his friend Aniceto Masferrer, President of the European Society for Comparative Legal History. Both discussed the project with Kjell Å. Modéer who was invited to join the editorial team. In the process of initiating the book, editors and contributors were given the chance to meet in Lund in the summer of 2013 for a critical and congenial discussion of the book project and the line of its content, with the help of the Olin Foundation. This contributed to making it a more comprehensive and cohesive project. From that time on, the project was in the hands of the ‘3M’ group. As everyone knows, the three musketeers were really four, and it was no different with us, since we received valuable support from Remco van Rhee, who like many participants in the volume, wanted this project to be on the shelves ready for its audience. ‘All for one and one for all’ became the hallmark of the volume, and the 3Ms are grateful to Re-M-co for extending help as the book was nearing completion, changing the unreachable horizon into a finish line. Together with the publication of its homonym and well-established journal, the present volume is an emblematic product of the European Society for Comparative Legal History.’
62 ‘Rooted in the complexity of the various Western legal traditions worldwide, the journal will also investigate other laws and customs from around the globe. Comparisons may be either temporal or geographical and both legal and other law-like normative traditions will be considered. Scholarship on comparative and trans-national historiography, including trans-disciplinary approaches, is particularly welcome.’ ‘Aims and Scope’ of Comparative Legal History journal, available at www.tandfonline.com/action/journalInformation?show=aimsScope&journalCode=rclh20); italics are mine.
63 CHS Fifoot, Frederic William Maitland (1971) 143.
65 Ibid.
66 See the interview in Legal Miscellanea, ‘“Legal History Chose Me”: Aniceto Masferrer’s Route to Legal Scholarship,’ available at http://alegalmiscellanea.com/legal-history-chose-me-aniceto-masferrers-route-to-legal-scholarship/.
67 ‘ … the complex totality of man’s past and present, material and spiritual concerns,’ Daniel Boorstin, ‘The Humane Study of Law’ (1948) 57 Yale Law Journal 964.
68 See Legal Miscellanea (n 66).
69 Ibid.
70 David Ibbetson, ‘The Challenges of Comparative Legal History’ (2013) 1:1 Comparative Legal History 1.