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 COMPARATIVE LEGAL HISTORY IN NORTH AMERICA

A report

by

CH. DONAHUE JR. (Cambridge Mass.)

The topic of this talk, a report on the state of comparative legal history in
North America1 , is not of my choosing. Indeed, when I was asked to speak on
this topic, my reaction was that the organizers of the session were anxious to get
me off the podium quickly because the state of comparative legal history in
North America can be very briefly summarized: Comparative legal history
hardly exists in North America today. Having advanced that proposition, I must
qualify it: My confidence in the proposition is confined to English-speaking
North America. I am largely ignorant of the scholarship of French- and Spanish-
speaking North America. Further, my own fields do not include the legal histo-
ries of the United States and Canada, although my impression is that genuine
comparative work in these histories is also quite rare. Let me now advance an
even more startling proposition: As I understand the term, comparative legal
history hardly exists any place in the western world todayla. There is, therefore,
virtually nothing to report about.
Now, that fact poses a problem for one asked to give such a report. I could
simply sit down, leaving you to object that what I have said is untrue. Such an
approach takes more courage than I have. Rather, I would like to take a few
moments to explore with you why it is that comparative legal history, as I

1. This report was first given on 2 September 1995 in Montreal at the meeting of the
Association internationale d'histoire du droit et des institutions held in conjunction with
the 18th International Congress of the Historical Sciences. Not wishing to lose the
immediacy of the oral report, I have made few changes in the text of the report as it was
given, but I have added references. I am grateful to Prof. James Q. Whitman and Dr. Jane
Fair Bestor for encouraging me to think more broadly about lines of intellectual
development and for providing references.
Ia. 'Hardly' is perhaps too strong considering the Recueils de la Societ6 Jean Bodin
pour 1'histoire comparative des institutions, Bruxelles 1936 - (62 vols. to date). Since
this is a report on comparative legal history in North America, I may be excused from
commenting further on the work of this group, other than to say that the vision of its
former secretary-general is similar to that presented in this report. See J. Gilissen,
Histoire compare du droit: L 'experience de la Socit6 Jean Bodin, in M. Rotondi (ed),
Inchieste di diritto comparato, 2, Padova 1973, 255-97, a work that was, unfortunately,
unknown to me when I wrote this report. I have the impression, however, that despite the
breadth of the comparative vision of Prof. Gilissen, the product of the Socirt6 Jean
Bodin frequently can be characterized by a phrase that I use below (following note 42) in
a different context: 'Much comparative work could be done from the materials gathered
in these volumes; relatively little has actually been done'.
 CH. DONAHUE JR.

understand it, hardly exists today. To do that I will begin with some history, the
history of comparative legal history as a method, and with a quotation:

And so having compared the arguments of Aristotle, Polybius, Dionysius [of

Halicamassus], and the jurists - with each other and with the universal history of
commonwealths - I find the supremacy in a commonwealth consists of five parts.
The first and most important is appointing magistrates and assigning each one's
duties; another is ordaining and repealing laws; a third is declaring and terminat-
ing war; a fourth is the right of hearing appeals from all magistrates in last resort;
and the last is the power of life and death where the law itself has made no provi-
sion for flexibility or clemency 2.

The author of this quotation is Jean Bodin, not the Jean Bodin of the Six livres
de la RNpublique, but the Jean Bodin of the earlier Methodus ad facilem
historiarum cognitionem. My concern here is not with Bodin's definition of
supremacy in a commonwealth, what he elsewhere calls 'sovereignty'; my con-
cern is with his method, with the way by which he arrived at his definition. He
did it, he tells us, by comparing 'the arguments of Aristotle, Polybius, Diony-
sius [of Halicarnassus], and the jurists - with each other and with the universal
history of commonwealths'. We are becoming increasingly aware that Bodin
was not as original in his political and legal thought as he claimed to be 3 . The
same is true of his method. A number of Bodin's contemporaries engaged in
more or less systematic comparison of top-level philosophical and political
abstractions like those of Aristotle (Polybius and Dionysius are in exalted
company) and of the middle-level generalizations found in the writings of the
Roman jurists and of the 'universal history of commonwealths', a topic that
turns out to include large amounts of more or less accurate history of the ancient
Mediterranean world with considerably less accurate histories of the Celtic and
Germanic worlds. One has only to mention the names of lguinaire Baron, Fran-
qois Baudouin, and Franqois Hotman to indicate how common the method of
comparative legal history was among the French humanists of the sixteenth

2. 'Itaque Aristotelis, Polybii, Dionysii, ac lurisconsultorum rationibus inter se &

cum universa Rerumpublicarum historia collatis; video summnam Reipublicae in quinque
partibus versari. una est ac praecipua, in summis magistratibus creandis, & officio
cujusque definiendo: altera in legibus jubendis aut abrogandis: tertia in hello incidendo
et finiendo: quarta in extrema procuratione <?provocatione> ab omnibus magistratibus:
postrema in potestate vitae & necis, cum lex ipsa nec facilitatis ullum, nec clementiae
locum relinquit'. L Bodini Methodus ad facilem historiarum cognitionem, Amsterdam
1650 (repr. Aalen 1967), 175-6. The translation is derived from J.H. Franklin, Sover-
eignty and the Mixed Constitution: Bodin and His Critics, in The Cambridge History of
Political Thought: 1450-1700, ed. J.H. Bums, Cambridge [Engl.] 1991, 302 (based on
the edition of P. Mesnard, in Oeuvres philosophiques de Jean Bodin, Paris 1951). Cf. B.
Reynolds (transl.), Method for the Easy Comprehension of History, New York 1945,
172-3.
3. See, most notably, the first three volumes of A.L. Fell's massive Origins ofLegis-
lative Sovereignty and the Legislative State: 1: Corasius and the Renaissance Syste-
matization of Roman Law, 2: Classical, Medieval, and Renaissance Foundations of
Corasius' Systematic Methodology; 3. Bodin's Humanistic Legal System and Rejection
of 'Medieval Political Theology', Cambridge-Boston Mass. 1983-7.
[3] COMPARATIVE LEGAL HISTORY IN NORTH AMERICA 3

century. Indeed, one contemporary North American historian has argued that
4
the French legal humanists invented modem historical method .
I would incline more to emphasize the foundations of the comparative meth-
od in ancient world. There are more than hints of the comparative method in
Aristotle's Politics5 . We know that Aristotle, or more likely members of Aris-
totle's school, compiled the constitutions of 158 cities, and the same school is
probably responsible for a lost work in four books on the customs of the Greeks,
6
Romans and barbarians . Late antiquity produced that extraordinarily curious
comparative work, the Lex Dei, better known as the Collatio legum mosaicarum
et romanarum, first edited by Pierre Pithou in 15727.
Nonetheless, use of the comparative method in law and history is certainly a
characteristic of the French sixteenth century. The homologation of French
customary law in this period produced material that cried out for comparative
treatment, and comparisons began even before the effort was finished. Authors
such as Guy Coquille compared the varying customs on given topics, frequently
8
adding a comparison with Roman law . They sought overarching principles to
reconcile the differences among the rules they found and offered views as to the
9
better rule when the differences were irreconcilable .
With the decline of French humanist legal thought the comparative method
passed to the natural law school. This is not the place to argue whether the
jurisprudence of seventeenth- and eighteenth-century natural law is basically

4. D.R. Kelley, Foundations of Modern Historical Scholarship: Language, Law,

and History in the French Renaissance, New York 1970. Cf. id., History, Law, and the
Human Sciences: Medieval and Renaissance Perspectives, London 1984.
5. The standard edition is A. Dreizehnter (ed), Aristoteles' Politik, [Studia et testi-
monia antiqua, 7], Munich 1970. For the comparative nature of the work, see, con-
veniently, R.G. Mulgan, Aristotle 's Political Theory: An Introduction For Students of
Political Theory, Oxford 1977, 60-77, 116-38.
6. Only one of the 'constitutions' survives, and that by the chance discovery at the
end of the last century of a papyrus in an Egyptian rubbish pit: Aristotelis Atheniensium
Respublica, [Oxford Classical Texts], Oxford 1920. Its authorship is hotly debated, but
the most recent commentator concludes that it is the work of a student of Aristotle: P.J.
Rhodes, A Commentary on the Aristotelian 'Athenaion politeia', Oxford 1981, 61-3 (the
rev. ed. of 1993 was unavailable to me). On the lost works, including the probability, but
not certainty, of the number 158 for the constitutions, see id., at 1-2 and P. Moraux, Les
listes anciennes des ouvrages d'Aristote, [Aristote, traductions et 6tudes], Louvain
1951, 115-16, 130-3, 199, 200, 265, 303-4, 319.
7. The date is that of the dedication. See below note 18. The first printing known to
me is Fragmenta quaedam Papiniani Pauli Vlpiani Gaii Modestini ... cum Moysis
legibus collata, Paris 1573, pp. 116 ff., separately published as Mosaycarum et roma-
narum legum collatio, Basle 1574. I have used the edition in Petri Pithoei opera, sacra,
ivridica, historica, miscellanea, Paris 1609. The standard modem edition is by T.
Mommsen in Collectio librorum iuris anteiustiniani, 3, Berlin 1890. For commentary,
see E. Volterra, Collatio legum mosaicarum et romanarum, [Memorie della R. Accade-
mia nazionale dei Lincei, Classe di scienze morali, storiche e filologiche, 6.3.1], Rome
1930; G. Barone-Adesi, L'et& della Lex Dei, [Pubblicazioni dell'Istituto di diritto
romano e dei diritti dell'Oriente mediterraneo, 71], Naples 1992.
8. E.g., G. Coquille, Institution au droict des Frangois,Paris 1607. I have used the
edition of Paris 1608.
9. E.g., Coquille's discussion of marital property, id. at 181-213.
 CH. DONAHUE JR.

inductive or basically deductive, or whether there is a fundamental disagree-

ment about this issue among various members of the school. The fact is,
however, that whether their principles were derived from comparative study or
whether they were illustrated and confirmed by comparative examples, many
members of the natural law school, among whom Grotius, Pufendorf and
Selden provide notable examples, set their natural law principles in a broadly
comparative framework' 0 . Comparative legal history is also to be found among
writers of the Enlightenment who were not members of the natural law school,
Montesquieu providing perhaps the most notable example".
The comparative method in general and comparative legal history in
particular received a powerful stimulus from the movement to scientific history
in the nineteenth century. We have recently been reminded how the debate be-
tween Sir Henry Maine and Numa Denis Fustel de Coulanges about the origins
of property touched off a flurry of academic writing in the late nineteenth
century, writing that reverberated into the halls of the Italian Chamber of
Deputies' 2 . By the end of the century, successes in the science of comparative
linguistics were producing efforts in law based on similar principles. If today
the works of Burkard Wilhelm Leist seem marvelously wrong-headed and
Jhering's last work, Vorgeschichte der Indoeuropiier,embarrassingly bad, we
should recall how much our admittedly meager knowledge of the law of the
ancient Germanic and Celtic worlds owes to the philological work of the
brothers Grimm and Rudolf Thurnheysen, respectively 3 .
The story, of course, continues. One might mention for Germany the work of
such men as Koschaker and Pringsheim and the connection between their work
4
and that of historical sociologists, notably Max Weber . In France, the tradition

10. A good general account of the natural law school is needed, the relevant volume
of the Handbuch der Quellen und Literaturder neueren europdischen Privatrechtsge-
schichte having, apparently, been abandoned. In the meantime see R. Tuck, Grotius and
Selden and A. Dufour, Pufendorf, in The Cambridge History of Political Thought, at
499-529, 561-88.
11. C. de Secondat, baron de Montesquieu, De 1'espritdes lois, ed. G. True, 2 vols.,
Paris 1961; see, e.g., R. Shackleton, Essays on Montesquieu and on the Enlightenment,
Oxford 1988; J. Shklar, Montesquieu, Oxford 1987.
12. Paolo Grossi, Un altro modo di possedere, L 'emersione di forme alternative di
proprietti alla coscienza giuridicapostunitaria, Milan 1977.
13. E.g., B.W. Leist, Graeco-italischeRechtsgeschichte, Jena 1884; id., Alt-arisches
jus gentium, Jena 1889 (repr. Innsbruck 1978); id., Alt-arischesjus civile, 2 vols., Jena
1892-6; R. von Jhering, Vorgeschichte der Indoeuropder, Leipzig 1894; J. Grimm,
Deutsche Rechtsaltertamer, 2 vols., 4th ed. Leipzig 1899 (repr. Hildesheim 1992) (for
the continued usefulness of the work, see the introduction of R. Schmidt-Wiegand, in the
reprint, 1:1"-46*); R. Thurnheyscn, Studies in early Irish law, Dublin 1936.
14. I have in mind here more the Koschaker of such works as Babylonisch-assyri-
sches Birgschaftsrecht, Ein Beitrag zur Lehre von Schuld und Haftung, Leipzig 1911
and Uber einige griechische Rechtsurkunden aus den ostlichen Randgebieten des Helle-
nismus, mit Beitrigen zum Eigentums- und Pfandbegriffnach griechischem und orienta-
lischen Rechten, [Abbandlungen der Philologisch-Historischen Klasse der Sachsischen
Akademie der Wissenschaften, 42.1], Leipzig 1931, than the Koschaker of Europa und
das romische Recht, Munich 1947, a work that today seems to be much, if understand-
ably, a product of time in which it was written. For Pringsheim, see, e.g., F. Pringsheim,
Ausbreitung und Einfluss des griechischen Rechtes, [Sitzungsberichte der Heidelberger
[5] COMPARATIVE LEGAL HISTORY IN NORTH AMERICA 5

also proceeds into the social sciences, and the dominant figures are Durkheim
and his followers, such as Marcel Mauss and Henri Lvy-Bruhl, who lead
5
directly into modern comparative anthropology . But I have said enough to
show that the comparative method in legal history itself has a respectable
history. In order to account, however, for the dismal position in which we find
ourselves today, we must look at the opposition to the method, whether tacit or
articulated. At no time since its revival in the sixteenth century was the
comparative method the only method employed, and in many, perhaps most,
periods it had vigorous critics. The objections of the critics were various, but
they might be summarized under four broad headings: particularism (with its
variant, nationalism), rationalism (with numerous variants, of which today
forms of utilitarianism are the most common), positivism (of which the fiction
of the 'mind of the legislator' is simply the strongest form), and professionalism
(which turns out to be the only way to account for the paradoxical fact that some
empiricists are to be found among the ranks of opponents of the comparative
method).
First, particularism and its strong - one might almost say virulent - variant,
nationalism: One can, of course, employ elements of the comparative method
and remain committed to a particular legal system. Sir John Fortescue, the
Lancastrian judge of the mid-fifteenth century, made numerous comparisons
between the legal systems of England and France, both in his De laudibus
16
legum Anglie and in his Governance of England . The purpose of both works,
however, was to show how English law and governance were in all respects
superior to those of France.
But particularists and nationalists have generally been hostile to comparative

Akademie der Wissenschaften Philosophisch-historische Klasse, 1952.1], Heidelberg

1952; id., The Greek Law of Sale, Weimar 1950; id., Beryt und Bologna, in Festschrift
fir Otto Lenel, Leipzig 1921, 204-85, in id., Gesammelte Abhandlungen, Heidelberg
1961, 1:391-449. On Weber's juristic thought, see A.T. Kronman, Max Weber, [Jurists -
Profiles in Legal Theory], London 1983. A convenient collection of Weber's writing on
law (drawn from Wirtschaft und Gesellschaft, 2d ed., 2 vols., Tibingen 1925) is found in
M. Rheinstein (ed), Max Weber on Law in Economy and Society, New York 1967.
15. A convenient collection of Durkheim's writings on law is S. Lukes and A.T. Scull
(ed), Durkheim and the Law, Oxford 1983 (drawn from De la division du travail social,
4th ed. Paris 1922; Lemons de sociologie, Physique des moeurs et du droit, 2d ed. Paris
1969; Les r~gles de la mbthode sociologique, 8th ed. Paris 1927; Le suicide, Etude de
sociologie, Paris 1897, and various reviews). L~vy-Bruhl's intellectual journey can be
traced in H. Lvy-Bruhl, Quelques probkmes du tr~s ancien droit romain (essai de
solutions sociologiques), Paris 1934; id., Nouvelles 6tudes sur le tres ancien droit ro-
main, [Publications de l'Institut de droit romain, 1], Paris 1947; id., Sociologie du droit,
2d ed., [Que sais-je, 951], Paris 1964. Mauss is best known among legal historians for
his Essai sur le don, Forme et raison de l'V&hange dans les socitjs archaiques, in
L'Ann~e Sociologique, 2d s~rie, 1 (1923-4), 30-186, in id., Sociologie et anthropologie,
2d ed. Paris 1960, 143-279 (many times reprinted). For a continuation of the story with
a strong point of view, see N. Rouland, Anthropologiejuridique, Paris 1988, critically
reviewed by H.F.P. Ietswaart in Journal of Legal Pluralism and Unofficial Law, 28
(1989), 159-71, with a reply by the author in id., 29 (1990), 174-87.
16. J. Fortescue, The Governance of England, ed. C. Plumer, Oxford 1885 (repr.
Westport, Conn. 1979); J. Fortescue, De laudibus legum Anglie, ed. S.B. Chrimes, [Cam-
bridge Studies in English Legal History], Cambridge 1942 (repr. Westport, Conn. 1979).
 CH. DONAHUE JR.

legal history. Christofle de Thou, premier prisident of the parlement of Paris

and the man who more than any other was responsible for the homologation of
the French customs, seems to have been hostile to comparisons involving Ro-
man law' 7 . Pierre Pithou, in a what may have been a daring move in 1572,
dedicated his edition of the Collatio to de Thou, arguing in the preface that de
Thou had nothing to fear from the authority and sanction of Roman law and
much to gain from its reason and equity. De Thou's reaction, so far as I know, is
not recorded. Perhaps he didn't even notice; Pithou's dedication is dated five
weeks after the St. Bartholomew's Day Massacre18 .
De Thou did, in fact, have something to fear from Roman law and from the
comparative method, but the source of the danger was not the authority of a
Byzantine emperor dead for a thousand years, nor that of Rudolf 1I, the nominal
successor of the Roman emperor in the west. What de Thou had to fear was that
compared to Roman law French customary law was an intellectual mess, and in
an intellectual age, intellectual messiness was not a desirable characteristic.
Ultimately, of course, French customary law acquired intellectual respectabili-
ty, but it did so by using the very tools of analysis and comparison that de Thou
seems to have feared, tools that by and large had been developed by men like
Pithou working on Roman law. In the process French customary law changed; it
became less local and less particular. While it retained characteristics that were
peculiarly French, there were fewer such characteristics when the process was
over than there had been before it began. De Thou may have saved French cus-
tomary law as a category and its practitioners as a profession, but what emerged

17. See generally R. Filhol, Le premier president Christofle de Thou et la riforma-

tion des coutumes, Paris 1937. De Thou's thought is actually quite difficult to recon-
struct. He did not write any general works on his method, and what we know of his
thought is largely derived from what he did and what his contemporaries said about him.
He was probably not hostile to comparisons among the various French customs, and he
was willing to allow Roman law to be called ratio scripta in some of the homologations.
On the other hand, he never spoke of Roman law as being the droit commun in France, a
phrase that he seems to have reserved for the common elements among the customs, and
seems to have been less open to argument from Roman law than was his predecessor
Pierre Lizet. Professor E.A.R. Brown has kindly allowed me to see her forthcoming edi-
tion of de Thou's discours pronounced on 11 May 1565 in the presence of the prince de
Cond6. It is certainly replete with citations to Classical authors, though it contains rela-
tively little Roman law. Professor Brown argues in a forthcoming article in the Biblio-
th~que de I'Ecole des chartes that citation of Classical authorities increased markedly
during de Thou's tenure as president (1554-1582). Her evidence for this proposition is
powerful, but citation of Classical authorities for rhetorical purposes is not quite the
same thing as citing Roman law as authoritative or making comparisons between French
customary law and Roman law. The traditional view, espoused, for example, by Filhol
(id. at 124-40), that de Thou was opposed to the latter is shaken but not quite upset. For
opposition to Roman law among customary lawyers in the early modem period general-
ly, see G. Strauss, Law, Resistance, and the State, The Opposition to Roman Law in
Reformation Germany, Princeton 1986; DR. Coquillette, The Civilian Writers of Doc-
tors' Commons, London, Three Centuries of Juristic Innovation in Comparative, Com-
mercial and InternationalLaw, [Comparative Studies in Continental and Anglo-Ameri-
can Legal History, 3], Berlin 1988, especially 84-94.
18. The dedication is dated 1 October 1572. Pithou, in Opera, above note 7, at 76
The massacre, of course, took place on 24 August.
[7] COMPARATIVE LEGAL HISTORY IN NORTH AMERICA 7

was not the same as what he had saved, and, perhaps, what he hoped to save.
Now what does this tell us about the comparative method in legal history? I
think it tells us that particularists and nationalists do have something to fear
from the comparative method. If this is right, then Fortescue was not a true
practitioner of the comparative method. He made comparisons, but the result of
his comparisons was a foregone conclusion: English law was better than
French. The practice of the comparative method involves more than just making
comparisons. It involves an openness to the comparative process. It involves a
willingness to admit that what is on the other side of the comparison is better
than what is on one's own side, or - if one does not want to be normative - an
openness to seeing that some differences may be more apparent than real and
that the remaining differences may have quite intelligible explanations. For
those for whom the practice of legal history is an exercise in the affirmation of
personal, local or national identity the comparative method, truly practiced, is
dangerous.
If this is right, or even partly right, then we may witness a revival of the
comparative method in legal history. It has been said that one of the charac-
teristics of our age is a decline of nationalism, an openness to trying to under-
stand other cultures. In Europe there is talk of the development of a trans-
national body of private law for the European community. Some legal his-
torians have called for study of what is common in the European legal tradition
and invoke the era of the ius commune as a kind of golden age 19 . I'm not sure
that this approach is any truer to the comparative method than is the jingoism of
Sir John Fortescue. Comparison of the western legal tradition with that of non-
western societies does indeed show that there is much in the west that is
distinctive, but whether those distinctive common elements can be blended into
a single system of private law today is a question that an historian cannot
answer, and should not try to answer. The question that the historian can answer
- and the answer may in turn be useful to those who are today trying to unify
systems of private law - is what those elements are that are common to the
western legal tradition and not to other legal traditions, how the elements that
are common across western legal systems arose, why the elements of
commonality and difference persisted, how similar doctrines produced different
results in different societies, how different doctrines produced the same results
in different societies. These are tasks, I would suggest, that we have hardly
begun to tackle.

While it is a large topic, we can deal more briefly with rationalist objections
to the comparative method. My brief account of the use of the comparative
method by the writers in the natural law school avoided the question whether
their method was genuinely inductive, comparative material being used to
derive larger and larger principles until the ultimate principles emerged, .or
whether the principles were found deductively and the comparative material

19. See M. Bellomo, L'Europa del diritto commune, Lausanne 1988, transl. L.
Cochrane, The Common Legal Past of Europe, Washington, D.C. 1995, 27-33, 234-5; R.
Zimmermann, Law of Obligations, Roman Foundations of the Civilian Tradition, Cape
Town 1990, ix-xi; cf. id., Roman and Comparative Law, The European Perspective, in
Journal of Legal History, 16 (1995), 21-33, with extensive bibliographical references.
Both authors are, however, cautious.
 CH. DONAHUE JR.

was there simply by way of illustration, example or confirmation of what had

been determined by other means. I'm not sure that such a question can be
answered when one is dealing with men as complex and learned as Grotius,
Pufendorf and Selden, and it certainly cannot be resolved in a talk devoted to
the state of comparative legal history in North America today. The distinction,
however, is an important one in determining what comparative legal history
truly is. If one has already made up one's mind that the true principle of law is,
for example, that man has a natural right to private property as that term is
normally understood in the west, then one's history is likely not to be history, or
at least not comparative history. It is likely to be propaganda for the pre-
determined conclusion.
Honest rationalists will recognize this fact and will have no use for history.
Jeremy Bentham was an honest rationalist, and the sole purpose of his inquiries
into history was to show how the iniquities of the English legal system, largely
as described by Blackstone, must be reformed 20 . I have no quarrel with Ben-
tham. His enterprise, however, is not mine.
I do have a quarrel with those of Bentham's successors, mostly engaged in
what in North America is called the 'law and economics' school, who occa-
sionally ask genuine historical questions, such as how did the western concept
of private property arise, and then proceed to answer those questions with
predetermined conclusions, such as that private property arose because it is the
most efficient way of dealing with the allocation of resources in any society at
any time21 .
This is not to say that the comparative legal historian cannot make use of
contributions from the method of law and economics. The method of law and
economics has much in it that does not predetermine the conclusion. Deter-
mining whether a given variation is likely or unlikely to be a random one is part,
I would suggest, of any sophisticated historical method today. The use of
statistical concepts may be even more important in comparative history than in
other kinds of history, because so much of comparative history depends on
determining what variations are worth exploring. Similarly, when we are
dealing with behavior that may be subject to market forces, there is much in
economic method that tells us what we should look for and what we should seek
to explain, particularly when we do not find it. A simple example may serve to
illustrate: In the high middle ages in England we find litigants pursuing tithes

20. The literature is large. Most recently, see G.J. Postema, Bentham and the Com-
mon Law Tradition, Oxford 1986, 263-301; see generally, D. Liebermann, The Province
of Legislation Determined, Legal Theory in Eighteenth-Century Britain, Cambridge
[Engl.] 1989. J. Bowring's edition of The Works of Jeremy Bentham, II vols., Edinburgh
1843 (repr. New York 1962), is inadequate and is being replaced by The Collected
Works of Jeremy Bentham, Oxford 1983-.
21. R. Demsetz, Toward a Theory of Property Right, in American Economic Review
- Papers and Proceeding, 59(79) (1967), 347-59, is a notable example. The answer from
a theoretical point of view is supplied in D. Kennedy and F. Michelman, Are Property
and Contract Efficient? in Hofstra Law Review, 8 (1980), 711-70. G. Miller, Foreword,
The Development of Ancient Near Eastern Law, in Symposium on Ancient Law, Eco-
nomics and Society, Chicago-Kent Law Review, 70 (1995), 1623-30, falls into some of
the same traps but is sensitive enough to texts to pull himself out of them.
[9] COMPARATIVE LEGAL HISTORY IN NORTH AMERICA 9

cases in ecclesiastical courts at a cost far greater than any monetary gains that
they may reasonably be assumed to have expected from a success in the case.
Since our estimates of the costs of pursuing the case are, if anything, low, this
would suggest that we do not fully understand what it is that the litigants sought
22
to gain by pursuing these cases . The remark might equally well be applied to
the analysis of the behavior of modem litigants, but our object here is history.
The effects of positivism on legal history are well known and need only be
illustrated by an extreme example. The promulgation of the Code Napoleon in
1804 did not put an end to historical inquiry. Lawyers who were raised in the
generation before the Code continued to study the pre-Code law, tracing the
origins of the various provisions of the Code. The first generation of lawyers
raised entirely on the Code, however, for the most part, abandoned historical
inquiry. The function of the lawyer, they felt, was to expound the provisions of
the Code from the four corners of the instrument. That wonderful fiction, the
mind of the legislator, was contained within the Code itself. Historical inquiry
was not only irrelevant, but, one might suggest, dangerous. One might discover
that the real mind of the real legislator, if such a thing exists, was quite different
from the mind revealed by the exegetical method. The revival of legal history in
France in the mid-nineteenth century marks the beginning of the end of the
exegetical school, though the school continued to practice for some time
23
thereafter .

I have saved the most telling criticism of comparative legal history to last. I
have called it the criticism from the point of view of professionalism. The
professionalism to which I am referring is not legal professionalism, but
historical professionalism. It can perhaps be best illustrated by the reaction in
24
England to the work of Sir Henry Maine . As is well known, the greatest of

22. Particularly notable examples in the records of consistory court of York at York,
Borthwick Institute of Historical Research: John de Kendall c. Richard Schephird
(1380), CP.E. 251 (6 shillings at stake); John Notyngham c. Prior and Convent of
Haltemprice (1391), CP.E. 182; Thomas Porter c. John Webster (1397), CP.E. 228 (18
pence at stake). For an attempt to analyze the economic implications of statistics in
marriage cases, see C. Donahue, Female Plaintiffs in Marriage Cases in the Court of
York in the Later Middle Ages, What Can We Learnfrom the Numbers? in S. Walker (ed),
Wife and Widow in Medieval England, Ann Arbor 1993, 183-213, especially 202-6.
23. See generally D.R. Kelley, Historians and the Law in Postrevolutionary France,
Princeton 1984. Kelley emphasizes that legal historians were in operation in the first half
of the nineteenth century, along with the cole d'exjg~se (which he does not mention).
Certainly, Pardessus, Laferrirre, Giraud, Laboulaye, and Klimrath were significant
figures, and it may well be that Fustel de Coulanges, Viollet, Esmein, Glasson, Chenon,
Tardif and Arbois de Jubainville could not have done what they did without their early
nineteenth-century predecessors. Id., at 93-100. On the other hand, the former group
hardly had the effect on legal thought that the latter did.
24. Maine's best-known works are Ancient Law, Its Connection with the Early
History of Society and its Relation to Modern Ideas, 12th ed. London 1888; Village-
communities in the East and West, Six Lectures Delivered at Oxford, 4th ed. London
1881, and Lectures on the Early History of Institutions, 4th ed. London 1885, all many
times reprinted. Recent literature includes: A. Diamond (ed), The Victorian Achievement
of Sir Henry Maine, A CentennialReappraisal, Cambridge [Engl.] 1991; R. Cocks, Sir
 CH. DONAHUE JR.

English legal historians, F.W. Maitland, had little use for Maine25. It is
sometimes said that Maitland had little use for the comparative method, but that
statement is not correct. Maitland's History of English Law Before the Time of
EdwardI contains a large number of comparative insights, insights based on the
best Continental work of his time26 . We need not, however, speculate about
what Maitland thought about the comparative method. He gives his views on
the topic quite clearly in his inaugural lecture: Why the History of English Law
Is Not Written: '[T]he science of comparative jurisprudence', he wrote, "'if it
ever exists" will involve the most elaborate study of particular systems of law
.... What is got more cheaply will be guess-work or a merely curious collection
of odds and ends, of precarious odds and questionable ends' 27 .
This quotation gives us a clue as to why Maitland had little use for Maine. It
wasn't that Maitland thought that Maine's method was useless; it was that
Maitland knew, on the basis of his own careful study of the origins of the
English legal system, that Maine had gotten most what he said about English
law wrong 28. If Maitland knew that Maine was wrong about what he, Maitland,
knew, he could not rely on what Maine had said about things that Maitland had
not independently investigated: archaic Roman law, the Brehon law tracts,
Biblical law, and the Indian village community. Already in Maitland's day
much that Maine had stated as fact about non-western societies was shown not
to be fact 29 . Today citation of Maine among anthropologists is likely to produce
bemused smiles 30 .

Let us return to what Jean Bodin confidently asserted that he had done in
order to arrive at his definition of sovereignty. He had, he tells, compared the

Henry Maine, A Study in Victorian Jurisprudence, [Cambridge studies in English legal

history], Cambridge 1988; P.G. Stein, Legal Evolution, The Story of an Idea, Cambridge
[Engl.] 1980; G. Feaver, From Status to Contract, A Biography of Sir Henry Maine,
1822-1888, London 1969.
25. See Victorian Achievement, index s.v. 'Maitland, Frederick (sic) William'; Cocks,
Maine, at 142-5.
26. See F. Pollock and F.W. Maitland, History of English Law Before the Time of
Edward 1, 2 vols., 2d ed. Cambridge [Engi.] 1898 (repr. Cambridge [Engi.] 1968), index
s.vv. 'French law, Allusions to' and 'German law, Allusions to'.
27. F.W. Maitland, Why the History of English Law Is Not Written, in The Collected
Papers of Frederic William Maitland, ed. H.A.L. Fisher, Cambridge [Engl.] 1911, 486-7.
28. E.g., Maitland to Pollock, 21 Jan. 1901: 'You spoke of Maine. Well, I always talk
of him with reluctance, for on the few occasions on which I sought to verify his state-
ments of fact I came to the conclusion that he trusted much to a memory that played him
tricks and rarely looked back at a book that he once read: e.g. his story about the position
of the half-blood in the Law of Normandy seems to me a mere dream that is contradicted
by every version of the custumal': C.H.S. Fifoot (ed), The Letters of Frederic William
Maitland, [Selden Society, Supplementary Series, 1], London 1965, 279.
29. See A. Kuper, The Rise and Fall of Maine's PatriarchalTheory, in Victorian
Achievement, at 99-110; Cocks, Maine, 159-60; Feaver, From Status to Contract, 161-
70.
30. Though not among all; see A.D.J. Macfarlane, Some Contributions of Maine to
History and Anthropology, in Victorian Achievement, 111-42, and the introductory es-
say of A. Diamond, in id., 1-27.
 COMPARATIVE LEGAL HISTORY IN NORTH AMERICA

arguments of Aristotle, Polybius, Dionysius of Halicarnassus, and the jurists

with each other and with the universal history of commonwealths. He had, in
short, comparatively examined abstractions of the highest order, comparatively
examined the second-level abstractions found in juristic writing, and had laid
both comparisons against the history of the societies in which they emerged.
Only then was he able to arrive at his generalizations about the nature of
sovereignty. In Bodin's day it was just barely possible for a genius and
polymath like Bodin actually to execute this program.
Even Bodin took shortcuts. It is probably just as well that Bodin spent little
time examining the Germanic and Gallic background of the French constitu-
tion, because the work that his contemporaries, such as Hotman, did on the
topic seems today embarrassingly tendentious and amateurish". What the
sixteenth-century humanists have to say about the Greek and Roman worlds is
more solidly based. One can still gain insights into Greek and Roman con-
stitutional thought from reading the work of the sixteenth-century humanists.
The work of Jacques Godefroy (1587-1652) on the Theodosian Code has, in
some sense, not been replaced3 2. Nonetheless, the humanists' vision of the
constitutional development of Greece and Rome is not ours. While they were
aware of the problems that interpolation and omission in juristic texts caused,
they had not tried systematically to explore effects of these phenomena. They
knew some of the epigraphic evidence, but not enough. The study of Roman
public law cannot be done today as it was done in the sixteenth century because
of the work of Mommsen and his followers33 . I am still old-fashioned enough to
believe in progress in historical knowledge, but progress means that the number
of areas that one can cover in a lifetime gets smaller.
I have suggested that true comparative legal history involves laying two legal
systems side by side in all of their aspects. One must understand the top-level
generalizations that lie behind the statements of rules and doctrines, one must
understand the history in which these statements are embedded, one must un-
derstand how the society and institutions operate in order to understand how the
rules and doctrines operate within the society. Only when one understands all of
these things can one safely make comparisons. It is a tall order to get one's self

31. See, e.g., D.R. Kelley, Francois Hotman, A Revolutionary's Ordeal, Princeton
1973, 238-52; id., The Rise of Legal History in the Renaissance, in History and Theory,
9 (1970), 187-90, in id., History, Law (above note 4), V:179-80; R. Giesey, When and
Why Hotman Wrote the 'Francogallia',in Biblioth~que d'humanisme et renaissance, 29
(1967), 581-611.
32. Published posthumously, J. Godefroy (ed), Codex Theodosianus cum perpetuis
commentariis Jacobi Gothofredi, Lyon 1665. For a recent assessment, see B. Schmidlin
and A. Dufour (ed), Jacques Godefroy (1587-1652) et l'Humanismejuridiqued Gen~ve,
Basle 1991, 44-5, 259. For a recent work dependent on Godefroy's, see R. Frohne, Co-
dex Theodosianus 16,8,1-29, Ober Juden, Himmelsverehrer und Samaritaner,[Europii-
sche Hochschulschriften, 3.453], Bern 1991.
33. In this regard the Mommsen of the Corpus inscriptionum latinarum, Berlin 1862-
(currently 18 vols. in 54 parts) may be more important than the Mommsen of the
R6misches Staatsrecht, 3 vols., 3d ed., [Handbuch der r6mischen Alterthuimer, 1-3],
Leipzig 1887, which has recently been challenged as anachronistic. See J. Bleicken, Lex
Publica, Gesetz und Recht in der r6mischen Republik, Berlin 1975.
 CH. DONAHUE JR.

up to modem standards of historical inquiry when studying one legal system. It

is a very tall order to do it with more than one system. One cannot study 'the
universal history of commonwealths' and adhere to contemporary standards of
historical inquiry.
Does this mean that comparative legal history cannot be done? My answer to
that question is 'yes and no'. It cannot be done on Bodin's scale. It can, how-
ever, be done if the questions are framed carefully. By and large, it is easier to
do it successfully if the questions are framed in such a way as to limit the num-
ber of possible explanatory variables. There are remarkable similarities in the
societies, economies, and governmental structures of England and France over
a relatively long period of history. It is probable that the English and French
have not gotten along with each other not because they are so different but be-
cause they are, in many ways, so much alike. That in turn makes English and
French comparisons particularly fruitful for comparative study. So much is the
same that it is easier to identify those differences that are likely to have made a
difference. A very common use of the comparative method is to study a given
doctrine or institution within a given legal system in two different periods. Such
studies - some of which are consciously comparative in that they seek sys-
tematically to isolate the factors that lead to similarities and differences - con-
stitute the major exception to my general statement that hardly any comparative
legal history is done today34 .
We can now return to that general statement with a better idea of how it is that
I could say something so outrageous. Much of what passes for comparative
legal history in both Europe and America is not comparative at all, as I have
defined it, because it does not involve making comparisons, much less the
systematic ones that I asserted above were necessary for a truly comparative
method. There is, for example, in North America and in Europe today a con-
siderable amount of scholarly effort being devoted to medieval canon law.
Some of this work is very good indeed. Stephan Kuttner, his friends and his
students have produced a great deal of value over the last generation35 . Very
little of this work, however, is comparative, except in the limited sense of
making chronological comparisons of one period of medieval canon law with
another. Comparative work could emerge out of this effort. It has always struck
me that comparative study of the development of western canon law, on the one
hand, and Jewish law, on the other, might produce some striking insights into
the nature of religious legal systems and the effect of different types of religious
institutions. But the barriers to acquiring competence in both areas are formid-
able, and few if any scholars have dared to cross the line 36.

34. E.g., A. Lefebvre, Une nouvelle venue dans l'histoire du droit canonique: La
jurisprudence, in S. Kuttner and K. Pennington (ed), Proceedings of the Sixth Inter-
national Congress of Medieval Canon Law, CittA del Vaticano 1985, 647-57; C.
Donahue, What Causes Fundamental Legal Ideas? Marital Property in England and
France in the Thirteenth Century, in Michigan Law Review, 78 (1979), 59-88. Cf. C.T.
Wood, Joan of Arc and Richard III, New York 1988, for a broader attempt at com-
parison, including a number of insights about comparative public law.
35. The achievements of this group are best traced in the Bulletin of Medieval Canon
Law and in the series Monumenta iuris canonici, CittA del Vaticano 1965- (19 vols. to
date in three subseries).
36. Some biblical scholars have done it. Interestingly, their purpose is more to trace
 COMPARATIVE LEGAL HISTORY IN NORTH AMERICA

It should be easier to engage in a somewhat different kind of comparison,

comparing the effect of ecclesiastical jurisdiction in different European socie-
ties, say, England and France in the fourteenth century. Some work of this na-
ture has been done, though relatively little37 . Perhaps the most promising devel-
opment along these lines is a recent volume of essays with both North Ameri-
can and European contributors on the development of canon law in various
Protestant countries in the, years following the Reformation 38 . Even here the
essays present more material for comparative study than actual comparative
studies. The same might be said of a number of recent studies in comparative
history that have not focused on law 39 .
The volume of essays on canon law in Protestant lands appeared in a series
with the ambitious title of Comparative Studies in Continental and Anglo-
American Legal History 0 . There are now sixteen volumes in the series, and
there is no question that the series was inspired by a perceived need for more
comparative study, particularly across the somewhat artificial line that divides
historical study of the legal systems of the European Continent and their
derivatives from that of the legal systems that perceive their basic affiliation to
be with England. Virtually everyone in North America doing serious work on
the legal history of continental Europe is represented in these volumes, and
many, if not most, Europeans who will consider the Anglo-American legal
tradition, are involved as well. All the volumes are of high quality; some of the
essays and monographs are very good indeed. The editors of most of the vol-
umes clearly had a vision of a way in which genuine comparative work could be
done. Some of the editors sought to assess the comparative impact of a non-
legal phenomenon on various legal systems, such as the industrialization of the
nineteenth century or the growth of the bank as an institution41 . Other editors
focused on particular legal institutions, such as the trial jury or the case report;
others focused on particular doctrines, such as unjust enrichment or the general
theory of contract; still others focused on intellectual movements, such as the
impact of the German historical school outside of Germany or German
understanding of English constitutional law 2 .

influences than to make comparisons. E.g., D. Daube, The New Testament and Rabbinic
Judaism, [Jordan Lectures in Comparative Religion, 2], London 1956; id., Appeasement
or Resistance and Other Essays on New Testament Judaism, Berkeley 1987; E.P. San-
ders, Paul, the Law, and the Jewish People, Philadelphia 1983; id., Jewish Law from
Jesus to the Mishnah, Five Studies, London 1990.
37. Relevant bibliography in C. Donahue (ed), The Records of the Medieval Eccle-
siastical Courts, 1: The Continent, [Comparative Studies in Continental and Anglo-
American Legal History, 6], Berlin 1989, 23-9.
38. R.H. Helmholz (ed), Canon Law in Protestant Lands, [Comparative Studies in
Continental and Anglo-American Legal History, 11], Berlin 1992.
39. E.g., M. Prestwich (ed), InternationalCalvinism, 1541-1715, Oxford 1985.
40. H. Coing and K.W. N6rr (ed), Comparative Studies in Continental and Anglo-
American Legal History / Vergleichende Untersuchungen zur kontinentaleuropdischen
und anglo-amerikanischenRechtsgeschichte, Berlin 1985- (16 vols. to date).
41. H. Coing (ed), Studien zur Einwirkung der Industrialisierungauf das Recht,
[Comparative Studies in Continental and Anglo-American Legal History, 9], Berlin
1991; V. Piergiovanni (ed), The Growth of the Bank as Institution and the Development
of Money-business Law, [id., 12], Berlin 1993.
42. A. Padoa Schioppa (ed), The Trial Jury in England, France, Germany, 1700-
 CH. DONAHUE JR.

With the possible exception of the last approach (to which we will return in a
moment), there is no question that all of these approaches are legitimate ones
for genuine comparative inquiry. The fact is, however, that with a few notable
exceptions only the editors of the volume, usually in quite brief introductory
essays, actually make any effort to compare. Most of the contributors to these
volumes have contented themselves with studying the phenomenon at issue in
the context of the legal system and historical period that they know best. By and
large, they have done a good job, but that is as far as they go. This is, of course,
Maitland's professionalism standing in the way of comparative inquiry. Much
comparative work could be done from the materials gathered in these volumes;
relatively little has actually been done.
The same might be said of the work of my former colleague Harold Berman.
His book, Law and Revolution, has had considerable impact, even on the other
side of the Atlantic 43 . His argument that the Gregorian Reform created the
western legal system is, if not quite new, forcefully stated and on some pages
ably defended. There is little, however, in the book that is expressly com-
parative. Berman is so interested in the creation of what he regards as a unified
system that he does not pause to consider carefully local, regional, or systemic
differences in the long period that he covers. Since he does not systematically
consider differences or arguments for difference, other than those before and
after the mid-eleventh century, he really does not fully support his assertion that
there was a basic unity in the western legal system brought about by the reform.
In discussing Comparative Studies in Continental and Anglo-American
Legal History, I put aside for special consideration the problem of influence,
reception and transplant. Conscious or unconscious borrowing of institutions,
ideas, ways of thought, or whole codes is a legitimate topic of comparative
inquiry, but it is not in itself a topic of comparative inquiry. To say that Turkey
adopted the Swiss Civil Code and Swiss Code of Obligations in 1926 is not a
comparative statement; it is a statement about the history of Turkish law". To
engage in comparative inquiry we must compare. We must, for example, show
that the Swiss Civil Code was interpreted differently in Switzerland from the
way it was interpreted in Turkey - or that it was interpreted in the same way. We
must ask how adoption of the Swiss Civil Code impacted on Turkish society in
comparison with how it impacted on Swiss society. We must ask what hap-
pened when a body of law that presupposes a whole series of western ideas

1900, [id., 4], Berlin 1987; J.H. Baker (ed), Judicial Records, Law Reports, and the
Growth of Case Law, [id., 5], Berlin 1989; E.J.H. Schrage (ed), Unjust Enrichment, The
Comparative Legal History of the Law of Restitution, [id., 15], Berlin 1995; J. Barton
(ed), Towards a General Law of Contract,[id., 8], Berlin 1990; M. Reimann, Historische
Schule und Common Law, Die deutsche Rechtswissenschaft des 19. Jahrhunderts im
amerikanischen Rechtsdenken, [id., 14], Berlin 1993; W. Poggeler, Die deutsche Wis-
senschaft vom englischen Staatsrecht, Ein Beitrag zur Rezeptions- und Wissenschafts-
geschichte, 1748-1914, [id., 16], Berlin 1995.
43. H.J. Berman,Law and Revolution, The Formationof the Western Legal Tradition,
Cambridge, Mass. 1983.
44. See T. Ansay and D. Wallace, Introduction to Turkish Law, 4th ed. The Hague
1996, 9.
 COMPARATIVE LEGAL HISTORY IN NORTH AMERICA

about the nature of law and governance was adopted by a people that did not
fully share those ideas4 5.
To say this, of course, is an implied criticism of one aspect of the work of the
man who is probably the most prominent comparative legal historian in North
America, Alan Watson 46 . Watson's work is stimulating. There is no question
that his numerous works on the history of the transplant and reception of legal
rules have arrived at a comparative conclusion. To put it perhaps too bluntly, in
Watson's view the legal profession in most western societies is so out of touch
with reality that social forces have relatively little effect on the way that legal
systems develop. That conclusion may be right. My problem with it is that by
focusing almost exclusively on the formal statements of the rules rather than on
their interpretation, their impact on society and their interaction with the high-
level ideas that surround them, Watson has made it too easy for himself. He is
doing comparative work, but it is comparative work that ignores some of the
more important questions that the method inspires.
What Watson has shown, however, is that, at least in the west, the legal world
is remarkably porous. Doctrines and ideas move across jurisdictional bound-
aries with great ease, even across the seemingly uncrossable chasm between the
Continental systems and the Anglo-American. Two recent works by North
American legal historians, neither of which is strictly speaking comparative,
deserve mention here because they have picked up on this idea and have shown
that when one takes off the blinders of national legal systems quite remarkable
insights ensue. The first is James Gordley's The PhilosophicalOrigins of Mod-
ern Contract Doctrine, which advances the thesis that much that is unintel-
ligible about a number of modem contract doctrines - which Gordley believes
are fundamentally the same across the Anglo-American and Continental legal
systems - is unintelligible because it is derived from the work of the late
Scholastics, in whose works it makes quite good sense because of their Aristo-
telean world view 47 . The Aristotelean world view was lost, but the doctrines
survived, passing from the Spanish scholastics to the writers of the natural law
school and from there to the modem civil codes and to eighteenth- and nine-
teenth-century England. The second work is Mathias Reimann's monograph,
HistorischeSchule und Common Law, which, despite the title, is the work of a
former professor at the University of Michigan Law School, and which argues
that the German historical school powerfully influenced English and, particu-
larly, American legal thought in the nineteenth century48 .

45. In fact, two works that I did not know when I gave the report, represent a start
in this inquiry: E.E. Hirsch, Rezeption als sozialer Prozess, erldutert am Beispiel der
Turkei, [Schriftenreihe zur Rechtssoziologie und Rechtstatsachenforschung, 50], Berlin
1981; J. Starr, Law as Metaphor, From Islamic Courts to the Palace of Justice, Albany
1992.
46. Watson's output is enormous. I am referring here to his comparative works and
not to those more particularly devoted to Roman law: e.g., A. Watson, Legal Trans-
plants, An Approach to Comparative Law, Edinburgh 1974; id., Society and Legal
Change, Edinburgh 1977; id., Sources of Law, Legal Change and Ambiguity, Philadel-
phia 1984; id., The Evolution of Law, Baltimore 1985; id., Slave Law in the Americas,
Athens, Ga. 1989.
47. J. Gordley, PhilosophicalOrigins of Modern ContractDoctrine, Oxford 1991.
48. Reimann, above note 42.
 CH. DONAHUE JR.

I suggested that neither of these works - for both of which, I might say, I have
a high regard - is really a work of comparative legal history. That statement
requires some qualification. In the case of Gordley, the comparison comes at
the beginning. He identifies a series of doctrines in the contract law of both the
Anglo-American jurisdictions and the civil-code jurisdictions which contem-
porary scholarship in both realms finds difficult to justify. That is a comparative
effort. But the greater part of the book involves tracing those doctrines back to
their sources and examining the varying philosophical underpinnings of them.
In the case of Reimann's work the problem is more subtle. The work is largely
cast in terms of influence. In one sense it is the story of how American (and to a
somewhat lesser extent English) legal thinkers took German ideas and applied
them to the common law. This is, of course, the Turks adopting the Swiss Civil
Code applied to the level of general ideas about legal systems - an interesting
point, but not a comparative one. At times, however, Reimann seems to be
arguing a somewhat different point - that even without direct borrowing
American and German legal thought were proceeding on parallel courses
throughout the nineteenth century. Now that is a very interesting comparative
point, but it is not systematically explored in the book.
We have said that while some interesting and important work is being done in
North America on the legal history of areas outside of North America and on
borrowings and transplants into and influences on the legal systems of North
America, very little work that is being done is genuinely comparative. We
suggested some qualifications to this proposition, but not many. We offered
some suggestions - of which professionalism is probably the most important
today - as to why this is the case. I am now about to offer one final qualification
that turns out to be an important one, and that qualification, in turn, will serve to
introduce the final area of scholarship that shows some signs of producing
genuinely comparative work.

When I spoke of the absence of comparative legal history in North America,

I was speaking of the written product. Most of us who write legal history in
North America also teach it, and many of us teach it to law students. My own
experience in teaching legal history, an experience that is confirmed in
discussions with my colleagues, is that in many instances the best way to teach
legal history is comparatively. If I am teaching an introductory course in Roman
law to a group of second- and third-year Harvard law students, I ask them to
49
read (in translation, alas) Gaius . I then ask them how what Gaius was teaching
first-year law students differed from what they have just learned in the first year
of a twentieth-century American law school. Even if the comparison is not
explicitly made, it almost always is made impliedly by the students. We learn
by proceeding from what we know to what we don't know. What Gaius is
teaching looks remarkably like what we call family law, property, wills and
trusts, contracts, torts, and civil procedure, four of which are first-year courses
in American law schools and the other two of which are common second- and
third-year courses. What Gaius is teaching looks remarkably like those topics,

49. F. de Zulueta (ed), The Institutes of Gaius, 2 vols., Oxford 1946-53; cf. W.
Gordon and O.F. Robinson (ed), The Institutes of Gaius, London 1988.
 COMPARATIVE LEGAL HISTORY IN NORTH AMERICA

but it is not the same. Sometimes the students will err on the side of overem-
phasizing the similarities; sometimes they will err on the side of overempha-
sizing the differences. Different classes need to be nudged in different direc-
tions. In all cases, however, what they learn by comparison allows them to
become more sophisticated not only as Roman lawyers but also as twentieth-
century American lawyers.
The comparative method is, of course, a well-known method for teaching,
particularly for teaching Roman law5". It is perhaps for this reason that some of
the very few scholars in North America who are professionally interested in the
law of the ancient world do make use of conscious comparisons. David Daube
pioneered the method as a teaching technique at Berkeley, and some of his
voluminous writings employ the method 51. Younger scholars working in the
ancient world have done the same5". A few have tried it in teaching legal history
that does not focus on the ancient world 53.
What I find odd is that with so many of us quite consciously using the
comparative method for teaching purposes, so few of us use it when we come to
write. The amount that can be produced will not be large. The number of people
in North America who have the training to do this kind of work is small. I think,
however, that the time may be ripe for a methodological shift, and I hope that
the next time I have occasion to give a report like this one the overall assess-
ment will not be so gloomy.

50. See, e.g., J.A. Borkowski, Textbook on Roman Law, London 1994.
51. E.g., D. Daube, Lex Fufia Caniniaand King Arthur, in Law Quarterly Review, 80
(1964), 225-7, in id., Collected Studies in Roman Law, ed. D. Cohen and D. Simon, 2
vols., [Ius Commune, Sonderhefte 54], Frankfurt 1991, 2:1083-6; id., Dividing a Child
in Antiquity, in California Law Review, 54 (1966), 1630-7, in id., 2:1097-1106; id.,
Self-Understood in Legal History, in Juridical Review, 85 (18) (1973), 126-34, in id.,
2:1277-85; id., Texts and Interpretation in Roman and Jewish Law, in The Jewish
Journal of Sociology, 3 (1961), 3-28, in id., Collected Works of David Daube, 1:
Talmudic Law, ed. C.M. Carmichael, [Studies in Comparative Legal History], Berkeley
1992, 173-204.
52. Raymond Westbrook at Johns Hopkins University has been using it in both
teaching and writing about the ancient Semitic world. E.g., R. Westbrook, Studies in
Biblical and Cuneiform Law, [Cahiers de la Revue biblique, 26], Paris 1988. Bruce Frier
uses it in his teaching of Roman law at the University of Michigan, and there are
probably others.
53. E.g., Laurent Mayali and James Gordley offer a course in comparative legal
history at Berkeley.