Given the esoteric nature of much modern academic scholarship, A Short History of European Law is a refreshingly old-fashioned book. Tamar Herzog sets out to produce a broad-ranging synthesis of the development of the law from ancient Rome to the European Union. Despite the book's title, a chapter is devoted to North America and part of another chapter contains a useful summary of nineteenth century codification movements in that jurisdiction.
A few useful general works that cover some of the material do exist, which include Peter Stein's useful Roman Law in European History (1999) and O. F. Robinson, T. D. Fergus, and W. M. Gordon, European Legal History (2000). In addition, there is a vast range of scholarly literature, some of which is referred to in the additional reading. Herzog's contribution is to provide an extremely accessible and elegant overview of a complex subject. It is easy to imagine students reading A Short History of European Law as an introduction not only to comparative legal history but also to Roman law and the English common law.
Legal change is a key theme running through the book. Herzog describes it as “a haphazard and complex progression whose trajectory into the future is far from self-evident” (4). The scope of the work allows Herzog to explore legal change across the centuries. Herzog emphasizes two main aspects of legal change; the first stresses that the legal framework is too important to be ignored and the second questions the complete separateness of the common law and the civil law. She contends that there is more in common than merely specific instances where one system influences the other but rather, “even when they took different paths they were largely propelled to do so in response to similar developments and pressures” (6). Herzog also shows that there are some constants. Roman law is the most important and is part of the tension between a desire for stability and universality on one hand and dynamism and localism on the other.
The other constant is the English common law. Four of the thirteen chapters are given over to the history of the common law. Herzog explains the relationship between the Royal Courts and the range of other courts particularly well (for example at 97). The diverse nature of the medieval English legal system cannot be emphasized enough. But her treatment also highlights some of the dangers in broad-brush history. Herzog states that until the eighteenth century the number of cases in the Royal Courts was “relatively small if compared to the quantity and importance of cases” in the other courts (113). Up to a point this is true. Yet it is striking even in the Middle Ages how many relatively small contract and tort cases were litigated in the Royal Courts. It would also be worth mentioning that the common law courts, particularly the King's Bench, became major forums for civil litigation from the sixteenth century, particularly as the civilian courts fell away.
One of the most interesting arguments in A Short History of European Law is that the common law and the civil law were “substantially more similar than meets the eye” (6). Herzog is careful not to push the parallels too far but in one aspect this point could even be taken further. The Court of Chancery perhaps deserves more prominence in a history of legal change. In its procedures and the absence of a jury, there are obvious parallels with civilian legal systems. From the seventeenth century, equity was a major jurisdiction alongside the common law.
One of the most interesting parts of the book is the discussion of the history of codification in the common law. Herzog quite correctly emphasizes the way that some of the most vociferous objections were cultural. Yet it is not quite true to say that codification became possible in colonial situations because of the multiplicity of indigenous laws. Certainly this was a factor in Indian legislation, such as the Indian Contract Act of 1872, although even here there was friction between the desire for the sort of intellectual neatness sought by codifiers back in London and those colonial officials trying to make the law work on the ground. Other major colonial codes occurred where there was no question that a single version of English law applied examples include: the Queensland Criminal Code (1899) and the early and comprehensive New Zealand Code of Civil Procedure of 1856. There was always more than eccentricity in Jeremy Bentham's attack on “judge and co.” Lawyers resisted simplification and reordering because it was not in their own interests. Reform of property law before the comprehensive 1925 legislation met resistance and was glacially slow. The fact those reforms lasted until 2002 tells its own story.
In a short review it is difficult to do full justice to a narrative of this sort. Suffice to say each chapter provides a very good introduction to the relevant topic and there is little that prompts major disagreement. One slight irritation is the constant reference to “historians” or “some historians.” For example, in a discussion of modern theories of feudalism (66) it would be helpful to a nonexpert to know which historians have challenged the older view of feudalism. Susan Reynolds appears in the additional reading, but additional signposts would be helpful.
A Short History of European Law provides an excellent overview of the history of European law from the Middle Ages to modern times. This is an easy book to read and can be read with pleasure and profit by lawyers and historians interested in legal change, whether they come to the subject as experts or with little or no prior knowledge.
