The Catholic University of America



History 312A: European Law from Antiquity to Napoleon

Law rules our lives, but there are few opportunities to study law as an undergraduate. This course will consider the major systems of law in European history--Roman law, feudal law, canon law, civil law, English common law--and will also pay attention to the changing understanding of natural law, the process of codification and the imposition of the Napoleonic Code on Europe, and the use of international law in the twentieth century. Law will be studied primarily through the lens of intellectual history, focusing on concepts, definitions, and principles, but the social and political implications of law will also be periodically addressed. Readings will include both excerpts from the great legal texts of the European past and scholarly overviews of legal history.


Course Books


Du Plessis, Borkowski’s Textbook on Roman Law

The Burgundian Code

Gratian, A Treatise on the Laws

Baker, An Introduction to English Legal History


Course Schedule


W (8/27): Introduction


Unit One: Roman Law


F (8/29): Beginnings of Roman Law


            Reading: The Twelve Tables (Blackboard)


W (9/3): Procedure and Status


            Reading: Borkowski, pp. 63-109


F (9/5): Family


Reading: Borkowski, pp. 110-147


W (9/10): Interests in Property


Reading: Borkowski, pp. 151-177


F (9/12): Acquiring Ownership


Reading: Borkowski, pp. 178-204



W (9/17): Inheritance


Reading: Borkowski, pp. 205-245


F (9/19): Contracts


Reading: Borkowski, pp. 249-316


Paper #1: On Blackboard you will find a series of quotations from the Digest on the delict of iniuria (outrage).  Pretend that you are a clerk for a judge.  Your assignment is to write a summary of the law of iniuria for this judge for him or her to use as a guide for ruling.  You may cite the quotations according to their numbers (i.e.: “Quotation 1” or “Quotation 10”).  You are not responsible for any elements of iniuria that have been left out of this compilation of quotations.  You should not use the Borkowski or any other source for writing this summary of the law as either a help or as background reading.


W (9/24): Delicts


Reading: Borkowski, pp. 317-352


F (9/26): Roman Law Review


Unit Two: Law After the Roman Empire


W (10/1): Barbarian Law


F (10/3): The Burgundian Code


            Reading: The Burgundian Code


W (10/8): Review for Midterm


F (10/10): Midterm


Unit Three: Canon Law


W (10/15): Introduction to Canon Law


            Reading: Gratian, Treatise on Laws


F (10/17): Canon Law: Marriage


            Reading: Gratian, selections from the Decretum (Blackboard)


Unit Four: Ius Commune and Ius Proprium


W (10/22): Ius Commune


            Reading: Pennington, “Learned Law, Droit Savant, Gelehrtes Recht”


Pennington, “The Development of Fedual Law in the Ius Commune” (Blackboard)


F (10/24): Ius Proprium


            Reading: Feudalism Documents (Blackboard)

                        Philippe de Beaumanoir, Coutumes de Beauvaisis, selections (Blackboard)


Paper #2: Philippe de Beaumanoir asserts that local custom in Clermont allows for no land to be allodial: that is, all land in Clermont must carry obligations (services, dues, etc.) to someone else.  He describes, in other words, total feudalism, in which everyone and all land is connected to a hierarchy of obligation.  At first glance, this might sound completely unlike property ownership today.  But, given property taxes, zoning restrictions, and the principle of eminent domain (the power of state to take property without the owner’s consent), it is arguable that there is no such thing as allodial land currently in American practice either.  Is this a problem?  Are we still living in a modified version of feudalism?  Is it good to own property entirely and be able to do anything that you want with it, without any restrictions, or is it better for society to require that land-owning is never free from obligations?  Make an argument about the benefits or problems of allodial land.


Unit Five: Topics in Early Modern Law


W (10/29): Inquisition, Torture and Proof


            Reading: The Inquisition Record of Diego Díaz (Blackboard)


F (10/31): Protestant Law, Natural Law, and International Law


            Reading: Bix, “Natural Law Theory” (Blackboard)


Unit Six: Common Law


W (11/5): Introduction to Common Law


            Reading: Baker, 12-50 and Magna Carta (Blackboard)


F (11/7): Procedure, Writ, and Equity


            Reading: Baker, 53-115 and 135-153


W (11/12): Real Property


            Reading: Baker, 223-296


F (11/14): Contract


            Reading: Baker, 317-377


W (11/19): Tort and Crime


            Reading: Baker, 401-465 and 500-536


Paper #3: A common task in law school is to write a case brief.  I have put instructions on Blackboard on how to write a case brief—use these as your guidelines.  The assignment for the week is to write a case brief on the two major English common law cases on contracts (also available on Blackboard), whose Titles and Citations are:


Paradine v. Jane [1647] 4 (KB)


Taylor v. Caldwell [1863] EWHC QB J1 122 ER 309;3 B. & S. 826


The goal is for you to discover the facts, issues, holdings, and rationale and to write analysis without consulting the various helps available on the internet, i.e. to practice your critical reading and analysis skills, so for this week you are asked to avoid reading accounts or sample briefs of this case online or in the case law hornbooks that law students sometimes use.  You may, of course, look up difficult words or elements of the text that you find difficult.


F (11/21): Persons


            Reading: Baker, 466-498


Unit Seven: Modern Law


W (12/3): Napoleon and Modern Law


F (12/5): Civil vs. Common Law Debate


Final Exam:  Wednesday, December 10th at 3:15pm