Author: joanna.mccunn

New law students often experience academic culture shock. As Russell Sandberg writes, ‘Law Schools are strange places’, where students are expected to solve unusual problems, use a unique set of sources, and employ distinctive methods. They are asked to ‘think like lawyers’, even when these new ways of thinking are ‘at odds with what law students have previously experienced’. Happily, help is close at hand: there is no shortage of books written by distinguished lawyers who are anxious to explain to new law students what the law is and how they should approach its study.

Law students’ culture shock is not a uniquely modern phenomenon, and nor is experienced lawyers’ instinct to offer well-meaning advice. Early modern law students had plenty of complaints as they began their studies at the Inns of Court. They were not offered official reading lists or introductory courses: instead, they were expected to read their way through the case law by themselves. Many students were shocked by the heavy workload and lack of clear direction. Henry Spelman described his work as ’a mass which was not only large, but which was to be continually borne on the shoulders’, while Abraham Fraunce complained that ‘the study of the Law’ was ‘hard, harsh, unpleasant, unsavory, rude and barbarous’.

Lawyers soon began to publish books of advice to help these struggling law students. Some instructed students on how they should spend their time. In 1663, for example, Edward Waterhouse recommended the following (rather varied) timetable to law students: 5-6am was for reading the Bible and praying; 6-9am was for reading law; 9-11am for fencing and dancing; 11am-12 noon for learning logic and rhetoric; 12-2pm for eating; 2-5pm for visiting friends; 5-6pm for reading poetry; 6-8pm for eating again; and 8-9pm for praying before bed.

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I’m currently writing about a work called Epieikeia: A Dialogue on Equity in Three Parts, which was composed by Edward Hake in the late sixteenth century. Hake was a Puritan, a poet, and a local government official, who hoped that his treatise would bring him to the King’s attention and secure his advancement. If I’m honest, I first became interested in this work because it’s more than a little bizarre.

For a start, it’s written in dialogue form—as an imaginary conversation between Hake and two friends, Lovelace and Eliott. The conceit is that the three men have gathered before dinner when Eliott starts pressing Hake to explain to them the nature of equity (as you do). Hake is initially reluctant, but is soon convinced to spend three afternoons (or 140 pages) expounding his ideas.

The literary dialogue was popular in Renaissance Europe, and many writers used it to draw out a range of views and ambiguities around their topic. Hake… did not. Lovelace and Eliott are really only there to repeat his conclusions and tell him how clever he is. (Sample contribution from Eliott: ‘I acknowledge to have received both pleasure and profitt [from Hake’s discussion], pleasure in the variety of the matter, and profitt in the good end and purpose that hath byn of it. And this I must confesse, that had it not byn for this and your former speache, I sholde have remained in error…’) It’s a shame that this mode of writing has fallen out of fashion—it must be good for the self-esteem and a helpful cure for writer’s block.

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We in the Centre for Law and History Research enjoy nothing more than curling up with a good book! For our first post this year, we caught up with another legal historian, Andreas Televantos (University of Oxford), whose book Capitalism before Corporations: The Morality of Business Associations and the Roots of Commercial Equity and Law (OUP 2020) recently won the SLS’s Peter Birks Prize for Outstanding Legal Scholarship. Our roving reporter went to find out more…

Andreas, congratulations on winning the Peter Birks Prize! Can you tell us a little about your book?

The CLHR is delighted to welcome its newest member, Dr Andrew J. Bell. Dr Bell joins us as a lecturer at the University of Bristol Law School from the Institute for European Tort Law in Vienna. His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history. Comparative legal history uses and combines comparative and historical analyses to gain new insights into the development of legal systems. Dr Bell introduces us to some of the travails and triumphs of the comparative legal historian below…

Though a newcomer to the Law School, I don’t want to discuss my journey to transfer here (a long tale of rescheduled Austrian Airlines flights and overfull cars trapped in motorway chaos), but instead a research trip a little earlier this year. Shortly before joining the School, I was fortunate enough, despite the coronavirus pandemic, to be afforded a research scholarship to support a stay in Hamburg for my comparative historical work – such stays are a vital form of undertaking for both comparatists and historians, and something obviously much-missed since the public health crisis began.

As matters transpired, legal history could feature prominently from the very start of the trip. I was disturbed constantly during my travel quarantine period in Germany by a Glockenspiel on the revivalist Kontorhaus building opposite my first hotel room; a Glockenspiel that daily depicts the executions of Klaus Störtebeker and his pirate crew (replete with swinging axe, toppling heads and bloodstains). Was this a morality tale for my personal improvement? A hardcore boast of a proud justice tradition? A threat of dire consequences if I breached my quarantine? After a week isolated in one room with temperamental internet connections and a view of little else, I could be sure of nothing.

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The invention of the printing press revolutionised law reporting. Medieval lawyers had relied less on written texts than on their profession’s ‘common learning’, which was passed down orally at the Inns of Court. Students learnt by observing the courts at work, but also by listening to senior lawyers discussing the law at moots or even over dinner. They rarely cited specific case reports in court, instead referring vaguely to ‘our books’. More precise references would have been unhelpful – after all, manuscript law reports were difficult to access and not necessarily consistent. The appearance of reliable and widely-distributed printed reports encouraged lawyers to cite cases much more extensively.

In the sixteenth century, though, the printed reports available were often decades out of date. Lawyers therefore relied on circulating manuscript case reports to keep on top of new material, and to glean information that the printed reports didn’t provide. We can get an insight into how these cases were shared between lawyers by looking at a manuscript report of the 1567 ‘serjeants’ case’. Serjeants were an elite rank of barristers with special privileges. When a new batch of serjeants was appointed, there would be celebratory feasts and amusements, including a serjeants’ case: a hypothetical case invented for the new serjeants to debate. (Imagine newly-appointed QCs taking part in a moot for their colleagues’ entertainment.)

Like many moot problems today, the serjeants’ case of 1567 was based on a real contemporary case. It concerned the intricacies of will-making. For example, if a testator made a will of ‘all his land’, but acquired new land after making the will, would the new land pass by the previous will? Questions like this were very controversial. Wills of land were new to the common law – they had only been permitted by the 1540 Statute of Wills – so lawyers were still unsure exactly how they should work. The serjeants’ case would have been watched with interest to see what these top barristers thought about the problem – perhaps it would give some clues about what would happen when the real case was argued the following year.

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