ABSTRACT
In 1888 F. W. Maitland, the greatest of all historians of medieval law, gave his inaugural lecture the title ‘Why the history of English law is not written’ (Maitland 1911). The three masterpieces he wrote in the next ten years transformed the knowledge and understanding of English law before 1272,1 and the twentieth century has seen great advances in the history of the later medieval law both of England and of other European countries. Yet in one respect the situation has not improved. Maitland deplored the ‘very complete and traditionally consecrated ignorance of French and German law’ among English lawyers, since, as he put it, ‘there is nothing that sets a man thinking and writing to such good effect about a system of law and its history as an acquaintance however slight with other systems and their history’ (Maitland 1911: 1. 489-90). Yet, even if he was almost the only legal historian in England to be involved in it, interest in Germanic origins in his day stimulated wide-ranging work by those outside. Much of it now looks distinctly unconvincing, but during most of the twentieth century the English have not been alone in their insularity. As the history of medieval law has become more learned and specialised it has become encased in separate national traditions, transcended only in the study of medieval Roman and canon law. That has provided many valuable insights, but much of it has concentrated on academic law rather than on legal practice (Coing 1973). On practice, and on the kind of law that most affected non-lawyers, comparisons or general histories above the level of textbooks for law students have until recently been rare.2 It is not difficult to see why, given the mass of detailed work written within different legal traditions and often making few concessions to readers unfamiliar with their respective terminologies. In the circumstances this chapter, which is primarily concerned with legal practice, will merely suggest some problems and propose a general framework within which comparisons might be made. It will concentrate on what it suggests are the bare outlines of the way in which secular law and secular jurisdictions developed, saying little about substantive law, such as rules about inheritance, family law, the rights and obligations of property, and so forth.3 So far as ideas and doctrines are concerned it will focus more on the kind of assumptions about what is right or wrong, legal or illegal, that can be detected from the records of practice, than on the doctrines worked out by academic and professional lawyers.4 It concentrates on Catholic Europe, and draws
examples from only a few countries within it. What is left out is not left out because it is not interesting or important but because a short essay has to be selective. Much of what is included should be understood as hypotheses that need to be tested.
