It takes courage to write a book on the history of law in Europe. The very act of determining the scope of such a project is likely to leave the author vulnerable to criticism. How far back should one go? Territorially, are we concerned with the legal histories of individual states, or developments that cut across the continent, or some hybrid thereof? If attention is to be paid to regional developments, where does Europe's geography end? Can the development of the law be separated out from concurrent political and intellectual zeitgeists? What attention should be paid to economics, social changes, cultural history? And, across all of these considerations, where is the emphasis to be placed? Such projects necessarily require self-imposed limitations on scope, or else risk becoming unwieldy encyclopaedic trawls through millennia of developments.

The two books reviewed here approach their subject matter using different limitations. The first, Padoa-Schioppa's A History of Law in Europe: From the Early Middle Ages to the Twentieth Century, adopts what has become an orthodox approach for textbooks in the field, with a heavy focus on the developments in Italy, Germany and France, though developments elsewhere in Europe are canvassed. Such works can read teleologically, as narrating progression from the Roman law of antiquity to modern codifications through a series of developments in methodology. Such histories present the development of European law as the development of academic methodology, as a single work – Justinian's Corpus Iuris Civilis – is studied in increasingly sophisticated and illuminating fashions, until national legal systems take over and craft their own legal identities using Justinianic timber. Padoa-Schioppa avoids this temptation by offering a more rounded account of the state of law across Europe, especially in the earlier periods under scrutiny.

The book is divided into six parts, totalling 41 chapters, which are shaped by chronological divisions. The first, covering antiquity through to the eleventh century, begins with post-classical Roman law as a prelude to Justinian's codification project. A lesser work would be content to focus on Justinian alone (many histories have been written of the Corpus Iuris Civilis as if that alone represented the history of European law) with a consequent leap from Justinian to the eleventh-century revitalisation of interest in the Corpus. Instead Padoa-Schioppa considers developments between those two points. He briefly traces the emergence of the church as an institution and the consequent development of early canon law, a necessary building block for any discussion of the interplay between civil and canon law in the later middle ages. But he also considers in outline numerous legal compilations from around Europe throughout the early mediaeval period. These do not obviously inform the later development of European law. Rather, they are presented to give a rounded picture of the history of law, explaining the state of legal development in the early middle ages.

The second part covers the later middle ages, the formative period of the ius commune. The trajectory is largely orthodox, tracing the role of universities and the church in the development of legal scholarship. It touches on the key interrelationships of the period: between civil law and canon law, between learned law and local law, between academia and practice and – a perennial favourite of English legal historians – between continental ius commune and English common law. Some attention is paid to the possible interplay between political thought and legal development, but the law's history is seen as largely self-contained, with the impetus for development coming from actors within the legal system rather than external pressures or inspiration. Again, Padoa-Schioppa avoids offering an account simply of the Corpus Iuris Civilis’s development by touching upon contemporary developments in other legal spheres, from the early codes of mediaeval Scandinavia to the formation of legal guilds in Italian city states. Inevitably more space on the page is dedicated to the “core” developments of civilian legal science, but the breadth of the coverage within the space used is impressive.

With the move to early modern Europe, the third part takes breadth too far. Political theory moves to the centre of the narrative, with the third part of the work beginning with an account of theories of sovereignty before moving on to consider how colonialism raised fresh questions for jurists to consider. Intellectual movements which would normally form the totality of a section on early modern law – humanism, neo-scholasticism, the usus modernus – are presented at breakneck speed. Practical considerations follow, from the printing press to centralisation of judicial power within states. The section culminates in a discussion of natural law in ch. 23 which, unusually, considers the legal philosophies of individuals: Grotius, Hobbes, Locke, Leibniz, Domat and Thomasius. The individual focus is carried over into the following chapter on eighteenth century jurists, with leading figures arranged geographically and considered en bloc. The pace is clearly slowing, and the focus sharpening, but it is not clear to the reader why the brakes have been applied at this juncture in history.

In the fourth part, “The Age of Reforms (1750–1814)”, the pace remains measured but the focus becomes increasingly precise. This is a history of codification, covering early experiments and culminating in the Napoleonic Code. Strands presented in the third part are neglected by comparison. Colonialism exits the discourse almost entirely, with only a brief discussion of the US Constitution interrupting a discussion of reform focused squarely on France and, to a lesser degree, Prussia. The state of law in England, Scandanavia and elsewhere is also absent from the discussion. The fifth part, “The Age of Nations (1815–1914)”, continues in the same vein: a history of the codification stories of a range of other European states. The final part covers the twentieth century, canvassing law in wartime Europe and the subsequent rise of constitutions and the EU.

As will be evident from this overview, Padoa-Schioppa has created a work of remarkable scope. It is perhaps overambitious; threads are presented in earlier parts that cannot be fully explored in the later chapters without losing some semblance of focus. Individually each chapter is impressive, a lucidly written and thorough treatment of its subject matter. But it is unclear what their totality represents. The book's focus oscillates between vast swathes of Europe (though by no means all – for instance, how Greece slots into the narrative is not at all clear) and the developments of law in France, Italy and Germany. At times significant attention is paid to how the law was shaped or influenced by external forces; at others, law is seen as a closed system of knowledge. It is almost as if the two halves of this work represent two different projects: the former a history of law in Europe, the latter a history of modern European law.

Herzog's A Short History of European Law: The Last Two and a Half Millennia is a very different sort of history. It covers much the same period in approximately a third of the page count. Where Padoa-Schioppa aimed at a comprehensive account of law across Europe since the sixth century, Herzog's is less focused on the detail and more concerned with a narrative. With Roman law as a constant of variable significance, this work provides a concise account of the development of law in Europe between the second and twentieth centuries. It intentionally operates at a relatively superficial level, tracing contours rather than probing details. A particular focus is the relationship between continental law and English law. Coincidentally, this work is also structured in six parts, several of which considers civil law and common law side by side, exploring the extent to which the old idea that the two developed in isolation is tenable. The result is a work that serves as a strong introduction to the overall shape of European legal history, and will provide stimulation to engaged students approaching the subject for the first time.

The first part's focus is on Roman law, offering a rapid account of the evolution of Roman civil procedure, the dynamic between praetor and jurists, the place of legislation, the geographical reach of Roman law through the empire, and Justinian's codification. Approximately a thousand years are covered in 20 pages, and so the narrative is necessarily introductory. A brief history of early Christianity is appended to the chapter, before the second part moves the discussion into the early middle ages. Herzog's focus here is on the decline in legal reasoning; the first chapter in this part is entitled “An Age with No Jurists?”. The development of early canon law and the Germanic compilations are juxtaposed with a discussion of the quality of legal discourse, together addressing the place of legal expertise in early mediaeval Europe. The same question-based methodology recurs in the following chapter, with a focus on the intellectual preconditions for the revitalisation of interest in the Corpus in the eleventh century.

The third part provides a potted history of the ius commune, quickly cycling through the glossators and commentators in order to explain how the learned law was disseminated throughout Europe. At this point the focus switches to England for the first time. As with her chapter on the Roman law of antiquity, Herzog traces the features that cumulatively identify the common law, with a particular emphasis on the evolution of writs and the centralisation of justice. Herzog asks to what extent the legal culture of mediaeval England differed from that of mediaeval Europe, arguing that the perceived divergence between the two was at this point only superficial, though leaving open the possibility of a stronger later separation in the early modern period.

It was with his treatment of the sixteenth to eighteenth centuries that Padoa-Schioppa began to lose focus, as mentioned above. Herzog opts for the opposite approach. The breadth of Pado-Schioppa's treatment of intellectual developments that had an effect on the law is overwhelming, both in terms of the overall place of law within political society, and the articulation of individual doctrines and points of detail. To take just one example, the writings of the neo-scholastics of the Iberian peninsula provide fresh perspectives on everything from the relationship between sovereign and citizen to default terms in insurance contracts. This injection of novel concepts, approaches and problems was a significant part in stimulating the explosive sophistication of legal thinking in the early modern period, but it was just one such influence. The task of trying to encapsulate the full range of possible factors makes part three of Padoa-Schioppa's work complicated. In contrast, Herzog's account of early modern Europe identifies humanism and the Reformation as two sources of development, and treats them briefly before moving on to the significance of writing down customs as a means of exercising control by the kings of France. Though her work is intentionally introductory, the complexity and depth of sixteenth-century law is entirely elided, giving the reader a too-superficial view of the state of legal development in the period. Herzog then moves back to England to consider the development of the so-called “Ancient Constitution” in rather more detail. This chapter proves more stimulating reading, framed in terms of a series of questions about the nature of early modern common law.

From there, Herzog turns to the wider world. Building upon an earlier discussion of the Roman ius gentium, she explores how colonialism led to European law taking on a global perspective. The chapter is thought-provoking, and it in this context that thinkers such as Suarez and Grotius make an appearance. The style of legal reasoning of the period is also touched upon in an interesting section entitled “The Reign of Self-Evident Truth”. Inevitably the claims therein cannot be seen to be generally applicable without further research, but the shift away from strict adherence to authority towards a more “common sense” analysis of the issues provides an intuitive access point to a discussion of natural law. Part five, on modernity, focuses on the place of revolution in the formation of law, taking the intellectual undercurrents at play in the US and France as exemplars. Like Padoa-Schioppa, Herzog's work culminates in an overview of recent legal history, albeit with a heavier focus on England than the other work.

We have here two very different approaches to European legal history. Both have their merits. For someone new to the subject, Herzog will provide a stimulating starting point. It is written in precise, clear prose and in a manner that invites questions. The reader will be left wanting to know more, but with a solid foundation in the basic contours of legal development. For that further pursuit of knowledge, Padoa-Schioppa provides the perfect counterpoint. To the uninitiated it is an intimidating work, and is dense in its detail. But if the reader can orientate himself or herself within its bulk, the discussion is rich in fresh perspectives while incorporating all the developments that one would expect to see. They also both have their weaknesses, some of which they share. They are very much histories of law in the abstract. Little reference is made to concrete examples, which can give the impression that the focus of legal discussion remained consistent across time. Moreover their respective conceptions of Europe ebb and flow with the centuries, broadening and narrowing according to the desire to discuss particular developments in particular territories.

I return to my initial sentiment: it takes courage to write a book on European legal history. Criticism comes easily when reading any work in the field. The only way to avoid upsetting a reader by dealing in insufficient detail with their own field of research is to offer an encyclopaedic account of the law's development, both in the abstract and with reference to individual spheres of doctrine, across millennia and a huge territorial expanse. Should such a work ever materialise, it will inevitably suffer criticism for its sheer bulk and lack of accessibility. Within the limits these two authors have imposed on themselves, both successfully achieve what they set out to do. Though unintentional, the two work as companion pieces for students of legal history, together providing the questions a student needs to find a path into the subject, and material used to answer those questions.