In a provocative piece entitled ‘The myth of European legal history’, Douglas Osler argued that the teaching of European Legal History (ELH) in Universities around Europe is based on an unhistorical and misleading ‘myth’, designed by nineteenth and twentieth-century legal historians who favoured their political views and hopes over historical accuracy.Footnote ¹ ‘European legal history’ as Osler put it ‘is presented as a chronicle of the approaches of a succession of “schools” of law professors’.Footnote ² In a nutshell, the story usually begins in medieval Italy, where jurists began to write glosses and comments on the Corpus Iuris Civilis. It then moves to France in the Renaissance, where legal humanists approached the same texts with a better understanding of the language and historical context within which they were written. The story then takes the reader to the Netherlands, where French legal humanists seeking protection from confessional persecution took their method. There, we are told, legal scholarship flourished during the seventeenth and eighteenth century – and it ended up finding its finest expression in nineteenth-century Germany under the auspices of Savigny's Historical School of Jurisprudence. Osler argued that this narrative owed its success to the fact that it flattered those individual nations looking for a main role in the historical development of European legal scholarship, and because it painted civil law as a shared European endeavour, when – after WWII – greater European unity was perceived to be in the interest of all. The narrative, for Osler and many critics since, aside from being historically inaccurate, has the demerit of focusing attention on only a handful of European nations and of overshadowing the emergence of national legal systems from early modern times onwards.Footnote ³

Osler published his article in 1997. More than 20 years on, the editors of the Oxford Handbook of European Legal History remind us that the myth or, to put it more charitably, grand narrative, still ‘form[s] the essence of European legal history in course books and standard classroom teaching everywhere’. The Handbook, we are told at the outset, was put together in response to this, because ‘the concept of European legal history need[s] updating’.Footnote ⁴ However, this book is not intended, like the other Oxford Handbook on legal history, to focus only on existing approaches to the subject.Footnote ⁵ It confines the treatment of historiography and methodology to only the first of the six parts into which it is divided. The other five follow instead the chronological sequence we would expect from a textbook – antiquity, the Middle Ages, early modern times, and late modern/contemporary history. The work is therefore extremely ambitious in scope, both seeking to challenge traditional methods and to provide an account of existing scholarship in the various time periods.

The chapters collected in the first part of the book take on the concept of ELH itself, and discuss the way in which it may move forward. Two broad themes are addressed. One, I have already mentioned, is the traditional approach of ELH that has dominated legal thought for over a century. No piece is quite as snappy and polemic as Osler's, but Randall Lesaffer, in a piece evocatively called ‘The Birth of European Legal History’, traces back the grand narrative to the work of Paul Koschaker and follows its development through the twentieth century to identify the main limits of the orthodox way of doing legal history.Footnote ⁶

The second theme explored in this first section is the somewhat paradoxical relationship between ELH and its cousins in other branches of history, including global history and economic history. James Whitman deals with this in the first chapter of the book. The paradox lies in this: historians in fields other than legal history often find the work of legal historians rather trivial, and might as well have the discipline – as Whitman puts it – ‘relegated to a sleepy and neglected corner of legal academia’.Footnote ⁷ At the same time, however, they rely rather heavily on a superficial understanding of the discipline that identifies in the West the origins of ‘legal science’, the ‘rule of law’ and ‘human rights’. Claims which – Whitman argues – would be received with ‘a mix of bemusement and condescension’ by most professional European legal historians.Footnote ⁸ That may be so, but professional European legal historians do not do much to engage in comparative studies to put Europe in a global context. In a later chapter, Thomas Duve provides an explanation of why the development of truly global approaches to ELH has been so slow, and indeed doubts whether the subject itself is capable of surviving ‘globalisation’. The reason is that ‘[f]or a long time there was a general consensus about [ELH's] disciplinary identity. Opening up for global perspectives breaks up this consensus’.Footnote ⁹ The point is that European legal historians have traditionally been individuals with legal training operating within a community of closely related jurisdictions, engaging with comparable methods. Instead, ‘[t]he necessity of crossing disciplinary frontiers and international cooperation might result in dysfunction and lead to a destruction of the traditional, national, and disciplinary structures without having created and stabilized transnational ones’.Footnote ¹⁰ Not a very promising starting point, and indeed the rest of the Handbook, with very few exceptions,Footnote ¹¹ does not return to any studies of this kind.

As mentioned, the next five parts take ELH chronologically. This leads the Handbook to adopt a somewhat hybrid formula – seeking to provide at the same time an introductory, textbook-like account of main developments across Europe, and an overview of the areas in which research has challenged traditional boundaries. The chronological segments do not follow a specific structure, and the reader encounters three kinds of chapters leafing through each part. First, there are those aimed at providing the introductory broad-brush accounts of ELH in the relevant period one would expect from any traditional textbook on the topic. For instance, in the section devoted to the Middle Ages, Peter Clarke and Jan Hallebeek stick to the beaten path, providing their chapters on the origins of the Corpus Iuris Canonici and the early law schools in northern Italy.Footnote ¹² Similarly, in Part VI, devoted to the nineteenth century, chapters in a similar vein are written by Jean-Louis Halpérin on the development of codification around Europe and by Dieter Gosewinkel on the birth of the constitutional state. These pieces tend to follow the established orthodoxy on the subjects they treat and are not envisaged to engage critically with the traditional way of telling ELH.Footnote ¹³

Secondly, there are chapters aimed at extending the geographical coverage to areas of Europe neglected by traditional accounts of ELH. These are generally a very welcome addition to this work. For instance, we find in the medieval section two chapters by Mia Korpiola on Scandinavia and East Central Europe.Footnote ¹⁴ These very often rely on sources that are unavailable in English and little known by non-specialist writers – and they are all the more welcome for it.

Finally, we find chapters seeking to provide an overview of developing scholarship on a topic – often, though not always, this is done with the aim in mind of challenging the established consensus on some point. This group of chapters is the one that reads most like a miscellanea. The topics covered and methodologies adopted can vary greatly across and indeed within each chronological part. For instance, Pier Giuseppe Monateri's chapter in Part II on ancient law questions the historiography on the exceptionalism of early Roman law within the ancient world, arguing that Roman law shared many of the traits we tend to associate negatively with other early legal systems– exoticism, a focus on magic, and a failure to deliver justice across different social strata.Footnote ¹⁵ In Part III, we find a chapter by António Manuel Hespanha ostensibly meant to cover a geographical area – Southern Europe – but written with a very different objective in mind. The chapter is not meant to ‘summarize the research on the medieval legal history of southern Europe undertaken during the last half century’, but instead to ‘cros[s] barriers of historiographical disciplinarity’ in order to ‘support emerging research interests on such subjects as the artificiality and complexity of ‘nations’…, and the impact of “materialities” of legal communication over the contents of law’.Footnote ¹⁶ Belonging to the less polemic kind, we find, turning a few pages, a chapter by Dirk Heirbaut meant to provide an updated account of the concept of feudalism.Footnote ¹⁷ Similarly, in the section devoted to the nineteenth century, we can instead find chapters focusing on distinct changes in legal theory, such as Hans-Peter Haferkampf's piece on legal formalism, but also a detailed piece on the birth of the welfare state by Bruno Aguilera-Barchet.Footnote ¹⁸

All three kinds of chapters are useful in their own right, and they all contribute to an aspect of the aims set by the editors in the preface – whether it be providing an updated account of legal historical scholarship in each time period covered or broadening the geographical reach of research. However, in some parts of the Handbook chapters with different aims and focuses occasionally follow one after the other without any obvious logical structure.Footnote ¹⁹ This leaves some chronological segments without a stable centre of gravity. For example, Manuel Hespanha's piece on Southern Europe would work nicely in a section meant to catalogue methodological approaches to legal history, but does not quite fit sandwiched as it is in between a number of methodologically traditional chapters on the birth of canon, civil and local national law in various regions of Europe. The chapters work better when they are coordinated. For instance – to remain within Part III on the Middle Ages – the pieces by Mia Korpiola on the birth of national law in Scandinavia and Eastern Central Europe communicate with chapters earlier in the book to provide an account of the influence, if any, of the ius commune over local law. By contrast, the following chapter by Paul Brand on English law, while acknowledging some contact between the civil and common law worlds, does not proceed to deal with the interactions between the two at any length. If we turn to Part VI of the book, we find chapters dealing separately with the birth of the constitutional state, that of the EU, and that of international law and comparative law – however, despite a substantial amount of overlap between these topics, potential points of contact are not worked into the individual pieces. Returning to Part II of the Handbook, coordination between chapters is explicitly attempted in the context of accounting for the origins of the Corpus Iuris Civilis – but the result is rather odd. In his piece on Byzantine law, Bernard Stolte explains that he omits the Corpus Iuris Civilis from his chapter because it is dealt with in Paul Du Plessis's one on Roman law.Footnote ²⁰ Paul Du Plessis's piece, however, explicitly excludes the Corpus Iuris Civilis too.Footnote ²¹ The result is that the reader's first encounter with the Justinianic compilation in the Handbook takes place in the Middle Ages, when Hallebeek provides us with its medieval form.Footnote ²²

That said, those criticisms do not apply equally to all sections of this work. Parts IV and V, for instance, both devoted to the early modern period, are remarkable in that they manage to escape for the most part from the difficulties listed above. This is mostly attributable to the division in two parts, which allows the chapters to be grouped along a much clearer structure. Part IV collects chapters that refer to networks of jurists and legal thinkers around Europe to deal with broad developments in legal thought, not confined to specific national boundaries. That said, the chapters in this section do not fall back on the traditional ways of telling the story. There is no introductory chapter following the movement of legal thought through the various French, Dutch and German ‘schools’ in early modern times. In this sense, while the pieces do maintain a focus on the ius commune, they nevertheless find a way to remain true to the Handbook’s aims to depart from the old narrative. The editors achieve this by structuring this section around substantive developments in various branches of law. The first two chapters, by Jan Schröder and David Ibbetson look at doctrinal developments on sources, interpretation and natural law.Footnote ²³ Then, with a few exceptions, the chapters that follow cover the main branches of substantive law. Private law is dealt with by Wim Decock, criminal law by Massimo Meccarelli, civil procedure by Alain Wijffels, and public law by Bernardo Sordi.Footnote ²⁴ The jurists and schools considered vary depending on the topic. It is unsurprising, in line with most recent private law scholarship, to find Decock's chapter on private law focusing almost exclusively on the writings of early modern scholastic theologians. Schröder's chapter on the more theoretical topic of sources and interpretation adopts instead a much broader approach, leading the reader through the intellectual contributions of humanist jurists and then contrasting it with the later thought of writers up to the usus modernus.

The second section devoted to the early modern period, Part V, structures its chapters around the call by critics of traditional ELH to move away from law professors and schools, and look at emerging national legal systems. Much in line with the general trend of the Handbook, the collection of chapters in this section covers not only the development of national law in countries at the centre-stage such as France, Spain, the Holy Roman Empire and England, but also that in marginal or unfamiliar jurisdictions, including the colonial extensions of some systems. Providing continuity with Korpiola's chapter in Part III, the history of Scandinavian law is taken to the early modern period by Heikki Pihlajamäki, though we are not provided with a similar continuation for the legal history of East Central Europe.Footnote ²⁵ We find instead a chapter by Maryanna Murayeva on Russian law– a region untouched in the medieval section, though one to which the Handbook returns in Part VI, with Yoram Gorlizki's piece on Soviet law.Footnote ²⁶

Unlike what we see in other sections of the Handbook, there are, in Part IV and V, no abrupt methodological transitions or changes of focus across chapters. The outcome is that the individual pieces within each part contribute rather consistently to the big picture and leave the reader with a satisfying feeling of comprehensiveness. The two sections on the early modern period work remarkably well together and show how a consistent and rather exhaustive introductory overview of research in this area can be provided while avoiding traditional stereotypes.

Despite its structure around discrete time periods, the Handbook does not – and was not devised to –set out a single continuous chronological description of the development of legal scholarship in Europe. Its aim is, yes, to introduce the reader to the main legal developments at each stage, but also to challenge traditional ways of telling the story. This work is the first of such magnitude to take up this challenge and the result is very impressive. A case for departing from the traditional grand narratives or myths that still rule the teaching of ELH must provide an alternative way of telling the story that does not lose the reader or student along the way. This Handbook is particularly valuable where it finds, as it does in its early modern section, a structured path through modern scholarship, capable of setting a persuasive standard for textbook- and course-writers.