Tamar Herzog

Is the past gone, or does it tell us something essential about the present and the future

s, I am interested in deciphering how norms were generated, in order to indicate how they should be read and understood given their particular historical context. I am also keen on demonstrating that their comprehension may tell us something important about whom we came to be.

Throughout the pages of this book, I constantly engage with two major narratives that have accompanied most research on legal history. The first portrayed law almost as a given. Sensitive to how particular solutions changed over time, for example, how contracts were drawn up or what proving a case in court required in different periods, on most accounts it implicitly assumed that law was law. It was as if society had changed, and so had its rules, but law as a field of action and a depository of knowledge and techniques remained the same. For most authors, law included norms that people obeyed, as if where these norms originated, how they were comprehended, which other types of norms existed, and who implemented them and in which way mattered very little. This narrative often seemed to imply that it was almost
inconsequential whether law was attributed to communal creation (as in customary law), God (as in canon law), legislators, or judg

t literally or believed it represented a higher truth, which was not directly evident and which they sought to uncover.

As already indicated in my treatment of the Magna Carta, in this book I do the exact opposite. I describe the development of law in Europe as a phenomenon that involved not only choosing between rival solutions (as most scholars supposed) but also identifying basic assumptions regarding the rules themselves.

my first aim is to destabilize the idea that legal solutions changed but the legal framework (who imaged these solutions, who implemented them, which was their authority, and how they gained it) was inconsequential, the second narrative I wish to question is the presupposition that English common law and Continental law (also known as civil law) were utterly
distinct.

t invocation of Roman law also required as well as explained the permanent strain experienced in Europe between stability and universality, on the one hand, and dynamism and local responses, on the other.

ius commune, a term the English initially also used to designate their common law, was meant to cement and give coherence to a legal
world that

nother is how the struggle for unification affected how communities were defined. Moving from personal associations (that encompassed people according to their relations with one another) to territorial jurisdictions (that imposed law on all those who inhabited a certain territory)

acquired additional powers allowing them sometimes to compel litigants to appear before them as well as to impose their decisions.

This emerging system was identified as the ius civile, that is, the communal law (the law of the civitas)

the archaic period, questions of law as well as actual conflicts could be presented to a body (college) of patricians who were also priests (pontifices). Guardians of communal norms, as well as experts in ritual performance, these patricians ruled on whether certain behaviors conformed to social expectations, and they suggested what could be done in order to obtain remedy.