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  • A Short History of European Law: The Last Two and a Half Millennia by Tamar Herzog
  • Mark Tushnet
A Short History of European Law: The Last Two and a Half Millennia. By Tamar Herzog ( Cambridge, Mass., Harvard University Press, 2018) 289 pp. $27.95

Every historian runs into law in one or another way: Letters refer to legal disputes; court records describe relations among neighbors; families are bound together and broken apart by law. Nor can law be separated from such large social and economic systems as slavery, feudalism, capitalism, or colonialism. Not every historian must be a legal historian, but some basic literacy in the institutions, sources, and ideas that surround law is likely to be helpful.

Herzog manages to provide such literacy, and more, in a brisk text of 243 pages. In different times and places, people have understood the law in distinctive ways. Herzog selects three topics that recurrently arise: Is law fundamentally of divine or human origin? Whatever its origin, what are the sources people use to determine what the law is? What institutions determine and apply the law? With only a handful of exceptions, she does not describe the content of legal rules—probably an impossible task in a short book.

Herzog also describes relevant scholarly controversies, typically siding with revisionist accounts that blur sharp distinctions that earlier scholars drew. For example, while acknowledging the differences between the [End Page 492] continental ius commune and the British common law, Herzog finds more similarities than prior generations of scholars did.

Within the mass of information succinctly presented, Herzog develops one overarching theme. Everywhere law adapted to change, but almost always under the guise of preserving continuity—if not continuity as institutions changed shape, continuity in the concepts thought to justify the use of those institutions. What the law was at any time and place depended heavily on its context, although those who wrote and thought about their law regularly asserted—and may have believed—that they were describing a context-independent law.

An important driver of change was pluralism, the encounter between those committed to one view of the law with communities holding different views of it. In retrospect, we can see dramatic differences between how law was understood in earlier centuries and how it became understood later (and today) after changes had accumulated, even though at nearly every moment, legal thought tended to insist that the law at that moment was little different from what it had been a while before.

A single example drawn from Herzog's rich account can sketch how she develops this theme. She contrasts the American and French revolutions: "[I]n the Thirteen Colonies, … most actors appealed to natural law yet also wished to continue upholding many traditions," whereas in France, "the declared aim was to create a new order, where norms would no longer be inherited from the past. Instead they would herald a future in which all decisions … would be mandated by natural law and reason." Although this vision "transformed the French Revolution into an earthquake that allowed for the emergence of law as we know it today," the vision "was sometimes more radical than the actual legal changes" (183–184). The concept of "natural law" was used in the two locations, but it meant something different in each. Nonetheless, some degree of continuity was preserved even as revolutionaries announced that they were breaking sharply with the past.

A work of this sort will inevitably make bold claims that studies of more discrete topics will qualify. It is written not for specialists who focus on one or another domain of substantive law in this or that nation and time but for general historians. Early in her or his training, every historian—no matter the specialty or period of study—would be well advised to step back and read through this superb work.

Mark Tushnet
Harvard University Law School


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pp. 492-493
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