FALL 2000

HISTORY 300-605

W: 6:00-8:30—LT-507



Zouhair Ghazzal



LT-926: W: 5:00-6:00

(or by appointment)



(312) 915-6524



Despite the fact that law is a big institution in American society, there is little general interest in the history and anthropology of legal systems. Thus, law students typically solely focus on the practical aspects of law such as codes and statutes, the duties and responsibilities of lawyers, the work that goes beneath the preparation of a case, and the role of judges in making the law. As to history and anthropology departments, they rarely manifest any interest in the legal aspects of the societies they normally cover, not so much because they cannot see the importance of law in society, but because such a task is delegated to professional judges and scholars, lawyers, and law schools. Yet, an abundant literature does exist which essentially covers the following aspects of law.


·        legal theory. Studies the epistemological, philosophical, moral and ethical (normative) aspects of law as manifested in law-making (legislation), judicial decision making (rulings of judges), and the practice of law in general. Legal theory thus raises questions on the foundations of a particular legal system—or its jurisprudence, if you wish to call it so: Is it founded on a systematic set of codes, statutes, and normative values, or is it impossible for any system to be coherent and rational? In the last two decades, legal theory has vacillated between two opposing poles. On the one hand, law in its two basic components of law-making and decision making (both of which in the British and American common-law traditions are intimately related) is looked upon as a quasi-philosophical and moral (normative) system whose practice ought to be autonomous from the political and economic passions and di-visions of the times. On the other, more “realistic” theories such as the Critical Legal Studies (CLS) look upon law as an ideological system that is deeply political and social in nature. Thus, in the American case, the judicial decision-making process of, say, appellate judges reflects their inner deeper beliefs either as conservatives or liberals even though the American legal system poses itself as “above” social divisions (Kennedy 1997). In short, we’re more into a process of judicial policy making, not only in the sense of judges making the law, but also in creating social policies and the like: that’s particularly true of policies created for the American penitentiary since the 1960s (Feeley & Rubin 1998).


·        history of law. A history in the strict sense of the term aims at describing the transformations of a particular legal system over a period of time. It is therefore concerned in explicating why and how a change became manifest in a system during a specific period. For example, what kind of changes did the New Deal era force upon the legal system? A more ambitious legal history would be based on legal theory in the sense that it would ask itself the very same questions that the latter poses: What were the foundations of that particular system in that specific period? The assumption here is that the foundations are not the same from one period to another.


·        anthropology (and sociology) of law. Concentrates on the practice (praxis) of legal systems: How do judges adjudicate? How do social actors (disputants) make use of the court system, and how do they learn the language of the courts (the transition from daily language to the legal)? What is the role of the lawyers? How do the various parts of the system connect together (or fail to connect)? To be sure, an anthropology of law might include some history and legal theory, in the same way that legal theory might rely on anthropological and sociological field studies, often used in conjunction with a comparative perspective (comparing various societies and periods).


·        That should bring us to the topic of our last reading on comparative law (Zweigert & Kötz). As its name indicates, comparative law is indeed concerned into comparing various legal systems with one another, usually with a blend of history, anthropology, and legal theory. Roman law typically occupies a privileged place in comparative anthropology due to the fact that such a dispersed body of practices, spanning over a millennium, beginning with the Twelve Tables and culminating with Justinian’s Digest, was the first system ever to pose itself as coherent, abstract, and rational. Beginning with the publication of the Digest, and since the sixth century up to the Middle Ages, follows a period of the Reception of Roman law in many of the “barbaric” or “civilized” western societies of the time. Supposedly, only the Anglo-Saxons managed to create, since the Norman Conquest in 1066, a common-law system which allegedly did not have to undergo, unlike its Continental counterparts, the influence of Roman law (van Caenegem 1988 [1973]).


This course, which could be described as an historical anthropology of law, aims at a broad discussion of some of the questions raised above. We’ll be primarily concerned with the division within all western legal systems between continental code-law and the British and American case-law. By going back to the historical origins of both legal systems—namely, Rome—we shall be able to ask, how genuine is that claimed division? Do the two systems operate that differently, or is it a common misconception among legal scholars?




There are weekly readings that we’ll discuss collectively in class. Your participation is essential for the success of the course. You might be also occasionally requested to prepare a presentation on a chapter or book which are part of the weekly assignments. Presentations should be improvised and 5 to 10 minutes long. Do not prepare a written presentation. You’re also requested, after submission of a first-draft, to make a short presentation of your term-paper.

               Besides the two-draft research paper (see below the section on papers), you’re expected to submit three interpretive essays. The final grade will be calculated on the basis of one-fifth for each paper draft and one-fifth for each interpretive essay. All interpretive essays are take-home and you’ll be given a week to submit them. The purpose of the interpretative essays is to give you the opportunity to go “beyond” the literal meaning of the text and adopt interpretive and “textual” techniques. A failing grade in all interpretive essays means also a failing grade for the course, whatever your performance in the paper is. All essays and papers must be submitted on time according to the deadlines set below.



First Interpretive Essay


Second Interpretive Essay


Final Interpretive Essay


Preliminary paper draft


Term Paper:

In case the term paper grade is superior to the preliminary draft, it will count as 40%.




• Weeks 1, 2, 3 (in part): August 30, September 6 & 13

van Caenegem, Birth of the English Common Law (Cambridge, 1988 [1973]).


• Weeks 3, 4, 5: September 13 (in part), 20 & 27

Feeley & Rubin, Judicial Policy Making and the Modern State (Cambridge, 1998).


September 27: first interpretive essay


• Weeks 6 & 7: October 4 & 11

Richard Posner, The Economics of Justice (Harvard).


• Weeks 8 & 9: October 18 & 25

Richard Epstein, Takings: Private property and the power of the imminent domain (Harvard).


October 25: second interpretive essay


• Weeks 10, 11, 12 & 13: November 1, 8, 15 & 22

Zweigert & Kötz, Introduction to Comparative Law (Oxford).


November 8: first draft deadline

November 18: preliminary presentation of first-drafts


November 22: final interpretive essay

(deadline to be announced)

• Week 14 (November 29):

Discussion and presentation of term-papers

(if you’re unable to meet for this last session, make an appointment: you’ll not receive a grade unless you’ve completed a presentation of your paper.)

November 29: final draft deadline

submit your final draft with your preliminary corrected one




You are requested to write one major research paper to be submitted during the last session, Wednesday, November 29. You will have to submit, however, a first draft of this paper on Wednesday, November 8. The first draft should be as complete as possible and follow the same presentation and writing guidelines as your final draft, and it will count as 20% of your total grade unless the final draft is of superior quality. The purpose of the first draft is to let you assess your research and writing skills and improve the final version of your paper. It is advisable that you choose a research topic and start preparing a bibliography as soon as possible. I would strongly recommend that you consult with me before making any final commitment. It would be preferable to keep the same topic for both drafts. You will be allowed, however, after prior consultation, to change your topic if you wish to do so.

               You may choose any topic related to the social, economic, political, or cultural legal history of any society or civilization. Papers should be analytical and conceptual. Avoid pure narratives and chronologies and construct your paper around a main thesis.


Kate L. Turabian, A Manual for Writers of Term Papers, Theses, and Dissertations, 5th ed., Chicago: University of Chicago Press, 1987. Intended for students and other writers of papers not written for publication. Useful material on notes and bibliographies.


Keep in mind the following when preparing your preliminary and final drafts:


·        once you’ve decided on a paper-topic and prepared a preliminary bibliography, send an abstract and bibliography of your topic to the class-list <h300-l@luc.edu> (see below). Your abstract should include: (i) title; (ii) description; (iii) sources; (iv) methodology (e.g. suggestions on how to read sources). Your preliminary draft will not be accepted unless you’ve submitted an on-line abstract.

·        preliminary drafts should be submitted on time, November 8.

·        preliminary drafts should be complete and include footnotes and an annotated bibliography. (The Turabian reference above is annotated: it briefly spells what the book is about and to whom it might be useful.)

·        do not submit an outline as a first draft.

·        incomplete and poorly written first drafts will not be accepted, and you’ll be advised to revise your first draft completely.

·        if you submit a single draft throughout the semester, you’ll receive F for 20% of the total and your final grade will be averaged accordingly.

·        the oral presentation is an essential aspect of your grade; if you can’t attend the last session, request an appointment.

·        your final draft should take into consideration all the relevant comments provided on your earlier draft:

·        all factual and grammatical mistakes should be corrected, in addition to other stylistic revisions.

·        passages indicated as “revise” or “unclear” or “awkward” should be totally revised.

·        when specific additional references have been suggested, you should do your best to incorporate them into your material.

·        there might be several additional suggestions in particular on your overall assumptions and methodology. It will be up to you to decide what to take into consideration.

·        Submit the final draft with your preliminary corrected one.

·        if you’re interested in comments on your final paper and interpretive essay, request an appointment by e-mail.


Please use the following guidelines regarding the format of your papers:


·        use 8x10 white paper (the size and color of this paper). Do not use legal size or colored paper.

·        use a typewriter, laser printer or a good inkjet printer and hand in the original.

·        only type on one side of the paper.

·        should be double spaced, with single spaced footnotes at the end of each page and an annotated bibliography at the end.

·        keep ample left and right margins for comments and corrections of at least 1.25 inches each.

·        all pages should be numbered and stapled.

·        a cover page should include the following: paper’s title, course number and section, your name, address, e-mail, and telephone.




An open e-mail discussion list is available: each message—whether mine or from any student—will reach anyone else on the list, so that every subscriber could directly write to the list.




The purpose of this electronic listserv is to discuss issues relevant to both courses, and current political and social matters as well. The focus, however, shall be primarily on the readings themselves since they represent our primary source for dealing with the complexities of these civilizations.


To join the list, please send an e-mail message to:




and include as your e-mail message (leaving the Subject: field blank, if possible):


                              subscribe H300-L first-name last-name


e.g., Janine Doe—you would type in:


                              subscribe H300-L Janine Doe


GroupWise Users at Loyola University Chicago: Please preface the 'listproc' address (or subscription address) with 'internet:' in the To: field. For example:


                              To: internet:listproc@luc.edu


Once you’ve successfully subscribed (you’ll receive a confirmation message with instructions), send all messages to the list’s address:




Your message will be automatically forwarded to all the list’s subscribers. You should also receive a duplicate of your own message.


To unsubscribe send an e-mail to listproc@luc.edu with the following message:


                              unsubscribe h300-l first-name last-name


Do not send any mail to my private address <zghazza@luc.edu>, except for appointments or personal problems regarding the course. Suggestions for term-papers topics should be posted directly at the class-list.


Problems in joining the list? Questions? Send an e-mail to Brian Kinne <bkinne@luc.edu>.


notes from it services:


From: "Jack Corliss, Loyola University Chicago" <jcorlis@orion.it.luc.edu>


Please note that about 96% of all registered students have e-mail accounts, on the GroupWise e-mail system (university e-mail system). We no longer encourage students to obtain Orion accounts unless they plan to do personal web page design and development.

               Of course, students can use whatever e-mail account they have to subscribe and post to the class discussion list including AOL and Entereact. If you want to send attachments to the students on the list then they should find out their e-mail system handles attachments.

               You should also know that as of May 1997, anyone using the computer workstations in any of the University computing centers and public-access labs are required to have university network access account (which we call the UVID). This is required whether the student plans to access the Internet resources, their GroupWise or Orion e-mail, use word-processing to write their papers, whatever.

               Therefore, students are assigned these accounts automatically. However, if a student does not remember his or her university network access account/password, and registered late this year, then the student will need to go to the computing center to have the password reassigned or a network access account set up (usually takes 24 hours).


WHAT I HAVE JUST PRESENTED ABOVE IS VERY IMPORTANT INFORMATION. Please be prepared to direct the student to one of the computing centers if he or she does not know nor remember the network access account or password.

               Please note that some students may know this network access account as the GroupWise account and password—an unfortunate nomenclature—but most likely this is one and the same. Previously, we referred to these as GroupWise accounts but now we are calling them university IDs (or UVID), or university network access accounts.

               The computing centers have had to deal with this last semester, so please do not hesitate to refer any students to the computing centers for assistance, or they can call the Help Desk at 4-4444 and the Help Desk staff will re-assign a network access password.




(*) indicates recommended reading


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Amselek, Paul. Méthode phénoménologique et théorie du droit. Paris: L.G.D.J., 1964.

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*Austin, John. Lectures on Jurisprudence. 2 vols. London: John Murray, 1863.

*Austin, John. Province of Jurisprudence Determined. London: Weidenfeld & Nicolson, 1954.

Balkin, J.M. “Being Just With Deconstruction.” Social & Legal Studies 3, no. 3 (1994): 393-404.

Berque, Jacques. Essai sur la méthode juridique maghrébine. Rabat, 1944.

*Black, Donald. Sociological Justice. New York—Oxford: Oxford University Press, 1989.

Boltanski, Luc and Laurent Thévenot. De la justification. Les économies de la grandeur, Les essais. Paris: Gallimard, 1991.

*Bourdieu, Pierre. “The Force of Law: Toward a Sociology of the Juridical Field.” Hastings Law Journal 38 (1987): 805.

Bouretz, Pierre, ed. La force du droit. Panorama des débats contemporains. Paris: Éditions Esprit, 1992.

Bousquet, G.-H. Le droit coutumier des Aït Haddidou des Assif Melloul et Isselaten (Confédération des Aït Yafelmane). Notes et réflexions. Algiers, 1956.

Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford: Clarendon Press, 1993. Carbonnier, Jean. Droit et passion du droit sous la Ve République. Paris: Flammarion, 1996.

Chehata, Chafik. Études de droit musulman. Paris: Presses Universitaires de France, 1971.

Chehata, Chafik. Théorie générale de l’obligation en droit musulman hanéfite. Paris: Éditions Sirey, 1969.

*Cohen, David. Law, Violence and Community in Classical Athens. Cambridge: Cambridge University Press, 1995.

Cohen-Tanugi, Laurent. Le droit sans l’État. Edited by Quadrige. Paris: Presses Universitaires de France, 1985.

*Conley, John M. and William M. O’Barr. Rules Versus Relationships. The Ethnography of Legal Discourse. Chicago and London: The University of Chicago Press, 1990.

Derrida, Jacques. “Force of Law: The “Mystical Foundation of Authority”.” Cardozo Law Review 11 (1990): 919-1045.

Dews, Peter. “Agreeing What’s Right.” London Review of Books, 13 May 1993, 26-7.

Douzinas, Costas & Peter Goodrich & Yifat Hachamovitch. Politics, Postmodernity and Critical Legal Studies: Routledge, 1994.

*Dworkin, Ronald. Law’s Empire. Cambridge, Massachusetts: Harvard University Press, 1986.

Engelstein, Laura. “Combined Underdevelopment: Discipline and the Law in Imperial and Soviet Russia.” The American Historical Review 98, no. 2 (1993): 338-353.

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Foucault, Michel. “L’évolution de la notion d’«individu dangereux» dans la psychiatrie légale du XIXe siècle.” In Dits et écrits, 1954-1988, III: 1976-1979, edited by Daniel Defert & François Ewald. Paris: Gallimard, 1994.

*Friedman, Lawrence M. A History of American Law. 2d ed. New York: Touchstone, 1985.

Garapon, Antoine. Bien juger. Essai sur le rituel judiciaire, Opus. Paris: Éditions Odile Jacob, 1997.

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*Garland, David. Punishment and Modern Society. Chicago: The University of Chicago Press, 1990.

Goldstein, Jan. “Framing Discipline with Law: Problems and Promises of the Liberal State.” American Historical Review 98, no. 2 (1993): 364-375.

Gordon, Robert. “Critical Legal Histories.” Stanford Law Review 36 (1984): 57.

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Goy, Joseph. “Code civil.” In Dictionnaire critique de la Révolution française: Institutions et créations, edited by François and Mona Ozouf Furet, 133-152. Paris: Flammarion, 1992.

*Greenhouse, Carol J., Barbara Yngvesson & David M. Engel. Law and Community in Three American Towns. Ithaca and London: Cornell University Press, 1994.

Habermas, Jürgen. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge, Massachusetts: The MIT Press, 1996.

Habermas, Jürgen. “Reply to Symposium Participants, Benjamin N. Cardozo School of Law.” Cardozo Law Review 17, no. 4-5 (1996): 1477-1558.

Hallaq, Wael B. Law and Legal Theory in Classical and Medieval Islam. Brookfield: Variorum, 1995.

*Hart, H. L. A. The Concept of Law. Oxford: Clarendon Press, 1961.

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*Horwitz, Morton J. The Transformation of American Law, 1870-1960. Oxford: Oxford University Press, 1992.

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*Jacob, Herbert, et al. Courts, Law, and Politics in Comparative Perspective. New Haven and London: Yale University Press, 1996.

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*Kennedy, Duncan. A Critique of Adjudication: fin de siècle. Cambridge: Harvard University Press, 1997.

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*Llewellyn, Karl N. The Case Law System in America. Translated by Michael Ansaldi. Chicago: The University of Chicago Press, 1989.

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*Luhmann, Niklas. A Sociological Theory of Law. London-Boston: Routledge & Kegan Paul, 1985.

*MacCormick, D. Neil and Robert S. Summers, ed. Interpreting Statutes: A Comparative Study. Aldershot: Dartmouth, 1991.

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*Rawls, John. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1977.

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Rouland, Norbert. Aux confins du droit. Paris: Éditions Odile Jacob, 1992.

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*Solan, Lawrence M. The Language of Judges. Chicago and London: The University of Chicago Press, 1993.

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*Turner, Stephen P. & Regis A. Factor. Max Weber. The Lawyer as Social Thinker: Routledge, 1994.

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*Unger, Roberto Mangabeira. The Critical Legal Studies Movement. Cambridge: Harvard University Press, 1983, 1986.

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