Throughout the Commentaries, Blackstone repeatedly availed himself of comparative legal history. Comparison allowed him to detect the invariable principles of legal experience and organise his systematic exposition of English law around them. This method proved crucial in Blackstone’s treatment of custom, as it allowed him to present the chief source of English common law by addressing the main questions concerning the nature of custom that had been raised earlier by Western jurisprudence. The paper will explore the depth of Blackstone’s engagement with such traditions. In doing so, it will investigate whether custom was understood differently on the two sides of the Channel.

In 1756, George Harris, a civilian, member of the Doctors’ Commons and holder of numerous ecclesiastical offices, published the very first full English translation of Justinian’s Institutes. In every possible way, the publication was unique. First of all, Harris was not involved in academia. After graduation, he devoted himself to the practice of law. Second, the full translation of the Institutes was unprecedented in English history. Finally, Harris’s project reached much further than just to translate the ancient legal textbook into English. The main goal of Harris was to encourage young people to study their own, national legal system. How was it possible? Harris equipped his translation with numerous “notes” – short commentaries where he was explaining, interpreting and comparing Roman and English law. The main aim of the presented chapter is to evaluate the content of Harris’s translation as well as to appraise his scholarship and knowledge regarding Roman and English legal literature.

In 1967, AWB Simpson published a landmark article which demonstrated that the concept of ‘continuous and apparent’ easements, a fundamental part of English law (then and now) on the implication of easements was derived from the French Code civil via an English treatise written by Charles Gale in 1839. Simpson justifiably described his contribution as ‘a cautionary tale, containing several morals’. However, his account is incomplete principally because he used only English sources. This chapter shows that many other ‘morals’ emerge from a more extensive comparative and historical analysis of this reception. The roots of the concept of ‘continuous and apparent’ did not run very deep in the pre-Revolutionary law when it emerged in the Code civil in 1804 and, remarkably, it had never before been used for the purposes of implying easements. Unsurprisingly, given these inauspicious origins, the interpretative problems which the concept caused in English law were already visible in French law in 1839 but, intriguingly and significantly, they were omitted in the first and subsequent editions of Gale’s treatise. This omission is critical; the inherently flawed French concept of ‘continuous and apparent’ was absorbed into English law by judges who relied almost exclusively on the various editions of Gale’s treatise. Filling in the gaps in the story told by Simpson reveals much about English private law in the second half of the nineteenth century and in the first decades of the twentieth; it also has important implications for theoretical thinking about transplants in comparative legal scholarship.

The radical or underlying title of the Crown to all lands in the kingdom is a feature of English common law derived from Anglo-Norman feudal doctrines. When British sovereignty was proclaimed over new plantations or colonies, following the reasoning of William Blackstone, English law was part and parcel of the birthright of British subjects (whether English, Welsh, Scottish or Irish) who settled in ‘uncultivated’ distant lands. Crown title, though, is now said by the Supreme Court of Canada “to be burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.” [Tsilhqot’in Nation 2014) Development of what is called the ‘common law doctrine of aboriginal title’ – though not derived from English common law – is a feature of case precedents in Canada, Australia and New Zealand in recent decades. Courts in these jurisdictions have consistently relied on proclamations of British sovereignty as the origin point for the radical title of the Crown, and the Crown’s right to extinguish native title. The comparative aspect of the paper investigates divergent judicial responses to the status and relevance of pre-existing indigenous norms and values. These range from terra nullius outright rejection of their relevance, to limited acceptance of usufructuary and possessory rights, to a broader acceptance that native title must be understood in the light of indigenous understandings.

Common Law and Civil Law can in simplification be regarded as contrary legal systems: on the one hand, case law developed from concrete judicial decisions; on the other hand, statutory law is interpreted by legal scholars. In Germany however, the upcoming obligation to motivate judgments around 1800 initiated a new phase, according to John Dawson “Germany’s Case-Law Revolution". The judicial duty to justify every single decision towards the litigants not only changed the courts’ everyday work, but enabled the whole profession to access detailed information about tried cases. New law reports reflected the jurisdiction of the various regions. From 1847 onwards ‘Seuffert’s Archiv’, the most influential collection, reprinted numerous chosen decisions of the highest regional courts making for a nationwide readership. The use of reasons in Seuffert’s collection and its further utilisation in leading textbooks generated new authorities in legal matters. This insight raises fundamental issues about Germany’s 19th century’s legal history: the unification of national law in a period without a civil code, the relation between abstract law and concrete decisions as well as the overlap of legal practice and scholarship. Surprisingly, until now, scholars have paid little attention to how this worked in practice. How did courts and collections argue with concrete cases decided in the past? In suggesting one approach to answer this question, the paper compares four different versions of the same case from a file to the collection. First of all, a single judge gave his opinion in a report. Secondly, the committee of judges based its reasoned judgment on the report. Thirdly, the reasons were shortened for a regional collection which printed it. Finally, ‘Seuffert’s Archiv’ published parts of this last version once again. The example given here reveals the degree to which prior cases predetermined future courts’ decisions.

The picture of the early perception of English common law in Germany is still quite blurred. From the 17th century on, English constitutional matters and political philosophy attracted the attention of German academics. But it is not until around 1750 that interest stirred in English private and criminal law. Due to its close connections with the Hanoverian court, Göttingen soon established itself as the epicentre of this early German academic anglophilia. Even though around that time England had begun to feature on travel maps of the grand tour, few German scholars had sufficient command of the English language to engage with original British literature. Initially, interested German legal academics therefore often had to rely on translations of English works into Latin, German or French. One of the earliest German treatises on English law, Christian Hartmann Samuel Gatzert’s Latin Commentatio iuris exotici historico-litteraria de iure communi Angliae. Of the Common Law of England (Göttingen 1765), is testament to this. But other literary products had paved the way to Gatzert’s Commentatio: the literature reviews of the bustling scene of learned journals. Using the example of the Göttingische gelehrte Anzeigen (first published in 1739), the paper addresses the question how German learned journals treated contemporary publications on English law. It analyses the challenges faced by the reviewers, amongst others a problematic continental-legal perspective and grave misunderstandings concerning the English legal system, and assesses the role the Göttingische gelehrte Anzeigen played in disseminating knowledge about English law and in offering a wider German readership glimpses at a foreign legal system, c. 1739–1775.

My contribution intends to shed some light on the history of comparative commercial law, an issue strictly related to the general theme of the 2019 BLH Conference “Comparative legal history”. Legal historiography has pointed out the importance of a comparative approach in the history of commercial law. My point is slightly different: my research focuses on the role of comparative studies in the history of commercial law. More precisely, I focus on the comparative argument in the 19th century commercial law discourse, and I study Leone Levi (1821-1888) and his comparative commercial law works. Leone Levi was an Italian-born merchant who became jurist, statistician and economist in Victorian Britain. His eclectic personality, together with his strong commitment in a large number of juridical, economical and statistical issues is fascinating in itself. My purpose is to present Levi’s contribution to 19th century commercial law, in particular his comprehensive treatise on Commercial Law of the world published in 1850-1852. The treatise was reprinted in 1863 under a different title: International commercial law : being the principles of mercantile law of the following and other countries, viz.: England, Scotland, Ireland, British India, British colonies, Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, United States, etc.). In synthesis, commercial law tends naturally to comparison because trades and commerce are transnational by nature: commercial law scholars and practitioners share very often a comparative and transnational point of view. The aim of my essay is to discuss in what way and to what purpose a 19th century sui generis commercial lawyer – i.e. Leone Levi – made use of comparative law in dealing with commercial and business legal matters.