misunderstanding of law.204 In their turn, legal historians fail to explain the importance of their subject for today. Legal history, especially perhaps Roman law, is often taught in a vacuum without its relevance for modern law being spelled out. Sadly, comparative legal historians also must be pedants, not romantics. They must not belong to the tempting school of those who know “What must have been.” Rather, they must restrict themselves to what the sources in their original context tell them. I stress “in their original context.” Context is of fundamental importance for an understanding of legal sources. Roman law in Justinian’s Digest has a very different feel from law in the Icelandic sagas, notably Brennu-Njáls Saga. The Roman texts are bloodless: the facts as stated are assumed accurate, no attention is paid to procedural devices or the characters of those involved, or political pressures or bribery. The explanation is that jurists were ‘armchair lawyers,’ not interested in practice but only in interpretation which brought prestige among fellow jurists. The creators of the sagas were writing human drama. Procedure is central. The great lawyer is he who knows how to exploit procedural devices, and this is not necessarily the pleader. The players in the lawsuit are shown in detail: their willingness (or otherwise) to compromise, their fighting ability, the character of their wives. It is not enough to say in explanation that one work is about law for lawyers, the other is not. Again, one should wonder why law is so absent from Homer’s Odyssey, a work so filled with potential legal situations. The Digest and Brennu-Njál give two extremes, but sensitivity to context is essential in understanding all 204This is one of the themes of William M. Gordon’s Stair Society lecture in 1999: ‘ The Civil Law in Scotland’, 5 Edinburgh Law Review(2001), pp. 130 ff. In a different connection; John Cairns and Olivia Robinson have observed: “Watson has thereby laid down a major challenge for legal historians, comparative lawyers, and sociologists of law. It is a challenge that has rarely been taken up:’ Critical Studies in Ancient law, Comparative Law and Legal History, (Oxford, 2001), p. xvii. Alas that this is so. For a response to critics see Alan Watson, ‘Legal Change: Sources of Law and Legal Culture,’ University of Pennsylvania Law Review(1983), pp. 1121 ff.
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