This collection of essays edited by Peter Coss is an important critical contribution for all the historians who are interested in the legal dimensions of social phenomena. The 'Past & Present Publications' series is the right place for trying to analyse the existing relations between the structure of experts' legal arguments and the structure of social players' arguments across a large chronology, from classical Greece to twentieth-century Kenya. As both Peter Coss in his "Introduction" and Chris Wickham in his "Conclusion" point out, the theoretical suggestions for this collective book are inspired by an approach 'ranging across historical time and across space', the same approach of John Bossy's Disputes and Settlements: Law and Human Relations in the West (Past and Present Conference, Cambridge 1983). At the same time, the book is inspired by an analysis of the asymmetry between the narrative structure of the claims of litigants and the rhetorical (I'd prefer to say, dogmatical) structure employed by official legal players--as it happens in Sally Merry's Getting Justice and Getting Even (Chicago 1990) and John Conley and William O'Barr's Rules versus Relationship (Chicago 1990). These suggestions do not come from the legal history stricto sensu, a scientific domain that is indicated as 'history of the law' in Continental European languages (storia del diritto, histoire du droit, historia del derecho...) : this difference is not only lexical; it is also semantical, in that 'legal history' concerns legal phenomena, and 'history of the law' concerns only the object 'law'. In fact, 'history of the law' is rarely linked to a general approach to society, and it is very often limited to legal players, as clerks, judges, lawgivers, and to the production of their activity.
Peter Coss proposes to historians to pass from a theory of the autonomy (as 'independence') of the law from society to an analysis of 'law in society', an expression more meaningful than a merely idea of 'law and society'. Thus, he proposes an analysis of law phenomena at 'every bloody level' (from E. P. Thompson, The Poverty of Theory, London 1978). However, I thought that the papers of The Moral World of the Law are very useful also for somebody who firmly believes in the autonomy of law (read as autonomy of legal argumentation). In one book cited by Peter Coss, The Autonomy of Law. Essays on Legal Positivism (edited by the natural law theoretician R. P. George, Oxford 1996), there is at least one good example of what 'history of the law' may be under the idea of its autonomy. The natural law philosopher John Finnis, in The Truth of Legal Positivism, gives an essential contribution to the lexical and semantical history of the Latin 'positivum' and its cognates. It is not 'law in society', nor 'law in action', but it is necessary in order to reflect upon law. Without a dogmatical analysis of legal notions, in fact, law is reduced to any other factual phenomena (power balances, actions of police, merely decisions by judges,...) and it is thus deprived of any ontological existence. This is why I think that the interest of the notion of 'law in society' is not in some reduction's theory, but in its complementarity with a conscience of the autonomy of law as ontological object, at least in so far as this object is an essential part of social human games. As Philip Selznick states (The Moral Commonwealth, Berkeley 1992): "naturalism does not reduce religion to fantasy, education to training, love to attachment, law to power. It respects the complexity, subtlety, and integrity of these phenomena even as it seeks their exigent conditions and material underpinnings" (20).
Thus, The Moral World of the Law is essential for the historians of human phenomena, on the one hand, and it is important for the more limited academic tribe of legal historians, especially for the historian of legal thought, on the other. The target of this book is not an extensive analysis of legal technical ideas, one set of notions that in medieval law are designated as droit savant, but is a reflection about legal ideas (i.e., arguments) in action. This is why this book is a very essential piece, also in Pierre Legendre's strategy, that is to say in a strategy that points out the dogmatic structure of legal speech (see the anthology Law and the Unconscious: A Legendre Reader, London 1997; and Ecrits Juridiques du Moyen Age Occidental, London 1988). The essays of this book show us that it is useful to identify a strong link between the symbolic order of law and the effective action of this symbolic order in our lives.
The richness of the essays of this book does not allow us to say something specific concerning every essay. At the same time, after a general view of all the chapters, it is important to stress some points in order to show the necessity for every historian of a sound discussion about legal theory--even before looking for a sound law in society.
Stephen Todd's contribution is about "The Language of Law in Classical Athens". The lack of a specialised legal profession did not prevent the possibility of a sensible difference between legal speech and ordinary speech, even if in no way we have in Athens the formalism of law. Here, law's operations are symmetrical to the operations of social domination, in that people who had social influence (rich men, for example) had a decisive influence in the process too. This is one instance of what Wickham characterises as 'relatively unprofessional legal system'. And the picture Todd gives us of Athens is not prima facie the picture of a nice place to live in. In this sense, the erudite essay of Todd is an evidence in favour of the autonomy of law.
As to the development of legal procedure and of the professionalisation of legal players, Andrew Lewis' "The Autonomy of Roman Law" is a good example. The aim of the paper is to think about the birth of a legal science (from Rome to Western contemporary civilization, we are in a context of 'professional legal systems', and by this expression Wickham stresses the role of legal players more than the role of written legal documents). In such a context, we can see how the dogmatic notion of law is at the base of society, at least in so far as law is capable of vitam instituere ('building the life'--expression analysed by Pierre Legendre). Law is not only able to explain men's life in society, but it is also able to guarantee a real sociable life.
Wendy Davies analyses Middle Ages before the 'revolution' of the eleventh century--"Local Participation and Legal Ritual in Early Medieval Law Courts": she examines the ritual(s) of the courts, a new schema of procedure in a new social context. During the Middle Ages, in fact, both the administration of justice at level of local courts is more linked to social common speech, and the importance of written acts becomes more and more central.
Paul Brand, in "Inside the Courtroom: Lawyers, Litigants and Justices in England in the Later Middle Ages", and Thomas Kuehn, in "Moral and Legal Conflicts in a Florentine inheritance case of 1422", show the existence of a social game between a more technical language and a (in some way) common values speech, on the one hand, and, a technical administration of justice assured by professional officials and an untechnical administration of justice assured by unprofessional citizens, on the other hand. The two sets of languages and legal players are not biunivocally linked: as history has shown, every combination is possible. Unprofessional citizens may use a very technical argumentative strategy; professional officials may use a very common-values argumentation. And Martin Ingram--"Law, Litigants and the Construction of "honour": Slander Suits in Early Modern England"-- gives us some examples of the way courts' decisions about harming- speech change the gerundive meaning of words. Sometimes, 'Knave' is synonymous of 'whore', and so linked to a gerundive meaning of disapproval; sometimes, courts decides that 'knave' has no definite meaning, and so they 'eliminated' every gerundive meaning of the word.
As to Caroline Ford's "Story-telling and the Social Imagery of Religious Conflict in Nineteenth-century French Law Courts", the focus is on modern history. The memoire of the advocate is analysed as a dramaturgical matter, something whose origins are to be found in a popular literature about religious drama in convents. But this style is also, I guess, the heritage of hagiographic literature, and may be that popular literature is the simpler version of the troubles we always find in the life's stories of saints (member of a religious order) who lived in a convent. Very rarely, a person that after death will be canonised, during his life has not known the hostility of her brothers or sisters of religion: at least, this is the topos of hagiography.
Two other essays analyse what Wickham calls the 'imported legal systems'. Kenya is the geographical context of John Lonsdale's "Kenyatta's Trials: Breaking and Making an African Nationalist". Southern Rhodesia is the country analysed by Diana Jeater in "'Their idea of justice is so peculiar': Southern Rhodesia 1890- 1910". The first paper illustrates the construction, paradoxically malgre lui, of a nationalist hero against colonial oppression. The second paper is in one way unfair with Western legal tradition, even if his hard judgment about the practice of justice by white colonists is sound. The focus, as in Lonsdale's paper, is on the notion of 'restorative justice', more and more debated in legal theory about the (constitutional and social) events of the '80s and '90s in South Africa. It is interesting to oppose the retributive justice of white colonists to the restorative justice of local populations. But I wonder if it is really true that retributive justice 'belonged to a society with a retributive God who exacted punishment for sin'. In a way, this is seriously misleading in that a system of retributive justice is possible even without any reference to God. Moreover, the practice of justice adopted by white colonists in Southern Rhodesia is not--quite trivially--the model of justice of Western civilisation: a practice is never a conceptual model, a token is never the type. And if we want to make a reference to the history of the notion retributive justice in Western legal culture, we find both the notion of epieikeia in Aristotle and the notion of aequitas in canon law. This is why restorative justice may finally be a retributive justice with a strong reference to equity. I wonder if only Western man is obsessed with 'individual wrongdoing and punishment': if psychoanalytical research gives us some information about man, 'guilt feeling' is not an historical construction. There is something really 'human' in the paradoxical (unconscious) need of judging, repenting of a fault and being punished (see M. Klein, Love, Guilt and Reparation, 1937). And I wonder if it is possible to neglect the fact that all the African cosmogonies show the history of the Fox who pulls up her own placenta, throws out it against God, and a bit of the placenta gives birth to our world. I guess it is not an unsound anthropological parallel with Jewish (with Lillith, the first woman before Eve) and Christian tradition of the Fall. I think that the real question is to oppose a formalistic approach to law to a non-formalistic approach to law. The dark God who exacted punishment for sin is an image of a pure formalistic approach to law, and this is also the majoritary approach in Roman legal tradition (with no reference to the transcendent God of Bible).
Lastly, there is something to say about a paper concerning the golden age of medieval law. Paul Hyams, in his "Due Process versus the Maintenance of Order in European Law: the contribution of ius commune", starts from Brian Tierney's and Kenneth Pennington's approaches to medieval canon law in order to stress the evolution of a set of procedural rights. This contribution is really interesting, and nobody can deny the enormous scientific heritage of Tierney and Pennington, but I plainly disagree with some crucial points of this approach to medieval canon law. Hyams suggests the existence of a strong continuity between Roman legal theory and canonical works in twelfth and thirteenth century via Justinian's codification. He believes that this is the ground of the contemporary misunderstanding of natural and human rights as universal (on the contrary, they would be an historical construction). Moreover as both Tierney and Pennington do, he uses the notion of natural rights, in particular when referring to the early commentators of Gratian's Decretum (especially Rufinus' gloss in which Tierney reads for the first time the idea of subjective rights). Again, Pennington suggests that the theological analyses--in the eleventh and twelfth century--of the concepts of potentia absoluta and potentia ordinata of God are the sources of an absolutist way to think the power of the human lawgiver and supreme judge. I want to stress that the matter is very complicated: Andrea Padovani, in his Preface to my book Volontarismo e diritto soggettivo (Roma 1999), tries to show that there is no idea of subjective rights in the commentators of Gratian's Decretum of the twelfth century, and also in the thirteenth century. This is partly an historical matter, partly a theoretical matter: jurisprudence and legal history are two levels that cannot be separated. The question is not merely a matter of erudition. There is a entire bibliography asserting that the couple potentia absoluta/potentia ordinata may lead to a constitutional approach to law (as in William of Ockham) or to a strong primacy of papal power (as in John Duns Scotus), or even to any legal theory (as Zuckerman shows in a classic paper in the Journal of the History of Ideas (1975) about the indeterminacy of a necessary link between metaphysical theories about universals and political theories).
The question is to decide about the birth of a theory of subjective rights in canonical commentators in the twelfth century or in another chronology in another context, i.e. in Franciscan theological school in the thirteenth century (from Alexander of Hales, up to John of Peter Olivi, from John Duns Scotus up to William of Ockham), and only after in canonical commentators, as John Andreas and John of Legnano, or in civil law commentators, as Bartolus of Sassoferrato. In a way, Hyams' approach is a very strong one, and it can be persuasive for somebody. I don't want to say the contrary. However, it is not an evident and unanimous approach. If the theory of subjective rights is the groundwork of the theory of natural and human rights, and this groundwork may be found in Franciscan theology, then natural rights are not an issue of way of reflecting about Roman law in Middle Ages, but they are rather an autonomous creation of a general religious Christian anthropology. Again, it is probably possible to affirm that natural rights are an invention and they are not universal, but if it is easy to stress that any historical society has her own legal system, it is more difficult to stress that there is not a common nature of men, even if historical religions are not the same.
I apologise I have not the possibility to discuss in details every papers. I prefer to make justice both to the strong proposition of all the contributors, and to the ambitious project concerning 'law in society'. This book avoids with great ability the impasse of an enterprise in which there is a little of 'history of law', a little of 'social history', a little of 'political history'. There is a lot of work to do in this direction, as contributors say explicitly, and this is probably the right direction. But I hope that my references to legal theory and dogmatic history of law have shown that it is not a good strategy to set aside the traditional speech of autonomy of law. Often the best revisionism is not a revolution, but a (maybe strong) correction or integration of previous paradigm(s).