PANEL: History of the Book in the Law: Legal Texts and Their Reading Publics
Saturday, October 24, 1:45-3:15
Chair: Mary S. Bilder, Boston College Law School
"History of the book" is a field of scholarship exploring the history of written communication. In particular, it examines the creation, dissemination, and use of texts, both printed and chirographic, as situated within surrounding oral traditions. Originating as an interdisciplinary effort to understand the effect of print, it has broadened its focus to explore interactions among intertwined media of communication, each with differential political, cultural and cognitive impacts.
This new field has deeply enriched the study of politics, religion, science and literature. While law has not been ignored, it has lagged behind, its engagement with history of the book nascent and tentative. Law is a promising candidate. Its doctrines and mores have been transmitted through precisely the sort of fluid interactions among print, manuscript and oral tradition that historians of the book have done so much to illuminate. As simultaneously a mandarin intellectual system, a technique of governance, a protest ideal, and a generator of social and political categories, law has always had to bridge practitioner elites, government, and various strata of society, presenting the intellectual circulation that attracts historians of the book. Dissemination of law is at once unavoidable, politically dangerous, and potentially unpalatable to legal specialists. This makes the problem of communications--and hence the value of "history of the book" approaches--even more pressing in law than in fields that can pretend to esotericism or political neutrality.
Legal texts are not only objects to be circulated, but subjects that create. Steven Wilf (Law, Chicago-Kent) discusses how legal modernists envisioned lex non scripta as the centerpiece of legal primitivism. Richard Ross (Law, University of Chicago) focuses on the dilemmas of authorship in law, where authority rests upon its collective professional creation. Mary Bilder (Law, Boston College), who is engaged in history of the book research in early America, will chair the panel.
Authority and Authenticity: Dilemmas in Legal Authorship, 1500-1800
Richard Ross, University of Chicago Law School
The peculiar status of legal knowledge created tensions for writers of lawbooks in early modern England and early America. I plan to use some of the problematics, or "storylines," that organize history of the book work in science, statecraft and religion as a vantage point for identifying dilemmas of legal authorship. A few examples will make the project clearer:
(1) Factitious Knowledge and Authorial Persona: Early modern divinity, medicine, and science purported to uncover natural or supernatural knowledge. Law, by contrast, was humanly made. Its factitious character created challenges for law reporters, authors of treatises, and pamphleteers whose critics accused them of mistake, incompetence, or political or sectarian motivation. Lawyers faced more acute problems in inhabiting the self-effacing role of honest reportage than did writers on Scripture, the body, or the cosmos. Since law had no natural existence outside its application and recitation, misstatement of law transformed it, and neglect buried it. Law could not be checked against, and recovered from, a universe or God existing eternally outside reportage. How did the political exposure of the author and printer of factitious knowledge inspire strategies of effacement and reassurance?
(2) Lawbook Empowerment and the Problem of Influence: In early modern England, legal publishing was a form of interstitial lawmaking. Justice of the peace manuals and primers on manorial court-keeping, for example, furthered uniformity in practice and expectation--and thus, in a sense, of law--throughout the countryside. Printing redistributed law between a published foreground and a manuscript and oral background.
But what justified the special influence of the printed lawbook? An artist or poet, if pressed, might explain the sway upon him of a colleague's work because of its beauty, or genius, or consonance to approved form. The scientist, astronomer, doctor, or divine might defend the great impact of certain printed works within their communities on the grounds that those books revealed a truth about the cosmos, the body, or God. The lawyer faced a deeper problem since the great influence, the interstitial lawmaking power, of printed lawbooks was in tension with the requirement that all public authority have a constitutional warrant. I hope to identify and historicize some of the justificatory strategies.
(3) Mediations between the Popular and Professional: Early modern lawbooks were at once a professional and a popular literature. The most polemical unveiling of the hidden, Norman law to the deceived English freeman had to acknowledge, it tacitly, the importance of judicial decision and lawyerly caste convention in authorizing the national customary law. A mandarin text disdainful of the vulgar public had to acknowledge, if tacitly, the necessarily public roles of early modern law that called out for its dissemination. Lawyers could not portray their knowledge as recondite and capable of confinement among trustworthy initiates, aping the esotericism attractive to some early modern scientists, alchemists, and physicians. They could not celebrate and define themselves by exclusion as could eighteenth-century "genteel" literary culture mocking the ignorance and provinciality of the unlearned rabble. When the printing press made the dissemination of the inner reasons of the law possible for the first time, lawyers needed to develop mediating strategies justifying legal publication while simultaneously denying the wisdom of popular, untutored interpretations. The impact of printing and the pro-disseminationist ideology of humanism and of constitutionalist, especially anti-absolutist, political thought made the problem press in a way it had not when the common law was largely a guild possession circulating in manuscript and oral tradition. I hope to identify and historicize some of these mediating strategies.
Lex Non Scripta and the Invention of Legal Primitivism
Steven Wilf, Chicago-Kent Law School
My proposal looks towards a future project, "Inventing Legal Primitivism," which addresses the late 19th century and early 20th century refashioning of law as a functional instrument to organize society. This agenda of the legal realists and their precursors has often been portrayed as largely rationalist. My interest, however, lies in the mythological underpinnings of legal modernism. I have long been intrigued by the emergence of anthropological readings of the law in the period following the Civil War--and the invention of legal primitivism as a counter-point to claims of modernism. Writers from Henry Sumner Maine to Bronislaw Malinowski have recreated imagined primitive law or collected details about actual primitive legal systems. The important issue for me is how the rise of legal modernism through demanding the repudiation of other legal systems as primitive--especially those founded upon custom--denied legitimacy to a host of alternative conceptions of law.
For the purpose of the ASLH panel, my paper would focus upon the imagining of lex non scripta as the centerpiece of primitive law. If late nineteenth-century Anglo-American law is marked by a triumphalist embrace of text-centered learned law, why is there such a striking focus upon unwritten law?
Comment: Michael H. Hoeflich, University of Kansas School of Law
Peter Just, Department of Anthropology, Williams College
ons and had gained accreditation for the largest source of black lawyers, Howard Law School. By the first decade after World War II, a number of black civil rights attorneys, including Charles Houston, Raymond Alexander and Thurgood Marshall, had become influential figures in postwar liberal politics.
The paper will focus on the early decades of Raymond Alexander's law practice in the 1920s, 1930s and 1940s, and his initial conception of his role in the legal profession and in Philadelphia's black community. Using Alexander's autobiographical writings, magazine articles and materials from his early cases, this paper will analyze Alexander's self-conception as a lawyer in the period, the roots of that conception in the social conditions of an early twentieth-century urban black lawyer, and how and why that conception changed over the course of the first several decades of his law practice.
Comment: Robert W. Gordon, Yale Law School