The issue also includes Clifford Ando's Pluralism and Empire: From Rome to Robert Cover:This article offers a critique of the sensory deprivation under which legal studies normally operate by exploring how material forms shape law’s substance. Archives and the objects in them used for storing precedents have a history that we must understand if we are to ascribe meaning and authority to the texts they contain. Thus the images here do not simply illustrate propositions; they raise and answer questions about how physical forms constrain what is knowable as law. We can see this by studying practices in the eighteenth-century English court of King’s Bench, and especially the manuscript precedent books made by that court’s clerks. Examining one case—of the liberal campaigner, John Wilkes—we can watch clerks shaping authority as they used indexing tools of their own making to find the crucial precedents. Those same clerks then turned the case into a precedent by storing the results in the archive over which they were masters.
Credit: LC
In his famous engagement with pluralism and sub-political associations, “Nomos and Narrative,” Robert Cover invokes empire as both an exemplar of statal power and an alternative to contemporary liberal democratic regimes. This essay takes his reflections as a point of departure, in order to explore two themes. First, Cover posits a dynamic relationship between jurispathic and jurisgenerative regimes. This invites reflection on the stability of pluralist regimes in practice. This essay takes up that challenge in the case of Rome where, it is argued, structural features of both politics and practice impelled a standardization of legal regimes in both procedural and positive law, despite a principled commitment on Rome’s part to the autonomy of alien communities within the empire. Second, Cover seeks to elide the true object of his inquiry, the autonomy of religious groups, by assimilating them to voluntarist associations. This brings certain advantages in respect to constitutional law and anticipates potential liberal and feminist critiques of religious law. But it also raises problems of political theology, by surrendering the ontological priority vis-à-vis the state that in the self- understanding of religious groups normally justifies their claims to self-regulation. One form such problems might take is illustrated by Hobbes, in his theory of sovereignty by acquisition, which draws on Roman theory. That theory has been now been vindicated by Roman legal instruments, discovered in the 19th and 20th centuries and therefore unknown to Hobbes, in which conquered parties were ordered to continue their ancestral legal practice, on sufferance of Rome.Forthcoming in Spring 2015 is the special issue New Historical Jurisprudence and Historical Analysis of Law:
The New Historical Jurisprudence issue seeks to highlight and to encourage a trend in recent legal scholarship, or rather scholarship on law, that--like the original historical jurisprudence- -pursues a historical analysis of law, as a form of critical analysis of law, rather than legal history, as applied historiography. Generated by theorists with a historical sensibility, and historians with theoretical curiosity, this emerging body of work exploits and challenges the intersection of history and jurisprudence in innovative and exciting ways.
The current list of confirmed contributors includes:Mireille Hildebrandt (Erasmus University Rotterdam)
Shai Lavi/Galia Schneebaum (Tel Aviv University)
Peter Lindseth (University of Connecticut)
Arlie Loughnan (University of Sydney)
Heikki Pihlajamäki (University of Helsinki)
Karl Shoemaker (University of Wisconsin)
Norman Spaulding (Stanford University)
Robert Steinfeld (SUNY Buffalo)
