Thursday, November 13, 2014

ASLH's New Honorary Fellows: António Manuel Hespanha

[Here, via H-Law, is the citation for the Professor António Manuel Hespanha, whose selection as an Honorary Fellow was announced at the recent ASLH meeting.]

António Manuel Hespanha (credit)
Professor António Manuel Hespanha is generally regarded as the leading Portuguese historian of his generation and as a scholar whose work has radically revised the legal, political and cultural history of early modern Europe and of the Portuguese empire in Brazil and China.

António Manuel Hespanha was born in Coimbra, Portugal, in 1945.   He earned a law degree from the University of Coimbra in 1967 and a Ph.D. in political, legal and constitutional history from the New University of Lisbon in 1987.  He recently retired from the New University of Lisbon Law School as Professor, Chairman of the Scientific Board, President of the Academic Assembly, and Director of the Center for Studies on Law in Society. He is also Honorary Research Fellow of the Institute for Social Sciences of the University of Lisbon. In the course of his academic career, Hespanha has held several different positions in Portuguese academia: he first taught at the Coimbra University Law School, the University of Lisbon Law School, and – unusually for a European academic—was also a faculty member in the History Department of the New University of Lisbon. He has served as a visiting professor in the history of law at the Autonomous University of Madrid, Yale University, and the University of Macao, among other places.
He has published 17 books and over 150 articles.  These include: A História do Direito na História Social (1977) (Legal History in Social History);   História das Instituições. Épocas medieval e moderna (1982) (A History of Institutions in the Middle Ages and Early Modern Times);  Poder e Instituições na Europa do Antigo Regime (1984) (Power and Institutions in Ancien Régime Europe);   La gracia del derecho (1993)(The Grace of the Law); Cultura Jurídica Europeia. Síntese de um milénio (1996) (European Legal Culture: Synthesis of a Millennium); and Guiando a mão invisível. Direito, Estado e lei no liberalismo monárquico português (2004) (Guiding the Invisible Hand: Law, State, and Legislation in the Portuguese Liberal Monarchy).  He is also the founder and former editor of two influential academic journals : Penélope: Fazer e desfazer a história and Thémis: Revista da Faculdade de Direito da Universidade Nova de Lisboa.

Professor James Amelang of the Autonomous University of Madrid tells us that Hespanha “has distinguished himself as the central figure within a small but influential international cohort whose research and publications have led to a radical reshaping of the political, legal, and institutional history of Iberia from the fifteenth to eighteenth centuries. Strongly influenced by Italian legal history and theory, Hespanha and his collaborators have transformed the traditional view of early modern Portugal and Spain as simple models of absolutist rule... and have offered instead a more balanced reading of the theory and practice of political systems whose functioning rested on extensive and high complex levels of internal transaction and negotiation. … Hespanha's markedly nuanced view of this interplay has led most notably to a lengthy interrogation of the centerpiece institution of early modern history, the state, whose real power and prerogatives he has repeatedly and pointedly called into question.” Professor Jean Frédéric Schaub of the Ecole des Hautes Etudes en Sciences Sociales, who calls Hespanha “one of the most influential scholars in Europe and Brazil in the field of history of law”, says that Hespanha and his group
demonstrated that Ancien Régime legal culture was stronger and by all measures deeper rooted than any political regime of the time.  [These scholars] developed the paradigm of jurisdiction, against the traditional state-centered narrative of the shaping of European legal systems, from the Middle Ages to liberal modernity.  In the group, the originality of Hespanha rests on two major contributions.  First, he certainly is the scholar who has paid the greatest attention to the sociology of the jurists and lawmakers who, de facto, gave birth to the theory of their own legitimacy and importance in the social system.  Second, he is the scholar who extended the jurisdiction paradigm beyond the European experience, by taking into account the colonial dimensions of European politics.
Professor Tamar Herzog of Harvard gives us an example of his critique of the “absolutist” state as applied to a specific topic, that of royal grace.  She argues that, relative to Hespanha, even Foucault “tended to privilege the coercive power – or claims for coercive power – of the early modern state. “Hespanha, on the contrary, called us to center our attention on the alternation between a menacing and a benevolent king, a king who is a warrior and a king who is a father, thus suggesting a more complex, and a more interesting, portrayal of the early modern state.”   Inviting us to think about law before the state, Hespanha
explains that medieval law was a pluralistic system in which multiple legal orders co-existed alongside other normative orders such as religion. Its role was to make transparent social relations already in existence and ensure the continuation of the status quo.  For medieval jurists order emerged spontaneously and naturally. Because of its pluralistic character, most of their work was directed at harmonizing what otherwise would seem as contradictions between Roman, Canon, Feudal, Local and even popular (rustic) Law. They also sought to harmonize old and newer norms as, contrary to today, older norms did not prescribe by the elaboration of new ones. That is, rather than choosing between different sources preferring one to the other, they created a whole. In the end, this meant that jurists did not simply apply a general law to particular circumstances. Instead, they needed to create the law by balancing many systems and normative orders that would ensure a solution [that], according to the standards of the time, would be just because it would allow the return of order.  In that sense, they were practical technicians of what is possible and what is just.
Hespanha, Herzog explains, also introduces “the English-speaking world to a continental version of the English common law.
[He] argues that it was never as foreign and as different as English lawyers have assumed or argued. Of Continental origin, in some odd way it reproduced classical Roman law in its emphasis on procedural remedies and in tying the grant of remedies to the existence of rights. Furthermore, ancient constitutions were also invoked in the rest of Europe, and were espoused also by the different parliaments operating there. The emphasis on difference, he further argues (and here somewhat in line [with], although differently [from] Pocock) that the sixteenth and seventeenth century religious and political rupture with the continent led English lawyers to reject all that might smell of pope and empire. Yet, [ironically], from a continental point of view, rather than protecting local and traditional liberties these developments further enhanced the power of kings.
Herzog concludes that Hespanha’s scholarship is “clear and concise, yet it transforms the listener and the reader.  Like Foucault’s or Bourdieu’s…his thinking is revolutionary without ever needing to hide behind great formulas or complicated words. It transforms the way you think about both past and present. … Among all the senior colleagues I have known during my 25 years as a student and as a university professor here at the USA and elsewhere, I never met anyone who so wonderfully combined intellectual brilliance, intellectual integrity, and intellectual seriousness, with the same amazing capacity to guide and inspire those around him.”

Professor Hespanha’s originality, his comprehensive grasp of the history of legal cultures both in Europe and in Portugal’s overseas empire, his distinctive blend of legal, social, cultural and intellectual histories of law, and his influence on many generations of scholars, amply justify his naming as an Honorary Fellow.

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