Showing posts with label Ancient law. Show all posts
Showing posts with label Ancient law. Show all posts

Tuesday, July 1, 2014

Birks's "Roman Law of Obligations"

Eric Descheemaeker, University of Edinburgh School of Law, has posted the introduction to The Roman Law of Obligations (Oxford University Press, 2014), which publishes, as edited by Professor Descheemaeker, a set of lecture notes by Peter Birks.  Birks (1941-2004) was Regius Professor of Civil Law at the University of Oxford and (saith OUP), "one of the most influential legal scholars of the twentieth century."  Of the SSRN posting, Professor Descheemaeker explains, “The introductory chapter presents the lectures, their substance and significance, the work carried out by the editor, and also the wider Peter Birks Papers Series, of which this volume is the first.”

Oxford's webpage on the book explains:
The Roman Law of Obligations presents a series of lectures delivered by the late Peter Birks as an introductory course in Roman law. Discovered in complete manuscript form following his death, the lectures are published here for the first time.

The lectures present a clear conceptual map of the Roman law of obligations, guiding readers through the institutional structure of contract, delict, quasi-contract, and quasi-delict. They introduce readers to the terminology needed to understand the foundations of Roman law, and the conceptual framework of the law of obligations that left an enduring legacy on European private law.

The lectures offer an invaluable introduction to Roman private law for those coming to the subject for the first time. They will also make stimulating reading for academics and lawyers interested in Roman law, European legal history, and the lasting influence of Roman law on modern private law.

Friday, March 28, 2014

Halliday on Authority in the Archives and CAL 1:1


The first issue of Critical Analysis of Law: An International and Interdisciplinary Law Review has just gone on-line.  1:1 is devoted to “Critical Analysis of Law and the New Interdisciplinarity.”  It includes the article Authority in the Archives, by Paul Halliday, University of Virginia.  Here is the abstract:
Credit: LC
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.
The issue also includes Clifford Ando's Pluralism and Empire: From Rome to Robert Cover:
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)

Monday, February 10, 2014

Lawyering Inside and Out

Teaching my law students about ancient lawyers provides a unique opportunity to reflect on a dimension of lawyering usually given little thought: its exterior or interior location. Modern advocates take their inside environment for granted, and apart from occasionally praising (or more often griping about) the architecture of the courthouse, the aesthetics of the courtroom or the paintings on the courtroom walls, they give it no further thought. In classical Athens and Republican Rome, however, most litigation was conducted out of doors in the general vicinity of the marketplace. Athenian juries heard cases in what appear to have been unroofed structures in the Agora and elsewhere in the city. Roman crowds gathered around advocates pleading before judges seated on folding curule chairs set on tribunals (raised platforms) near temples and other public buildings in the Forum. The outdoor setting of advocacy shaped what was said in court, and how it was said.

By definition, outdoor advocates performed in public. They argued their cases under the unobstructed gaze of their community's gods, and they shared the very physical and acoustic spaces where other members of the community interacted to buy and sell, borrow and beg, meet and greet. Even within the confines of the court or the corona (the ring of onlookers surrounding the Roman judge), litigants and their legal representatives inevitably heard the calls and cries of commerce from the market area beyond. People in the marketplace could in turn hear (and in the Roman Forum see) litigants and/or lawyers pleading, creating mutual awareness and to some extent social accountability. There was no silence in these courts.

If nothing else, litigants and orators speaking in these settings needed strong voices to compete against noise and the wind. As space permitted, they became accustomed to using their bodies to move or gesture in ways that added force and meaning to their words. They employed their public surroundings as rhetorical props to remind their listeners of the community, its heroes, its gods, and its values. Inevitably they learned to play off juries and massed spectators to make their points, leveraging reactions to sway decisions.

Wednesday, February 5, 2014

Ancient Lawyers

Beginning an American law school course on the history of lawyering with "ancient lawyers" - i.e. Athenian orators, Roman advocates and Roman jurists - is not a necessarily-obvious pedagogical move. At the outset it throws some law students, especially the increasing number who come to law school with minimal (or more often no) background in classics or ancient studies, or even that old hoary standby Western Civ. It threatens to frustrate others who think that they should be deposited immediately in American territory, and who instinctively balk at the prospect of being forced to deal with lawyer-types from less familiar or less chronologically proximate cultures. And yet I persist. Why?

One reason is that I honestly believe that teaching my law students about ancient lawyers and lawyering is a worthwhile enterprise in itself, not necessarily because "origins" are special, but because the exercise expands the mind by forcing us to contemplate how legal and social norms were articulated and defended in cultural contexts radically different from our own. If the past is a foreign country, the distant past is even more so, and from a humanistic or anthropological perspective I think exploring that past is a good thing. Secondly, I believe ancient lawyers can usefully remind us of the deep connection between advocacy and community, and how the former can serve and improve the latter by persuasive appeals to shared values through responsible rhetoric (thus Quintilian's famous definition of the true orator as a "good man speaking well"). Frankly, I'd take a few pages from Cicero or Quintilian on this topic over most contemporary legal ethics textbooks any day of the week.

Thirdly, I want my law students to understand that lawyering in America did not appear full-blown and immaculate, like (to pointedly use a simile from ancient Greek mythology) Athena springing from the forehead of Zeus. Eighteenth, nineteenth and even a few (mostly early) twentieth century American lawyers overtly saw themselves as heirs of the (legal) ancients. John Adams (whom Daniel Coquillette cleverly called "Justinian in Braintree" at one point) routinely evoked Cicero; James Kent admired Juvenal; Daniel Webster imitated Demosthenes; Rufus Choate translated Quintilian for pleasure; William Wirt had his portrait painted in classical garb; Elihu Root bought busts of both Cicero and Demosthenes for his personal library. It's interesting how the popularity of certain ancient lawyers and rhetoricians ebbed and flowed over time as American political and legal circumstances changed. Roman legal figures seem to have dominated the legal thinking and oratory of the Revolutionary era. Greek orators like Demosthenes were more often evoked in the courtrooms and legal classrooms of Jacksonian America, and then interest in the Roman (and this time largely imperial) legal past gained ground again as America became a world power in the late 19th century. Go figure. Only in the 20th century, when the underpinning of classical undergraduate education and classical languages was largely lost, even to the upper end of the bar, did "ancient lawyers" lose their fascination for the American legal mind.

Friday, September 13, 2013

New Release: Bryen, "Violence in Roman Egypt: A Study in Legal Interpretation"

New from the University of Pennsylvania Press: Violence in Roman Egypt: A Study in Legal Interpretation, by Ari Z. Bryen (West Virginia University). Here's a description:
What can we learn about the world of an ancient empire from the ways that people complain when they feel that they have been violated? What role did law play in people's lives? And what did they expect their government to do for them when they felt harmed and helpless?

If ancient historians have frequently written about nonelite people as if they were undifferentiated and interchangeable, Ari Z. Bryen counters by drawing on one of our few sources of personal narratives from the Roman world: over a hundred papyrus petitions, submitted to local and imperial officials, in which individuals from the Egyptian countryside sought redress for acts of violence committed against them. By assembling these long-neglected materials (also translated as an appendix to the book) and putting them in conversation with contemporary perspectives from legal anthropology and social theory, Bryen shows how legal stories were used to work out relations of deference within local communities.

Rather than a simple force of imperial power, an open legal system allowed petitioners to define their relationships with their local adversaries while contributing to the body of rules and expectations by which they would live in the future. In so doing, these Egyptian petitioners contributed to the creation of Roman imperial order more generally.
A few blurbs:
"An extremely important study that will fundamentally change how we think about violence in Egypt and elsewhere in the Roman Empire—in fact, the way we conceive Roman rule in the provinces altogether."—Noel Lenski

"A substantial contribution to the field of papyrology, Violence in Roman Egypt contributes an interesting analysis of the only extant documentation of this kind in antiquity, which has never before been studied from this perspective." —Sofia Torallas Tovar
More information is available here.

Friday, September 6, 2013

Fleckner on the Peculium

Andreas M. Fleckner, Max Planck Institute for Comparative and International Private Law, has posted The Peculium: A Legal Device for Donations to Personae Alieno Iuri Subiectae?  Here is the abstract:    
The peculium was the estate of sons, slaves, and other persons who were subject to the authority of someone else (personae alieno iuri subiectae). The peculium has two distinct facets: for those who were subject to another’s authority, the receipt of a peculium gave some degree of financial independence and autonomy, while for those who exerted authority, granting a peculium offered the prospect of participating indirectly, and therefore at lower risk, in business ventures that the recipient may elect to conduct. So far so good – that is the basic concept that emerges from the sources. But what was the peculium’s role, if any, in ancient society? Over the last couple of decades, one aspect of the peculium’s second facet – allowing the grantor of the peculium to team up with others and share in larger business ventures of the recipient – has become a more and more popular explanation. This assumption, however, faces two objections: first, no sources have come down to us that support the idea that the peculium was indeed used to organize larger business ventures, and second, the peculium’s legal regime seems less than optimal and in some respects even ill-suited to fund such enterprises. Therefore, if investing in business ventures is not the prime factor that drove the peculium’s development, its first facet comes back to the fore: was the peculium primarily a legal device for donations to personae alieno iuri subiectae?

Friday, August 23, 2013

Madden on Law in the West after Justinian

M. Stuart Madden, formerly a former Distinguished Professor of Law at Pace University School of Law, has published "Paths of Western Law After Justinian," in the (gated)  Widener Law Journal 22 (2013): 757.  Here is the abstract:
This article relates the story of three principal paths of law in Western Europe from the periods preceding the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through and including the several centuries thereafter. The period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that occupied and ruled the former Roman territories, and the recitation of such law in the form of new law codes promulgated by three of the major Gothic groupings: the Lombards, the Burgundians, and the Salian Franks.

In the main, the Germanic rulers were attentive to the need for laws that would suit not only German customary law as had been followed for many centuries, but also the Roman law to which their Roman constituencies, now under Germanic rule, had adhered. Importantly, even such Roman law as would be applied was only a bowdlerized version of Justinian’s contributions, as the Digests and other interpretative parts of the comprehensive Corpus Juris Civilis were somehow lost, only to be recovered some centuries later. Thus, for the first several centuries of Germanic rule, the only remnant of written Roman law available was the blunt-edged summarization contained in the Code of Justinian.

Germanic law was revolutionized by its new application to the governance of stable agricultural communities. The Gothic codes also advanced continental law in many ways that today can be seen as building blocks of emerging western law. Perhaps most significantly, the three law codes studied here demonstrate a preference for resolution of disputes by means of composition (compensation), and included monetary incentives therefore. By such means, the Goths were largely successful in turning their culture away from violent retributive justice towards systems of *758 composition for injury. Further to this end were the adoptions of wergeld as an appropriate compensation for a homicide, and also the widespread use of codified tables of composition to be associated with particularized lesser wrongs. These changes in Germanic law gave an increased likelihood of even-handed administration of justice, and provided also a monetized incentive for the family of a victim to forego mayhem in resolving disputes. As to the incidence of violent justice, many ancient Germanic practices, such as blood feud or trial by boiling water, were tamed or eliminated in the development of new agricultural societies. The Gothic codes also adopted remarkably modern distinctions between intentional and accidental harm, as well as negligence standards that assigned uncannily familiar significance to concepts of duty and proximate cause.

In sum, the law codes of the Lombards, the Burgundians, and the Salian Franks provided a civilizing legal bridge between the fall of the Western Empire and the more westernized law codes that would follow in the later Middle Ages.

Monday, July 22, 2013

Symposium on Weiner's "Rule of the Clan"

This week Concurring Opinions will be hosting a symposium on the former LHB Guest Blogger Mark Weiner’s book The Rule of the Clan.  As Mark writes, “participants are an intellectually diverse, international group”:

Prof. Mark Fenster, Levin Colleiner's ty of San Andrés School of Law, Argentina

Dr. Arnold Kling, Adjunct Scholar, Cato Institute.

Dr. Jan-Christoph Marschelke, Managing Director, Global Systems and Intercultural Competence Program (GSiK), University of Würzburg, Germany,

Prof. Tim Murphy, Universiti Utara Malaysia (University of North Malaysia).

Prof. Abdullah Saeed, Sultan of Oman Professor of Arab and Islamic Studies, University of Melbourne, Australia

Dr. Doyle R. Quiggle, Jr., author of "Ibn Tufayl's Hayy Ibn Yaqdan in New England: A Spanish-Islamic Tale in Cotton Mather's Christian Philosopher?"

Prof. Jeanne Schroeder, Cardozo School of Law

Prof. Kevin Stack, Associate Dean for Research, Vanderbilt School of Law

Tuesday, June 11, 2013

Schroeder Reviews Weiner's "Rule of the Clan"

Jeanne L. Schroeder, Benjamin N. Cardozo School of Law, has posted Family Feud: Mark Weiner, The Rule of the Clan.  Here is the abstract:
In The Rule of the Clan, legal historian Mark Weiner confronts the paradox that freedom requires law. He takes aim at one common assumption of libertarian political theory: a strong state is a threat to individual freedom. He warns that nostalgia for earlier, simpler societies is a deluded fantasy.

Weiner examination of traditional societies throughout the world and across history show that they share a single broad organizational structure that belies their facial diversity: the clan. Within the clan, man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction. In the clan, there are no individual rights protected by law, only the honor of the extended family to be avenged by feud. Adopting the terminology of “founding father of legal history and legal anthropology, Henry Sumner Maine”, Weiner argues that individual rights only come into being with the development of the state when Status relations are superceded by Contract.

Surprisingly, in his defense of the classical liberal ideal of individual rights and equality, Weiner implicitly rejects one of liberalism’s founding propositions: a vision of the free individual in the state of nature. Weiner’s thesis is more consistent with the speculative tradition of Continental theory than with American liberalism.

Friday, April 12, 2013

Werhan on Popular Constitutionalism, Ancient and Modern

Keith Werhan, Tulane University Law School, has posted (an edited version) of Popular Constitutionalism, Ancient and Modern, UC Davis Law Review 46 (2012).  Here is the abstract:
This Article examines the contemporary controversy over theories of public constitutionalism through a classical Athenian lens. Theories of popular constitutionalism share in common to varying degrees the project of democratizing the practice of judicial review.

Athens invented the practice of judicial review, and just as in America, it became essential to its democracy. The classical Athenian practice of judicial review aligned precisely with strong theories of popular constitutionalism, that is, theories that largely would transfer the power of constitutional review from politically insulated courts to the People themselves or to their representatives. The article shows how strong popular constitutionalism fit the highly participatory, direct democracy of classical Athens, as well as the theoretical underpinnings and institutional design of the classical democracy. The article argues, however, that because the American institutional design and conception of democracy differ fundamentally from those of the Athenians, theories of strong popular constitutionalism are out of sync with the American system.

The Article argues as well that the comparison between Athens and America suggests that moderate theories of popular constitutionalism hold considerably more promise. These theories would keep judicial review in place, and thus would respect the institutional design of an independent and professional judiciary as the ultimate protector of individual rights for America’s liberal democracy. But these theories also would legitimate public participation in the shaping of the federal judiciary and their constitutional decision-making, and thus to some extent would democratize the exercise of judicial review. The article argues that this balancing between majority rule and the protection of individual rights is true to American constitutionalism, as well as to the founders’ instinct of tempering their Madisonian Constitution with enough of a classical Athenian sensibility to launch the American federal government as an authentically democratic enterprise.

Wednesday, March 20, 2013

Shaping Legal Cultures from Late Antiquity to the Middle Ages

University of Pennsylvania announces the conference Shaping Legal Cultures from Late Antiquity to the Middle Ages: Institutions, Genres, and Theories in Roman, Jewish, Sassanian, Christian, and Islamic Law, to be held  Sunday, April 7, 2013, 9:00 a.m. - 5:30 p.m., in Cohen Hall, Terrace Room, 249 South 36th Street, Philadelphia, Pa 19104.  According to the announcement:
This one-day conference will explore ways in which region affected the "packaging" of legal traditions within disparate cultures that flourished in geographic contiguity between the sixth and the twelfth centuries. Students of late Roman, Sassanian, Byzantine, Jewish, Islamic and Christian canon law will consider how their respective traditions of law were shaped by such extra-legal phenomena as patronage networks, institutions, circumstances of material production, compositional choices, modes of disseminating law and jurisprudential theories. By facilitating awareness of the regionalism of certain formative, extra-legal factors, this cross-cultural collaboration should stimulate new avenues of historical research.
Graduate students from outside the Philadelphia area may be eligible for a modest transportation stipend. Those interested should contact Chrissy Walsh at chwalsh@sas.upenn.edu for further information.

Hat tip: H-Law

Thursday, March 14, 2013

Conover on the First Athenian Law against Bribery

Kellam Conover, a J.D. candidate at the Stanford Law School and the holder of a Ph.D. in Classics from Princeton, has posted The First Athenian Law Against Bribery.  Here is the abstract:
This paper develops a new approach for understanding the explosion of laws regulating politics in archaic Greece. Typically, scholars in this area have adopted a functionalist approach that explains, at best, why certain types of substantive law would have been desirable. By contrast, my approach focuses on procedural design to examine what drove specific design choices about a law's substance, penalty, and procedure.

I use Athens' first bribery law--a Solonian law prohibiting compensatory gifts (bribes) to archons--to illustrate how norms and existing institutions shape a law's design. I show how the substance, procedure, and penalty of Solon's law reflected a nascent idea of bribery as a kind of elite rent-seeking. Solon chose legal process — prosecution before the Areopagus — because it was best-suited to inculcate among elites more civic-oriented norms on rent-seeking. Though likely ineffective, his law helped establish that elites should channel rent-seeking into a public sphere regulated by law.

Friday, February 22, 2013

Weiner's "Rule of the Clan"

Next month, Farrar, Straus and Giroux will publish Mark S. Weiner’s The Rule of the Clan: What an Ancient Form of Social Organization Reveals About the Future of Individual Freedom.  FS&G explains:
A lively, wide-ranging meditation on human development that offers surprising lessons for the future of modern individualism, The Rule of the Clan examines the constitutional principles and cultural institutions of kin-based societies, from medieval Iceland to modern Pakistan
     Mark S. Weiner, an expert in constitutional law and legal history, shows us that true individual freedom depends on the existence of a robust state dedicated to the public interest. In the absence of a healthy state, he explains, humans naturally tend to create legal structures centered not on individuals but rather on extended family groups. The modern liberal state makes individualism possible by keeping this powerful drive in check—and we ignore the continuing threat to liberal values and institutions at our peril. At the same time, for modern individualism to survive, liberals must also acknowledge the profound social and psychological benefits the rule of the clan provides and recognize the loss humanity sustains in its transition to modernity.
     Masterfully argued and filled with rich historical detail, Weiner’s investigation speaks both to modern liberal societies and to developing nations riven by “clannism,” including Muslim societies in the wake of the Arab Spring.
Chapter One commences:
       Imagine that one fine morning you are strolling down the sidewalk on your way to work. Suddenly, a young jogger wearing headphones turns the corner, running swiftly, oblivious to the world around him. He crashes into you and as you hit the ground you feel a sharp pain in your arm, which quickly begins to swell. It’s broken. Soon after visiting your doctor, you contact your lawyer. He begins a civil suit against the jogger so that you can be compensated for your injury.  More.

Friday, December 28, 2012

Kar on "Western Legal Prehistory"

Robin Bradley Kar (University of Illinois College of Law) has posted "Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization," University of Illinois Law Review, Vol. 2012, No. 5 (2012). Here's the abstract:
Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, accumulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory.

This Article draws upon and develops these contemporary findings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion.

Tuesday, December 11, 2012

Wagner reviews two books on Alberico Gentili's Theory of International Law

In the latest issue of the European Journal of International Law, Andreas Wagner (University of Hamburg) reviews Alberico Gentili, The Wars of the Romans. A Critical Edition and Translation of De Armis Romanis (edited by B. Kingsbury and B. Straumann: translated by D. Lupher) and B. Kingsbury and B. Straumann (eds), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire. Here's the abstract:
This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili’s interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili’s work. In line with Gentili’s own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his ‘natural/private law’ paradigm that might apply also to current suggestions of how to organize international law.
The full text is available here.

Hat tip: bookforum

Saturday, October 13, 2012

Kletzer on Primitive Law

Christoph Kletzer, King's College London School of Law, has posted Primitive Law.  The brief abstract explains that “this paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.”  Hat tip: Legal Theory Blog

Friday, August 17, 2012

Schiavone, The Invention of Law in the West

The Invention of Law in the West (Belknap Press of Harvard University Press), by Aldo Schiavone (Istituto Italiano di Scienze Umane), is reviewed this week in the The Law & Politics Book Review (here).

Here's the Press's summary of the book:
Law is a specific form of social regulation distinct from religion, ethics, and even politics, and endowed with a strong and autonomous rationality. Its invention, a crucial aspect of Western history, took place in ancient Rome. Aldo Schiavone, a world-renowned classicist, reconstructs this development with clear-eyed passion, following its course over the centuries, setting out from the earliest origins and moving up to the threshold of Late Antiquity.

The invention of Western law occurred against the backdrop of the Roman Empire’s gradual consolidation—an age of unprecedented accumulation of power which transformed an archaic predisposition to ritual into an unrivaled technology for the control of human dealings. Schiavone offers us a closely reasoned interpretation that returns us to the primal origins of Western legal machinery and the discourse that was constructed around it—formalism, the pretense of neutrality, the relationship with political power. This is a landmark work of scholarship whose influence will be felt by classicists, historians, and legal scholars for decades.
And here's a link to the LPBR review. Reviewer Walter J. Kendall III (the John Marshall Law School) warns that the author's "line of thought" is "difficult for a non-specialist to follow" but is "confident [that] it will evoke important and interesting reviews from experts in Roman law and history."

The TOC is available here.

Wednesday, July 25, 2012

Vermuele and Lanni on Precautionary Constitutionalism in Ancient Athens

Adrian Vermeule and Adriaan Lanni, Harvard Law School, have posted Precautionary Constitutionalism in Ancient Athens, which is forthcoming in the Cardozo Law Review.  Here is the abstract:    
The Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree).

Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility

Thursday, June 21, 2012

Form in Legal History (Updated)

[I'm moving up this post, which originally appeared on April 2, because, for this month only, Taylor & Francis is granting free access to the issue of Rethinking History that contains Mark Weiner's poems.  DRE.]

Legal historians, like other members of the historical profession, tend to devote more attention to the substance of their scholarship than to its form.  The last few weeks have seen the publication of two exceptional works.  One is the play Owning Hazard, A Tragedy, Barbara Young Welke’s contribution to Law As . . . Theory and Method in Legal History, a symposium issue of the UC Irvine Law Review that gathers together to fruits of a conference organized by UCI's Christopher L. Tomlins.  Another is a series of six poems just published by Mark S. Weiner, Rutgers-Newark Law, as A History of the Common Law, in the (gated) journal Rethinking History 16 (March 2012): 1-15.  (Rethinking History showcases “new ways of presenting and interpreting history”; one of its editors–and the editor of this special issue–is James Goodman, whom many LHB readers know as the author of Stories of Scottsboro.)

The present selection heralds a  book of the same name that, when completed, will include about thirty poems and constitute “a meditation on the history of the Anglo-American legal tradition as the coeval development of historical consciousness and a distinctive awareness of the self.”  Weiner is addressing that topic in another project "The Rule of the Clan," a book that will draw upon his work on Icelandic sagas and is more “straightforward in its presentation of ideas about individualism and state development.”  (You may listen to an installment, delivered a few weeks ago at Brigham Young University's David M. Kennedy Center for International Studies.)  But Weiner also felt the need for a more allusive approach to the topic that draws upon literature and the visual arts.  Charles Reznikoff’s Testimony, “a great poetic treatment of law’s lived presence,” is one of Weiner’s influences; so is Miró’s "Still Life with Old Shoe."  He acknowledges that “in the context of a methodologically rather conservative field” his techniques may seem “radical, if not completely mad”; still he is willing to risk some head-shaking because he is convinced that inattention to the “cultural and aesthetic foundations” of liberal constitutionalism is making it vulnerable to assaults from the left and the right.  He writes, “Historians have a vital role to play in developing new modes of expression that can ground a liberal legal consciousness in as wide a spectrum of literary and aesthetic movements as possible.”

The poems appearing in Rethinking History include one found in the first pages of Bishop Stubbs's Constitutional History of England.  Others were inspired by a famous passage in Freud's Interpretation of Dreams, children's doggerel, the "mnemonic triads of Welch law," a ghazal, and the aforementioned Miró.