Alli Orr Larsen and Thomas McSweeney, William & Mary Law School, have posted Medieval Treatises and the Judicial Search for a Usable Past, which is forthcoming in the Stanford Law Review:
The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context.
Bracton (HLS)
For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care.
--Dan Ernst
