Performances of Law — Conte
Julie Peters has written a very rich, comprehensive and well-researched book on a subject that I consider extremely important for my own research. She has unearthed a number of texts which show that Europe has never abandoned the idea that law is a performing art. If law is a European invention that conquered the world, we must remember that its nature was ambiguous from the beginning, based at the same time on rational and abstract reasoning and on the capacity to move ideas and feelings.
The forms of trial that have developed in Europe over the centuries, being public and governed by procedural rules, have retained the ambiguous character that makes them subject on the one hand to rational logic and on the other to emotional feelings.
Julie Peters did not set out to write a book covering two thousand years, as she eventually did. A specialist in law, literature and other humanities, with a particular focus on modernity, she saw Greek and Roman culture as indispensable to understanding medieval and modern sources. But in writing this book, she decided to go further in the study of the use of rhetoric and elocution in Greek and Roman experience, and ended up writing two first chapters that considerably broaden the scope of her research. The result is a survey presented in the style of the most extensive longue durée, the first two chapters being a sort of unexpected extension of what was intended to be a small investigation into the ‘prehistory’ of the late medieval and modern question.
In my personal reading of this extension, I see in it the roots of a fundamental ambiguity in the European consciousness about the forms of the process. The Greek tradition, which goes back to the classical writings of Plato and Aristotle and was also well known to the Roman intellectuals, is correctly summed up by the idea of “theatrocracy”.
The fundamental primacy of politics, the construction of democracy as a mode of participation of the whole polis in the life of the community, exalts the action of the rhetor in front of a deciding people gathered in a public space. Oratory was then at the heart of the system, and law was largely based on case-by-case judgement and the application of general political and philosophical principles to individual cases.
Aldo Schiavone’s book on the “invention” of law (ius in Latin) in the West takes up this very question, starting with the radically peculiar genesis of the ius in Rome. Rome was not a democracy. The Roman plebeians did try to revolt against the oligarchy of the patricians, but the revolt was crushed. If the plebeian project had actually succeeded, Schiavone writes, the consequences would have been incalculable. The whole history of Rome would have been different if democracy had triumphed. Probably the disciplining of relations among the patres would have lost its sapiential character, to be handed over — as in Greek cities — to the mechanisms of politics and popular juries conditioned by oratorical practices. We would perhaps have had, as in Athens, rhetoric instead of jurisprudence. But this did not happen. Rome had laid down its law in the archaic text of the Twelve Tables, a collection of “leges””, statutes of general meaning which deserved expert interpretation in order to be applied to specific real cases. Therefore, to govern Roman society in the republican age, a class of legal experts became necessary.
Despite and beyond the concern of Cicero and Quintilian for the rhetorical presentation of cases in court, a new literature developed in Rome, different from that inspired by the Greek model. It is the legal literature that was born during the Republic and became more and more extensive during the first two centuries of the Empire. This technical legal literature is a peculiarity of Roman culture and establishes an opposition that runs through the entire history of Western Europe.
Schiavone traces an opposition between the two models until the 19th century, when Hegel attacks Savigny’s idea of the primacy of legal doctrine over the normative force of laws (1821). And it is true that some German theories of the performative character of an alleged German legal system often recall a direct connection between ancient Greece and the Germanic peoples, in order to emphasise the peculiar connection of so-called German law with the German “Volk”, a people that was regarded as the sole lawmaker.
I think that this alternative can be a useful key to suggest an order through which it is possible to read the history of the law as a performance, as presented by Julie Peters.
The early Middle Ages are not given much attention by Julie, who skips from Quintilian to Alain de Lille and offers only a brief flashback to Alcuin, the great Carolingian scholar.
But if I apply to Julie’s narrative my key of interpretation based on a confrontation between two Western conceptions of law (law as performance vs. law as a set of abstractions), I can’t help but think of the break between antiquity and the Middle Ages as a key moment.
Indeed, the material history of Roman legal literature reflects this absolutely crucial change: the research group on papyrus fragments led by Dario Mantovani has shown that up to the time of Justinian legal writings were very widespread, accounting for more or less half of the total number of surviving fragments.
Roman intellectuals read the works of Ulpianus, Papinianus, Gaius and a number of other experts. There they found the set of abstractions that one could use as a professional lawyer, along with the ability to perform before a judge using rhetoric.
Indeed, legal abstractions were absolutely necessary in order to present a case to a judge in the interest of the plaintiff. Therefore, they had to be learned precisely in the writings of the jurists, which is why legal literature grew so dramatically in Rome, whereas it did not in Greek cities.
The definition of “regula iuris” offered by the jurist Sabinus in the 1st century A.D. represents precisely this operation that is incumbent on the jurist: to present the case in court by framing it in an abstraction. Sabinus uses the Latin word “conicere”, which means “to throw”, “to suggest”, “to conjecture”. The advocate in court is the one who suggests how to frame the concrete case in a legal abstraction. To do this, Roman law gave him a series of “actions”, “actiones”. So the lawyer in court has to “act” and the plaintiff is called “actor”. Like any actor, he must perform, but as a legal actor he must also propose a legal framework for his claim: “I ask for money because I have been damaged”; or “I ask for the same money because the defendant and I had a mutual obligation, I performed mine, but have not been paid”. In the first case, my “conjecture” is an action for damages “ex lege aquilia”; in the second, it is an action for breach of contract.
This operation of interpretation required laborious study: that is why so many legal writings were produced, and why those writings had so many readers. However, as everyone knows, the entire library of these legal writings has been lost, and any knowledge we have of them is due to the gigantic effort made by Tribonian’s commission to realise the huge compilation of the Digest. But the contempt for legal literature began two centuries before Justinian. Even before Constantine ascended the throne, the Christian writer Lactantius wrote a work entitled Institutiones divinae to compare the Christian ideal of justice with that of the pagan jurists who had published volumes on the institutiones iuris civilis.
“If some skilful men and arbiters of justice composed and published Institutions of civil law, by which they might lull the strifes and contentions of discordant citizens, how much better and more rightly shall we follow up in writing the divine Institutions, in which we shall not speak about rain-droppings, or the turning of waters, or the preferring of claims, but we shall speak of hope, of life, of salvation, of immortality, and of God, that we may put an end to deadly superstitions and most disgraceful errors” (I, 1, 2).
A great connoisseur of classical literature and a follower of Cicero, Lactantius wished to demonstrate that true justice is pursued through the conversion of hearts rather than through the application of normative rules: thus the ecclesiastical institution forms its rules by resolving concrete cases on a case-by-case basis, without the need to proclaim real laws. The pastor resolves cases by resorting directly to the virtue of justice, not mediated by the legal system, but trusting in the divine illumination of his spirit.
Alcuin is a very good representative of this early medieval conception of justice that emerged from this explicit rejection of the Roman concept of legal abstractions [1].
For the historian of law, then, the Early Middle Ages is the period from the rejection of legal abstractions and the consequent abandonment of a specifically legal literature to the rediscovery of legal logic and the birth of a new type of legal literature, strictly tied to scholasticism.
The authors and texts discussed by Julie in chapter 3 offer a good overview of some of the reactions of rhetoricians to this rediscovery, which also marked the rebirth of the legal professions. Let me concentrate only on the first phase, that of the 12th and 13th centuries.
The sudden success of the study of Justinian’s book, and the excitement of the intellectual exercise of classifying real cases in the abstract categories of the law, provoked some reactions. Grammarians and dictators, although well aware of the importance of the basic concepts of Roman law, insisted on the excellence of rhetoric over dry and abstract legal reasoning.
The example of Boncompagno da Signa is even more striking than it appears in the pages of Julie’s book. His Rhetorica Novissima was publicly performed by him in the main Piazza of Bologna in 1235, a crucial year for the establishment of medieval legal literature. By then, the schools of law that taught on the basis of Justinian’s compilation had already been in existence for a century, and the whole of Europe recognised Bologna’s role as mater legum, especially for the production of apparatuses of glosses to the books of Roman law. The leading jurists of the generation of Pillius, Azo, Hugolinus had left the scene to the towering figure of Accursius, who then was deliveringthe first parts of his apparatus ordinarius and dominated the school by imposing his authority.
Boncompagno had been a friend of Azo, who probably died less than 10 years before the 1235 performance. Azo probably asked him to write the preface to his Summa Codicis, recognising his superior ability to write such a text. On the other hand, Azo had been very clear about the relationship between law understood as abstract logic and the use of literary or poetic sources: in a “quaestio” preserved in his collection, he harshly criticises a student who quoted poetic texts and used an elegant “rhetorical” style. Quoting poets is not accepted in our knowledge, writes Azo.
But the classificatory practices of legal scholasticism were equally unacceptable from the point of view of those who upheld the primacy of rhetoric. In his Rhetorica Novissima, Boncompagno inserts a fierce invective against the glossators, aimed precisely at rejecting the scholastic exercise of distinguishing the different fields of application of each legal norm.
The mutual opposition and criticism, however, was matched by a substantial coexistence of the two models. Boncompagno and Azo had been friends: they recognised the importance of each other’s perspective.
As Julie Peters shows, the reminder of the absolute necessity of learning rhetoric in order to practise law was also present in some of the most widespread legal books, such as Guillaume Durand’s Speculum Iudiciale. On the other hand, the Speculum itself is mainly devoted to offering examples of the main concern of any scholastic lawyer: how to fit economic, political and social relations into the grid of abstractions introduced by legal norms.
Despite the violence of Boncompagno’s invective against the glossators, legal doctrine continued to work out how to deal with the complexity of social life through the expert application of the law. Legal literature grew in quantity and became increasingly detailed.
But the criticism that had been raised by the masters of rhetoric and grammar since the 12th century was to experience a great revival with the advent of humanism, which Ennio Cortese saw as the revenge of grammar on legal scholasticism.
Julie’s book offers a number of textual examples of this new cultural attitude. Scholars have insisted on the role played by humanistic philology in the renewal of jurisprudence in the 15th century. But early or proto-humanists were also enamoured of Latin eloquence: Petrarch and Boccaccio, who collected and studied the writings of Cicero and Quintilian, were both trained as lawyers, as was Leonardo Bruni, who wrote a biography of Cicero.
As we move into the modern era, our book presents a number of other cases in which performance played a key role in shaping the law. The trial of Jan Hus in Constance offers a vivid image of the confrontation between the orderly logic of argument and the use of theatricality to influence the crowd. A kind of early awareness of the risks of populism can be seen in the parallel with the most unfair and unjust trial in history, the one in which Pilatus could not avoid condemning Jesus to death because the crowd did not want to hear the reasons given by the defence.
Humanism and the Renaissance, with their rediscovery of classical Greek culture, pushed Europe towards a renewal of ancient “theatrocracy”. Not only with the great renewal of political drama, but also with the emergence of a political knowledge separate from legal knowledge and with a renewed historical literature. And with the historicisation of Roman and canon law, which lost their universal character by being bound to the space and time in which they were conceived.
[1] Later, in the 11th century, the Roman Church was the protagonist of a major turning point, which recovered the Roman principle of ‘ius’. This turn was considered by Protestants, especially Germans, as a betrayal of the spirit of Christianity. See Rudolf Sohm.
Notes
- Later, in the 11th century, the Roman Church was the protagonist of a major turning point, which recovered the Roman principle of ‘ius’. This turn was considered by Protestants, especially Germans, as a betrayal of the spirit of Christianity. See Rudolf Sohm.[↑]
