Comparative Legal History

ISSN: 2049-677X (Print) 2049-6788 (Online) Journal homepage: http://www.tandfonline.com/loi/rclh20

The jurists: a critical history

Jacques Vanderlinden

To cite this article: Jacques Vanderlinden (2015) The jurists: a critical history, Comparative
Legal History, 3:1, 191-196, DOI: 10.1080/2049677X.2015.1041735

To link to this article: http://dx.doi.org/10.1080/2049677X.2015.1041735

Published online: 14 Jul 2015.

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 Book reviews 191
remains distant in several articles – partly reflecting the volume’s unusually broad
definition of ‘conflict’ discussed above. The volume represents the work of a
Nordic group of scholars and the string of workshops arranged by them, which
may contribute to the diversity of articles. Thus, the volume actually deals with
practices in conflicts and individual strategies creating societal bonds and legiti-
mizing rights to govern and hold property.
In his concluding article, John Hudson generously refers to the ‘richness of the
present volume’ (331). It remains to each individual reader to determine whether
they prefer a ‘richer’ collection of essays to a more focused and disciplined one.
Be this as it may, a reader especially interested in Scandinavian history and law
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will discover in the volume a range of informative and mostly well-argued articles
highlighting the dynamics of various strategies in state-formation processes. Natu-
rally, the scarcity of source material has its restrictions. A reader may have
expected a more thematic selection of essays, but even in this format, the collec-
tion of essays is worth reading and, personally for me, it was an inspiring learning
experience.

Mia Korpiola
Professor of Legal History, University of Turku
mia.korpiola@utu.fi
© 2015, Mia Korpiola
http://dx.doi.org/10.1080/2049677X.2015.1041734

The jurists: a critical history, by James Gordley, Oxford, Oxford University

Press, 2013, 336 pp., £60.00 (hbk), ISBN 978-0-199-68939-2

The title of James Gordley’s book cannot but immediately attract the attention of
the potential reader as much as the credentials and reputation of its author. He
accordingly enters it with great expectations. Yet he will rapidly realize that,
unfortunately, the author is only concerned by a very limited category of
those who may have or, because of his subtitle, have had the ambition of
coming within its title. If one follows the Oxford Shorter English Dictionary
on Historical Principles,1 in its second meaning of the word, ‘one versed in
the science of law’, I do not know of any legal tradition which is deprived of
some kind of jurists, those I have called in French the ‘sachants’ (‘one who
knows’) in order not to limit unduly my field of operation in law, be it compara-
tive or historical. Thus Gordley’s ambition would know of no limits. Happily
enough he has no such pride. He wisely limits himself essentially to the sur-
roundings of the so-called Western (European) legal tradition of which the
Oder-Neisse line marks the Eastern limit and the Baltic Sea the Northern one,

1
In my case the 3rd edition revised with addenda by CT Onions (OUP, 1965) 1075.
 192 Book reviews
but for Denmark. To the West, the Channel provides an adequate limit, and the
author’s interest for the common law, as opposed to that for the civil law, is
minimal.2 If one is interested by the time dimension, his query goes back to
Rome; occasional mentions of Egyptian or Greek law do not make it up to a
true study matching any of 10 ten chapters of his work.
The subtitle of the book is ‘A Critical History’. In the author’s view, the use of
the adjective quite rightly deserves an explanation because of the many different
meanings attached to the word. Thus we are deliberately leaving the critical history
of the past, eg that of Hegel or that, more familiar, of the periodical Critical His-
torical Studies. In this case, it means that the author’s history ‘considers the extent
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to which, given its methods, a school of jurists achieved or failed to achieve its
goals’ (x), being admitted that his basic view of the discipline is ‘modern’,
which is another adjective which he seems at pains to define in a quite convoluted
way on the first page of his prologue. He concludes the latter by two sentences: the
contents of the first seem quite obvious,3 and those of the second raise questions
for any historian, whomever he or she may be: ‘The best evidence [of what jurists
of the past were actually thinking] is what they said and what they themselves
were trying to do’ (x). This, of course, seems to put on the same footing what
anyoned expresses about what he thinks or does, on the one hand, and what he
effectively thinks in his many inner selves. It also seems to exclude whatever in
his environment is conducive to an explanation of his behaviour.
The prologue also quite usefully brings to the forefront not so much the jurists
than the ‘schools’ of jurists. The latter nurture ‘projects’ which can be described by
the goals that they sought to achieve and the methods that they used to reach that
aim. ‘Aye, there’s the rub’. I am not convinced that history – even the ‘critical’ one
– may be limited in such a beautifully ordained way. This is all the more so,
because Gordley admits that he would not take the risk of explaining ‘why any
of these projects ever got started’ (xi). So, there we have – coming out of
nowhere – teams of players making history by working on the same project.
Finally, this is a characteristic peculiar to lawyers, the author expressing his
doubts as to the possibility of writing ‘a similar history of artists or philosophers’,
doubts which – it goes without saying – I do not believe all historians of art or
philosophy will share.
But, what also strikes immediately the reader’s mind is the word ‘project’,
which seems to indicate a pre-existing scheme of thinking or acting of the
‘team’, a word which also points at an organized set of people sharing the same
goal, while one would perhaps rather see the school being progressively developed

2
He deservedly (or not) seems to ignore Buckland’s and McNair’s, Roman Law & Common
Law: A Comparison in Outline (Cambridge University Press, 2nd edn by FH Lawson
1952).
3
Unless the proposal is that most historians writing about what people once thought actually
did not write about what they actually were thinking!
 Book reviews 193
around one or some people or ideas, without an immediate sense of an existing
common identity, not excluding that it never came to their minds. I would person-
ally be tempted to think, as Jean-Étienne-Marie Portalis wrote about the codes, that
schools of thought are made through time and that, properly speaking, one does
not make them. This does not mean that there cannot be one or some ‘prophets’
who constitute the acting nucleus of the school or, even, declares his ‘project’
in a manifesto. But it is also true that the coining of a name for a school – reflecting
or not its substance – may come out from someone out of it in space or time. A
good example of this is the famous French École de l’Exégèse which was so
dubbed in 1904 when the exegetic method had practically been abandoned by
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French scholars.
The identification of a group of scholars rallying around a conception of law or
around the goal(s) it intends to reach and around the method(s) to reach it (or
them), often results from the efforts of later experts in the field who wish to cat-
egorize the course of history into periods which can be defined and labelled in
order to satisfy the classificatory tendencies of science. This is very clear during
the nineteenth century and the constitution of ‘periods’ in history. Experience
shows clearly that such efforts have finally come up with rudimentary, less
logical and even somewhat distorted classifications. It consequently gave rise to
fairly recent concepts such as hybridity and cross-breeding of or within legal
systems, but it also attempts to look at the complexity of the minds of legal
actors. When I read chapter VI of the book under review, entitled ‘Droit civil fran-
çais’,4 or the section entitled ‘L’École de l’Exégèse’ in Chapter IX, both provide –
in surroundings with which I am slightly more familiar than with the riches of
Gordley’s book – excellent examples of the inadequacy of trying to classify a
set of jurists under any school. But also of the limitations of the fundamental
choice not to study what lies under the surface of the already mentioned ‘best evi-
dence [which] is what they [the members of a school] said and what they them-
selves were trying to do’ (ix).
Chapter VI includes two parts respectively entitled ‘Droit civil selon l’ordre
naturel’ and ‘Code civil’; I will concentrate on the first. There, the reader’s atten-
tion is immediately focused on Jean Domat (1625–96). Among his national pre-
decessors (Chapter IV in Gordley’s story at 118–27) are François Connan
(1508–51), Jacques Cujas (1522–90), and Hugues Doneau (1527–91);5 all three
clearly belong to the humanist school and to the sixteenth century. Between the
death of Doneau and the publication of Les Loix civiles dans leur ordre naturel
in 1689 – ie during approximately a century – there appears to be no jurist in

4
This is an opportunity to insist on the spelling rule which forbids in French the capitalizing
of adjectives, but for exceptional cases among which this one is not included.
5
One might wonder why the first two are only known by Gordley through their Latin names,
when the last one has the privilege to appear in his mother tongue, all three having published
mostly in Latin?
 194 Book reviews
France but for Barbeyrac, who looks more like a translator-annotator of Pufendorf
than a major figure of the repute of the latter and Grotius. Then comes the ‘alterna-
tive’, ie Droit civil français, which seems to begin with Domat. To say the least,
this is a choice which is terribly restrictive if not unfair when compared with what
is described in the first five chapters of The Jurists.
A first remark: the words ‘droit civil français’, as a syntagm, do not appear
before the first commentary of the Code civil of 1804 by Toullier. Domat
speaks of Loix civiles and quite rightly omits the reference to his country as he
is dealing with Roman law, while Robert Joseph Pothier seems to have never
used it in the titles of his Traités devoted to various branches of the law. To a
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point, the adjectives ‘civil’ and ‘français’ are antinomic because civil – as used
by Domat – refers normally to Roman law and not to French law. On the other
hand, ‘français’ referred to the law of France as a whole; as such it was already
used and well known since, among others, Claude Fleury’s Histoire du droit fran-
çais (1674) and Gabriel Argou’s Institution du droit français (1692) were pub-
lished, the latter having known many successive editions. This is not the place
to elaborate on that period apparently forgotten by Gordley during which comes
out a draft civil code by Chrétien Guillaume de Lamoignon, the projects of
Henri-François d’Aguesseau and some of his grandes ordonnances and François
Bourjon’s Le Droit commun de la France et la coutume de Paris réduits en prin-
cipes tirés des lois, des ordonnances, des arrêts, des jurisconsultes et des auteurs
etc. A good deal of the intensity of legal life converges on the ‘droit civil français’,
of which Domat’s Loix civiles is perhaps ‘la cerise sur le gâteau’, but this work is a
historical cherry on many counts as it deals with Roman law at a time when the
latter is progressively giving way to French law.
As for Pothier, Gordley considers simply that he ‘followed Domat’s example’
(143) and the two of them ‘achieved their goal of providing an account of Roman
law that was solid enough to be used by professional jurists and far simpler to read
than the texts themselves’ (147). Does this make a ‘team of players’ working on
the same project? The question is of course preposterous. Even if there are
obvious similarities, which Gordley is quick to list (143–44) (eg, both sought
clarity, wrote their work in French for the use of professionals in clear simple
propositions and extended or limited their interpretation of the texts beyond
their express meaning), speaking of a common ‘project’ seems to me slightly
far-fetched. Of course one may assume that Pothier’s work could not possibly
be born without being influenced by Domat’s towering achievement in his Les
Loix civiles6 dans leur ordre naturel. But it also seems that we have little evidence
of the second being directly influenced by the first. In Pothier’s most famous
traité, that dealing with obligations, Domat is cited three times (on more than
400 pages), two times with other authors as a general reference and one time

6
In spite of the ‘x’ typical of the spelling of the times, mind the non-capitalization of
‘civiles’ by Domat.
 Book reviews 195
on a point of law on which Pothier joins him. Thus, implying that the two of them
would constitute a ‘school’ is perhaps, with all due caution and respect, somewhat
exaggerated. The more so because the presentation of the two scholars comes
under the heading ‘Droit civil selon l’ordre naturel’, which seems to refer also
to the structure of their respective works, while at the same time we know for
sure that precisely the ‘order’ suggested for the droit civil by the one differs com-
pletely from that of the other; in fact the rearrangement of legal materials under a
new ‘natural’ order imagined by Domat would be abandoned by all his
successors.
If we turn now to the jurists of the period following the Civil Code, who appear
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under the subtitle ‘Positivism’ in which L’Ecole de l’Exégèse7 in France is

opposed to Pandektenrecht (why not Pandektenwissenschaft, which I personally
would have preferred?) in Germany, we have other reasons to be somewhat per-
plexed. In the first two pages (out of three) devoted to L’Ecole, our author
remains faithful to his method of looking at what the jurists said themselves
about what they were thinking. Hence seven quotations from Alexandre
Duranton, Antoine Marie Demante, Charles Demolombe, François Laurent,
Raymond-Théodore Troplong, Auguste Valette and Charles Aubry and Charles
Rau referring to their belief in … natural law, which apparently would not fit in
that chapter. But Gordley is quick to say that these were ‘sentimental introduc-
tions’ without any serious meaning, before getting on the road to the primacy of
the text prior to any other consideration. I would only have wished that he had
not used the expression ‘sentimental introductions’. Why not also make a
clearer step forward and try a global evaluation of the situation? But this would
require abandoning what they said or did in the direction of a much wider –
and perhaps more hazardous – conception of history. Be they judges or professors,
these seven8 professionals are of the bourgeoisie, professional State officials,
having developed their legal personality in the movement towards the making
of the Civil Code, but also have a place in their deep inner self for their Maker
and natural law. Could not we rotate the kaleidoscope of their personality slightly
and consider that fundamentally what prevails in their mind is natural law, while,
after decades of global legal evolution the need for a code requires, once accom-
plished, the strictest possible preservation? The quotations provided by Gordley
on the second page of his presentation of l’École de l’Exégèse clearly show that
natural law still exists in the mind of the members of the school as the ‘ultima
ratio’ when all technical artefacts have failed.
A last point in this review is provided by purely occasional results when I am
wearing for a minute my proofreader’s glasses. Past volumes from OUP, of which I
have been a faithful and gratified reader since the mid-1950s, would not have left
the ingenuous reader perplexed, when appearing on the same page ‘Shulz’ and

7
The two ‘e’s are capitalized in French and the accent is omitted on the capital letter.
8
I am counting Aubry and Rau as one.
 196 Book reviews
Schulz (1) or ‘Debbash’ and Debbasch (150); or, more difficult to locate,
‘Manilus’ for Manilius (2), ‘Magusson’ for Magnusson (4), or ‘Mallia-Garat’
for Maillia-Garat or Garat-Mailla (148). Traditional typesetters were obviously
better than the current spelling programmes on the web.
As a conclusion of this short review, Gordley’s book is invaluable by
the wealth of data it provides within its limits, and these limits are the perfectly
legitimate and declared choice of the author.

Jacques Vanderlinden
Professor of Law Emeritus
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Free University of Brussels and

University of Moncton
vanderjv@gmail.com
© 2015, Jacques Vanderlinden
http://dx.doi.org/10.1080/2049677X.2015.1041735

Rethinking modern European intellectual history, edited by Darrin M

McMahon and Samuel Moyn, Oxford, Oxford University Press, 2014, 320 pp.,
£22.99 (pbk), ISBN 978-0-199-76924-7

In 1861, English jurist Henry Maine published his grand œuvre, a book called
Ancient Law. In it, he set out to trace the development of what he called ‘progres-
sive’ societies from pre-modern to modern times, highlighting the gradual move
from primitive collectivism to modern individualism. Famous for his ‘from-
Status-to-Contract’ aphorism, Maine elicited responses that ran the gamut of aca-
demic opinion, from high praise to harsh criticism. While some welcomed
Ancient Law as one of the most magnificent works on the history and theory
of socio-legal evolution, the book was also criticized for its high level of abstrac-
tion, its analytic ethnocentrism as well as its raci(ali)st overtones. To be sure,
works like Ancient Law no longer form part of legal historians’ scholarly imagin-
ation. Maine’s casual Victorian racism, however, is not exclusively at fault for
this. Instead, a good portion of the blame can be attributed to those aspects of
Ancient Law that mark it as the work of an ambitious, if not slightly arrogant,
first-time author: the temporal and geographical scope of Maine’s inquiry, his
combination of theoretical grandiloquence with circumstantial historical detail,
as well as his pioneering use of history as a basis for critical socio-legal
commentary.
Leaving aside the more retrograde aspects of Maine’s ‘from-Status-to-Con-
tract’ theory, legal historians would do well to emulate Maine’s geographically
and temporally ambitious approach for the purpose of realizing legal history’s
critical potential. As such, I will make a case for the return of ‘Big Legal
History’, ie the pursuit of big legal ideas over large geographical spaces and
long periods of time. At the same time, I will call for a much-needed ‘legal