Book Reviews : M. Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge. Chicago: Chicago University Press, 1994, 192 pp
| Published date | 01 December 1995 |
| DOI | 10.1177/096466399500400413 |
| Date | 01 December 1995 |
| Author | Peter Goodrich |
| Subject Matter | Articles |
BOOK REVIEWS
M.
CONSTABLE,
The
Law
of
the
Other:
The
Mixed
Jury
and
Changing
Conceptions
of
Citizenship,
Law,
and
Knowledge.
Chicago:
Chicago
University
Press,
1994,
192
pp.
The
Law
of the
Other
is
susceptible
to
a
very
radical
reading.
The
ostensible
subject
of
the
book
is
a
detailed
history
of
mixed
juries,
that
is,
of
juries
composed
half
of
aliens
or
strangers.
The
history
and
fate
of such
juries,
of
’the
Moyety
of
Aliens’,
acts
as
a
cypher
not
only
for
a
narrative
of
common
law’s
progressive
exclusion
of
the
other -
of
the
’extranei’,
’francingena’,
’estraunges’,
’aegyptian’
and
peregrine -
but
also
for
a
more
polemical
encounter
with
legal
historicism.
The
history
of
the
other,
of
the
foreigner,
the
traveller,
the
refugee
or
asylum
seeker,
is
itself
treated
as
an
extended
metaphor
for the
positivization
of
common
law,
for
the
suppression
of
ethics
and
of
justice
and
their
displacement
by
the
indifference
and
positivity
of
the
science
of
law.
In
an
unusually
self-reflexive
turn,
the
history
of
the
adiaphorization
of
common
law,
the
progressive
narrative
of
its
ethical
indifference,
is
taken
finally
as
the
occasion
for
a
series
of
critical
reformulations
of
the
project
of
legal
historicism.
The
ostensive
and
most
detailed
theme
to
be
addressed
is
that
of
the
mixed
jury
and
its
latter
day
form,
juries
de
mediatate
linguae.
The
mixed
jury
dates
back
at
least
as
far
as
Anglo-Saxon
law,
which
on
occasion
would
allow
foreigners
or
strangers
to
be
tried
by
their
own
customs
and
law.
The
form
that
this
recognition
of
the
jurisdiction
of
the ’other’
increasingly
tended
to
take
was
that
of
the
institution
of
the
mixed
jury,
a
jury
composed
half
of
’denizens’
or
citizens,
and
half
of
members
of
the
stranger’s
community
and
linguistic
group,
be
it
that
of
Dane
or
Lombard,
Mercian
Jew
or
Welshman.
The
use
of
the
mixed
jury
was
intermittent
and
most
probably
haphazard
prior
to
the
conquest
but
by
the
thirteenth
century,
according
to
Marianne
Constable’s
sources,
’central
courts,
and,
earlier,
local
communities
used
mixed
juries ...
to
settle
differences
when
the
members
and
customs
of
two
communities
came
into
conflict’
(p.
8).
The
mixed
jury
was
later
the
subject
of
legislation
and
then
of
change,
the ’moiety
of
aliens’ being
replaced
by
a ’moiety
of
tongues’
by
the
seventeenth
century.
The
reduction
of
difference
to
linguistic
difference,
of
the
alien
to
any
foreign
speaker,
spelled
the
beginning
of
the
end
of
the
mixed
jury.
By
the
early
nineteenth
century,
the
mixed
jury,
and
its
conception
of
recognizing
difference
by
means
of
representing
the
customs
and
communities
of
the
stranger
on
the
jury,
had
been
replaced
by
the
modern
and
rationalistic
notion
of
an
indifferent
jury
which
would
try
nothing
more
than
the
facts
of
the
case.
The
transition
in
the
function
of
the
jury
from
adjudicating
fact
and
law
to
the
modern
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks,
CA
and
New
Delhi),
Vol.
4
(1995),
537-554
537-
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