Law's Labour's Lost
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00745.x |
| Author | Peter Goodrich |
REVIEWARTICLE
Law’sLabour’sLost
Peter Goodrich
n
Alain Sup iot, Homo Juridicus. On the Anthropological Function of Law,London
and NewYork: Verso, 2007,256 pp, hb d19.9 9.
‘Let famethat all hunt after in their lives,
Liveregistered upon our brazentombs . . .’
1
The contemporary jurist cuts an equivocal ¢gure. Whether de¢ned as scholar,
critic, or second order professional, the legal academic is increasingly removed
from the university and equally remote from practice. The historical virtues of
juristic enquiry ^ its scholarly rigor, its interdisciplinary scope, its humanism, its
interpretative vision ^ are now increasingly read as signs of irrelevance or despair.
The law, to coin a phrase, seems all used up and in its place, ¢lling the abyss, are
hurriedly concocted forays into economics, politics, ethics, aesthetics and more.
The jurist seems to be facing a loss of face, a displacement that is more than mere
isolation or quietude.There is something of a symbolic collapse, a dogmatic dol-
drums, acrisis i n institutional role and intellectualas opposed to venal career path.
The trajectoryof the crisis, or in more sanguine terms the decli ne in scholarly self-
con¢dence, can begin with the factthat few now even know the de¢nition, referent,
or proper jurisdiction of the jurist. To understand the fate of this ¢gure requires,
initially at least, an attempt totrace the history and meaning of the term. Start with
the lexical and so also legal roots of the words: jurist and jurisdiction both derive
from the Latin jus.There is a considerable body of scholarship, now probably consid-
ered esoteric, on the etymology of ius which links it to iurare, meaning to swear or
take an oath, and more broadly to the various forms of divination by means of
which early disputes were decided.
2
What was right was a facet of nature, a god-
given phenomenon and it is from this that the later tradition derived the notion of
ius commune or common law, a shared law that wasto be found in nature, in the form
of long established and deeply shrouded patterns of custom and use. The jurist,
whose name derives from ius, was at root a philologist, someone who was skilled
in the language and interpretation of the antique and venerable signs of law.
Ius (non scriptum) is distinctfrom lex (scripta).Where lex refersto written lawand
legislation, to imperium and imposition, ius is embedded in a much broader art of
n
Director of the Programi n Law and Humanities, Cardozo School of Law, Yeshiva University, New
York. Thanks toAnton Schˇtz and Lior Barshack for salutary criticisms.
1 Shakespeare, Love’sLabour’sLost, Act I, Scene 1.
2 On the etymology,se e particularly, E. Benveniste,Le vocabulairedes institutionsindo-europe
Łenes (Paris:
Editions de Minuit,1969, 2 vols); and in juridicalterms, see P. Stein, RegulaeIuris: FromJuristic Rules
to Legal Maxims (Edinburgh: EdinUP,1966) at4^9.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 7 2(2) 296 ^312
invention and interpretation attached towhat is technicallyan unwritten doctrine
and law. Jurisdiction and speci¢callythat of the jurist hererefers to a spoken law,a
mnemonic of maxims, auditory recollections, a tradition of pronouncements,
orally aired learned opinions latterly collected in treatises, scholarly texts, judicial
decisions, collections of arguments as well as the conversations, opinions and other
aural recollections that formed the common knowledge or communis opinio of the
legally learned. Separate from the legislator, independent of politicians, learned in
the arts and so scholars of much more than economics, the jurist, homo juridicus to
borrow the title of Alain Supiot’s recently translated exposition of the current sym-
bolic crisis, was in origin far from being whatwe today would meanby a lawyer.
The jurist was a hybrid ¢gure, in Greek terms a nomikos or adviser to judges, legis-
lators and governors whose role was tomediate between the disciplines, and most spe-
ci¢cally between poetics, ethics, philosophy and law. The post-reception jurist was in
principle an interdisciplinary scholar whose role was to develop doctrine, the unwrit-
ten law, as well as the ethical resources of the tradition, the rules of method and of
interpretative reason that would allow for justice in the contemporary dispute. The
relevant maximwas that jurisprudence was a knowledge of things divine and human
^rerum divinarum humanarumque scientia, or some variant thereon.
3
Here, as is occasion-
ally still recognized, law as oraltradition and unwritten lexicon, was nomos in its classi-
cal sense, meaning method, rhythm, rhyme and the patterning of meaning. As is
apparent in the rootof t he French droit,fromtheLatindirigo, meaning to guide or steer
a path, law was itinerant and conceived as direction or route, a matter of interpretation
and argument rather than lex in the sense of promulgation, position or inscribed and
invariant scriptural truth.The jurist as interpreter thus stood between lex and judg-
ment, between power and subject, as the guardian, curator and del iberator of rat io legis,
or the reason of law. To borrow from the common lawyer Francis Bacon, the jurist
was animalegis, the ¢gure of living law who brought the dead letters of the tex t and the
movable signs of nature to life. Enough, however, of etymology and legal philology.
The question is historical, not simply whobut equally where is the jurist now?
CRITIQUE 2
There is an interesting diversityof contemporary meanings and traditions of the art
of the jurist.These vary, orso o ne can hazard,according to their degree of proximity,
both geographical and conceptual, to the texts of Roman law. For our purposes the
contemporary stateof the juri stca nbe stbe u nderstoodby way of tracing the diverse
fates of critique within the European and the American legal traditions. This is in
part because Alain Supiot raises the question of the jurist i nthe context of a franco-
phone tradition of radical critique and recuperation of law, and also because I will
here understa nd critique stipulatively as independence of t hought,me aning intellec-
tual autonomy, the work of ‘those that decide for themselves’.
4
3 Sir John Doderidge,The English Lawyer (1631, rpt NewYork,Da Capo Press,1973)at 29. The source
of the maxim is the InstitutesofJustinian,at1.1.
4 The roots of thi s conceptof critique return to Kant but I am borrowing here most directly from
Michel Foucault,‘Whatis Critique?’, inThe Politics ofTruth(NewYork:Semiotext(e),1997);and also
from Adorno’si nterestingobservations in his essay ‘Critique’in T. Adorno,Critical Models: Interven-
tionsand Catchwords(New York: Columbia UP,1998).
Peter Goodrich
297
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(2) 296^312
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