REVIEWS
| Published date | 01 May 1991 |
| Date | 01 May 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00899.x |
REVIEWS
Peter
Goodrich,
Languages of Law: from logics of memory
to
nomadic masks,
London: Weidenfeld and Nicolson,
1990.
The first part of this study examines the nature of the peculiar tradition of the common
law
in
the period when
it
was first cast into printed form
in
the sixteenth century.
This was the time when it was being subjected to a sustained critique from those
who
had become familiar
with
renaissance studies
in
other disciplines,
in
particular
the new dialectic and rhetoric. These critics, who were mostly from outside the
ranks of the lawyers, demanded in effect that the common law should be opened
up, that
it
should have its logical character demonstrated, that
it
should be presented
as a science, like other sciences.
The prevailing ideas were those of the main guru of the age, Peter Ramus. Earlier
thinkers had distinguished different kinds of logic according to the nature of the
material. Ramus insisted that there was only one kind of logic, which was applicable
generally and which was best demonstrated by extensive tabulation
in
diagrammatic
form,
with
much division and subdivision. At first these demands were ignored
by the common lawyers, but
in
the last two decades of the century,
they
must have
had some effect, since there issued a spate of defensive literature from inside the
Inns of Court.
It
was in the writings of this period that the language and symbols
characteristic of the common law were established.
Goodrich chooses to tell this story
in
a somewhat unsystematic but quite dramatic
way. He begins with an elaborate account of one of the most radical criticisms of
the common law, that of Abraham Fraunce, the hero of the first fifty pages, ,whose
Lawier’s
Logic
was published
in
1588.
Fraunce was not obviously subversive. He
argued for the use of the vernacular,
in
place
of
Norman-French and Latin, to express
the law. He recognised law as a discipline which consisted at the same time of memory
and method, a subject matter whose components had been reworked and re-ordered
for centuries. Its language must be analysed
in
order to bring out its underlying
meaning and
it
must be subjected to reason, in
the
sense of a rhetorical and mnemonic
reason covering ‘ends as diverse as teaching, analysis, disputation and differentiation’
(p
36).
Fraunce did not overtly seek to change the substance of the common law;
rather he proposed a re-classification
in
terms of ‘a theory of legal memory, based
on the transmission
of
historical residues.’ But in his desire to break down its esoteric
character and make
it
orderly, he was threatening its very basis and his ideas were
completely shunned. Goodrich sees this failure of the common law to respond to
Fraunce’s challenge as a tragedy, symptomatic
of
the
common law’s insularity.
However, as he himself observes later (p
97),
Fraunce’s critique of the contemporary
legal curriculum was exceptional and
in
fact,
in
some continental universities, the
new French techniques were resisted just as stubbornly as
in
England. The difference
was that there were on the continent other centres of legal education which welcomed
them;
in
England the common law was taught only
in
the Inns of Court.
In
the next chapter, on the Eucharist and English law, Goodrich argues that the
theology of the divine presence
in
the elements of the Eucharist was a prime paradigm
for the common lawyers. They identified a spirit that was immanent
in
the law,
that was sustained by its rituals and that recalled the divine origin of all law. The
arguments used by Sir Thomas More to defend the traditional faith, and to maintain
the tradition of the Church as against the sole authority of Scripture, were certainly
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