Distrust quotations in Latin

Critical Inquiry

Volumn 29, Issue 2, 2003, Pages 193-215

  Goodrich, Peter ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 61349178555     PISSN: 00931896     EISSN: None     Source Type: Journal    
DOI: 10.1086/374025     Document Type: Review

References (79)

1. See Bush v. Gore 521 US 98 (2000).
2. See Françoise Waquet, Latin, or, the Empire of a Sign: From the Sixteenth to the Twentieth Centuries, trans. John Howe (London, 2001); hereafter abbreviated L.
3. See M. du Marsais, Des Tropes, ou des diférens sens dans lesquels on peut prendre un même mot dans une même langue (Paris, 1757).
4. For fear that it be said that I am ignoring the Greeks and the Heideggerian hypothesis that we are living out a Greek origin, I will add that the historical relation of Latin to Greek was, for the longue durée of hellenistic Rome, broadly that of the vernacular to the Latin. Despite the importance of Greek, however, the European reception of the classics was a Latin reception. It was overwhelmingly through the Latinate framework of the Renaissance that the Greek tradition was recovered and reinterpreted. As for Heidegger, I am minded of James Bramston's aphorism in The Art of Politicks, in Imitation of Horace's Art of Poetry (London, 1729): "All Mr. Heydegger's Letters come directed to him from abroad, A Monsieur, Monsieur Heydegger, Surintendant des Plaisirs d'Angleterre" (p. 7).
5. Elizabeth Eisenstein makes the point that it was printing and not Protestantism that outmoded the medieval vulgate and equally it was printing that gave the vernacular status and social presence; see Elizabeth Eisenstein, The Printing Press as an Agent of Change (Cambridge, 1980), pp. 353-59.
6. Abraham Fraunce, The Lawiers Logike (London, 1588) ,pp. 54-55, 89v.
7. The English Renaissance lawyer William Fulbecke formulated this proximity well in claiming, in an enormously successful law textbook, that "religion and law do stand together" (William Fulbecke, Direction or Preparative to the Study of Law [1599; London, 1829], p. 3).
8. Michael T. Clanchy, From Memory to Written Record, England 1066-1307 (Cambridge, Mass., 1993) elaborates this point in detail in the context of England after the Norman conquest.
9. See also, and more broadly, Brian Stock, The Implications of Literacy (Princeton, N.J., 1983), pp. 12-15, 27-31.
10. Attributed to M. Dupanloup by A. Proust, Histoire de l'enseignement en France (Paris, 1968), pp. 131-32;
11. quoted in L, p. 215.
12. "He who has no sense of the symbolic has none for antiquity" (Friedrich Nietzsche, We Philologists, in The Case of Wagner [Edinburgh, 1911], p. 118).
13. An obscure but nonetheless the best study of the reception of the two laws is Pierre Legendre, La Pénétration du droit romain dans le droit canonique classique de Gratien à Innocent IV (1140-1254) (Paris, 1964).
14. The essays in Legendre, Ecrits juridiques du Moyen Age occidental (London, 1988) provide further esoteric details and directions.
15. Translations of some of Legendre's work are available in Law and the Unconscious: A Legendre Reader, trans. Peter Goodrich, Alain Pottage, and Anton Schütz, ed. Goodrich (New York, 1997).
16. I have addressed this theme in "Salem and Bizance: A Short History of the Two Laws," Law in the Courts of Love (London, 1996) among other places.
17. See Guillaume Budé, De Philologia (Paris, 1536).
18. Legendre, Le Désir politique de Dieu: Étude sur les montages de l'état et du droit (Paris, 1988), pp. 271-89 provides an excellent elaboration of the various forms of delegated divinity, of the vicarius Christi or names of the Father, from Emperor to King to Judge to Law.
19. Such a tradition was not, of course, without its critics. At the very beginning of the reception of Roman law, Placentinus, for example, in the Sermo de legibus, inveighs against the ager vetus, the reliquary field, of Justinian's law and compares the Latinate tradition unfavorably to youthful and vernacular forms of law. The Sermo is reproduced with commentary in Hermann Kantorowicz, "The Poetical Sermon of a Medieval Jurist: Placentinus and His Sermo de legibus," Journal of the Warburg Institute 2 (1938) : 22-41.
20. See Paulus Krueger, dedication to Justinian's Institutes, trans. Peter Birks and Grant McLeod (London, 1987), pp. 32-33.
21. Again, it is Pierre Legendre who has written most extensively about the legal function of vitam instituere or institution of life. See, most recently, Legendre, Sur la question dogmatique en Occident: Aspects théoriques (Paris, 1999), pp. 106-9.
22. In Oedipus Lex: Psychoanalysis, History, Law (Berkeley, 1996), I trace the metaphor of the law as a nursing father in Early Modern common law texts.
23. Sir John Fortescue, De laudibus legum Angliae (1470; London, 1737), p. 108.
24. Repertorium inquisitorum, trans. Louis Sala-Molins under the title Le Dictionnaire des inquisiteurs: Valence, 1494 (Paris, 1980), p. 185.
25. Such is the rhetorical mode of the defense. It is captured well in the figure of antirrhesis, which is discussed and elaborated upon in Goodrich, Oedipus Lex, chap. 3.
26. See the preface to Edward Coke, The Reports of Sir Edward Coke, ed. George Wilson (London, 1777).
27. For discussion of the languages of law, see David Mellinkoff, The Language of the Law (Boston, 1963),
28. and Peter Tiersma, Legal Language (Chicago, 1999).
29. Coke, Fortescue, Spelman, Seiden, and others all offered wildly differing mythical origins for common law. These are discussed briefly in Goodrich, "Eating Law: Commons, Common Land, Common Law," Law in the Courts of Love, pp. 87-90.
30. See Thomas More, The Apology, in The Complete Works of Sir Thomas More, ed. J. B.Trapp,15 vols. (New Haven, Conn., 1979), 9:131;
31. interestingly, in Utopia, More inverts the argument, referring to "laws which either be in number more than be read or else blinder and darker than that any man can well understand them" (More, Utopia, trans. Ralph Robynson [1556; Boston, 1999], p. 173).
32. Christopher Saint German, Salem and Bizance (London, 1533), fol. iv r, argues that Latin hides the defects, the "defaults" of the tradition and law in an inaccessible tongue. If the law is for the people then there should be an English version of it. It was this argument more than most that incited More's The Debellacyon of Salem and Bizance (London, 1533).
33. James Osborn's Case 10 Co. Rep. 130. The argument in favor of Latin is given in the preface to Coke, The First Part of the Institutes of the Lawes of England, or, a Commentarie upon Littleton, 2d ed. (London, 1629), fol. Cb a,
34. and the introduction to Coke, The Reports of Sir Edward Coke.
35. See Fraunce, The Lawiers Logike, p. 56V.
36. See William Lambard, Archeion, or Discourse on the High Courts of Justice in England (London, 1635),
37. and F. W. Maitland, English Law and the Renaissance (Cambridge, 1901).
38. Fulbeck, Direction or Preparative to the Study of Law, pp. 55-56;
39. see Goodrich, Languages of Law (London, 1990), where I argue that Fulbeck falls within a much longer tradition of juristic occlusion of the political functions of law Latin and law French.
40. Coke, The Third Part of the Institutes of the Lawes of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes, 2d ed. (London, 1648), fol. L ii a.
41. Thomas Starkey, A Dialogue between Reginald Pole and Thomas Lupset (1535; London, 1948) is the best example.
42. For a discussion see Goodrich, "Poor Illiterate Reason: History, Nationalism, and Common Law," Social and Legal Studies. 1 (1992): 7-28.
43. See Thomas Wilson, The State of England, Anno Domini 1600, ed. F. J. Fisher (1602; London, 1936),
44. and John Warr, The Corruption and Deficiency of the Lawes of England Soberly Discovered (London, 1649).
45. See John Favour, Antiquitie Triumphing over Noveltie (London, 1619).
46. See Richard Mulcaster, The First Part of the Elementary (London, 1582).
47. Ralph Lever, preface to The Arte of Reason, Rightly Termed, Witcraft, Teaching a Perfect Way to Argue and Dispute (London, 1573), n.p.
48. and Richard Sherry, A Treatise of Schemes and Tropes (London, 1550).
49. See Goodrich, "Critical Legal Studies in England: Prospective Histories," Oxford Journal of Legal Studies 12 (Summer 1992): 195-236.
50. John Jewel, Apologia ecclesiae Anglicanae, translated under the title Apologie or Answere in Defence of the Churche of Englande (1562; London, 1564), fol. G ib.
51. See [P. Levins], Manipulus vocabulorum: A Rhyming Dictionary of the English Language (London, 1570).
52. See John Cowell, The Interpreter, or Booke Containing the Signification of Words (London, 1607).
53. See Robert Wiseman, The Law of Laws, or the Excellency of the Civil Law above All Humane Law Whatsoever (London, 1664).
54. The original edition was in Latin, with the title Lex legum (London, 1656).
55. On the Ramistic reform of the disciplines, and particularly law, see the introduction to Petrus Ramus, The Logike (London, 1574) ;
56. and, for a discussion, Goodrich, "Ars Bablativa: Ramism, Rhetoric, and the Genealogy of English Jurisprudence," in Legal Hermeneutics: History, Theory, Practice, ed. Gregory Leyh (Berkeley, 1991), pp. 43-82.
57. Michel Foucault, The History of Sexuality: An Introduction, trans. Robert Hurley (New York, 1978) pp. 88-89.
58. Hans-Georg Gadamer, Truth and Method (London, 1965), p. 494,
59. quoted in W. T.Murphy, " Memorising Politics of Ancient History," Modern Law Review 50 (1987): 386.
60. See also Gillian Rose, Dialectic of Nihilism: Post-Structuralism and Law (Oxford, 1984).
61. See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, 1984).
62. Coke, The First Part of the Institutes of the Lawes of England, is perhaps the least interesting example.
63. The tradition of institutes, modelled on Justinian's, begins with John Cowell, The Institutes of the Lawes of England, Digested into the Method of the Civillor Imperiall Institutions (1605; London, 1651), which originally appeared in Latin and was subsequenty translated by the author.
64. Fulbeck, A Parallele or Conference of the Civil Law, the Canon Law, and the Common Law of This Realme of England (1601; London, 1618) argues that the latter law cannot be separated let alone understood without a knowledge of the former two.
65. Thomas Ridley, A View of the Civille and Ecclesiastical Law (Oxford, 1676) argues lengthily for the importance of understanding Roman law to anyone who hopes to understand common law.
66. Thomas Wood, An Institute of the Laws of England, 2 vols. (London, 1720)
67. went through several editions, and in his Some Thoughts Concerning the Study of Laws in England Particularly in the Universities (London, 1727), pp. 8-9, Wood is admamant that it is with the imperial law of Rome that any understanding of legal forms - of regulae iuris - begins.
68. This argument is well made by A. W. B. Simpson, "Innovation in Nineteenth-Century Contract Law," Law Quarterly Review 91 (1975): 247-78.
69. See also James Gordley, The Philosophical Origins of Modern Contract (Oxford, 1991) on the seventeenth-century Latin tendrils of modern contract rules.
70. See Peter Birks, An Introduction to the Law of Restitution (Oxford, 1985), chap. 1; Birks provides a useful account of the civilian roots of quasi contract.
71. François Hotman, AntiTribonian ou discours d'un grand et renommé iurisconsulte de nostre temps sur l'estude des loix (1567; Paris, 1603), p. 74.
72. A theme well elaborated in Donald Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York, 1970).
73. See Bush v. Gore.
74. On the history of the king's curia, see Lambard, Archeion, p. 148.
75. On the role of the judge as delegate, see, for example, Cowell, The Interpreter or Booke Containing the Signification of Words (Cambridge, 1607), though Fortescue, De laudibus, is an earlier and fuller source.
76. On the history of the corpus mysticum of state within the common law tradition, the exemplary study is still Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton, N.J., 1957).
77. Du Marsais, Des Tropes, pp. 33-44, interestingly treats catachresis as the primary trope: erroneous use is the primary form of invention.
78. For a lawyer's definition of the term, see George Puttenham, The Arte of English Poesie (1589; London, 1869), p. 191, where catachresis is defined as abuse. I am suggesting that the use and misuse of the term per curiam was a double abuse, first in the simple resort to Latin to hide the process of determination - its ambiguity or division - and second in that the term has an artistic meaning that is here misrecognised or avoided.
79. For a different (apologetic) view of the usage, see Arthur J. Jacobson, "Ghostwriters," in The Longest Night: Polemics and Perspectives on Election 2000, ed. Jacobson and Michel Rosenfeld (Berkeley, 2002).