Authorities

I was anxious to ground upon principle, and fortify by analogy, the propo­sition which I set out with attempting to establish, before I referred to the cases which bear directly upon the point.

m. nolan's argument for the prosecution in PictonS Case (1810).

For the purpose of my argument, I am content to have recourse to no other authorities than what have been introduced by my learned friend, Mr. Nolan.

R. Dallas's argument for the defence in Picton’s Case (1810)^{[35] [36]}

Authority strengthens all modes of legal reasoning, making exception only for those instances in which legal thinkers are accomplishing an anti-elitist, anti­intellectual, or counter-traditional objective. By authority, I take to mean any revered source of law. This is distinct from (if still slightly related to) the sense of state power that is required to buttress the practical application of laws, which tends to be invoked less as an intellectual justification and more as a technique of intimidation. By authority, to be clear, we are seeing the pen in front of the sword - we see reports, transcripts, and treatises. And we see the innately respectful reconstruction of all kinds of legal ideas and institutions from some time in the past for present purposes.

In Ancient Egypt, as Alexandre Loktionov uncovers through meticulous re­search, there is every possibility that the concept of hp.w may have been used to refer to recorded laws or precedents. It is telling that we see the term receive an insurgence of applications over the same period that a distinct class of judi­cial scribes - just one of several new judicial offices - emerges in the Middle Kingdom period. This would seem to imply at least some kind of reverence for legal authority in Ancient Egypt.

By contrast, in Ancient Athens, it is striking how much reverence is shown to the lawgivers themselves.

Within the Roman legal tradition, a culture of citation had become conven­tional by the time of Papinian, Paulus, and Ulpian, and indeed partially ex­plains their eminence as great jurists. It is probably true that, after them, the bureaucratisation of imperial government, combined with the emergence of autocratic and militaristic emperors, coincided with a slight decline in the rev­erence shown tojurisprudential sophistry. Even if many jurists found them­selves relegated to the margins of administrative life by the fifth century, how­ever, they were still regularly consulted in this period. The great codifications of Justinian would not have been so rich in principle, and so compelling as definitive guides, without their references to known authorities: those known as the antiqui or veteres, as Halcyon Weber points out. Without these refer­ences, any hope for continuity was imperilled. Further still it may be general­ised that the legitimacy of all attempts to reform and reorganise Roman law was determined to a large degree by the inclusion of acknowledgements of distinguished juristic authorities in the process. This is what gave the Digest its timelessness.

In the east, scholastikoi were just as revered as antecessores.

A century and a half after this, in the west, the rediscovery of Justinian did not so much reawaken as it did intensify the desire of legal thinkers to achieve continuity through acknowledging authorities. Chapters by Emanuele Conte, Dante Fedele, Tiziana Faitini, andJoseph Canning all turn up precisely the same trend. Glossators and commentators were fussy in their acknowledge­ments of long-dead legal thinkers, generally either to affirm old principles, or otherwise, following Bartolus and Baldus, to modify them slightly either to ac­count for a â€?secondary' group of subordinate principles (as can be seen in the separation of ius gentium into primary and secondary tiers), or to extrapolate multiple new categories from singular concepts (as can be seen in the disag­gregation of imperium into new scales and formulations). Decretists and de- cretalists were little different in their approaches to authoritative statements of principle either - and in this respect, their adoption of the Greek word kanon (κανων), which conveyed both rule and authority, much befitted their project.

By the Renaissance, establishment legal thinkers had discovered that they could get away with saying just about whatever they wished to say - moving whatever principles they wanted into whichever categories they desired to move them - as long as they complied with the convention of citing authori­ties, both living and dead. Grotius himself, recognising that �many’ legal think­ers had already dealt with the same subjects he was attempting to master, con­fessed to a German confidant that his way of throwing �new light’ on the matter was entirely alchemic: �with a fixed order of teaching, the right proportion of divine and human law mixed together with the dictates of philosophy’^[39] Throwing in a few analogies and abstractions of principle along the way, and many old matters, all of a sudden, received brilliant illumination. Even Gro- tius’s analogy, considered earlier in this article, between the law of servitudes and the law of the sea to suggest that nations were little different to private persons, was clear in its deference to Ulpian. The rest of his margins are thick with references to biblical, theological, and classical authors, besides those to the civilian authorities whose ideas he wished to borrow, expand, or modify. Self-consciously assimilating with established authorities, Grotius’s career as a legal thinker was made.

Later still, what Lauterpacht saw as the �Grotian tradition in international law’ was flourishing: a system of arbitration between nations, where principles and analogies were interpreted and evaluated first in relation to the authori­ties, then applied in relation to the circumstances of the case, and finally to emerge as non-binding norms to guide future conduct.^[40] It was a system de­signed to encourage international legal scholars to seek out and attain authori­tativeness for themselves Just as Grotius has done.

In Europe, an obsession with codification came to characterise its constitu­tional modernity. This is evident, for example, in the repackaging of most codi­fications promulgated during the long nineteenth century for consumption in the long twentieth century as authoritative commentaries upon the originals. Today, competing editions still seek to attain definitive status for their treat­ment of codified laws, and these are consumed primarily by practising lawyers and judges - precisely those who are most comfortable dismissing any search for the root of these principles as irrelevant antiquarianism. While Orford has rightly scorned the �contextualist historians' for the limits of their own under­standings, they are surely little better than the hurried lawyers-in-practice and the dogmatic anti-formalists of this world. Figures like Carl Schmitt - who, as Joshua Smeltzer shows in his chapter, consulted thinkers as diverse as Aristot­le, Bodin, Machiavelli, Hobbes, and all the leading figures of the historical school of jurisprudence, as he formulated his eccentric case for rechtliche Ord- nung on the run-up to his denunciation of Weimar positivism - have become roundly obscure in German jurisprudence. There, a �world of commentary' is possessed of a much more careful and disciplined reverence for authorities today.

Over a century ago, Maitland saw the same thing happening in England, al­though he thought it was more pronounced there:

A lawyer finds on his table a case about rights of common which sends him to the Statute of Merton. But is it really the law of 1236 he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations. The more modern the decision the more valuable for his purpose. That process by which old principles and old phrases are charged with a new content, is from the lawyer's point of view an evolution of the true intent and meaning of the old law; from the historian's point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different log­ics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.^[41]

Part of the reason why Maitland thought this distinction between authority and evidence so pronounced in England owed to the development of an un­shakable obsession in that country, by his time, with precedents. Common lawyers derived their authorities from reports of their own law. Or, perhaps it is more accurate to say that precedents were used to infer principles from analo­gous cases recognised as authorities within the institutional framework of the common law. Regardless, it is evident that the forms of argumentation that became strongest in the common law were those which succeeded in deploy­ing discrete modes of legal reasoning with support from recognised cases and doctrines. Precedents from the common law had to be used wherever possible (sometimes only the portion of an older argument, or even just a sliver of obit­er dictum). Wherever that was not possible (in the absence of relevant or sup­portive case law), other authorities had to be moved into play tactfully.

We see no better example of this in Empire and Legal Thought than in Sarah Winter's analysis of Granville Sharp and his abolitionist tracts (which he pre­pared for, and even organised the delivery to, leading judicial actors). Where Sharp found it difficult to enlist common law authorities to his argument, he instead plucked out Paulus from the Digest, and then uncovered some lat­er medieval glosses, only to support the conflation of two (very) separate principles: that human bodies are unsusceptible of valuation, and that liberty is a thing of inestimable value. Alchemy of this kind was undertaken in anticipa­tion of the landmark decision of Lord Justice Mansfield in Somerset v Stewart (1772), which Sharp attempted, at many stages, to influence. In Sharp's legal thought - as with Mansfield's own - authorities, principles, and analogies had to be contorted and moved around to become new authority. Never mind that it was often bad Latin - and sometimes even faulty reasoning.

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