By RAFAEL TUBONE MAGDALENO*
The substantive difficulty of the historian of law, both those who focus on legal thought and those who focus on the “sources” of law can be summarized in two words: understanding and translatingr
“My experience with fellow legal theorists, jurists and theologians is that many of them have been unable to conceive of a descriptive history of concepts, an approach that, for some, seems to arouse enormous reticence of a dogmatic nature. In some way, they start from the principle that they know “the truth”, that they know what is the “truth of the concept” corresponding to this or that notion, and they are not willing to admit historical-conceptual analyses that clash with their normative vision of things.”1
It is in this severe way that Reinhardt Koselleck recounts his experience with his fellow jurists, legal professionals and the like. Was it a joke or an observation that they approached theologians? We will never know…
However, we can conjecture the reasons for this approximation: were not the jurists, with their pragmatic reasoning focused on conflict resolution, a late pillar of medieval theology? That is, by postulating a primitive axiom, in a classical syllogism, a legal solution to a given problem must be produced. If this is the case, neither the concept of property nor the concept of God can be historicized, only posited as defined axioms from which we deduce everything.
This way of reasoning may seem Byzantine and even absurd to the historian of ideas or concepts. However, there are many who consider it this way. The jurist must above all resolve conflicts. The legal concepts, therefore, of a particular legal system are linked to a single particular legal system.
They cannot serve a diachronic historical analysis “because the systems that are the object of this analysis produce their own concepts, which are incommensurable in relation to those of a different system.” And, more severely, “legal concepts have no history, if by history we understand the sequence of their successive states” (TROPER, 2011, p. 262), either the concept in force in different legal systems is the same or it is not the same concept (KOSELLECK, 2006, p. 143). Thus, “property” would mean nothing outside the particular legal system in which it is inserted, the history of this concept would be impossible.
This position is precisely the one criticized by Reinhardt Koselleck and Juan F. Fuentes in the aforementioned interview. Koselleck states about jurists of this type: “for some of them it is difficult to accept even the academic legitimacy of the study of a history of concepts devoid of normative burden or purpose. They become nervous at the mere possibility that the concepts with which they work – which constitute something like their epistemological ground – cease to be firm ground and become something contingent, ambiguous and unstable.” (KOSELLECK, 2006, p. 144).[I]
The question that arises is: is it possible for legal professionals to work in conflict resolution as part of a historical investigation of concepts and, therefore, work with a contingent, ambiguous and unstable ground? For Michel Troper, no, “history (…) can be useful to legal sociology, not to the science of law”. The legal historian is destined to have an external view of his object, never an internal one, and must change his formal clothes and head to the Court.
However, there is undeniable a flourishing of studies in a field with multiple names, but which I call, following Géraldine Cazals and Nader Hakin, “History of legal thought” (other names are: history of legal doctrines, history of ideas, history of legal science). Certainly, each of these names privileges a particular theme or perspective.
By naming this increasingly widespread field “history of legal thought,” we privilege a history of both the actors and their work, their ideas, their culture, and the literary forms they use to express their opinions and present their constructions. This name implies that law is an object that can be grasped by thought only as a history of its representations and the means by which it is expressed.
Since the names of this area have methodological implications, the “rejection” of the use of other terminology derives from the consideration that the use of “history of legal doctrines”, “history of legal science” or “history of ideas” causes a reductionism of what law is: either it is reduced to the opinions expressed by jurists in dogmatic works, or law is considered as an area of knowledge apart and that can be studied scientifically using its own methodology and different from other areas of the human sciences, or “by privileging the history of ideas, (there is) the risk of neglecting all prosopography or any contextualization, which is essential for the historical discipline”, according to Nakim.
One question that arises when observing the production of historians of legal thought is: is there a distinction between what is called “History of Law” and what is called “History of Legal Thought”? If so, in which area would the study of legal concepts such as “property”, mentioned above, fall? And how should it be produced, given that the documents in which this concept appears are written, whether in Codes or in legal opinions of Roman jurists? (SCHIAVONNE, 2017).
The freedom taken by those who focus only on writings of “legal thought” is greater: Olivier Jouanjan, for example, proposes that we conceive of the production of legal thought as a detective story, since thoughts, even the purest and rarest, “are intentional acts”. Legal writings, therefore, are factories of alibis, theories and justifying metatheories. The weapons of the “detective novel” of legal thought are concepts. Legal thoughts are conceived with mythological montages, what he calls “treasures of the imagination”: “Person”, “Law”, etc.
“The practical functioning of law, through the explicit or implicit justifications that legal positions and decisions presuppose, always and inseparably operates through a discourse that is at the same time of law and about law. And this discourse is nourished by the doctrines, knowledge and science of jurists” (JOUANJAN, 2005, p.3).
The substantive difficulty of the legal historian, both those who study legal thought and those who study the “sources” of law, can be summarized in two words: understanding and translating (STOLLEIS, 2020, p. 65). The historian must be willing to observe the legal language of times gone by as if it could not be understood today, as if only from this primitive use could the meaning of a specific word be unraveled. A word or a concept?
“The difference in category between word and “concept” (whether in a precise linguistic sense or in the contextual-historical sense of Reinhardt Koselleck) becomes meaningless. There is no class of words with a higher dignity that we call “concepts”; therefore, concepts are also words that depend on contexts and need interpretation. If the philosopher finds meaning in the construction of concepts – in fact, he cannot even think without them – the historian seeks, in the text that he must understand, “words” that interest him. “Which words” is a question of the hypothesis that is increasingly pursued. (STOLLEIS, 2020, p. 45)
The task of the legal historian can be systematized as Helmut Coing did: “the search for the ‘sources of law’ in connection with the ideas of the time” (COING apud STOLLEIS, 2020, p. 68). Knowing that they will not find any objective truth behind the words and texts on which the law was inscribed, the legal historian must strive to gain the approval of his interlocutors regarding the plausibility of his hypotheses. Whether jurists, with their current training, will have the imagination or the capacity for linguistic comprehension to carry out such a task is a question to be asked. Or should the legal historian be a mixture of jurist, philosopher and historian?
*Rafael Tubone Magdaleno is a professor of philosophy of law at the Federal University of Tocantins (UFT).
References
KOSELLECK, Reinhardt. Interview with Reinhardt Koselleck. In: JASMIN, MG & FERES Jr, J. History of Concepts: debates and perspectives. New York: Oxford University Press, 2006.
TROPER, Michel. Law and Necessity. Paris: PUF, 2011.
JOUANJAN, M. Une histoire de la pensée juridique en Allemagne. Paris: PUF, 2005.
STOLLEIS, M. Writing legal history: reconstruction, narrative or fiction? New York: Routledge, 2020.
Note
[I] Juan F. Fuentes responds: “Regarding the issue, I recall that at the Bilbao Congress, a participant with a legal background stated that the concept of property had not changed substantially for centuries, and that it was practically the same today as it was in Roman times [laughs]. Yes, and it was quite funny.” The participant he seems to be referring to is Michel Villey, author of the quotes I included in the text. In a note, Juan F. Sebastian, the other interviewer, also says: “(…) the intervention of the important legal theorist Michel Troper during the last session was openly hostile to the historical-conceptual perspective, going so far as to expressly deny the historicity of legal concepts, which gave rise to a lively controversy with the author of this note.”
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