The Watcher Cat

The Watcher Cat

Thursday, March 10, 2011

Go to the Mirror, Boy!

So, along the way of this research I'm doing for my almost-complete-first-draft article on the role of canon law in the sex abuse crisis in the Roman Catholic Church, I found myself reading some fascinating works on medieval law--Glanville's Treatise on the Law and Customs of the Realm of England, written in the time of Henry II (around 1189), and The Mirror of Justices (c. 1328). Now, let me be frank here: This stuff is great. It's re-ignited my interest in jurisprudence in a big way, because I love seeing things--ideas, systems, even novels--in the root, and watching them grow. So, in Glanville we see the latest new thing: trial by jury--in a highly embryonic form, where the "jury" is actually a group of knights familiar with the parties and facts, and the first twelve to agree--there's your verdict! A long way from the current system, but a lot more reasoned then trial by ordeal, duel or the delightful farce of compurgation. (R.H. Helmholtz actually mounts a clever defense of compurgation as not intended to resolve factual disputes, but to clear one deemed by the court to have been unjustly accused, and to restore their standing in the community in his admirable The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s.)

But I want to say a word about the Mirror. The Mirror of Justices, it turns out, is as much hoax as history, jape as jurisprudence. The anonymous author (Andrew Horn? Perhaps.) basically, well, made up a lot of stuff that he thought would be good law, and did so plausibly, with so many learned references (which, if you sought out the works cited--a lot harder in the 1320s, when this little number was pulled off, than it is today--didn't support the propositions for which they were advanced. It's quite something to read F.W. Maitland's Introduction, in which he sniffs at "the credulous Coke" (intro at x), who "filled his Institutes with tales from the Mirror" and to realize that he's referring to one of the great figures of English law,Lord Chief Justice from 1613-1616, and the Institutes so tainted were used to train English and American lawyers until the end of the Eighteenth Century. The Mirror, in short, is the most successful "Cicero Memorandum" in history.

What's that? I hear you ask. Ah, welcome to my world. A "Cicero Memorandum" is the creation of John Jay Osborn, the novelist, lawyer and law professor best known for his first book, The Paper Chase. His follow-up, The Associates (1979) (the linked review is, in my judgment, overly harsh), introduces Craig Littlefield, an associate whose real passion is jurisprudence, and who comes up with an interesting solution to law firm ennui:
"I've decided that from now on, all my memoranda will be jurisprudential by nature. Suppose I am asked a tax question? Will I go to CCH or Prentice-Hall manuals? Will I look up the cases? No. I will turn to Austin, H.L.A. Hart, Lon Fuller, Pollock, Gierke. I'll give them Cicero, St. Augustine, Clactus. Perhaps even Dworkin and Cohen. All the good philosophers."

"You'll be fired. Of course you know that."

"I doubt it. They probably don't even read my work . . . My theory is that if I return to basics, to fundamental principles, the answers I give them will be correct, and should correspond with whatever conclusions an associate would reach by reading the cases. Now, if my answer is technically wrong, there will be only two possibilities. Either my analysis from first principles will be in error, or the current law is wrong."
(p. 157). Asked how he'll disguise his references, Littlefield blithely decides to make up case citations, and lose the books until the partners lose interest. He gets away with several "Cicero Memoranda" as he terms them, convincing himself that "[a]pparently, decisions interpreting section five-o-one(c)(three) of the Internal Revenue Code conform exactly with Rawls' theories of distributive justice, or the partners do not read my memorandum." (p. 181). Of course, it all ends badly. For a little while.

Not only was the Mirror successful in the short run, but it enjoyed a nearly 500 year lease on life as a source of law, on its own and through Coke. It is the ultimate Cicero Memorandum. And the fact that I was able to get a beautiful copy of the 1895 Selden Society folio size edition (marred only by the fact that I have to cut the leaves myself) is just extra gravy.

No comments: