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Katharina Isabel Schmidt, James Gordley, The Jurists: A Critical History, 33 Law &
Hist. Rev. 467 (2015).

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Katharina Isabel Schmidt, James Gordley, The Jurists: A Critical History, 33 Law &
Hist. Rev. 467 (2015).

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Schmidt, K. (2015). James gordley, the jurists: critical history. Law and History
Review, 33(2), 467-469.

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Katharina Isabel Schmidt, "James Gordley, The Jurists: A Critical History," Law and
History Review 33, no. 2 (May 2015): 467-469

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 Book Reviews

James Gordley, The Jurists: A CriticalHistory, Oxford: Oxford University

Press, 2014. Pp. 336. $98.50 paper (ISBN 978-0-1996-8939-2).
doi:10. 1017/SO738248015000127
Legal historians have been slow to address some ofthe more pressing problems of
the discipline. As such, scholars continue to neglect macrohistorical approaches
in favor of temporally more constrained projects. Consequently, the long-term
trajectory of law and legal thought has remained elusive. Moreover, legal histori-
ans have tended to shy away from analyzing the historical path that their own in-
tellectual endeavor has taken. As a result, the cultural and institutional features of
legal knowledge production continue to be obscure. Finally, scholars remain hesi-
tant to use critical history for the purpose of examining the direction in which law
and the legal profession are headed. Given these problems, James Gordley's latest
book-promisingly titled The Jurists:A CriticalHistory-constitutes a welcome
change of course.
Gordley departs from the assumption that "[i]ntellectual traditions have
beginnings in time" (1). He then invites his readers to look no further than the
Roman Empire for the beginnings of the particular intellectual tradition that
has captured his imagination. As Gordley argues, it was during this classical pe-
riod that jurists first began to constitute themselves as a "cadre ofexperts" (5). By
formulating concepts based on experience rather than logic, classical Roman ju-
rists thus founded an approach to law and legal science, about which Gordley
says that he would be surprised "if it were to disappear" (312). Gordley goes
on to examine how, after the rediscovery of the Digest of Justinian, medieval
civil lawyers sought to order classic Roman materials by reconciling every au-
thoritative text available to them with every other. Although their commitment
to textual authority marks them as predecessors of contemporary approaches,
Gordley shows that it was not until the work of the late scholastics that law re-
ceived its idiosyncratically doctrinal structure. Driven by a desire to base late me-
dieval society on principles of commutative justice, the late scholastics
synthesized Roman legal materials with the philosophy of Aristotle and
Aquinas. In so doing, they began to distinguish more clearly than their anteced-
ents among the law of contract, tort, unjust enrichment, and property.
Against this background, then, Gordley turns to the humanists and their
contribution to the intellectual tradition founded by the classic Roman jurists.

Law and History Review May 2015, Vol. 33, No. 2

O the American Society for Legal History, Inc. 2015
468 Law and History Review, May 2015
What the humanists had in common with the late scholastics, Gordley argues,
is that they, too, wanted to explain law "as a systematically organized whole"
(116). Instead of bringing existing legal materials into compliance with certain
metaphysical principles, however, they focused on reinventing law as an ars,
that is, a systematic course of study designed to equip students with the virtue
and wisdom necessary to succeed in public life. Although the humanist ideal
of law as ars has had little direct influence on contemporary jurisprudence,
Gordley argues that it served as a stepping stone for the work of the iusnatur-
alists, who applied it to natural law, as well as for the work of eighteenth cen-
tury French civil lawyers, who applied it to Roman law. In doing so, the latter
were particularly interested in providing a more scientific approach to legal ed-
ucation through the compilation of comprehensive treatises. Gordley then
turns to eighteenth century German and Dutch jurists who, like their French
colleagues, were concerned with the question of how law could be made
more accessible to legal practitioners. Instead of compiling treatises on the
basis of original Roman texts, however, they attempted to structure legal edu-
cation around the Roman texts themselves. In particular, they sought to harmo-
nize existing materials in order to apply them to situations their Roman
predecessors had not anticipated. Gordley then contrasts this commitment
to "texts unsupported by principles" with the rationalists' commitment to
"principles unsupported by texts" (164).
This dichotomy sets up Gordley's penultimate. chapter. As such, he
describes how nineteenth century jurists, frustrated by the rationalists' failed
attempt to deduce law from human nature, sought to deduce law from the
various private law codifications in existence by that point. Because legal con-
clusions were supposed to be logically deducible from these authoritative
texts, the idea was that there had to be fixed concepts and categories underly-
ing them. In view of this, Gordley points to a striking similarity between the
ideas of nineteenth century jurists and the ideas of the rationalists. Like the
rationalists, nineteenth century jurists seemed to presuppose the existence of
certain absolute principles that allowed for one right answer for every legal
question. Against this background, Gordley then portrays the rise of early
twentieth century critical approaches to law as a revolt against the conceptual-
ism that nineteenth century jurists had inadvertently taken over from the ratio-
nalists. Here, Gordley's impressively rich and comprehensive narrative begins
to thin out. He broadly distinguishes between movements that sought to van-
quish conceptualism by appeal to intuition, empiricism, and/or social purpose.
However, he makes no real attempt at surveying the full smorgasbord of twen-
tieth century jurisprudential theories. Although the book's final section is
captioned "Whither?" Gordley concludes-somewhat anticlimactically-that
"the question of where we will go is unanswerable" (312).
Throughout the book, Gordley reminds his readers that "[t]here is no reason
why there had to be rationalists, humanists, late scholastics, medieval civilians,
 Book Reviews 469
or, for that matter, Roman jurists" and that, "[t]he entire tradition might not
have been" (312). Although caveats of this kind are certainly most prudent,
there is a discordance between Gordley's contention that it is possible to
pinpoint the beginning in time of a particular intellectual tradition, and his con-
tention that it is "a mystery" why a particular project ever got started (312).
Certainly the contingency of events and ideas constitutes a pervasive challenge
for historians, legal or otherwise. At the same time, Gordley could have said more
about the relationship between the "when" and the "why." For one, he could have
achieved this through a more clear-cut definition of "the jurists" whose sole "de-
fining characteristic" he takes to be a commitment to understanding and explain-
ing law (x). Delving more deeply into the institutional and professional culture of
the various actors Gordley surveys might thus have helped him flesh out the rea-
sons why a particular intellectual event took place when it did. In addition, the
relationship between the "when" and the "why" could have been explored
through a more general historicization of the various jurisprudential approaches
surveyed in the book. Gordley argues that jurists' goals and methods are suffi-
cient to explain "why they wrote what they did" (x); and, moreover, that we can-
not be sure whether they were inspired by "whatever else was going on at the
same time" (x). These observations point to a fourth problem of contemporary
legal-historical scholarship: its liminal status as a discipline trapped between
law schools and history departments. As such, it is perhaps the Herculean task
of satisfying both jurisprudential and historiographical expectations that ulti-
mately prevents Gordley from more critically examining the direction in
which law and the legal profession are headed.
Certainly this in no way diminishes the intellectual achievement of The
Jurists, which-like any work of its caliber-raises a panoply of important
questions that legal historians will in the future gratefully take as a starting
point for their own scholarly expeditions.

Katharina Isabel Schmidt

Yale Law School

Simon Teuscher, trans. Philip Grace, Lords' Rights and Peasant Stories.
Writing and the Formation of Tradition in the Later Middle Ages,
Philadelphia: University of Pennsylvania Press, 2012. Pp. 304. $69.95
cloth (ISBN 978-0-8122-4368-0).
doi: 10.1017/SO738248015000139
Simon Teuscher's engaging discussion of law in German- and French-
speaking Switzerland explores the ways in which law becomes established