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Rhetoric and Law in Early Modern Europe

Rhetoric and Law in Early Modern Europe

Copyright Date: 2001
Published by: Yale University Press
Pages: 368
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  • Book Info
    Rhetoric and Law in Early Modern Europe
    Book Description:

    This book is the first interdisciplinary study of the relation of law and rhetoric in the early modern period in Europe. It brings together the work of eminent social and legal historians, literary scholars, and historians of rhetoric and of political theory.The book provides a historical perspective on such issues as the role of contract law in the production of the modern subject, the intersection of rhetoric and law in the construction of gender and sexuality, and the contribution of theories of equity to early modern notions of intention and political agency. The contributors include Kathy Eden, Carla Freccero, Peter Goodrich, Lorna Hutson, Constance Jordan, Victoria Kahn, Jane O. Newman, Annabel Patterson, David Harris Sacks, Barbara J. Shapiro, Johann P. Sommerville, Alan Stewart, and Luke Wilson.

    eISBN: 978-0-300-14555-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-x)
  3. Introduction
    (pp. 1-27)

    It is hardly surprising to find rhetoric and law conjoined in a collection of essays on early modern Europe. The humanistic revival of ancient eloquence, though frequently evoked in contrast to the “barbarity” of legal studies, was just as frequently proposed as the means for their salvation. Rhetoric and law as a topic in early modern studies has tended, then, to be identified as the investigation of the impact of humanistic rhetoric on the study and practice of civil and national law. For Italy and France, Donald R. Kelley’s magisterialFoundations of Modern Historical Scholarshiptraced the origins of modern...

  4. 1 The Promise and the Contract in Early Modern England: Slade’s Case in Perspective
    (pp. 28-53)

    In contemporary Anglo-American law there is an intimate connection between promises and contracts.¹ Both depend on the performative aspects of language—on the way the utterance of certain forms of words, whether by mouth or in a written instrument, amounts not just to the communication of meaning but also to the execution of action. Promises and contracts both create agreements between persons or groups. So long as the agreement has been intentionally and voluntarily made, and the action resolved upon is not illegal or immoral or impossible to perform, it is commonly understood to have binding moral force. But in...

  5. 2 Classical Rhetoric and the English Law of Evidence
    (pp. 54-72)

    Given the long-standing association between law and rhetoric, there has been surprisingly little real study of the impact of rhetoric on the Anglo-American legal tradition. Commentators have alluded to forensic oratory in a general way, noted similarities between the win-lose environment of courts and the forms of debate, and pointed to the lawyer’s need for oratorical skill. Some detailed study has been done. R. J. Schoeck has discussed rhetoric and the law in connection with the Renaissance, Alessandro Giuliani has explored the influence of rhetoric on the law of evidence and pleading, and Wilfred Prest and D. S. Bland have...

  6. 3 Archives in the Fiction: Marguerite de Navarre’s Heptaméron
    (pp. 73-94)

    In the book from which I take the (reversed) title of this essay,Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France, Natalie Zemon Davis examines the fictive dimensions of pardon tales, documents presented to the king in sixteenth-century France as appeals for remission in the case of certain often capital criminal offenses.¹

    She writes, “When I was a student, we were ordinarily taught as scientific historians to peel away the fictive elements in our documents so we could get at the real facts” (3). By examining instead the “forming, shaping, and molding elements: the crafting of...

  7. 4 Gay Science and Law
    (pp. 95-124)

    In a mid-fifteenth century case reported in Martial d’Auvergne’sLes Arrêts d’amour([1460] 1951) a young woman petitioned the High Court of Love in Paris for an order against her lover. Her argument was that when they had met, he had been “the happiest, most joyful and playful person imaginable” (174). She had fallen in love with a man who was kind, gregarious, gracious, and fashion-conscious. After only a few months of intimacy, however, her lover had changed beyond recognition. Now he was pensive, distracted, and melancholic: “It seemed as if life bored him and made him world-weary” (175). He...

  8. 5 Bribery, Buggery, and the Fall of Lord Chancellor Bacon
    (pp. 125-142)

    Over the past twenty years, the legal history of homosexuality in early modern England has come under intense scrutiny. Yet scholars remain largely mystified by their researches, which seem to yield a set of contradictions. First, on the one hand, sodomy appears to have been taken very seriously as a crime: “the detestable & abominable vice of buggeri committed with mankind or beast” was among the first offenses to be taken from the ecclesiastical courts in Henry VIII’s legal reformation and designated a capital offense without benefit of clergy.¹ On the other hand, the number of known prosecutions over the next...

  9. 6 Ben Jonson and the Law of Contract
    (pp. 143-165)

    My topic is the relation between Ben Jonson’s work and the legal developments which transformed the English common law of contract in the sixteenth and seventeenth centuries. I refer particularly, of course, to the rise of the action of assumpsit, whose dominance was finally secured in the ruling in Slade’s case (1597–1602), and out of which modern contract doctrine developed. Assumpsit (literally,he promised) takes its name from the wording of an action under which more and more contractual disputes came to be tried during the early modern period of English legal history.

    As readers of Renaissance drama will...

  10. 7 Not the King’s Two Bodies: Reading the “Body Politic” in Shakespeare’s Henry IV, Parts 1 and 2
    (pp. 166-198)

    The extent to which people in late sixteenth-century England could be said to have any kind of “civic consciousness” remains a matter of debate among historians and literary critics.¹ J. G. A. Pocock’s brilliant analytical overview of the classical republican tradition in the early modern period argues that sixteenth-century English thinkers, though clearly affected by Italian civic humanism, were prevented from fully grasping the idea of the state as a “polis” maintained by the active and deliberative virtue of its citizens because they were still dominated by the idea of the state ascorpus mysticum, a mystical body.² Though Pocock...

  11. 8 Law and Political Reference in Montaigne’s “Apologie de Raimond Sebond”
    (pp. 199-219)

    Michel de Montaigne’s “Apologie” has long been recognized as a monument to sixteenth-century skepticism. Its readers have understood its disclaimers as providing the pretext for its author’s fideist rejection of any connection between his or any human reason and an experience of faith. Trust in knowledge derived from rational deliberation is similarly undermined: the “Apologie” asserts that whatever is true in an absolute and unchanging sense lies beyond human apprehension and therefore cannot be communicated in human discourse. In what follows, I address an ancillary feature of these positions: Montaigne’s identification of law as essentially positive and his vision of...

  12. 9 Mens sine Affectu? Algernon Sidney’s Ideal of Law
    (pp. 220-242)

    When John Adams, a rising young colonial lawyer, agreed to defend the British soldiers who fired on a riotous Boston crowd in 1770 in the so-called Boston Massacre, he had recently been rereading Algernon Sidney’sDiscourses Concerning Government. Adams knew that he took considerable risks in defending Captain Preston, a symbol of British oppression, and he began with a florid self-justification from Beccaria’sEssay on Crime and Punishments:“If, by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance equally fatal, the...

  13. 10 “The Duty to Love”: Passion and Obligation in Early Modern Political Theory
    (pp. 243-268)

    It is a well-known topos of the history of political theory that during the seventeenth century a distinctively modern language of natural rights and social contract developed. In contrast to medieval and neo-Scholastic notions of obligation, theorists such as Grotius, Pufendorf, and Hobbes predicated their accounts of political association first and foremost on a secular idea of human nature, including the natural desire for self-preservation, rather than on divine law.¹ Some combination of the rational deduction of the laws of nature, the rational calculation of self-interest, and the natural right of self-preservation then dictated the social contract as the best...

  14. 11 Intellectual Property and the Adages of Erasmus: Coenobium v. Ercto non cito
    (pp. 269-284)

    Arguably the single hottest literary property of the first quarter of the sixteenth century, Erasmus’Adagiorum chiliadeshelped to secure the fame and fortune of Europe’s two most powerful printing houses during this time, those of Aldo Manuzio in Venice and of Johan Froben in Basel. The Aldine edition of theAdages, by Erasmus’ own account the product of friendship and close collaboration, appeared under its new title in 1508, vastly expanding and revising the ParisCollectaneaof 1500. Seven years later, the second edition, again revised and expanded, launched the longstanding friendship and commercial partnership between Erasmus and Froben,...

  15. 12 “Race,” Religion, and the Law: Rhetorics of Sameness and Difference in the Work of Hugo Grotius
    (pp. 285-317)

    Advocates of recent developments in legal theory such as critical legal studies, feminist legal studies, and critical race theory have argued for taking the racialized and gendered subject into account in analyses of the law. Patricia Williams claims inThe Alchemy of Race and Rights, for example, that “subject position is everything”; the subtitle of her book, “Diary of a Law Professor,” underscores—even as it strategically elides—the ways in which Williams’s experience as a black, female subject both is defined by and illuminates a variety of legal institutions.¹ Her occupation of this position allows Williams to critique from...

  16. 13 Selden, Grotius, and the Seventeenth-Century Intellectual Revolution in Moral and Political Theory
    (pp. 318-344)

    It is often said that there was an intellectual revolution in seventeenth-century Europe, and that it affected not just scientific thinking but also attitudes toward law and morality. Quite a number of scholars argue that old Scholastic and Aristotelian ideas about ethical and political matters decayed and were replaced by a new and distinctively modern theory of natural law. This “modern” school of natural law, so the argument runs, was founded by the great Dutch thinker Hugo Grotius, whose insights were later developed by John Selden, Thomas Hobbes, and Samuel Pufendorf.¹ Although these thinkers adopted startlingly innovative views on politics...

  17. Index
    (pp. 345-355)