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Legal Artifices Ten Essays on Roman Law in the Present
Tense 1st Edition Yan Thomas Digital Instant Download
Author(s): Yan Thomas, Anton Schütz, Chantal Schütz, Thanos
Zartaloudis, Cooper Francis
ISBN(s): 9781474446693, 1474446698
Edition: 1
File Details: PDF, 2.44 MB
Year: 2021
Language: english
Encounters in Law and Philosophy

Yan
THOMAS
LEGAL ARTIFICES:
TEN ESSAYS ON
ROMAN LAW
IN THE PRESENT
TENSE
Legal Artifices: Ten Essays on Roman Law
in the Present Tense
ENCOUNTERS IN LAW AND PHILOSOPHY
SERIES EDITORS: Thanos Zartaloudis and Anton Schütz

This series interrogates, historically and theoretically, the encounters

between philosophy and law. Each volume published takes a unique
approach and challenges traditional systemic approaches to law and
philosophy. The series is designed to expand the environment for law and
thought.

Titles available in the series

STASIS: Civil War as a Political Paradigm

Giorgio Agamben
On the Idea of Potency: Juridical and Theological Roots of the Western Cultural
Tradition
Emanuele Castrucci
Political Theology: Demystifying the Universal
Anton Schütz and Marinos Diamantides
The Birth of Nomos
Thanos Zartaloudis
Leibniz: A Contribution to the Archaeology of Power
Stephen Connelly

General Advisor
Giorgio Agamben

Advisory Board
Clemens Pornschlegel, Institut für Germanistik, Universität München,
Germany
Emmanuele Coccia, Ecole des Hautes Etudes en Sciences Sociales, France
Jessica Whyte, University of Western Sydney, School of Humanities and
Communication Arts, Australia
Peter Goodrich, Cardozo Law School, Yeshiva University, New York, USA
Alain Pottage, Kent Law School, University of Kent, UK and Sciences Po,
Paris
Justin Clemens, University of Melbourne, Faculty of Arts, Australia
Robert Young, NYU, English, USA
Nathan Moore, Birkbeck College, Law School, University of London, UK
Alexander Murray, Queen’s University Belfast, UK
Piyel Haldar, Birkbeck College, Law School, University of London, UK
Anne Bottomley, Law School, University of Kent, UK
Oren Ben-Dor, Law School, University of Southampton, UK

edinburghuniversitypress.com/series/enlp
 Legal Artifices:
Ten Essays on
Roman Law in the
Present Tense

Yan Thomas
Translated by:
Chantal Schütz & Anton Schütz

Edited by:
Thanos Zartaloudis, with Cooper Francis

Foreword:
Anton Schütz & Thanos Zartaloudis

Afterword:
Alain Pottage
Edinburgh University Press is one of the leading university presses
in the UK. We publish academic books and journals in our selected
subject areas across the humanities and social sciences, combining
cutting-edge scholarship with high editorial and production values to
produce academic works of lasting importance. For more information
visit our website: edinburghuniversitypress.com

© Yan Thomas
© Editorial matter and organisation, Thanos Zartaloudis with Cooper
Francis, 2021
© English translation, Chantal Schütz & Anton Schütz, 2021
© Foreword, Anton Schütz & Thanos Zartaloudis, 2021
© Afterword, Alain Pottage, 2021

Cover image: www.shutterstock.com

Cover design: www.hayesdesign.co.uk

Edinburgh University Press Ltd

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12(2f) Jackson’s Entry
Edinburgh EH8 8PJ

Typeset in 11/13 Palatino by

Servis Filmsetting Ltd, Stockport, Cheshire,
and printed and bound in Great Britain

A CIP record for this book is available from the British Library

ISBN 978 1 4744 4667 9 (hardback)

ISBN 978 1 4744 4669 3 (webready PDF)
ISBN 978 1 4744 4670 9 (epub)

The right of Yan Thomas to be identified as the author of this work has
been asserted in accordance with the Copyright, Designs and Patents
Act 1988, and the Copyright and Related Rights Regulations 2003 (SI
No 2498).
The right of Thanos Zartaloudis with Cooper Francis to be identified
as the editor of this work has been asserted in accordance with the
Copyright, Designs and Patents Act 1988, and the Copyright and
Related Rights Regulations 2003 (SI No 2498).
 Contents

Copyright Acknowledgements vi
List of Abbreviations viii

Foreword – Operations and Artifices: The Art of the

Oldest Legal Professionals ix
Anton Schütz and Thanos Zartaloudis

1. The Contrivances of Legal Institutions: Studies in

Roman Law 1
2. Legal History for Historians: A Presentation 7
3. The Language of Roman Law: Problems and
Methods 13
4. The Law between Words and Things: Rhetoric and
Case Law in Rome 48
5. Artifices of Truth in the Medieval ius commune 79
6. The Subject of Right, the Person, Nature: Remarks
on the Current Criticism of the Legal Subject 107
7. Vitae Necisque Potestas: The Father, the State, Death 144
8. On Parricide: Political Interdiction and the
Institution of the Subject 210
9. Act, Agent, Society: Fault and Guilt in Roman
Legal Thinking 242
10. The Slave’s Body and its Work in Rome: On
Analysing a Juridical Dissociation 274

Afterword – A Knowledge Apart 299

Alain Pottage

Biographies of Contributors 317

 Copyright Acknowledgements

Chapter 1. ‘The Contrivances of Legal Institutions: Studies

in Roman Law’ was originally published as the ‘Preface’ to:
Los artificios de las instituciones. Estudios de derecho romano,
University of Buenos Aires, 1999.
Chapter 2. ‘Legal History for Historians: A Presentation’ was
originally published in Annales, Histoire, Sciences Sociales,
57ème année, 6, 2002. This chapter is an introduction to a
multi-author edited collection. We have omitted all passages
in which Thomas, writing as the editor, refers to or summa-
rises the chapters of this volume.
Chapter 3. ‘The Language of Roman Law: Problems and
Methods’ was originally published in Archives d’histoire du
droit (1974), pp. 103–25.
Chapter 4. ‘The Law between Words and Things: Rhetoric
and Case Law in Rome’ was originally published in Archives
de Philosophie du Droit, 23, 1978.
Chapter 5. ‘Artifices of Truth in the Medieval ius commune’
was originally published in L’Homme 2005, 175–6, pp. 113–30.
Chapter 6. ‘The Subject of Right, the Person, Nature: Remarks
on the Current Criticism of the Legal Subject’ was originally
published in Le Débat, n. 100, 1998.
Chapter 7. ‘Vitae Necisque Potestas: The Father, the State,
Death’ was originally published as: ‘Vitae necisque potestas.
Le père, la cité, la mort’, in Yan Thomas (ed.) Du châtiment
dans la cité (round table, 9–11 Nov. 1982), Rome–Paris 1985,
pp. 499–548.

vi
 Copyright Acknowledgements
Chapter 8. ‘On Parricide: Political Interdiction and the
Institution of the Subject’ was originally published as: ‘À
propos du parricide. L’interdit politique et l’institution du
sujet’ in L’inactuel, 3 (Spring 1995; titre du numéro: Intérêts
de la psychanalyse).
Chapter 9. ‘Act, Agent, Society: Fault and Guilt in Roman
Legal Thinking’ was originally published as: ‘Acte, agent,
société. Sur l’homme coupable dans la pensée juridique
romaine’, Archives de Philosophie du Droit, 22–1, 1977.
Chapter 10. ‘The Slave’s Body and its Work in Rome: On
Analysing a Juridical Dissociation’ was originally published
as: ‘Le corps de l’esclave et son travail à Rome’, in: Ph. Moreau
(ed.), Corps romains, Paris, 2002.

vii
 Abbreviations

— C.J., for Justinian’s Codex, his compilation of imperial

laws (534).
— D., for Justinian’s Digest, a didactic treatise of Roman law
(533).
— I., for Justinian’s Institutes, a didactic treatise of Roman
law (533).
— X, for the Decretals of Gregory IX (also known as Liber
Extra) a compilation of papal decretals (1234).
— VI, for the Liber Sextus, a compilation of papal decretals
going back to Bonifacius VIII (1298).
— Extrav., for the Extravagantes, a collection compiled by
Jean XXII (1317).
— on, in, or gl., for glosses and comments of medieval jurists
on a passage of Roman or canon law.
— c. for canon.
— pr. for proemium, the introductive paragraph of a juridical
text.
— s.v. for sub verbo (in reference to words, which mark a
comment or a gloss).
— eod. loc. (refers to a passage quoted shortly beforehand).

viii
 Foreword
Operations and Artifices:
The Art of the Oldest Legal Professionals
Anton Schütz and Thanos Zartaloudis

I.
Yan Thomas (1943–2008), French legal historian, thinker and
specialist in Roman law, has had a significant and lasting
influence in legal historical research and legal thought, which
reverberated across the social sciences and humanities.1 His
aversion to ‘doctrinal interpretations’2 (Marta Madero) meant
that his rigorous historical philology was driven by a rejec-
tion of modern aspiration-guided conceptions of law and
stale or comforting interpretative formulas, often produced
in the name of the wider illusion that presumes ‘law’ is char-
acterised by the evolution of a universal meaning.3
The ten essays collected in the present volume have been
published over more than three decades, between 1973 and
2005. At least equally significant is the thematic distance
between the pieces. There are essays on parricide in Rome; on
a Roman father’s right over life and death of his sons; on the
ways Roman private law infiltrates and structures views and
practices on crime, guilt and fault; on modern labour law and
its differences, as well as commonalities, with rented slave
work in Rome; on structuralist and Marxist history writing
and views of evolution in relation to Roman law; on how a
legal order that fails to refer to responsibility has managed
to function as a legal order; on modes in which historians
of Rome have chosen to relate to legal historians of Rome
(and vice versa); on what remains of Roman history and law
today, if one sections them from what has been their imperi-
alist message and colonialist mission throughout many cen-
turies; and on how the ‘linguistic turn’ has (or should have)

ix
 Legal Artifices
changed the profile of Roman legal scholarship. Each of the
ten chapters offers a separate contribution to Roman law.
At the same time, all relate to contemporary problems and
matters, some directly, where the reference to Roman law
scholarship is triggered by current events (as most notably
Chapter 6), others indirectly, when the question of expound-
ing and understanding the decisions and reasons of Roman
law is asked anew in the light that is shed on them by current
events, cases, or debates.
The Corpus Iuris Civilis, today sometimes celebrated as the
West’s second bible, looks back to a millennium and more
of existence as a discipline. In the history of world private
law, Roman law figures effectively as a unique achieve-
ment relating to ways of dealing with life-world-structuring
issues in a vast field of matters including ownership, posses-
sion, damage, contract, heritage. The long sequence of his-
torical ‘repetitions’ of Roman law, forming a key artery of
institutional transmission over the European continent, and
via multiple ramifications worldwide, is owed, Thomas’s
work insists, to the structural dependence of law and legal
argument on reasons and/or references. What is the differ-
ence? Why do lawyers content themselves with references?
Invoking reasons supposes a human subject that is keen to
know. Such a subject is prominently supposed in philosophy,
starting from the first sentence of the First book of Aristotle’s
Metaphysics, which claims that, by its very nature, the human
being desires to know. But does it? Proof to the contrary is
abundant, at least outside philosophy. The operations of law
are a cautious reaction to the hyperbolic reliance embodied in
the philosophical trust that people can be expected to wish to
know. For Thomas outlining the culture of Western law and
jurisprudence and the status of the Roman jurists in it, almost
nothing is as important as the need to take note of the fact
that jurists had (and continue to have) other problems and
exigencies than those of the philosophers.
The history-covering glory of Roman private law has
not been about teaching those eager to be taught, not about
being known or understood as enlightening, but about offer-
ing solutions that work even below the level of teaching or
understanding. Legal references are successfully cited or
invoked in litigation; and litigation is where Roman private

x
 Operations and Artifices
law’s success story unfolds, what it covers; ‘the all-covering’
(pandectae) was the name of the main compilation of classi-
cal juristic writing (another name was Digest, meaning that
which is ‘unfolded’ or ‘dealt with’). Reasons were formally
defined, but ‘Reason’ was not the problem law claimed to
solve. According to juristic teaching and convention, Reason
was present in the legal text because it was written into it
(Roman law being, notably according to the Middle Ages,
ratio scripta, ‘written reason’). Jurists dealing with private law
litigation delivered their goods by making arguments based
on references.
The triumphal procession of classical Roman law was not
simply fuelled by the writing of the classical jurists (dating
from the first century bce to the third century ce), but also
by the collection that was in itself already the first in the
long series of its repetitions, the late – and famously fudged
– standard version of classical Roman law which is known
to us as the ‘Body of Civil Law’ (Corpus Iuris Civilis); and
which was put together in the earlier sixth century (a half
millennium, more or less, after its sources) by a commis-
sion of law professors appointed by Emperor Justinian in
Byzantium. Despite a spectacular over-abundance of solemn
imperial proclamations, exhortations and recommendations,
the underlying idea for the commission was simple enough:
to create once again the conditions of legal life to emerge, self-
reliant and viable by its own means, to recreate the dynamic
of classical Roman law, now under Christian auspices. Hence,
a key point is omnipresent in Thomas’s writing: the success
story of Roman law is the result of a protracted institutional
process, answering the endlessly growing demand of litiga-
tion to which it gave rise. This is a process of multiplication
of legal demand that finds its final and most effective accom-
plishment a further half-millennium after Justinian’s profes-
sorial commission, starting from the eleventh and twelfth
centuries, with the birth and growth of Roman law teaching
in the West.
The assumption of the intrinsic perfection of Roman private
law, encompassed the European world for a long time. It was
the product of the late eleventh- and early twelfth-century
creation of an institution that centre-staged the reference to
Roman law. The law school of Bologna, and a whole network

xi
 Legal Artifices
of law schools in its wake, provided a site in which, gen-
eration after generation, student intake after student intake,
medieval Roman law-scholars and their students went
ceaselessly through the Institutes (an official textbook for
first-year-students), the Digest (the already mentioned selec-
tion of classical juristic writing, which forms the largest and
most momentous component of the Corpus, and at once the
sole source of non-statute law), as well as the Codex and the
Novellae Constitutiones (collections of imperial statutes ancient
and recent). Providing Roman law with a site of permanence
and continuous reprogramming, the Bologna institution, or
more exactly the fact that Roman law was hitherto in opera-
tion, and would be so ‘for good’, transformed Roman law’s
so far merely textual existence into a new ‘process-reality’ (as
philosopher A. N. Whitehead called it a century ago). It was
in other words both operational and permanent. Product of
a symbiosis between the newly emerged specialised teaching
institution and the Corpus Iuris Civilis, whose study it steadily
reiterated, transforming it into an open-ended programme,
the Bologna law school structured the societal fate of the
European continent.
Roman law carries, embodied in what it refers to as its
origins, a claim to timeless knowledge. The source of this
knowledge is most generally referred to by the word natura.
Thomas, as the reader will discover, devotes to this notion
some of the most decisive pages of the present volume. The
notion that legal precepts are endowed with an origin but
with no end, that law is, then, a matter both of an initial
decree and of timeless validity, has lent its general frame-
work to the reasoning of Roman jurists and, in their wake,
of generations of civil lawyers. One can wonder whether it
was this that prompted Thomas to come up with what can
clearly be qualified as the sharpest resistance to the radically
naturalist position of the Roman jurists that he studied. His
claim that the accomplishment of the classical Roman jurists
lies in their art of contingent yet precisely argued operations
is a direct reply to their reliance upon natura, a reliance that
served as the source of the legitimacy with which they pro-
vided their work.
When Thomas, whose sense of historical accuracy has been
honed by his resistance to the methodological a-historicism

xii
 Operations and Artifices
that so often takes hold of the minds of lawyers (and, contrary
to what William Maitland thought, not only in England),4
encounters the classical juridical concept of natura, this also
opens up some perspectives on French intellectual history.
Those who are familiar with Michel Foucault’s pleadings to
historicise the claims presented by all official views, e.g. of
medicine and psychiatry, might be tempted to notice affini-
ties in Thomas’s suggestions to historically reassess classical
civil law. The nature of their trade imposes upon jurists in
Rome – as a thousand years later, in the great era of Bologna
– the need either to dislodge the disquieting spectre of contin-
gency, or to render it invisible. Roman private law has been
about positing rights (in common law parlance, supplying
legal remedies) working under the uncanny condition that
everything that happens could just as well happen other-
wise, or not at all. Uncanny and unwanted, this contingent
condition must be cured. Unfortunately, the remedies and
devices to domesticate such disquieting contingency, are an
equally contingent artefact. They boil down to covering in
an apparel of naturalness the artificiality and contingency
of legal problem-solving, yet through operations that are
themselves bound to involve more of the same. It is tempt-
ing to understand the whole quid-pro-quo as something like
a large-scale venture of ‘contingency-laundering’. Law can,
if not ‘solve social problems’, resolve a paralysing state of
indecision by replacing the two (of the number of parties in
a litigation) with the one (of a judgment). To do so, it must
mobilise the contingent operation of decision-making. Except
that openly admitted contingency does not bode well for the
decision’s authority.
The decision’s ‘also otherwise possible’ is the dangerous
pars destruens, the price to be paid for the decision’s virtuous,
unifying pars construens. Only decisions can solve disputes,
which thus can only be redeemed at the price of contingency
– a blemish from which they can be cleansed and rehabili-
tated only by means of yet another, supplementary, contin-
gent operation. The name of this operation is naturalisation.
The Roman jurists being experts in this travesty, the cloak in
which the hope to conceal the contingency of juristic opera-
tions is invested, is, already since the Digest, nature. Thomas,
with his radically historicist view of the civil law’s founding

xiii
 Legal Artifices
operations, will be led to draw attention precisely to the con-
tingent, artificial operations that the naturalist sleight of hand
strives to cover up. Thomas’s own reconstruction of classi-
cal Roman jurisprudence describes it as a specialised profes-
sional debate, an industry of artificial moves and contingent
operations. But that is only one of two sides. Equally funda-
mental is, according to Thomas’s outline, the jurisconsults’
move of clutching to ‘nature’ as to the inexhaustible spring of
their decisions’ legitimacy. It is by borrowing nature’s voice
that they succeed in resolving tangled and complex situa-
tions. Yet the nature at stake is a highly artificial and contin-
gent one that unfolds in the contrivances and arguments of a
small group of classical Roman jurists.
Historical relevance distracts from legal relevance in
that, centre-staging not decision but knowledge, it focuses
on the past’s potential to be presented as a narrative. Legal
relevance distracts from historical relevance in that, centre-
staging decision, it focuses on the past’s potential to decide
present disputes. The tension between the two component
matters of legal history is easily grasped. Thomas is aware of
its implications: for instance, the dream – and it is a dream
that was very popular with the pandectists, the classical
German nineteenth-century professors of Roman law – of
engaging in some trans-historic dialogue with Ulpian, born
in 170 ce, to discuss with him cases and concepts of suppos-
edly timeless Roman private law can of course be dreamt, but
a true debate would suppose two jurists exposed to the same
set of historical conditions. Equally inadequate would be an
attempt to dissolve Roman law into a sequence of diachronic
events, leaving behind the systemic or synchronic aspect con-
stituting what had been called all the way since Justinian’s
time, ‘a body of law’.

II.
Thematically, the ten chapters of this collection document
interventions in numerous fields and controversies. The two
shortest essays, Chapters 1 and 2, have both been written as an
introduction to a collective volume. Chapter 1 (Buenos Aires,
1999) is the introduction to a collection of selected Thomas
publications entitled Los Artificios de las Instituciones. Thomas

xiv
 Operations and Artifices
focuses on the fact that legal forms of social life are con-
structed rather than ‘natural’ or spontaneous, and allocates to
those in charge of the construction work what he calls an art,
ars iuris, the art of law. Its distinctive feature with respect to
other arts and their respective practitioners resides in the fact
that lawyers construe their edifices equipped with a capacity
of giving existence to that which they affirm. The products of the
ars iuris are performative utterances, made of mere words
(‘montages’), but carrying the rather singular performative
virtue of delivering the conditions of their realisation. In this
sense, what is called ‘law’, approached each time only by
approximation, is understood as ‘the medium par excellence’
for the artful fabrication of the institutional entities from
which social organisations are formed.
Chapter 2 (2002) is likewise an introduction, this time to
a collective volume edited by Thomas, a special issue of the
prestigious French historical periodical Les Annales. It contains
contributions by several historians devoting themselves to
historical specialities that often overlap with those of ancient
or medieval legal history. The volume focuses on the divide
between history and legal history. The question that Thomas
asks his co-contributors is how law relates to the other social
sciences (assuming that law is one among them, which is not
an assumption that goes for everyone). Is there something
by which law, understood as a social science, stands out as
anomalous? Such a particularity might exist, but if it does, it
is to be seen neither as a natural endowment, nor as one part
of the famous distinction between the is and the ought. The
discovery of the ‘duality between facts and norms’ fails to
exhaust the question of law and its history, Thomas stresses.
Instead, legal orders are a matter of production. Rather than
irremediable facts, the outcome of some underlying regu-
larity, they are contingent artefacts, obtained by means of
ever-more specialised procedures. Law is, both today and
during the times of classical Roman jurists, the exercise of
legal professionals. But this is only one side of the coin. The
principal discursive effort is that of conjuring away the fear
that springs up, with irresistible necessity, from that which
is just a matter of decision, given that the very form of the
decision spells out that, no matter what is decided and how
it is, it could have been, or could be, decided otherwise. In

xv
 Legal Artifices
order to assure that contingency, the inevitable by-product of
decision making, is compatible with stability, in order for the
wound of contingency to heal, decisions need to be covered
by a layer of event-less, decision-free naturalness. The refer-
ence to natura serves to upgrade that which is construed and
decided, by supplementing it with the most insuperable of
surplus values.
This is also why a legal order consists, in Thomas’s words,
of ‘accumulated layers of congealed decisions’. The chemis-
try allowing the freezing of the contingent materials of legal
decisions into a sustainable dispositive is discussed by unre-
lenting analyses of the interventions of the classical Roman
jurists. Everything looks as if, in order to fit the mute and
polymorphous reality of the ‘facts’ into both quotable and
performative legally sustainable words, Rome’s pioneering
jurists, in order to describe their way of proceeding, could
have borrowed, a millennium and half in advance, the terms
used by philosopher René Descartes: ‘larvatus prodeo’ (‘I
advance under a mask’). The Roman lawyers rarely speak
about ‘facts’, in the style of twentieth-century social sciences:
what counts for them is the entire situation of a ‘whole case’ or
issue, the ‘thing’ (res). While foundational elements of Roman
law such as the person, contract, property, point to a seman-
tic history that is relevant up to our times, for Thomas the
key point is that these juridical elements are units in a process
of formatting and categorisation that involves its own spe-
cific coherence, different from, but comparable to, what will
happen in many later legal orders. Hence, the legal historian
needs to appreciate these elements not as information, ideas
or social phenomena, but as keys to the formal organisation
of law that gives rise to a social world of its own.
Both chapters discuss, from different directions, the same
fundamental question: what can be learnt from legal history
and especially Roman legal history, today? Chapter 1 focuses
on Roman law’s prominent presence over two millennia. The
Roman-law schooled professional decision-maker speaks in
its name, yet Roman law itself pretends that its argument is
ultimately rooted in natura. Roman jurists stick to the lesson
that they fare better deciding and speaking in nature’s name,
rather than their own. Let us keep in mind that the space
given to natura within the legal text makes of it a positive

xvi
 Operations and Artifices
concept in its own right. While insisting on his indifference
to legal theory, heavily overdone in his view with respect
to legal history, Thomas sides with ‘positivist’ (and against
‘naturalist’) legal-theoretical pleas, not because of any claim
to have discovered a legal ‘naturalistic fallacy’ (confusing
indicatives with imperatives, taking an ‘ought’ for an ‘is’),
but rather because of legal history’s anti-naturalist lesson.
Legal history shows that law thrives courtesy of positive arti-
fices and operations, not of uplifting theoretical explanations.
More or less fraudulent attempts of selling positive law as
natural law have accompanied law at all times. In addition,
the standard positivist explanation, having accomplished its
promise as soon as it arrives at law’s positive or decision-
based sources, appears as a rather jejune endeavour, even if,
admittedly, it has helped many a legal practitioner to organ-
ise their routines by supplying them with a grill of some
minimal realistic consistency. Explanations in law are gener-
ally justifications (there is no need of being a Nietzschean to
recognise this, which Thomas, a historian and not a genealo-
gist, incidentally was not absolutely). A historical view, on
the other hand, can deliver a faithful portrayal, based upon
an independent and reliable account of law’s position in its
social context. Only legal historians, not theorists, have access
e.g. to the fact that positive law only outsources the reference
to nature; it never definitively escapes a meta-law explaining/
justifying it in the name of silent nature.
Moreover, it is well-known that the study of legal theory,
a field established in the undecided region between explana-
tion and justification, is and has always been an integrating
part of the study of law. But if this is so, if legal theory is a
reliant sidekick rather than an independent observer of law,
the question that imposes itself is where a more trustworthy
yardstick, if any, to appraise law and its social role, might
be located? Thomas’s roadmap features legal phenomena
inclusive of their here and there, based on the choice that it is
less instructive to excogitate the universal properties of law,
the conceptual (timeless) horizon that law authorises under
no matter what circumstances, than to study the transitory,
momentary, ‘mortal’ features of this or that law in particu-
lar that has effectively existed. Even if knowledge is better
served by the historical approach, there is a price to be paid

xvii
 Legal Artifices
for leaving the church of theory (or philosophy) for the sect
of history, and it is a price to be paid in the crucial currency
of communicative performance, empowerment, plausibility
(‘number of followers’, in the language of social media users).
Historical knowledge is predicated upon intimate familiar-
ity with concrete, event-related, observer-dependent infor-
mation. As we have seen, for both Thomas and Maitland,
knowledge of law’s history is not necessarily to be found
on the checklist of the indispensable abilities of a successful
lawyer. Does this make of the historical study of law an over-
stated ancillary pastime? As we know, there are cases where
the best that can be done is to indicate the point of rupture or
bifurcation, where everyone chooses their side.
Historians and lawyers differ in their approach to the
past. Being divided between ‘two different logics, the logic
of authority, and the logic of evidence’, they remain subject
to a spell that Maitland has expressed thus: ‘what the lawyer
wants is authority and the newer the better; what the historian
wants is evidence and the older the better’.5 Thomas’s writing
shows that the lawyerly preference for new authority over
old evidence, far from being limited to the historical research
of English law, includes Roman law. The duties of success-
ful legal professionals are subject to carrot and stick in both
regimes. Decisions, cases to deal with, involve the continuous
possibility of winning or losing, which partly explains the pro-
pensity for ‘authority’, even if today we would rather speak
of ‘plausibility’. Historians, as well, are exposed to success
or its absence. There is, however, one momentous difference.
The echo, whether acclaiming or repudiating, that greets a
historian’s intervention, will never obtain the legal force of
a res iudicata, as is the case in law. There is no such thing as a
historical interpretation that is given or denied validity. That
practitioners of history prefer evidence to authority, while
practitioners of law make the opposite choice, could well be
related to this functional heteromorphism between validity-
sustained disciplines and those that are not. As observed
by Maitland, for historians, the best evidence is that which
comes from closest to the event; for lawyers, the best author-
ity comes from closest to the validity-triggering verdict.
Thomas points to the tensions that haunt the practice of legal
history, torn between its two component vectors. Legal histo-

xviii
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