Law and Justice from Antiquity to Enlightenment (review)

The author states that his book is “essentially an introduction to the intellectual history of justice and the law in traditional European civilization” (p. ix). In four parts, it treats, first, law from its recorded beginnings to the ancient Greek city-states (43 pp.); the ancient Romans (55 pp.); the Middle Ages (71 pp.); and, finally, the early-modern era (40 pp.). Within this overall framework, special emphasis is given to biblical law (pp. 5–20); Ciceronian (pp. 57–64) and classical Roman jurisprudence (pp. 68–84); medieval canon law (pp. 118–48); the jurisprudence of St. Thomas Aquinas (pp. 148–54); and English common law until the fourteenth century (pp. 154–65).

The book employs key terminology in colloquial fashion. “While law, of course, is as old as humankind itself,” Shaffern writes (p. 1),“the history of law may only date from the first written references to the law and speculation about it.” What he has in mind is for the most part what modern editions of primary texts have presented as “legislation” of past ages, as well as commentary by professional jurists who were active during second- and third-century Rome or among twelfth- to fourteenth-century canonists. In sections that reveal a special interest in systematic theology, Shaffern speaks at surprising length about biblical norms as if they had been created out of a coherent jurisprudential vision and dedicates considerable space to the conceptual attempts of a nonlawyer, Aquinas, at comprehending the deeper significance of “law.” When speaking of “justice,” on the other hand, Shaffern seems to think primarily of political institutions and figures as sponsors of law, legislation, and jurisprudence.

Shaffern’s vision of the subject may be viewed as fairly old-fashioned, to the point where it would have been possible for him to devise his work well before the 1980s and without regard for subsequent scholarship and its new focus on judicial practice or a more comprehensive approach to both nonlegal and legal forms of “dispute processing.” The original source material he selects never strays far from great thinkers and law codes figuring among the standard fare of readings in Western civilization courses. Law is further tied to justice as it was purportedly fostered by political institutions and leaders, especially democratic and republican ones, as if to suggest that there existed a necessary link between the two or an intrinsic reason for legal norms to be formulated “from the top down” instead of “from the bottom up.” For everyone who accepts these implicit premises and authorial choices, both law and justice will appear as timeless entities, which, beyond the chronological confines of Shaffern’s book, reached their fullest realization only in modernity.