Rhetoric and Law in Early Modern Europe (review)

Lorna Hudson and Victoria Kahn set themselves an ambitious task in putting together this collection: they wanted to bring together essays on different disciplines and legal systems to explore how rhetoric and law together affected and reflected a new acknowledgement of individual subjectivity. The thirteen essays in Rhetoric and Law in Early Modern Europe have starting points as diverse as Marguerite de Navarre's Heptameron and Plowden's Reports, definitions of treason and of contract, discussions of race and discussions of passion. The authors write as historians, literary critics and legal theorists, but a shared understanding of early modern culture unifies their discussions. All but one of the authors sees in the sixteenth and seventeenth centuries a new recognition of interiority that threw earlier convictions about obligations and authority into doubt. In a world of religious doubt, how could one know the true intentions of another? How could political stability survive recognition of the artificiality of civic life? If humans and commonwealths were constantly in flux, what became of older understandings of equity, consent, and promise? The exception is Johann Sommerville, who argues vigorously that very little in the work of Grotius, Selden, Hobbes and Pufendorf was radical, secular, or fundamentally innovative. His almost parodic description of those with whom he disagrees sits uneasily with the other essays, although it is aimed less directly at them than at fellow historians of ideas. All of the essays here show how critical the understanding of legal categories was (and is) to civic life. Although not without its flaws, Rhetoric and Law is a valuable collection and its best pieces deserve a wide readership across several disciplines.

Anxieties arising from the hidden lives of individuals were particularly acute where predictability of action was critical--in exchanges where matters might hold or fall on the common meaning of words or phrases. Not surprisingly, then, almost half of the pieces in Rhetoric and Law take legal cases as their starting points. The most useful of these is David Sacks' lucid analysis of the meaning of 'consideration'. Working with the leading case of Slade v. Morley, Sacks shows how the traditional 'language game of contract making' (36) came under pressure when trust in knowing individual intentions faltered. The solution was to close the gap between two legal acts--a promise and a contract--by uniting them. Once a promise was taken to imply a contract, then the breach of either could be prosecuted as an assumpsit (a tort and hence with claims of damages) rather than as a debt. Moreover, without depriving individuals of their traditional privileges, the shift downplayed the value of using a wager of law by making performance a more germane issue than personal character. Sacks predicates such changes on the Reformation emphasis on proximate rather than first causes; Luke Wilson's reprinted essay on Ben Jonson tracks the repercussions of that move. He shows Jonson's recognition, in Bartholomew Fair and elsewhere, that the new sense of consideration placed new stress on temporality, on the gap, recognized or not, between intention and execution.

In criminal prosecutions, the relationship of acts and intentions was different, but here too, new questions broadened many of the older literal interpretations. Barbara Shapiro's essay sets the developing genre of justicing manuals against classical rhetorical categories to argue that the latter shaped a 'practical logic' (70) of interrogation that allowed inferences to be drawn from both acts and signs. Alan Stewart uses the impeachment trial of Francis Bacon to show how domestic irresponsibility could stand as proof of public corruptibility and sodomy. Annabel Patterson shows how allowing an unpublished manuscript, what Algernon Sidney called his 'private, crude, undigested thoughts' (239), to count as one of two needed witnesses to treason helped assure Sidney's place in an 'alternative legal canon (223) of outrages to justice.

In a brilliantly wide-ranging analysis, Lorna...