The Oldest Social Science? Configurations of Law and Modernity

By W. T. Murphy | Go to book overview
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4
The Legal Science of Society and Adjudicative Government

The retailer, being a woollen-draper, trusts his neighbour with a suit of clothes. How comes he to do it? Perhaps the man has no extraordinary character; well but, says the retailer, he is a tradesman as well as I, and he must pay me, or he shall not be able to stand at his shop door or sit behind his counter, for I will arrest him and make him pay me; and upon this power of arresting the debtor and carrying him to prison, or whether he is carry'd to prison or no, the exposing him, disgracing him, and ruining his credit; I say, upon this is founded the freedom of the tradesman to trust him. If you destroy this power of coercion, you destroy the credit in trade; for if a man cannot be credited, he cannot buy; and if the tradesman cannot arrest him, he will not sell.1


Law and Government in the Traditional Scheme

Well into the early modern period, the business of government was conducted in courts.2 Adjudication provided the central or pivotal mechanism of ruling, which is to say that the art of government and the art of adjudication were for a long time largely indistinguishable.3 Central

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1
Defoe, quoted in Earle, Making of the English Middle Class, 125-6. Cf., here, Durkheim: 'if a contract has binding force, it is society which confers that force. Let us assume that it does not give its blessing to the obligations that have been contracted; these then become pure promises possessing only moral authority. Every contract therefore assumes that behind the parties who bind each other, society is there, quite prepared to intervene and to enforce respect for any undertakings entered into. . . . It is . . . present in every relationship determined by restitutory law, even in ones that appear the most completely private, and its presence, although not felt, at least under normal conditions, is no less essential': Division of Labour, 71.
2
See generally Beattie, Crime and the Courts in England; Chester, The English Administrative System; Davis, 'A Poor Man's System of Justice'. Parliaments' were no exception, of course: they petitioned and decided, ideally with 'policy'; they did not debate or examine 'policies' (other than questions of war and its financing): see Clark, Revolution and Rebellion, 78. Cf. Langford, Public Life and the Propertied Englishman.
3
This is not to overlook the classical distinction between forensic and deliberative rhetoric which never wholly disappears and perhaps revives in the early modern period. See Vickers, In Defence of Rhetoric; also Smith, Lectures on Rhetoric. Cf. Morris: '[P]opes . . . did not doubt that bishops were the proper rulers of their dioceses. . . . The strictly legal terminology which was introduced strikes harshly on modern ears. We would more readily speak of the bishop's function in administration and use the analogy of the civil service, but medieval society, with its insistence on public government and the open

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