Saturday, December 26, 2009

Rose on the Chivalric Origins of the Legal Profession

Jonathan Rose, Arizona State University College of Law, has posted Advocatorum Militia: The Chivalric Ethos of the Legal Profession - Loyalty and Honor, a chapter in Chivalry, Care and Honor, a forthcoming collection of essays edited by Warren T. Reich and Jonathan Riley-Smith. Here's the abstract:
This book chapter discusses the similarities between the norms and ethos of chivalry and those of the legal profession and explores the possible effect of the former on the latter. Dominant chivalric norms, loyalty and honor, are also dominant norms of the legal profession. But the existence of these congruencies does not necessarily show an influence of chivalry on the legal profession. As the subsequent discussion will show, despite some similarities between these two institutions, it is doubtful whether there was very much direct influence of the norms and those of chivalry on those of the legal profession, whose norms and ethos were the product of various internal and external influences.

The chapter begins with a short discussion of the norms and ethos of chivalry as foundation for the chapter’s focus on the legal profession. The chapter then turns to a discussion of the ethos of the legal profession. It first discusses loyalty as a norm of the legal profession, exploring its existence in the medieval common law, civil law, and canon law professions. Some other congruencies between the norms and ethos of chivalry and those of the legal profession are identified as well.

The chapter proceeds to an exposition of honor and reputation as elements of the legal profession’s ethos. It begins with a discussion of serjeants-at-law, the highest ranking medieval common law lawyers, exploring their creation and professional society. Moving forward in time, the chapter then discusses barristers, the preeminent early modern lawyers, investigating their membership in the Inns of Court, their social status, and image. The chapter then turns to a discussion of honor among 18th and 19th century lawyers in England and the United States. This portion of the chapter involves an inquiry into the use of the title of esquire in England and the United States from the 17th century to modern times as an indication of honor and a discussion of the use of defamation actions by lawyers in early modern England to protect their honor and reputation. This discussion concludes with an identification of honor as an aspect of the ethos of the civil and canon law professions.

The next portion of the chapter deals with the possible influence of chivalry on the ethos of the legal profession. The first portion of this discussion explores the linkage between lawyers and chivalry. Canon and civilian lawyers offer the clearest evidence of a connection with chivalry as these lawyers were fond of comparing themselves with knights. This discussion traces the development of this practice from Roman sources through medieval commentators on the status and dignity of lawyers in France, England, Germany, and Spain. It concludes with an identification of the medieval English serjeants’ Order of the Coif and their retainer agreements’ similarity to knightly orders and agreements.

The chapter then turns to a discussion of external influences on the ethos of the legal profession. It identifies loyalty as a longstanding and deeply embedded social value, the influence of religion on loyalty and other norms as an aspect of the profession’s ethos, and the influence of Renaissance humanism on the ethos of the Continental and English legal professions. This part of the discussion concludes by showing the longstanding societal premium placed on honor and good reputation as indicated by religious, ancient, early modern, and modern values.

The chapter concludes that loyalty and honor show that aspects of the norms and ethos of chivalry and those of the legal profession are congruent. But congruency does not establish influence. Evidence and inference must prove the latter. That involves examining primary sources regarding the norms and ethos of the legal profession from its inception and throughout time and attempting to discover the contemporary and prior internal and external influences on these norms and ethos. Those efforts show that although there is some evidence of a possible influence of the ethos of chivalry on that of the legal profession, it is not extensive.

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