a critique of the sensory deprivation under which legal studies normally operate by exploring how material forms shape law’s substance. Archives and the objects in them used for storing precedents have a history that we must understand if we are to ascribe meaning and authority to the texts they contain. Thus the images here do not simply illustrate propositions; they raise and answer questions about how physical forms constrain what is knowable as law. We can see this by studying practices in the eighteenth-century English court of King’s Bench, and especially the manuscript precedent books made by that court’s clerks. Examining one case — of the liberal campaigner, John Wilkes — we can watch clerks shaping authority as they used indexing tools of their own making to find the crucial precedents. Those same clerks then turned the case into a precedent by storing the results in the archive over which they were masters.Halliday comments
Precedents matter. A nineteenth-century clerk in the Crown Office of the Court of King’s Bench appreciated this as he jotted Shakespeare’s lines into the front of his manuscript precedent book. That book provided clerks in his office with a great collection of examples. But it was only one of many such custom-made books serving as guides to the contents of other books, and to thousands of rolls and files he and his companions held in their care. Those records remind us that precedents exist as things. We have to store them; if we want to use them, we must find them again.
What follows is an exploration of the stuff of law: the physical objects and procedures for storing, using, and finding precedents to generate legal authority. In the eighteenth century, that authority pronounced itself in the voices of people called justices. But their voices could not have spoken authoritatively without the work of court clerks in an archive those clerks created and controlled. It was they who found the authorities; it was they who, once new authorities were made, put them back into the archive where they might be found again.
As Frederick Schauer has put it, “law is, at bottom, an authoritative practice,” one resting on citations. When Shakespeare had Henry VIII ask for a precedent, and when a court clerk two centuries later noted that line in one of his precedent books, they were both saying, “give me a citation.” They demanded textual and thus physical evidence of the previous thinking of some thought or practicing of some practice to justify acting again according to the same thought or practice. Because citation is “intimately connected with the authoritative core of the idea of law,” and because citations must remain to us in some physical form, law is not at bottom an authoritative practice; it is an archival one. And archival practice, like other legal practices and ideas, has a history. If we do not understand that history, we cannot hope to understand law and the authority claimed whenever anyone attempts to pronounce what is law.
Realizing this matters as much as the precedents themselves. How law as an archival practice was and is conducted shapes what law is and will be. Understanding the people who conducted this practice forces us to think again about where and how authority is made. It is easy enough for a modern justice to write the words, “Lord Mansfield wrote …” as he attempts to make his own authority out of Mansfield’s. But it is not entirely clear how his lordship came to write the ascribed words 250 years ago and thus what it might mean that he did so (or did not). Upon closer examination, we will find that authority, because it arises from an archive and citations to the archive, is made by a community of actors rather than by the exalted individual on whom both our legal histories and our legal arguments dwell.
Given this, how we write the history of legal ideas and the ways we employ them in legal problem-solving today must be reconceived from the archive up. The main approach to the history of legal ideas is fundamentally biographical: we line up ideas by lining up a series of utterances made by identifiable individuals—usually justices, sometimes the authors of treatises we accord canonical status. Rather than work in this monodimensional mode, I want us to do prosopography: to work from a collective biography and a set of practices of a community whose members created and mastered the archive out of which authority was, is, and must continue to be made. Borrowing an insight from Steven Shapin, we must appreciate “the epistemic role of support personnel” whose work has been “rendered invisible” in legal analysis and legal history “by positing a solitary knower as the sufficient maker” of authority. Peering behind that solitary figure, we discover that legal authority, like scientific knowledge, “is produced by and in a network of actors.” In the eighteenth century, justices rarely gave much sign of their place in that network, so wider contributions to authority have been overlooked. If we look hard, we can see the network in action: we can begin to consider the many ways that the role of clerks in the archive should force us to reexamine our own citation practices, whether we write law’s history or attempt to write its future.
To do this, I want to examine eighteenth-century practices in the archive of one English court, the court of King’s Bench. We will look to this period because two key developments intertwined then to transform the meaning and purposes of precedent and its role in generating authority. The first concerns judicial understandings of precedent. Over the course of the seventeenth century, English courts had come to place a greater reliance on the evidence of earlier cases — on examples — to determine cases coming before them. But only in the later eighteenth century did this practice begin to gel into habits and doctrines by which judges felt themselves directed or bound by such earlier cases. Second, this conceptual development was causally related to another development on a front we typically overlook: clerical practice, archival practice. It was the clerks who literally made the precedents by turning them into things: into words inked onto pages and rolls. It was they who made precedents by making it possible to find those same things again as needed. And it was they who made records into an archive.
Our traditional focus in the history and philosophy of law and its practices is on words. Reasonable enough: the law is made of words. But our obsessive attention to words causes us to miss something of vital importance: the law is also made of things. We must examine things closely to see this, and to see how the material forms by which law persists in a world of embodied beings controls what is known and knowable — what has been and will be authority.
We will thus proceed from ideas to the objects by which we hold and transmit ideas. We will move from generality to specificity, from law to history, from claims about the nature of precedent and authority and archives as theorized phenomena to temporally situated practices. We will go into the archive to see what is there. The images we will examine below do not illustrate propositions; they generate them. Looking at them should remind us of the sensory deprivation within which most accounts of law’s work operates. In the end, we will resolve upon a single case. By circling inward to look with ever-greater granularity at the stuff of law, we will reach a position from which we might think anew about authority and where it comes from. For though a justice may speak, he does not act alone.