At the core of law

November is almost passed. People start looking back at this year, and prepare for the coming holidays and search for gifts to present. Looking for new books I could not help spotting a book with a title that made me frown, willynilly, for better or for worse. After a second I realized the title was not at all a surprise. It could be reasonably expected that after so many books starting with The canon of…. someone would present a book with the title The canon of law. The Dutch juridical publisher Ars Aequi Libri has published a volume entitled Canon van het Recht (“Canon of the law”), edited by R.J.B. Schutgens and others. The volume with 260 pages contains fifty essays published earlier in their monthly journal Maandblad Ars Aequi. The blurb about the book states that Corjo Jansen and Jan Lokin, both legal historians, were involved in choosing subjects for the essays. You might notice that the editors hide themselves behind abbreviated Christian names, but the authors’ names are stated in full…

Let’s have a brief look at the historical subjects considered worthy of inclusion in this volume. In chronological order appear Justinian, Irnerius, Grotius, the Dutch East India Company, Beccaria, the French Revolution, the first national codifications of the nineteenth century, the constitutional monarchy and the Historical School. With the trias Diephuis, Opzoomer and Land, famous for their commentaries on the Dutch code of private law that came into function in 1839, the list of items seems to focus only on Dutch matters, starting with Johann Rudolph Thorbecke and the 1848 constitution. However, The Hague gets an article as a center for international law, and the essays about the European Convention on Human Rights, the decolonisation of Indonesia, the Maastricht Treaty, the start of European competition law and the role of legality in modern law prevent the volume from becoming an exclusively Dutch, and worse, an utterly provincial book.

How should one criticize this selection of historical milestones? Instead of picking at the choice of subjects I would prefer looking at the title. Historically a canon is a guideline or rule. Canon law is a system of law which is constituted of such rules. This volume would be much more interesting with an introduction to the juridical concept of a canon, not to mention some decent treatment of the history and influence of canon law. Legal procedure, administrative law and matrimonial law are just a few fields to mention. I am perfectly aware that any selection of major subjects in legal history has severe limits, but in creating a canon of law one exposes these limits even more. The narrowing of subjects to one country and the stress on the last century are understandable, but this technique tends to create a tunnel view. To me these modern canons seem to foster a false sense of identity and certainty which sacrifices the continuities and discontinuities of history, of histories in plural really which interfere with each other.

The Dutch vogue for historical canons started with the canon for Dutch history in 2003 constructed by a team of scholars. The main aim was to establish a series of key facts, subjects and events in Dutch history to be taught in schools at the primary and secondary level. The Dutch Republic of the seventeenth century, Grotius, The Dutch East India Company and the constitution of 1848 figure in this canon. It is interesting to compare it with the online timetable of Dutch history created by the Institute for Dutch History in The Hague.

For whom does one publish a volume of essays on major legal developments through the centuries, either worldwide or centered around the history of one country? Is it only meant for law students who are happy to have survived obligatory courses in legal history, or for lawyers who want to dip a bit into legal history for their leisure? Perhaps such a volume can induce people to look further and better, and one cannot object against this. These essays were published originally in a monthly legal journal. Ars Aequi invites readers to comment on the essays. At least there is a second chance to read them and to be amused or annoyed by the vogue of historical canons. Asking to define the core of law is a perennial quest. It means posing a valid and necessary question never to be answered easily.

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