Introduction

Abstract

Observing that the traditional focus on legal professionals is insufficient for analysing legal work in many parts of Europe before modern times, this chapter discusses the concept of legal literacy and its different meanings. Legal literacy, having legal skills and knowledge, can be perceived as a continuum between total legal literacy and illiteracy. Any man, woman, and child could acquire some legal literacy and can be placed on this sliding scale. Learning law by doing, writing, and reading enabled people to manage their own litigation and act as legal intermediaries in their communities. The growing genre of popular legal literature increasingly became a path to legal literacy, especially from the eighteenth century on.

The history and development of the legal profession are classical subjects in legal history.¹ A very voluminous body of literature exists on the medieval and early modern history of various legal professionals—law professors, judges, barristers, solicitors and attorneys, pleaders and practitioners, agents, “men of law,” advocates, procurators and notaries, scribes and scriveners—in various countries.

A “legal professional” is a vague concept—indeed, it has even been termed “slippery,”² as what constituted a “real” lawyer or legal “professional” has varied in time and space, from country to country and from region to region. Yet, the core of professional lawyers had emerged by roughly the mid-thirteenth century. As James A. Brundage has observed in his magisterial work on the medieval foundations of the legal profession,

[a]round the year 1150, a small number of jurists were teaching Roman or canon law and practicing in ecclesiastical courts in a handful of cities , but there is no evidence that a legal profession in the rigorous sense of that term existed at that point anywhere in Western Europe. Roughly a century later, by around 1250, professional lawyers had set shop in every European city of any consequence and in some smaller towns as well.³

Thus, ever since the thirteenth century, in Continental Europe and Scotland, a person who had studied and taken a degree in a faculty of law studying Roman and/or canon law at a university was beyond doubt considered a lawyer.

As for England, as is well known, the royal law courts of Westminster came to form the hub of the legal world. The common law courts, the Courts of Common Pleas and King’s Bench, as well as the Chancery drew litigants and the men representing them to London, where legal training specialising in English law, the ius proprium, emerged in the thirteenth century as an alternative—and for some, a supplement—to university studies in law.⁴

By the fourteenth century, professional guilds and associations of different men in law had emerged, such as guilds of scriveners and notaries.⁵ In addition, courts started to restrict the persons permitted to plead and represent litigants in them. The court could authorise persons (advocates, proctors, or procurators) to work there, requiring them to take professional oaths and submitting them to the court’s supervision and control as to their conduct, training, and apparel. This helped to develop a collective identity, furthered the development towards professionalisation, and accentuated an ever-growing difference between legal professionals and laymen. Yet, English sixteenth-century country practitioners held minor legal offices (receiver, under-bailiff, scribe , and scrivener ) in the locality and surrounding urban settlements. They could be “at the very least part-time professionals.”⁶ Humphrey Newton (1466–1536), the Cheshire scrivener discussed by Kitrina Bevan in her chapter in this book, may have been one of them. Thus, the common lawyers represent “only the tip of the iceberg,” as has been pointed out. “Throughout the towns and counties of England there was a multitude of legal experts offering services graded for every need and pocket.”⁷

In the English colonies in the New World the development was to some extent the same, even if the lack of formally trained men meant that legal education became more formalised only in the second half of the eighteenth and the early nineteenth centuries.⁸ Generally, the professionalisation of the men of law and the monopolisation of legal work took place in stages, starting in the High Middle Ages and later, resulting in a near-total expulsion of laymen with some exceptions such as jurors and expert judges in panels. The chronology of this development varied considerably, and laymen were reintroduced in some European courts after the French Revolution. Yet, the trend is the same everywhere.

In the last few decades, the capacity of this conventional narrative to capture or accurately describe the legal reality at a grass-roots level has increasingly been called into question. When looking at a remote nineteenth-century rural village, or, in fact, certain more peripheral European legal cultures, in which the judiciary was traditionally lay-dominated, using a profession-centred approach can even be considered utterly anachronistic.

Instead, one step towards a more culturally sensitive and general approach would be to expand the concept of a legal profession from a narrow definition of a legal professional to a broad and more functional one, just as, for example, Paul Brand has done. According to him, a “ʻprofessional’ lawyer is someone recognised by others as having a special expertise in legal matters and who is willing to put that expertise at the disposal of others, who is paid for doing this and who spends a major part of his time in this professional activity.” The added qualification of the special regulation related to this occupation created “a legal profession” out of these “professional lawyers.”⁹

How much—if anything—candidates for the title “professional lawyers” were paid for their services in proportion to their total income and how much time, proportionally and absolutely, they actually spent on their legal business cannot necessarily be determined by the sources.¹⁰ However, what is even more noticeable in Brand’s definition is the absence of any mention of formal studies, training, or educational requirements. When “legal professionalism” was something that depended on a generally held opinion and acknowledgement of the legal skills of someone in his or her society, a person who was perceived as a “legal professional” at one particular time could be considered an ignorant layman a century later when the attitudes had changed and new standards had been introduced.

In this book, we are operating with even broader and more inclusive definitions. We are talking about “legal literacy,” a term discussed and defined in more detail below, which includes the legal knowledge and skills of all people of the past on a continuum. Between the two extremes of total legally literates —professionals narrowly and broadly defined—and total legal illiterates (if such there were), there exists a grey zone of legal literacy of different kinds, shapes, and sizes.

The legal literacy of any single person in the past—man, woman, or child —can be discussed and studied on this sliding scale if sources permit. Ordinary people rarely acquired legal literacy by formal training or study, but rather, learned their law more informally by doing: by judging, writing, reading, pleading, listening to, or, quite generally, being exposed to law. Or, modifying in a legal literacy context what E.W. Ives has discussed, the “humbler” legal literates learned their “smattering of law essential to their trade, either by apprenticeship , self instruction, or simply by trial and error.”¹¹ Indeed, by such means did the legal literates of modest origins discussed by Anna Kuismin below learn about the law, so that they were able to start taking up modest scrivening in their communities.

Legal Literacy

In the Middle Ages, literacy and being literate originally referred to a knowledge of Latin. Yet, these concepts became broader with time. First, they came to mean reading and writing skills, while later they came to encompass vernacular literacy, learning to read and write in vernacular languages.¹² Since the twentieth century, the meaning has broadened remarkably. The United Nations Educational, Scientific and Cultural Organization (UNESCO) has defined literacy as the “ability to identify, understand, interpret, create, communicate and compute, using printed and written materials associated with varying contexts. Literacy involves a continuum of learning in enabling individuals to achieve their goals, to develop their knowledge and potential, and to participate fully in their community and wider society.”¹³

The concept of legal literacy has existed at least since the 1940s, but it has since then evolved, together with societal changes, from only relating to lawyers but also to all social groups in the aftermath of various civic rights movements in the 1960s and 1970s. At this time, legal literacy became perceived as an extension of civic skills, having “a complete set of social, intellectual, and political relations and capacities” and “social literacy.”¹⁴ Its contents have also expanded to encompass more than merely the writing of law and the literary expression of law.¹⁵ For example, according to James Boyd White’s definition from 1983, legal literacy not only comprised of “a capacity to understand the conceptual content of [legal] writings and utterances, but the ability to participate fully in a set of [legal] practices.” “Full legal literacy,” an active and creative ability, was something that could be obtained only through “a professional education and […] full-time immersion in the legal culture.”¹⁶ Yet, legal literacy could be seen as a spectrum with the “professional legal literate” at one extreme and “the legally illiterate” at the other. Moreover, some level of legal literacy could also be obtained by a “nonlawyer” and taught as “part of general education.”¹⁷

In the United States , legal historians studying the practice of law in the Colonial period have observed the inappropriateness of traditional concepts such as “professional lawyers,” in the meaning of formal English inn-of-court training in law, which made little or no sense in the Colonial American context. In 1984, Daniel Coquillette denounced the “conventional ideas of professionalism” in the English style as “blinding.” Instead, he advocated for investigating the “widespread role of ‘amateurs’” as more suitable for analyses of the Colonial legal culture.¹⁸ Later, the legal historian Mary Sarah Bilder used the concept of legal literacy in an influential article on early American legal literates and the transatlantic legal culture, in order to demonstrate the presence of practical skills in law in the colonies. By legal literacy she meant “the reading, writing, speaking, and thinking practices that relate to the conduct of litigation.” Through the concept, she challenged “the traditional dichotomy of ‘lay’ or ‘amateur’ versus ‘professional’ ” and argued that one should rather be talking of a “spectrum of functional skills.”¹⁹ In her later research, Bilder defined “legal literacy” as “practices relating to lawyering and the conduct of litigation” and “legal literates” as “attorneys and legal practitioners.”²⁰ In her turn, Kitrina Bevan has used the same term for analysing medieval English provincial scriveners. For her, “ ʻlegal literacy’ […] addresses issues related not only to basic literacy skills, but also extends its scope to consider a person’s ability to derive meaning, understanding and context from a legal text.”²¹

For the purposes of this book, legal literacy is defined as comprising knowledge of and skills in law. This knowledge of law, again, includes a familiarity with legal terminology, the substantial content of various fields of law, as well as legal procedure, among others. Often—but not always—presupposing other basic competencies such as reading, writing, counting, and oral presentation skills, legal skills could, for example, include an ability to draft legal documents and a capacity to inform and counsel others of the law. Such were, for example, the skills of Gabriel Abrahamsson, discussed by Petteri Impola in this book, who, in addition to his lower-rank office, acted as the most popular advocate of his hometown. As in his case, legal skills include an ability to use law courts for litigating and pleading. In addition, as part of legal skills one can count “thinking like a lawyer”: understanding the key questions and points of a case, thinking strategically, and reasoning persuasively in a court case.

Whether even a narrowly defined legal professional actually possessed such skills depended on the individual: there could be superlatively competent as well as rather incompetent legal professionals. Moreover, as Kitrina Bevan argues in this book, even a person having considerable legal knowledge required more studies and practical training when taking up a job. Bevan discusses John Hooker (c. 1527–1601) who obtained the office of chamberlain in Exeter in 1554/55. Hooker had previously studied Roman law at Exeter College at the University of Oxford as well as pursued law studies on the Continent at the University of Cologne. Yet, he had to acquaint himself with local law and procedure, and, more importantly, the drafting of court records and documents of different kinds through what Bevan calls “on-the-job training” under Master Richard Hert, the town clerk of Exeter.²²

Much the same would apply to any Continental university-trained lawyer, well acquainted in the ius commune,²³ who was given an office at a secular court. There he would first and foremost have to master the ius proprium, the local law, which could be written or customary. Moreover, he would also have to learn the legal skills that were usually not part of the more theoretical university training. While disputations and oral argumentation were part of the Continental university education just like mock trials and moots were included in the English inn-of-court training, other skills may have required more practical training.²⁴ These examples indicate that legal skills and know-how in general developed mainly through practice, regardless of possible theoretical law studies and knowledge.

Legal Literates of Various Kinds: Learning by Doing

As has been indicated above , for England, after the establishment of the royal courts in Westminster, London became an important training centre for common lawyers, first through the royal central courts of Westminster, and later through the Inns of Court and the Inns of Chancery established during the fourteenth century.²⁵ As Kitrina Bevan discusses in her chapter in this book, the professionalisation tendency around the royal courts also reached the lower strata of persons doing legal work, the London scriveners. The scriveners, “an amorphous group of legal practitioners,” were scribes and clerks especially specialised in writing legal documents of various kinds. In 1373, they formed the Scriveners’ Company, successfully monopolising their position.²⁶ In England, formal and informal clerking came to be the most prominent channel for men to become legal practitioners.

Clerking and learning by practice in sixteenth-century Germany is also discussed by Anette Baumann. When his father became involved in a lawsuit, the Pomeranian Bartholomäus von Sastrow (1520–1603) was forced to abandon his studies at the University of Greifswald and change his career plans. Consequently, he and his brother travelled to the imperial city of Speyer, the seat of the Reichskammergericht, or the Imperial Chamber Court, which was established in 1495 as the highest court in the Holy Roman Empire . Here, the brothers meant to further their father’s court case as solicitators²⁷ as well as make a living. Bartholomäus von Sastrow had the good fortune to be employed by the eminently competent procurator ²⁸ Dr Friedrich Reiffsteck . One of Sastrow’s duties was to clerk for Reiffsteck . As Baumann points out, thereby Sastrow could “become familiar with the customs and practices of the Court and the manner of argumentation used by the lawyers” even if his employer may have found the quality of his work lacking. Later, Sastrow moved on to procurator Simon Engelhard’s household, also there doing routine scribal work, producing many identical copies of the same documents. This may not have been very creative or exciting, but it provided him with considerable routine and insight into legal penmanship, argumentation, and court proceedings.

Even some elementary teaching of such skills may have been available as Kitrina Bevan mentions in her chapter. In later-medieval Oxford, some legal teaching was available in what have been called “business schools.” The skills that students would learn from their masters included conveyancing and land law, oral and written French language skills, and how to draft various kinds of letters and legal documents. They were also taught how to hold local-level secular court sessions and how to plead there. Also in Hanseatic towns, there were practically oriented schools for future merchants that provided the elementary knowledge as well as practical skills required in international trade.

The seventeenth-century Court of Appeal judges, examined by Marianne Vasara-Aaltonen in her chapter, may have represented the most professional group of the “men of law” in the Swedish Realm. However, contrasted to the judges of the papal Rota Romana or the judges of the German Reichskammergericht, of whom a doctorate of law came to be required—the former already in the late Middle Ages, the latter in the early modern period—they appear very provincial.²⁹ The career path of the judge Hans Dober, examined by Marianne Vasara-Aaltonen in this volume, from surgeon to organist and finally judge, may not have been characteristic of the Swedish appellate court judge ; yet, it certainly demonstrates that there were many avenues to legal literacy.

Literacy in general and special language skills more particularly helped a person to become a legal literate. Several of the chapters of this book highlight the role of language skills for legal literacy. The relevant legal languages to be learned varied considerably: in England the combination consisted of Law French, English, and Latin as Kitrina Bevan discusses. By contrast, the Pomeranian Bartholomäus von Sastrow learned High German , the official written language, to supplement his knowledge of Latin and his own native Low German as Anette Baumann observes. In Italy, people complained that Latin was required to understand law, while in nineteenth-century Finland, protests were voiced that Finnish, the majority language, could not be used as a legal language in courts where Swedish dominated. Consequently, in her chapter, Anna Kuismin explores the Fennoman movement calling for improvement of the position of Finnish as an official legal language.

In such circumstances, the role of legal intermediaries became even more important. Just like the scriveners in medieval England, in seventeenth- and especially eighteenth-century Northern Sweden and Finland, parish scribes (sockenskrivare) had a position partly as trusted men of the local communities supervising the local tax collection, partly as “capillaries of the power state.” However, in their private capacity, for a fee, the parish scribes performed various legal writing assignments for the local population. This task was especially important in the more peripheral provinces where writing skills were rarer.³⁰ Yet, men of even more humble origin could use their writing skills as a means for upward social mobility. Both Petteri Impola and Anna Kuismin discuss such men, who as lower civil servants, scriveners, or jurors (Sw. nämndeman; Fi. lautamies) gained local positions of trust and, by doing broadly defined legal work, became valued legal intermediaries in their local communities.

(Popular) Legal Literature as a Means of Learning Law

Legal manuals and guidebooks for the use of practitioners have existed alongside scientific works ever since the Middle Ages. In the context of literacy studies, medieval historians have talked about three distinct types of literacy: the recreational “cultivated literacy,” the “pragmatic literacy” of practical people transacting business, and the “professional literacy” of scholars and men of letters.³¹ The administration became more reliant on written records and so a bureaucracy developed, commercial activities became dependent on writing, and in several regions, a nascent legal profession came into being around central secular and ecclesiastical courts. For example, in England, the “proliferation of documents” has been dated by Michael Clanchy to the century between circa 1170 and 1270.³² In more peripheral European regions, orality persisted longer.³³

Different needs required different texts. To supplement the more theoretical works and training, more pragmatic and practice-oriented texts were produced for the use of persons who were employed in scribal work. The administration of estates and landed property required an ability to read and write as well as numeracy skills. From the early thirteenth century onwards, treatises for farming and estate management with model accounts and formularies were written as guides for reeves, bailiffs, and stewards. About 40 per cent of the surviving English manuscripts form parts of compilations of legal texts. “[A]ccountancy and a knowledge of how to draw up accounts was not part of the basic legal training, but constituted an additional qualification.”³⁴ Consequently, it has been assessed that already by the later Middle Ages, “in commerce, seignorial administration and law we find that the practitioners were not only using written instruments in the course of their professional activities but also that many of them had acquired the habit of having at their elbows a book to which they could refer for information.”³⁵

Already in the Middle Ages, works were produced for an audience willing to learn more about trials and the strategic pursuit of lawsuits in courts. As Kitrina Bevan accounts, there were various formularies with writs and legal responses to them circulating as manuscripts. These works were available for medieval English scriveners and other men of law, and with the advent of printing, they started to spread as printed books, suggesting that there was a market for them. Even in other European regions more specialised books on how to litigate and what formulas to use in central courts appeared. For example, the Formularium instrumentorum ad usum Curiae Romanae, a formulary for ecclesiastical courts following—as the name suggests—the practice of the Roman papal curia, appeared in print in 1483.³⁶ Some decades after the establishment of the Imperial Chamber Court in 1495, as the learned Romano-canonical procedure was spreading into the German-speaking regions that traditionally had had lay judges (Schöffen), formularies with all kinds of legal formulas as well as specialised procedural formularies found an interested and buying audience. Several editions were printed and the same authors gave out parallel works.³⁷

The massive formulary by the German lawyer Abraham Saur (1545–1593) contained almost 900 pages of formulas for the use of the practitioner needing to produce various legal documents in the vernacular German.³⁸ Other works summarised the law, providing the non-professional reader with a general introduction to the legal topic.³⁹ The third type combined the two, providing the reader with a summary of the law on a particular topic, followed by the necessary formulas.⁴⁰ Such books were useful reference works for many groups of legal literates, ranging from university-trained lawyers and advocates to town secretaries, notaries, and clerks—such as Bartholomäus von Sastrow discussed by Anette Baumann in this volume—and litigants.

However, the Swedish system remained simpler compared to Continental Europe, where legal professionalisation and the use of Latin as the language of jurisprudence helped to widen the divide between experts in law and the jurisperiti and ordinary people. The birth of a formally trained legal profession with a profound expertise of a complex, multi-layered body of law and precedent largely existing in another language helped to alienate ordinary people from the courts and justice system. This gave rise to criticism of lawyers and their monopoly of justice that excluded ordinary people.⁴¹

On the Continent, a group of books emerged that aimed at providing laymen with sufficient information so that they could “be their own advocates” as Annamaria Monti discusses for Italy and the Anglo-American world and Laetitia Guerlain and Nader Hakim for France in this volume. In Continental legal cultures that had become increasingly professionalised in the course of the Middle Ages and the early modern period, books with titles translatable into English as “Everyman his own lawyer” or “My practical counsellor in the law” demonstrate that their aim was to provide the readers with such knowledge of the law and procedure as to allow them to navigate successfully in legal waters in their own cases at least.

The Enlightenment criticised the ancien régime law courts for their arbitrary and opaque character and wanted to provide people with simpler and vernacular information about the law. Not only laymen, but also laywomen, were targeted by the authors as their particular audience for such works. In an interesting German example from 1751, parts of Emperor Justinian’s Institutiones were translated into French. In the beginning of the book, its author, Johann Heinrich Kratzenstein (1726–1805), wrote: “I will mention here only the legal topics that a woman must necessarily know.” The author also observed that women needed to know the law better, but were prevented from studying it and having “better instruction.”⁴²

In another German example, published anonymously, but attributed to the law professor and judge Jacob Friedrich Kees (1750–1821), the author observed that the book was especially meant for laymen without legal learning (Rechtsunkundigen; Unstudirte; Nichtjuristen). The book title especially mentions burghers and peasants. Consequently, the book tried to teach simply in the vernacular German “what the law was” (was Recht sey). According to the author, this work was only “the first small legal catechism” paving the way to increased knowledge.⁴³

Kees’ work criticised the existing legal literature for being full of words in foreign languages, and his comments on judges as well as advocates were far from flattering. In fact, he started his book by asking whether there were any more common contemporary complaints than of bad justice.⁴⁴ Such scathing remarks about the justice system and lawyers could only be made behind a veil of anonymity. Yet, several authors emphasised that some knowledge of the law, a degree of legal literacy, would help people to obtain justice instead of being duped by false advocates or bad judges. They were also empowered by the ability of writing legal documents themselves.

Educating common people to learn the law by reading and self-study was seen as part of an Enlightened educational project as Annamaria Monti, Laetitia Guerlain, and Nader Hakim observe with both European and American examples in their chapters in this book. In the spirit of the Enlightenment and the French Revolution, authors wanted to educate citizens and to provide them with a knowledge of law and civic skills. Similar works also appeared in the German-speaking regions, as mentioned by passing in Monti’s chapter. Guerlain and Hakim have divided such books into two categories: works aiming at helping citizens to know their rights and works aiming at helping them to know the law.

Thus, there were several reasons causing the genre of popular legal handbooks for laymen to multiply in the long nineteenth century both in Europe and across the Atlantic in the United States as Monti, Guerlain, and Hakim discuss. The number of titles increased in general and certain books were printed in several editions, suggesting that they were perceived to be useful. There were even more specialised works for the use of particular groups such as farmers, merchants, workers, architects, miners, businessmen, landlords, tenants, or civil servants. There were books targeting certain leisure activities such as hunting, cycling, or tourism, while others were aimed for the guidance of justices of the peace, town councillors , or jurors.

Books became an important means of making knowledge of the law more accessible to everybody and creating legal literates. It can be assumed that as popular legal books for non-specialists helped more and more people to learn some law, this resulted in laymen applying their knowledge in practice through writing documents, giving legal advice, and acting as lay advocates. The practical use of such manuals is hinted by the sources used by Anna Kuismin and Mia Korpiola. However, more in-depth research on the nexus of books and learning law by doing would be welcome in the future as a further avenue of studying popular legal literacy in history.