Introduction
| Autor | Víctor Saucedo |
| Páginas | 17-29 |
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Legal historians have tended to write the history of the law of conspiracy from the doctrinal or internal point of view. In a sense, I will follow the well-worn path they made, yet in a different way: I have changed the methodological gear. The epistemological assumptions I make, the conceptual framework I use, the aims I take, and the way I scrutinize the sources are different from theirs. The outcomes come in a different shape, and with a different meaning. For that reason, I will devote this introduction to describe the nuts and bolts of this new methodical approach. First, I will briely discuss the internal or doctrinal history of the law of conspiracy showing the main indings from this approach as well as the issues it raises. Then, I will introduce a few fundamental concepts I have borrowed from the domain of cognitive linguistics, and I will put them together in a tentative theory of semantic change. Finally, I will briely discuss how I have recast the internal history of the law of conspiracy as the diachronic semantics of the lexeme conspiracy within the legal domain.
At irst blush, it may seem that an almost exclusive reliance on legal sources distinguishes the internal history of the law from other approaches. However, the use of legal sources is hardly the preserve of legal historians. After all, social, economic, demographic and cultural histories would not be possible without an extensive use of legal records. What distinguishes internal history is the way legal documents are read. With doctrinal history, legal historians look at legal documents through a technical lens. Therefore, these documents do not appear as evidence of the world around them, but as bearing testimony of how the law was created, applied, and described. And, as a corollary, it follows that the internal history of the law charts the development of legal doctrines through case law and legislation, as well as the legal debates arising among the legal community about these doctrines.
This approach has been justiied in that the law is a conceptual system with its internal technical organization that can be explained without reference to external forces. Thus, the inluence of social, political and economic factors on the law and vice versa can be excluded from this analysis, at least insofar as they do not directly bear on doctrinal development.1However, there is a
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pitfall lying behind this emphasis on the technical reading of legal sources to unveil doctrinal development.2And almost all legal historians of the law of conspiracy fell victim to this pitfall. They used legal sources as the ingredients for their mortar and pestle. They unearthed historical legal materials with the objective of distilling their present-day legal doctrines and concepts. Therefore, they were linking the past to the present in a teleological way. This is the so-called historical method of ascertaining what the law is.
As will be seen in the irst chapter, the works of late-nineteenth-centu-ry scholars James Fitzjames Stephen and Robert Samuel Wright started the modern historiography of the law of conspiracy with this normative drive. Speciically, these authors bore two aims in mind: irst, to put an end to the abusive application of this law to criminalize trade unions’ collective action; and second, to present the codiication of the law of conspiracy as the solution to this problem. Methodologically speaking, the aim of codiication presup-posed that the common law was a complete system of unwritten rules developed through time in need to be translated into written form. However, far from reality, the common law was an open-ended system of remedies developed haphazardly by the courts over many centuries. It was a system that emphasized legal argument and the resolution of disputes. Thus, translating it into a system of rules involved three main problems. Firstly, there was a great deal of noise in the form of terminological obscurity, ambiguity, and imprecision. Secondly, rules tended to be expressed casuistically in an ad hoc fashion. Thirdly, and maybe most importantly, conceptual boundaries were not clearly expressed and therefore there was always uncertainty as to whether a given rule or a set of facts was within or outside the law.
The task of the legal scholar was to ascertain abstract rules from the historical record. These rules had to be expressed according to the isomorphic principle of a one-to-one relationship between lexical form and meaning, and with reference to distinct concepts or categories. Hence these author’s historical narratives presented common-law notions and rules organically growing from the embryonic to the inal mature formulation. The legal scholar was indeed to shape them in their inal written form. In this teleological narrative, all the dead ends in the path of the perfection of legal ideas were dropped as unnecessary ballast.
Stephen and Wright held different views as to the nature of the law of
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conspiracy. Stephen believed that it punished cooperation. So, he deined the offense according to what he called the wide rule. This wide rule came in two different lavors: First, as “agreements to do something unlawful by lawful means, or sometimes lawful by unlawful means.” Second, as “agreements to do something that would have been lawful if done by a single individual.” Stephen, however, thought that the relevance of this rule did not lay on its vague meaning, but on the use courts had made of it to ill gaps in the criminal law. Through this wide rule, courts had been able to punish unlawful but not illegal conduct in which cooperation was an element. Consequently, rather than deining conspiracy as an independent offense, Stephen spelled out a series of special conspiracies generated by the application of this wide rule, and then he classiied them under their matching offenses.
Wright, by contrast, deined conspiracy as an agreement to act together with a common purpose in committing a crime. Although this deinition also refers to cooperation, Wright did not make it the fulcrum of the crime of conspiracy. Instead, he thought that the agreement to cooperate in the commission of a crime was a kind of attempt. It was an early stage in the commission of a crime. This means that the agreement to cooperate was not punishable unless the purpose was indeed criminal. Simply put, according to Wright, the law of conspiracy did not punish the cooperation per se, but the attempt involved in the agreement to cooperate in a crime.
As suggested earlier, these preexisting models inevitably shaped the history of the law of conspiracy these authors wrote. For one thing, the law of conspiracy apparently could be traced back to the writ of conspiracy created in the late thirteenth century. However, the substance of this writ, the procurement of false indictments, was hard to reconcile with Wright’s theory of conspiracy as a form of attempt. Thus, he argued that modern conspiracy has nothing to do with the medieval one. He held that the law of conspiracy had bifurcated in the early modern period when the Court of Star Chamber laid down the principle that an agreement to commit the crime of conspiracy as deined in the medieval law was a punishable attempt. But the law of conspiracy took its inal form, he continued, only when this principle was later generalized into the rule that an agreement to commit any crime is also a crime. Hence, though this principle happened to be formulated in the context of a case of medieval conspiracy, it was conceptually unrelated to the former.
Stephen, on the other hand, initially interpreted the medieval conspiracy as cooperation in the procurement of false indictments. This would have been
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later generalized into the wide rule. Thus, for him, there was a conceptual continuity between medieval and modern conspiracy. He later abandoned this view, however, working out his version of the bifurcation narrative in which the wide rule derives from the principle that an agreement to commit a crime is also a crime.
As I will show in the irst chapter, later scholars came up with different theories about the substance of the law of conspiracy yet within the same framework of the internal history. Percy Winield, for instance, focused on the study of the essentials of the medieval law of conspiracy as a...
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