Legal Literacy and Popular Jurisprudence: do we need professional lawyers?

Kirjoittanut Marianna Muravyeva

We tend to think about pre-modern societies as illiterate both in terms of actual knowing how to read and write and in a more symbolic sense of being not aware of scientific explanations of the world around them. Same applies to the legal knowledge: although people did actively go to court and participated in proceedings, but they were not that literate as to knowing about laws and, more importantly, about legal concepts and theories. However, a closer look at the sources raises a number of challenging questions: would our, contemporary, understanding of legal literacy and its necessity apply to a different historical context? Was legal literacy connected with developed legal profession? What constituted legal profession at the time?

These were the questions asked and discussed during the conference ”Learning Law by Doing: Exploring Legal Literacy in Premodern Societies”, organised in Turku by Mia Korpiola on 14-16 January 2016. Professor Marianna Muravyeva visited the conference and coments it here.

Scholars from different European countries offered their insights into the varieties and forms of legal literacies that existed in Europe since the Middle ages. There were two general themes running through this discussion. The legal profession, its origins, structures and role in knowledge monopolisation and/or transfer received a fair attention from the group. The second theme focused on popular legal literacy and its role in everyday community life. The whole premise of the conference was to discuss ‘legal literates’—laypeople who possessed some legal knowledge and helped community members to access justice or through court proceedings. While professional legal help was often unavailable to the majority of people in the countryside and to many in the urban settings, those ‘paralegals’ provided all sorts of legal services to their fellow community members. The geographical scope of the conference was heavily focused on Northern Europe. Obviously, Sweden and Finland primarily figured in the majority of presentations. Other countries included England, Iceland, Netherlands, Germany, Italy, France and Russia. These are all difference geographical locations with quite visible differences in the development of the legal profession and legal knowledge, but discussing legal literacy in a comparative perspective opened up a possibility to go beyond standard treatment of legal knowledge as a natural possession of lawyers and see it as a part of people’s worldview and everyday practices.

The ongoing research in legal history reveals more and more that law was a substantial part of everyday life of the past societies notwithstanding how developed or complex the legal system or written laws operated at the time. Applying certain norms and using certain mechanisms to settle disputes pushed for commonly accepted procedures to allow communities functioning properly and maintaining stability and order. As with other social institutions, the more complex these procedures became the need for specialized professionals appeared to support them. Therefore, legal profession emerged as a part of institutionalizing process for law and the state’s centralizing and monopolising control and application of violence via unified laws and legal procedures in a given territory. At the same time, these processes did not go simultaneously in European countries and the level of centralization and control varied from place to place. The question is: how necessary it was for an ordinary person to encounter law in early modern and modern Europe or if it was their choice to use the legal system to settle disputes? Or in other words, could ordinary people survive without ever dealing with local authorities? The answer is probably no. By the late Middle ages, the state (and the church in those countries where the church continued to be separated from the state) was firmly heading to establish control and regulation over all possible spheres of life, including the private life. The civil life of a person started with baptism for which there should have been an entry in the metric books and continued with legitimatization of every other rite of passage (confirmation, marriage, divorce, death). In addition, any property transaction, inheritance, wills and movement from place to place required legal intervention. At the same time, committing a crime necessarily invoked the prosecution machinery at work. Quarrels and personal/collective disputes pushed people to choose ways for conflict resolution: if to go to court or to mediate differently. In this situation, such a choice meant either using the state law or applying customary norms to settle. In any case, ordinary people were enmeshed in a variety of legal and customary networks as a part of their everyday lives. Often, it was not their choice to participate in legal proceedings, for example, in cases of policing women’s behaviour when those women who got pregnant outside of wedlock were brought to ‘justice’ to be punished for their lewdness and had to strategize how to use the situation to their advantage to diminish the negative consequences of such participation. They would sue alleged fathers of their babies for alimony or blackmail them into marrying (or paying) by, for example, giving babies their fathers’ names if they could not announce them in the open. That what happened in eighteenth-century Leiden, according to Griet Vermeesch research. Single low class women possessed enough legal knowledge to use the civil suit to their advantage trying to overcome social and economic difficulties brought by emerging modernity.

Access to justice or legal profession was especially difficult in the countryside. In Finland, this led to communities producing self-educated ‘paralegals’ such as Gabriel Abrahamsson, a former soldier and a civil servant, who represented people’s interests in court, acted as advocates or helped with other civil matters. As Petteri Impola showed, Abrahamsson’s name appeared almost 200 times in the records of the lower courts of Helsinki and nearby between 1656 and 1678 (https://www.utu.fi/en/units/law/news/events/Pages/abstract-petteri-impola.aspx). People who educated themselves in law could also come from the staff supporting justice and legal system such as scribes or court clerks. Although they were not judges, but they acted as a gateway for people to access courts, because they were the ones responsible to correct way of composing complaints and other legal documents. In England and Russia, scribes and court clerks provided their services for money thus facilitating communication between the community and the authorities. However, with court clerks and scribes the problem of definition arises: they were not officially a part of the legal profession, but legal profession at the time, before at least the nineteenth century, existed in those locations where it was a requirement for judges or other participants of the justice system to have an official legal degree. In countries, such as Russia, there was no such requirement simply because the educational system differed from, for example, Italy, Germany or France, and the majority of educated people received their degrees in ecclesiastical schools and academies or in professional training schools affiliated with administrative bodies of the Muscovite State called chancelleries. Their education was not specifically in law, but to become a low level assistant clerk in any judicial body they had to go through a licensing process, that gave them the right to practice and allowed to advance further in the system.

With professionalization and closing down the ranks to those who received formal training in law in universities in the nineteenth century, legal knowledge faced a challenge from popular jurisprudence or popular legal manuals and books, composed by people who had some experience or exposure to law. Those manuals existed in almost every European country (Annamaria Monti, Laetitia Guerlain, Nader Hakim and Jussi Sallila spoke about Italy, France and Finland respectively). The scholars argue that it was these books that provided primary knowledge of law to the people, who’d rather read Every man his own lawyer (see, for example, the 1768 edition by Giles Jacob at GoogleBooks) than master Coke’s Institutions or, indeed, try to deal with numerous and confusing statues, laws and codes. These manuals gradually became popular in the seventeenth century and accounted for thousands of titles in all European languages in the nineteenth century. They, indeed, educated the laity in everyday matters of law and provided an initial understanding of both the contents and the form of law. Scolded by legal professionals, who naturally protected their monopoly over legal knowledge, these books provided integration mechanism for wider legal literacy and access to law.

Heikki Pihlajamäki expressed his frustration over contemporary’s attempts to remove non-professional advocates from legal procedure in Finland. It has been a tradition in Finnish society to use help of such ‘learnt’ people as their community representatives. This made access to justice seem more ‘democratic’ in a sense that people could afford it and felt more comfortable with. Legal profession as a corporation has very high barriers of access meaning that to protect one’s interests or to resolve disputes in court becomes very expensive and non-affordable, but also less controllable: using a community representative meant to co-operate with them to receive justice while handing the case to a professional attorney leads to the exclusion from the process, which now involves lawyers dealing with each other inside the corporation. Taking this into account, we might start looking at pre-modern societies as at venues for cooperative models of acquiring justice to re-think present-day access to justice as ‘democratic’.