Darwin-L Message Log 1:88 (September 1993)

Academic Discussion on the History and Theory of the Historical Sciences

This is one message from the Archives of Darwin-L (1993–1997), a professional discussion group on the history and theory of the historical sciences.

Note: Additional publications on evolution and the historical sciences by the Darwin-L list owner are available on SSRN.

<1:88>From junger@samsara.law.cwru.edu  Fri Sep 10 12:22:05 1993

Date: Fri, 10 Sep 93 13:19:18 EDT
From: junger@samsara.law.cwru.edu (Peter D. Junger)
To: darwin-l@ukanaix.cc.ukans.edu
Subject: Introduction

    I teach law at Case Western Reserve University in Cleveland,
Ohio.  My major research interest is in the evolution of restitutionary
actions in the Common Law system; i.e., the evolution of judicial
proceedings in which the demandant seeks to get something that he claims
of right, rather than damage actions in which the plaintiff seeks
compensation for the loss (i.e., damages) that he has suffered because
of the defendant's wrong.  A secondary, but related interest, is in
explaining how legal academics and treatise writers have come to
act--or, rather, to write--as if the only civil actions are wrong-based
damage actions for tort and breach of contract, when in actuality most
lawyers' work involves creating and conveying rights, and very little of
it has to do with wrongs, at a time when the old right-based actions (as
well as more modern ones) are still very much with us.

    It turns out that back in the 12th century, when the common law
was young, the only actions (except for "appeals", which correspond to
criminal actions) that were known to the common law were restitutionary
actions, most of which were commenced by  "praecepi" writs in which the
king commanded the sheriff to order (that's where the word "praecipi"
comes in) the defendant to deliver something to (or do something for)
the demandant; and it was only if the defendant did not obey that order
that there was to be a trial.  The writ assumed that the demandant had a
right to the relief that he demanded, and the only "wrong" that could be
at issue was the defendant's "wrongful" refusal to obey the sheriff's
order.  These praecipi actions included "real" actions in which the
defendat was ordered to render or give back ("quod reddat") land to the
demandant, the action of detinue in which the defendant was ordered to
give back a chattel, the action of debt in which the defendant was
ordered to pay a debt owed to the demandant, the action of account in
which the defendant (who was usually the demandant's bailiff) was
ordered to render an account to the demandant, and the action of
covenant in which the defendant was ordered to keep a promise made in a
sealed instrument.

    At the beginning of the 13th century, two new species of
writs--or maybe it was just one writ that latter split into two--came
into common use: trespass and trespass on the case (which is also known
just as case), in both of which the plaintiff sought to recover damages
for a wrong that was done to him by the defendant.  These wrong based
actions had--at least from the point of view of the
plaintiff--significant procedural advantages over the older praecepi
actions.  And thus there was continuous pressure on the courts to permit
the development of new versions of the actions of trespass and case that
could be used in place of the praecepi actions.  (This pressure was
effective because there were three different royal courts (Common Pleas,
Kings Bench, and Exchequer) that competed with each other for business.)
In time new writs (i.e., new actions) evolved out of trespass and case
that filled the same niches--performed the same functions--as the older
praecepi action, which were not as a general rule abolished, but did
become obsolete.

    That's a brief sketch of the bit of evolutionary history that
interests me.

    Now this history of the development of the forms of actions--of
the original writs that were available to start common law actions--has
one feature that I think is quite unusual in the greater history of
cultural institutions: there is a well-preserved "fossil" record.  There
are available, from the beginning of the Common Law at the end of the
12th Century when Glanvill (or one of his clerks) wrote the first
treatise on the common law of England, down to today, collections of the
forms of writs (and, after use of writs to start an action was abolished
in the nineteenth century, of the forms of allegations that plaintiffs
had to use in their complaints) that were (and are still) used by
practicing lawyers.

    It is, I think, remarkable that the forms of the earliest writs
hardly change over the centuries (at least until the writs were
abolished in the nineteenth century) and that they still persist, even
when the language in which they are written changed from Latin to
English, and even when they were transported across the Atlantic to
North America.

    I have described this fragment of evolutionary history at
length, because I have never found any relevant discussions of the
evolution of similar cultural institutions.  I should imagine that the
evolution of the forms of action would bear some resemblance to--and
perhaps direct relation to--the evolution of language, especially the
evolution of performatives (since the forms of the writs can be
considered to be the forms of performatives).  But I have never come
across any studies of the evolution of performatives.  The evolution of
the forms of action might also resemble the evolution of religious
rituals, but again I know of no studies that deal with the evolution of
rituals.  And I am completely unaware of any theoretical works that deal
with the evolution--or, better, the co-evolution--of cultural

    So I hope that the members of this list will be able to help me
cure myself of my ignorance.

Peter D. Junger

Case Western Reserve University Law School, Cleveland, OH

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