May 15, 2015 - LAW AND RELIGION FORUM

Apropos of recent posts by Mark and our guest, Professor Nathan Oman, here is an interesting book by Professor Dennis Romano (Syracuse) on the cultural and moral importance of the market and the marketplace in the high medieval and early renaissance period, Markets and Marketplaces in Medieval Italy, c. 1100 to c. 1440, published by Yale University Press last month. The publisher’s description follows.

Cathedrals and civic palaces stand to this day as symbols of the dynamism and creativity of the city-states that flourished in Italy during the Middle Ages. Markets and Marketplaces in Medieval Italy argues that the bustling yet impermanent sites of markets played an equally significant role, not only in the economic life of the Italian communes, but in their political, social, and cultural life as well. Drawing on a range of evidence from cities and towns across northern and central Italy, Dennis Romano explores the significance of the marketplace as the symbolic embodiment of the common good; its regulation and organization; the ethics of economic exchange; and how governments and guilds sought to promote market values. With a special focus on the spatial, architectural, and artistic elements of the marketplace, Romano adds new dimensions to our understanding of the evolution of the market economy and the origins of commercial capitalism and Renaissance individualism.

I was very pleased to take part in a conference yesterday at Columbia Law School honoring my old master, Kent Greenawalt, and 50 years of his teaching and writing. Together with Paul Horwitz and Andy Koppelman, I was on a panel involving church and state. Subsequent panels followed on free speech and legal interpretation (chiefly statutory interpretation, which has been Kent’s primary focus historically). I took the liberty of saying something about criminal law as well, yet another area in which Kent has made major contributions, including as one of Hebert Wechsler’s colleagues in revising the Commentaries to the general part of the Model Penal Code. Paul has a nice post on the event.

Here’s a quote of Kent’s I found in a piece written about a decade ago: “Criminal law scholars are much more divided about desirable approaches than they were in the 1950s, and even among centrist scholars, no one person now has the distinctive stature that Herbert Wechsler enjoyed.” Some of my comments considered and adapted that general thought in the context of law and religion scholarship today, where it is also apt for various reasons.

Just three additional notes from the panels. First, on the speech panel, there was some interesting discussion about the plausibility of the Austinian idea of performative utterances (a concept used and applied by Kent in this book)–whether the distinction between performative and non-performative speech holds up, or whether all utterances are in some way performative and so we need instead to focus on the quality of the performative speech at issue (threats of violence are different for regulatory purposes than a comment at an academic conference, though there may not be a big difference for performance purposes). Second, on the legal interpretation panel, Fred Schauer criticized the notion that “public meaning” cannot be ascertained without recourse to someone’s intentions (I believe Larry Alexander among others holds something like the opposite view), though of course one need not subscribe to original public meaning in order to believe that public meaning is coherent. Third, I had never quite realized (though I guess I should have) just how much sympathy Jeremy Waldron has for textualism. Jeremy talked about a seminar in statutory interpretation that he and Kent ran in the late 1990s and it was clear how much they differed in their respective approaches (and how much they enjoyed the debate). Jeremy’s talk included 12 ways in which legislation is qualitatively different from other group expression. One of the 12 was that legislation is “dangerous,” which I thought was an interesting thing to say.