Interplay of Roman & Canon Law in Common Law Development: A Contextualist Approach, Lecture notes of Criminal Law

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was compatible with the two laws and part of the same legal culture (chapter three); how the Bracton treatise was accompanied by other forms of literary production, such as the so- called Note Book (British Library MS Add 12669) – a collection of about 2,000 cases decided in the king’s courts between 1217 and 1240 – which were analogous to the textual practices of Roman and canon law (particularly collections of papal decretals) (chapter four); and how, in the Bracton treatise itself, the authors treated plea roll entries and the texts of Roman and canon law as part of the same legal continuum, particularly by making use of similar methods of citation and subjecting them to the same form of dialectical reasoning promoted in the schools (chapter five). In the sixth chapter, which seeks to explain why the Bracton authors used Roman models in their texts, McSweeney argues that by assimilating plea roll entries to the sources of Roman and canon law, the Bracton authors were implying that the authors of the plea rolls (that is, the justices and clerks of the royal courts) were jurists in the manner of Ulpian, Paul, and their Civilian successors, and therefore part of a legal culture that extended beyond their own kingdom to the whole of western Christendom. Finally, in chapter seven, the author examines some surviving rolls of cases heard by Henry of Bratton to show how this particular justice appears to have sought to cultivate his own juristic persona by crafting his entries as though his readers would be interested in the legal principles his cases represented. The book’s overall conclusions are that the Bracton authors wanted to show that the (as yet nascent) Common Law was a constituent element of the universal law of the Latin West; that it could be understood within the conceptual framework of Roman law; and that the texts being produced by the justices and clerks of the royal courts were analogous to those being produced in the schools. The implications of McSweeney’s arguments may be assessed with reference to the themes of the book. In terms of the influence of the two laws on the early development of the Common Law, the author makes a compelling case for a contextualist approach that looks beyond the narrow confines of doctrinal change to the influence exerted by different legal cultures upon one another. In this connection, the observation that the influence of Roman and canon law on the law of England was felt less upon its substance and procedures than upon the way in which law was conceived as an increasingly textual practice is both illuminating and insightful. The argument also draws attention to how emerging forms of literary production (such as the Note Book and the Bracton treatise) subjected distinctively English sources (such as plea roll entries) to the kind of academic reflection and systematisation that was a hallmark of the Civilian lawyers. If, as McSweeney argues, we view the Common Law as a set of practices rather than of rules, then the impact of these “softer” forms of influence should not be disregarded. Peter Candy St Catharine’s College, Cambridge

EdinLR Vol 25 pp 259- DOI: 10.3366/elr.2021.

CRIMINALITY AT WORK. Ed by Alan Bogg, Jennifer Collins, Mark Freedland and Jonathan Herring Oxford: Oxford University Press ( www.oup.com ), 2020. xviii + 592 pp. ISBN: 9780198836995. £95.

The rapid genesis of this mammoth piece of work, from conception in 2015 to publication in 2020, is deceptive. This edited collection elegantly presents a comprehensive and multi- faceted account of the modern intersection of work and criminal law. The ubiquity of the

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latter in labour law, labour relations, modes of regulating work and enforcing compliance, and in theorising the relationships between employers, employees, the state and society (if one believes in it) is persuasively shown. Bogg and Freedland’s ample introduction, a “Framework for Discussion”, explains the motivation for the work. This was the sense that interesting lessons could be learnt by examining, inter alia , the extent to which a political cant for over-criminalisation has affected labour law, whether the effect produces high moralising rather than any legitimate improvement in the enduring imbalance of power in labour relations, and whether the pervasiveness of criminal law in “work” (broadly construed) can be theorised and set within the vast normative canon of the traditional criminal law, aided and abetted by the normative and sociological perspectives of labour law. This book will appeal to Common Law labour lawyers, criminal lawyers, and those interested in how the long-held norms of one area of the law can be found, applied, and even improved in another. The book is divided into five parts ((I) Criminality at Work: Mapping the Terrain; (II) Labour Wrongs as Public Wrongs; (III) The Contemporary Shape of Criminalization Practices: Risk, Status, and Character in the Neoliberal Criminal Law; (IV) Criminalization and Enforcement; and (V) Comparative Perspectives on Criminalization). Each part presents a set of essays on a theme (with the final part comprising a comparative analysis covering combinations of the UK, USA, Canada and Australia), which manages both to comprehensively cover the field, whilst at the same time prompting the reader to want more. For instance, Criminality at Work squarely addresses the discomfort within criminal law as to whether labour and employment issues fall within “real” crime (where crimes mala in se naturally reside), or whether criminality at work involving crimes which are merely mala prohibita is some lesser (or even entirely mislabelled) form of criminal law. This discussion is important at a normative level, and draws upon the wealth of work done by Duff and others, but it is also of serious practical import, affecting both enforcement of and compliance with criminal labour law. The analysis here is also complicated by the fact that some criminality at work – compulsory (slave) labour, for instance – is clearly mala in se , a public wrong that even without legislation, regulation, or enforcement, is fundamentally offensive in nature. Here, criminal wrongs are clearly public wrongs, with a moral dimension independent of whether the categorisation of them as “criminal” will result in better enforcement or compliance. What though of wage theft, disclosure obligations, exploitation, workplace harassment, human rights violations, and the public regulation of sex work? Part three of the book explores whether criminal law is the only, or even an appropriate, response to these potentially “public” wrongs. Further to this, the editors’ considered view actually moves away from a hard distinction between mala in se and mala prohibitum , towards a recommendation that we should instead look at the legitimacy of any criminal forays into labour law: Does the criminalisation achieve a legitimate and defensible purpose? How might it be combined with other (non-criminal) mechanisms to best achieve these purposes? This leads naturally into an examination in part four as to whether criminalisation does in fact promote compliance with labour standards, or whether this is a false, disingenuous or unhelpful aspiration for the criminal law. These chapters explore this issue through the lens of criminalisation in relation to the minimum wage, and the criminalisation of health and safety law (where “conventionalisation” of industrial crimes has a long history and lethal effect). Both issues are of course historically foregrounded by criminal labour law in the form of penal Master and Servant legislation, which allowed penal sanctions to be imposed on workers – but not their masters – for breaches of the terms of employment. In modern times, the removal of civil remedies in favour of criminal sanctions serves as another example of disparity of arms, removing the autonomy of workers by passing the power to seek legal redress onto a state

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agency which may or may not have the interest, resources, or effectiveness needed to provide a fair remedy. These examples from the coal face are underpinned by part three, in which the motivations of the political architects of criminality at work, the limitations of the agencies charged with enforcing the law, and the role of employers, employees and others in complying with it are examined. The moral tone of the criminalisation, and the assignation of vice and bad character to the criminalised parties is brought forth here, in a fascinating juxtaposition with the complexities of organisational structures: If a corporation is “criminally” liable, who or what has committed the moral wrong, and how are they to be appropriately identified and punished? These issues, inter alia, are combined to identify the thematic currents running through otherwise seemingly disparate events (such a criminalisation of medical professionals, labour activists, care workers, migrant workers, modern slaves and others). Indeed, the drawing together of themes for the creation of new and rousing insights into criminality at work is one of the undoubted strengths of this tome. The editors profess to seek to avoid presenting a “miscellany of disparate legal curiosities” in this book. My view is that they have failed in all senses to avoid this, except for the element of disparity. This “miscellany of legal curiosities” is a masterful curation of works which skilfully demonstrates the rich seams to be mined where criminal law and labour consolidate under political pressure to create “criminality at work”. This book provides what I expect will be an enduring foundation for much scholarship to come. Rhonda Wheate University of Strathclyde

EdinLR Vol 25 pp 261- DOI: 10.3366/elr.2021.

Bartosz Bro˙zek, THE LEGAL MIND: A NEW INTRODUCTION TO LEGAL EPISTEMOLOGY Cambridge: Cambridge University Press ( www.cambridge.org ), 2019. vii + 180 pp. ISBN:

9781108493253. £85.

Legal epistemology is an evergreen topic in jurisprudence. The number of telling accounts on the subject has grown exponentially over the past few years. Offering an original analysis in such a crowded field of literature is no easy task. Yet, this is exactly what Bartoz Bro˙zek has managed to do with The Legal Mind: A New Introduction to Legal Epistemology , and he ought to be praised for that. A prolific writer, Bro˙zek in The Legal Mind has drawn from his vast and deep- rooted philosophical, cognitive, and behavioural science knowledge (5) to shed new light on what legal reasoning and understanding really are and how they operate. The book defends several relevant theses, the main one being that “legal thinking consists in a simultaneous use and cooperation of three cognitive mechanisms – intuition, imagination and thinking in language” (ibid; emphasis omitted; see also 105, 144 and 162-164). As such, The Legal Mind tackles some conventional stereotypes about lawyering, while pushing the academic debate on the subject further. Bro˙zek aims to reconstruct a “universal... conception” (10) of the legal mind’s nature and operations. However, far from being transcendental (or metaphysical), his analysis is very much contextual, drawing from Roman jurisprudence to contemporary Common and Civil Law. Consequently, what The Legal Mind argues applies equally to “the judge and the advocate” (9), both of whom “use the same tools for thinking: intuition [and insight], imagination, and language” (ibid). The richness and diversity of the themes covered by Bro˙zek make The Legal