Rebekka Habermas's monograph is a sprightly and engaging exploration of the ways in which prosecutions and trials for theft in mid-nineteenth century Electoral Hessen produced not only new notions of property, but also of law and truth. It revises traditional social historical accounts of the invention of class justice in modernity, as well as Foucauldian critiques of the entire Enlightenment project as the creation of a disciplinary state. With an objective far more ambitious than the modest geographical and chronological focus of the book might suggest, Habermas brilliantly applies insights from historical legal anthropology, along with a painstaking and detailed reading of court records, to explore Lauren Benton's notion of the “jurisdictional politics” of the court (8). The court and the legal case become the terrain in which a variety of factors—social and economic conditions; bourgeois concepts of property; post-1848 procedural and legal reforms based upon bourgeois notions of publicity, orality, and transparency; professional project ambitions of judges and advocates; as well as the more liminal notions of possession, title, and the use of personal property among the common folk of Hessen—all combined to produce a negotiated new outcome that “created” the rule of law.

In Habermas's account, this is a far more dynamic process of contested meanings than prior histories have recognized. Under her rubric of “doing law” (in the German original, an English gerund combined with a German noun, “doing Recht”), Habermas displays the historian's virtues of close archival work and a hermeneutic reading of texts, full immersion in multidisciplinary theory (anthropology, legal theory, history, and law), and ambitious interpretive sweep—all in a readable, enjoyable, and rich package.

After an introduction that succinctly introduces her theoretical preoccupations, Habermas explores in Part I, “What is Theft,” the roles of peasants who appropriated property in ways that modern law calls theft; of other peasants who resorted to legal action to protect honor as much as economic conceptions of property; and the role of jurists in interacting with this rural underclass. Part II, “How Law is Made,” traces not only the role of professional jurists in creating procedures to establish, interpret, and enforce law, but also how those procedural techniques shaped how truth was “proved” at trial through rules of evidence, and how legal concepts “created” both property and jurists. Part IV, “In the Courtroom, or What Is Law?” explicates the important participatory meaning created by reforms that led to the publicity and orality of court procedure covered by an expanding press, and the powerful way in which legal procedure served to legitimate both the legal system and the political system that expressed and administered it.

In doing this, Habermas transcends not only sterile debates among historians and legal scholars, but also points the way toward integrating German legal history more fully into the lively conversations about legal history and legal anthropology taking place in the Anglophone academic world today. She eschews the tendency to focus, even in the nineteenth century, on accounts locked in German exceptionalism or particularism, and she embeds her accounts of the villagers in Hessen within the larger processes of the transition of Europe and the world into modernity. Particularly useful is her focus on the investigatory phase of the new criminal procedure, in which legal professionals strove with complainants and witnesses to fit open-ended stories into limited, binary categories. This, in turn, overdetermined the outcomes at the public stage of the main proceedings, which highlighted the bourgeois political goals of jury participation and publicity (both in the sense that proceedings were open to the public and included jurors as finders of fact, as well as in the sense of press coverage of trials). She shows how the negotiated process of “doing law” taught villagers about property, law, and modernity.

The lively process of living, developing, and evolving law that Habermas depicts contrasts sharply with the stagnant and sterile categories in which law is often depicted. She deconstructs the assumed chasm between binary notions of code-based and customary law, raising the importance of how—by the very substantive laws and procedures whose apparent goal is to preserve openness in order to find truth—witnesses are taught how to testify, complainants how to complain, and defendants how to defend. What Habermas shows is that the investigation itself forestalls openness and creates truth, but a truth that deliberately fails to correspond to the contingent context in which the underlying “facts” took place.

The German Historical Institute in Washington, DC, has done the profession a great service by including this volume, a translation of the 2008 German original, in its publications series with Cambridge University Press. Such pathbreaking scholarship is now available to broader audiences of legal historians and students of legal history who may not be able to read it in German. The translation is superb, and Habermas's learned theory is leavened with aptly chosen stories of transgressive agency that are guaranteed to hold the interest of students and scholars both familiar and unfamiliar with the German setting of the overarching story. In the space opened up by her theoretical sophistication, Habermas lets us hear new voices, such as those of women, peasants, and even professionalizing lawyers, that were previously silenced by master narratives, while giving us powerful tools to interrogate the master narrative of legal modernization embodied in political liberalism.