2. 'Traditional' Legal Scholarship: A Personal View1

GARETH JONES

THIS is A Personal View, based on my thirty three years as a law teacher at Cambridge (preceded by two at Oxford and three at King's College London) and in the United States, at the Harvard Law School and (more importantly--for me) at the Law School of the University of Chicago, although I have enjoyed the hospitality of other United States law schools, most recently at Texas. I have lectured in many other common law jurisdictions, but not for any extended period of time, three to four weeks at the most. For these reasons my observations, given the constraints of forty minutes, will be directed to my academic life and experience in Cambridge and in the United States.

In the United States, traditional or doctrinal (I shall use both terms interchangeably) legal scholarship, at least in the form of the treatise as it was known to Wigmore, Williston, Corbin and Scott, is in the first rank Law Schools, almost dead.2 For Plucknett:3

'The characteristic of the modern English text book . . . is its method. It begins with a definition of the subject matter, and proceeds by logical and systematic stages to cover the whole field. The result is to present the law in a strictly deductive framework, with the implication that in the beginning there were principles, and that in the end those principles were found to cover a large multitude of cases deducible from them'.

Professor Brian Simpson rightly concluded that these are also the characteristics of the treatise.4 Treatises flourish then in association with a certain type of legal theory and culture. Rigorous analysis of (then) case law and (now) statutory and case law, to discover true principle, hitherto concealed, characterises treatise scholarship.

The mid to late 19th century, the age of the treatise, produced names which are still well known in the legal household. It is a mistake, indeed impertinent, to underestimate the achievement of its writers. Before they wrote, there was, as Holmes said, 'too little theory in the law rather than too much'.5 These formidable treatises were 'theoretical, reformist and critical'6 in spirit. The treatise writers' 'concept of law' was not significantly: different from Blackstone's 'right reason'.7 There was a universality of principle which was discoverable (for Blackstone) by the oracles of the law, the judges, and (for Langdell, Williston, Scott, Stephen, Anson, Pollock and others) by the treatise writer. Their vision of law was that of the scientist. Their treatises were designed 'to develop systematically the principles' of their science,8 in the context of a specific subject within that science, for example, pleading, tort, contract. Decisions which did not fit into their structure were ignored or dismissed as being contrary to 'principle'--the exemplar of this approach is the first edition of Langdell's Case Book on Contracts. Some modern traditionalists may well make a similar claim. Possibly they are as doctrinaire as modern critical legal scholars? Elegantia juris can be a seductive mistress.

The realists believed that principles and rules do not exist in vacuo, and sought to undermine the faith of those who had hitherto believed that legal principles could be scientifically discovered. The most extreme exponents of digestive jurisprudence, as it was disparagingly called, trivialised legal doctrine. In his famous dissent in Lochner,9 Justice Holmes predicted, at the beginning of this century and years before the explosion of realism, that: 'General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise'. Once that 'intuition' is articulated, 'principle' must be judged against it. In the United States realist jurists needed no second invitation and law reviews were flooded

____________________
1
This address was given, on September 15 1994, at the Annual Conference of The Society of Public Teachers of Law in Norwich. I have recast it to take into account Professor Twining's Blackstone's Tower: The English Law School, Richard A. Posner's Overcoming Law and Mary Ann Glendon's A Nation Under Lawyers.

I am grateful to my colleagues, Kevin Gray, Ivan Hare and John Spencer, for helpful comments on an earlier draft.

2
There are notable exceptions. For example: Areeda on Anti-Trust Law; Charles Alan Wright on the Federal Courts and Jurisdiction; Farnsworth on Contracts.
3
Early English Legal Literature, p. 19. He was speaking of the 'modern English text book'.
4
"The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature", 48 Univ. of Chicago Law Review 632, 633 ( 1981).
5
The Path of the Law in Collected Papers 167, 198 ( 1920).
6
These are Professor Gordon's words: Lawyers, Scholars and the 'Middle Ground', 91 Mich. L.R. 2075, 2079 ( 1993).
7
In his Dictionary Dr. Johnson said that reason is the 'power by which man deduces one proposition from another, or proceeds from premises to consequences; the rational faculty; discursive power.
8
H. J. Stephen, A Treatise on the Principles of Pleading in Civil Actions ( London 1824, 3rd. ed. 1901) viii. The emphasis is Stephen's.

-9-

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