Blackstone's Tower: The English Law School - College of Social ...

The Law Library
and to visit one section, Jurisprudence, which by its very nature
transcends boundaries between disciplines.
Secondary legal literature is secondary. It is parasitic upon institutions,
practices, and phenomena that exist independently of their
academic study. This is, of course, true of most disciplines—though
in different ways and degrees. The discipline of law stands in an
analogous, but not identical, relation to legal practice and the law
in action, as military history stands to military practice or political
science to actual politics. Such relationships are subtle and complex
and vary not only according to the nature of the subject of
study, but also in respect of time, place, tradition and fashion. For
instance, as we shall see, the extent to which legal scholars are
participants in and influence their own legal system varies considerably.
How far they should do so is much discussed.
Law is not unique in this respect. But an orthodox law library
suggests that there may be some special features of this kind of
relationship in our tradition. Let me suggest some tentative hypotheses:
first, the secondary literature in a law library is dwarfed by
the primary material. The main primary sources, legislation and
statutes, are far more extensive and continually proliferating; they
also are authoritative texts, which trump even the most respected
juristic writings: Coke, Blackstone, Salmond, and Cross are writers
of authority, but they can be overridden on a specific point by the
decision of even an inferior court. Law students and legal scholars
have a special and intimate relationship to these primary sources:
the authoritative texts of religions and theology are not as extensive
nor do they proliferate and change so rapidly; the primary texts for
students of literature, such as poems, novels and plays, may be as
expansive, but they are not authoritative in this way.
A second special characteristic of legal literature is that a great
deal of scholarly legal writing is not done by academics. Practising
lawyers claim to belong to a learned profession, although this often
needs to be treated with a pinch of salt, and some of the most
important legal scholarship has been produced by judges and practitioners.
This has two facets: a great deal of genuinely scholarly
writing is to be found scattered throughout the law reports and, to
be a lesser extent, in law reform documents and, in the United
States, in written briefs. 56 Furthermore, many important textbooks
and treatises have been written by practitioners, who also contribute
to periodicals. Legal treatises have a long history. Before the
study of English Law became established in the universities, almost
all expository works, including those intended for students, were
113