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

Legal Scholarship and the Roles of the Jurist
the expansion of law schools has increased the number of producers.
This opened the way for legal scholars to upgrade and, in
some instances to take over, leading practitioners' treatises such as
Chitty on Contract and Benjamin on Sale. 54 Many of these are now
edited by teams of academics and practitioners or, in some cases,
entirely by academics. In a few areas legal scholars have been
credited with making major contributions to the development of
whole new fields, such as Administrative Law, Restitution and Intellectual
Property.
The undergraduate or other primary text imposes severe constraints
on authors in respect of length, detail and depth. Involvement
of scholars in the production of practitioners' treatises has
freed them from some of these constraints, but has correspondingly
imposed inhibitions on speculation, criticism and genuine innovation.
By their nature practitioners' treatises need to be cautious
works of reference reliably grounded on authority. 55 The best works
of the genre sometimes transcend some of these limitations to make
incremental advances in legal doctrine, but on the whole legal
scholars have to find other outlets for sustained criticism or radical
rethinking. Furthermore, English legal culture is as resistant as ever
to codification, grand theories or even institutional works on the
Scottish model that purport to treat legal doctrine as a whole or
large areas, such as Public Law or Private Law, in a comprehensive
manner. 56 It is hardly an exaggeration to say that Blackstone was
the last as well as the first great English institutional writer.
In the modern period three factors differentiate the situation of
English and American expositors. First, English textbooks and treatises
deal with the home-grown law of a single jurisdiction, whereas
the American treatise writers had to grapple with problems of
adaptation and maintaining unity across the various states and with
the problems posed by federal law. Secondly, as we have seen, in
England law schools developed later and had less prestige and a
different role from those in the United States. And, thirdly, the
Langdellian system freed American legal education from overreliance
on expository textbooks; the pedagogical emphasis was on
development of analytical skills applied to primary sources rather
than acquisition of knowledge of the law of one jurisdiction. As a
broad generalisation, at least until recently, the expository textbook
has been the dominant form of educational work in England at
both degree and professional levels, whereas in the United States
the main vehicle within law schools has been anthologies of cases
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