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

Legal Scholarship and the Roles of the Jurist
or cases and materials, often edited and presented with a remarkable
degree of sophistication. Thus the role of expositors in the two
systems was, in some respects, significantly different.
Against this background let us reconsider the charge that expository
legal scholarship is "mainly descriptive". This is a pejorative
way of implying that an intellectual activity is unoriginal, or claims
to be mechanical, "value free", or "objective". To attribute this to
what I have called "the higher exposition" is no less crude than
suggesting that history merely describes the past. As with the writing
of history, even the most mundane kind of exposition involves
selection, interpretation, arrangement and narration in the author's
own words—operations that involve choices at every stage. Legal
exposition no more involves "mere" collection and ordering of an
established body of knowledge than historiography involves collecting
and classifying given facts (themselves activities that involve
choices). Like scholars in many other disciplines, expositors tend
to be impatient with theorising about their enterprise and prefer to
get on with the job. What is at stake in recurrent debates about
exposition is in part a matter of priorities, but at a deeper level it
relates to the validity of the methods, the nature of "the knowledge"
produced, the uses to which it is put, and standards for
evaluation and criticism. In much the same sense as historians
make history, expositors construct legal doctrine, but for different
purposes.
As in history, so in law, words like "creative" are double-edged.
Some of the underlying concerns of historiography are quite similar,
but there are, of course, significant differences, not only in
respect of subject-matter and methods. In particular, there is a difference
of role: expositors serve a variety of functions at different
levels: some produce convenient works of reference for practitioners
and elementary texts for students; some simplify, rationalise
and systematise legal doctrine; and a few are a vehicle for legal
development, by putting forward semi-authoritative answers to
unsolved questions, or starting-points for legislative reform or codification,
or as a means of maintaining the unity of the common law
across jurisdictions and developing it sub silentio independently of
legislatures. What is common to all these roles is that, far from
being detached external observers or scientists, expositors are
active participants in the legal system.
The most common complaint by our expositors has been that
English jurists are not accorded the status of their Continental European
counterparts. Recently, however, the contributions of exposit-
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