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

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Legal Scholarship and the Roles of the Jurist corned the development of inter-disciplinary approaches, but nevertheless concluded: "Disinterested legal-doctrinal analysis of the traditional kind remains the indispensable core of legal thought, and there is no surfeit of such analysis today." 61 It is particularly striking that a leading exponent of one kind of interdisciplinary approach should re-affirm from the bench the centrality of traditional expository work. Posner's statements need to be seen in a wider context. Since the late 1970s American law journals have been flooded with introspective articles about the nature of legal scholarship, trends in legal thought and the health of law schools. There have been several strands in these debates 62 ; especially germane in the present context is the complaint, not unprecedented in history, that academic law and legal practice have grown further and further apart. A particularly interesting example is an article by Judge Harry Edwards published in 1992 in the Michigan Law Review entitled "The growing disjunction between legal education and the legal profession" 63 in which he made a strong plea for a return to "practical doctrinal scholarship" as the core of the discipline. The article stimulated eighteen responses in a symposium in the same journal. 64 Edwards' thesis is that American law schools are moving in the direction of pure theory, while law firms are moving in the direction of pure commerce, leaving a vacuum in respect of both technical competence and ethical responsibility. No doubt mindful of the furore provoked by Dean Paul Carrington when he suggested that critical legal scholars, like unwanted aliens, should emigrate to other parts of the academy, 65 Edwards is careful to acknowledge a role for "theory" and to accept that law schools should accommodate and tolerate innovative approaches. But, he implies, these should be treated as belonging at the periphery rather than the core. He explicitly singled out multi-disciplinary work as one of these peripheral activities and lambasted the dilettanteism of academic lawyers who dabble in areas in which they have no formal training. This is not a new complaint: when Law and Economics becomes economics by lawyers it may just pass muster; when lawyers indulge in literary theory one raises an eyebrow; when Law and Psychiatry becomes psychiatry by lawyers one dives for cover. 66 In expressing these concerns, Edwards resurrects the idea of "practical doctrinal studies" as the core of the discipline of law in both research and teaching. 140
Legal Scholarship and the Roles of the Jurist At first sight these pronouncements by three prominent judges suggest that legal scholarship is moving in different directions in England and the United States. Lord Goff praises English legal scholars for their recent contributions to legal development and practice and promises them an enhanced status. Posner and Edwards, on the other hand, accuse American law schools of abandoning their role. There are significant differences, but the underlying similarities may be more significant: first, in both countries legal scholarship has diversified. Goff focuses almost exclusively on the contributions of traditional expositors and, in this context, barely mentions other kinds of work. Posner and Edwards on the other hand were reacting to the diversification of legal scholarship. They may be right about a decline in prestige of traditional doctrinal scholarship, but it is quite misleading to suggest that it has been abandoned. 67 Secondly, all three judges either assume or assert that exposition is the core of legal scholarship and that the main role of jurists is to serve the legal system—especially the higher courts— by assisting in the rationalisation, simplification and interstitial development of legal doctrine. Thirdly, all agree that this role is important, but it is essentially subordinate. In the common law system power and authority is divided beteen the legislature, the executive and the judiciary in complex ways. Jurists are useful, but they have no official constitutional position. 68 In the common law system the role of the expositor is honourable, but strictly subordinate—more like poodles under the bench than lions supporting the throne. REACTIONS AGAINST EXPOSITION AND THE SEARCH FOR ALTERNATIVES Academic polemics require recognisable opponents. From the mid-1960s law teachers who were dissatisfied with the state of academic law began to construct a target to attack—they called it by various names: "black letter law", 69 "the expository orthodoxy", 70 "the textbook tradition", 71 and, later, "classical legal thought" 72 . The central charge was that English academic law had been dominated by a monolithic orthodoxy which was narrow, conservative, illiberal, unrealistic and boring. As I was one of those who helped to create this story, I should take some responsibility for it, without re-fighting old battles. In 141
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THE HAMLYN LECTURES BLACKSTONE'S
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AUSTRALIA The Law Book Company Bris
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Published in 1994 by Stevens & Sons
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TABLE OF CONTENTS The Hamlyn Lectur
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The Hamlyn Lectures 1962 Lawyer and
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The Hamlyn Trust The Hamlyn Trust o
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ABBREVIATIONS (a) The following abb
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ACKNOWLEDGMENTS In the course of th
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Preface There is an irony in arguin
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Preface Henry James' caretaker I wo
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Law in Culture and Society tures an
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Law in Culture and Society The Engl
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Law in Culture and Society by the I
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Law in Culture and Society narrow d
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Law in Culture and Society teric. T
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Law in Culture and Society have bio
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Law in Culture and Society lectivel
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Law in Culture and Society Snell on
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Law in Culture and Society cesses a
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Law in Culture and Society ated int
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Law in Culture and Society 3 Comm.
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Law in the Universities: The Histor
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What are Law Schools for? distracti
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What are Law Schools for? view of e
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What are Law Schools for? and prest
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What are Law Schools for? of legal
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What are Law Schools for? continue
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What are Law Schools for? 91. While
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What are Law Schools for? ibid. Cha
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4. Law School Culture: A Visit to R
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Law School Culture: A Visit to Rutl
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Page 114 and 115: Law School Culture: A Visit to Rutl
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Page 118 and 119: The Law Library A guide to the Bodl
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Page 124 and 125: The Law Library "A case is the writ
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Page 130 and 131: The Law Library "Is it not in the n
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Page 140 and 141: The Law Library tioners' works, alt
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Page 144 and 145: The Law Library 28 S. Chibnall, Law
Page 146 and 147: The Law Library which see the Prefa
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Page 178 and 179: The Quest For a Core somewhat diffe
Page 180 and 181: The Quest For a Core of the law, as
Page 182 and 183: The Quest For a Core content, it fo
Page 184 and 185: The Quest For a Core "Of course, la
Page 186 and 187: The Quest For a Core ive either ref
Page 188 and 189: The Quest For a Core worth remarkin
Page 190 and 191: The Quest For a Core In the late 19
Page 192 and 193: The Quest For a Core the vocational
Page 194 and 195: The Quest For a Core was essential
Page 196 and 197: The Quest For a Core riers" between
Page 198 and 199: The Quest For a Core new skills ort
Page 200 and 201: The Quest For a Core texts of their
Page 202 and 203: The Quest For a Core If I am asked
Page 204 and 205: The Quest For a Core Within the leg
Page 206 and 207: The Quest For a Core For example, w
Page 208 and 209: The Quest For a Core is a further a
Page 210 and 211: The Quest For a Core exposition of
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EPILOGUE Roland Barthes' marvellous
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Epilogue two reference groups who h
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Epilogue lent—tend to be excluded
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Epilogue Diversification might help
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Epilogue graduates will in future h
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APPENDIX English Law Teachers as Ac
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Appendix In respect of background,
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Appendix 65% of the rest. I have ma
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INDEX Academic ethic, the, 49-51, 5
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Index Kahn-Freund, Sir Otto, 105-10
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Blackstone's Tower: The English Law
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