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Legal Scholarship and the Roles of the Jurist
1960s, William Twining, The Place of Customary Law in the National Legal Systems
of East Africa (1964), Chap. 2.
45 The American Law Institute Annual Report (1990); Simmons, op. cit., quotes significantly
higher figures.
46 Lewis, op. cit, n. 38.
47 Cairns, op. cit. at p. 24.
48 David Sugarman, "Legal Theory, the Common Law Mind and the Making of the
Textbook Tradition" LTCL Chap. 3, at p. 29.
49 ibid, at pp. 28-29, citing Dicey and Pollock.
50 Pollock tended to be more overtly critical than most expositors of that generation.
On Dicey, see below, n. 53.
51 See above n. 34.
52 ibid, at p. 31.
53 A.W.B. Simpson, "The Rise and Fall of the Legal Treatise" (1981) 48 University
of Chicago L. Rev. 632, reprinted in Legal Theory and History: Essays on the
Common Law (1987) Chap. 12 at p. 307. Simpson adds: "Dicey's Conflict of
Laws (1896), continuously revised by later editors, is perhaps the best known of
the works that have perpetuated this format to the present day." ibid. Dicey's
Law and the Constitution (1st ed., 1885) really belongs to a different genre and,
perhaps for that reason, is better known outside legal circles than most orthodox
textbooks.
54 P. Birks, "The Historical Context" in Birks (ed) Reviewing Legal Education
(forthcoming).
55 On the sad fate of Charles F. Chamberlayne's five volume treatise on evidence
that did not conform to these conventions see RE at pp. 61-65.
56 T.B. Smith, "Authors and Authority," (1972) 12 J.S.P.T.L. (N.S.) 1 (Presidential
Address). English law continues to be largely impervious to systematisation and
theorising on the grand scale. This applies as much to legislation as to judgemade
law, see Lord Goff, discussed below.
57 Robert Goff, "The Search for Principle", Maccabean Lecture (1983) LXIX Procs.
British Academy 169; "judge, Jurist and Legislator", Child and Co., Oxford Lecture
(1986), reprinted in (1987) Denning Law Jo. 79.
58 ibid at p. 92. Robert Goff is a former law teacher, co-author of one of the most
highly regarded modern treatises—Goff and Jones on Restitution—and a
respected Lord of Appeal in Ordinary. His gracious recognition of the influence
of doctrinal scholarship in the English legal system and of the complementary
roles of judges and jurists has since been echoed by some of his brethren on the
bench, e.g. Lord Woolf, Protection of the Public: A New Challenge (1990)
(Hamlyn Lectures 41), Chap. 1. Not surprisingly it has been welcomed by the
objects of his praise. His statements have been interpreted as almost the first
sincere and open acknowledgment that legal scholars have a significant practical
contribution to make to our legal system.
59 R. Posner, "The Decline of Law as an Autonomous Discipline: 1962-1987", 100
Harvard L. Rev. 761. "Autonomy" is used here in a weak sense to refer to law
as "a subject properly entrusted to persons trained in law and in nothing else."
(at p. 762). Posner elaborated on the theme in "Conventionalism: The Key to
Law as an Autonomous Discipline", (1988) 38 University of Toronto Law Jo.
333.
60 At p. 792.
61 ibid at p. 777.
62 There has been a general, protracted controversy about "critical legal studies";
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