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

The Quest For a Core
The most common model for "legal science" is the idea of systematic,
objective, neutral exposition of the law as it is. Establishing
a theoretical foundation for "legal dogmatics", as it is called in the
civilian tradition, is one of the moving forces behind legal positivism.
But here we need to tread carefully. Our greatest positivist,
Jeremy Bentham, insisted on a sharp distinction between Expository
Jurisprudence, concerned with the systematic description of the
law as it is, and Censorial Jurisprudence, concerned with the criticism
and construction of law as it ought to be on the basis of utility.
Bentham saw exposition as particular to a given system and a rather
lowly pursuit; legislation was the noble and universal science: "The
Expositor, therefore, is always the citizen of this or that particular
country: the Censor is, or ought to be the citizen of the world." 7
Bentham, the radical positivist, distinguished the is and the ought
mainly for the sake of the ought; his only contribution to legal education
was to advocate a School of Legislation.
It is incorrect, therefore, to see English legal positivism as essentially
conservative and uncritical. However, the positivist distinction
between law as it is and law as it ought to be was later used
both to ground a neutral expository, descriptive science of law as
the dominant form of legal study and, sometimes, to confine legal
studies to exposition. It is a short step from insisting on a sharp
distinction between description and prescription to maintaining
that one should describe before one ventures to criticise. 8 It is only
a slightly longer step to move on to say that legal scholars, and
especially law students, should only be concerned with description.
It is not for fledgling practitioners to reason why or to criticise
their elders. 9
The tradition of teaching and scholarship that purports to confine
itself to the exposition and analysis of posited law has been the
subject of diverse attacks, on such grounds as that it is narrow,
reactionary and dull. 10 There is, however, a more fundamental
reason for rejecting it: it is just wrong. Two of the greatest positivists—Holmes
and Kelsen—can be used to make the point.
In his classic address to law students "The Path of the Law", 11
Holmes advised them to wash the law in cynical acid and to adopt
the standpoint of a bad man, an amoral actor whose only concern
is to predict the likely legal consequences of any action he takes:
"If I do this, what will happen to me?"
Holmes had two specific targets in mind: the tendency of students
to substitute their own prejudices or values or wishes for
mastery of technical detail; and an over-logical and abstracted view
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