David Sugarman 228 quires more empirical assessment than has been the case to date.'^^ In this paper, I attempt to test his characterisation of English lawas relatively irrational alongside the historical record. 6) An empirical assessment helps us to problematise certain sharp dichotomies that Weber and other social theorists as well as historians and anthropologists imbibe, namely, rationality/irrationality pre-modern/modern, pre-industrial/industrial, elite/popular as well as notions such as “national peculiarities” and “modernity”. Acritical assessment of these conventional dualisms and concepts alongside the historical record may suggest ways of transcending the evolutionary functionalism that often underlies these notions and, therefore, our conception of modern industrial society. 7) Finally, a more untrammelled approach to “modernity” requires the careful study of changes in law- as well as changes in production, labour markets, population and politics.Too often law, lawyers and the culture of the law have received short-shrift. A greater attention to their role, character and importance might pave the way for the kind of detailed comparative study of the law in Western industrialisation pre-figured in Weber’s own sociology of law. Perhaps the ultimate value of Weber’s rich and enigmatic work is to press us to weigh his theses against the historical evidence and in so doing question and modify the central tenets associated with his and other classic histories and sociologv’s of law and economy. Even where his ideas fail to convince, the effort of testing them may reveal much that is illuminating about the relation between law and material society. This is especially the case if we consider Weber’s discussion of “the English problem” - the subject of the next section of this essay. Weber on “the Peculiarities of the English” Weber believed that English law was less rational than Continental law, in part, because legal education in England was less scientific and universitybased than on the Continent. English lawyers had been especially successful in obtaining a variety of professional monopolies. “As soon as the monopoly was achieved, the lectures (at the Inns of Court) began to decline, to be ultimately discontinued altogether. Thereafter training was purely empirical and practical and led, as in the craft guilds, to pronounced specialisation. This kind of legal training naturally produced a formalistic treatment of the law, bound by precedent and analogies drawn fromprecedent.”'*^ The work of Robert Ferguson, op cit., passim, is a rare instance of an explicit attempt at such a historical assessment. Ferguson’s valuable research differs from this paper in that his discussion of Weber on “the peculiarities of the English” is peripheral to his larger concerns and, therefore, does not merit his detailed attention. The juxtaposition of the rational and irrational in English law and society - a major theme of this essay - is not considered as such. His primary focus is the extent to which Weber’s characterisation of formal rational law is borne out by the development of commercial lawin England. See, Sonenscher, Journeymen, the Courts and the French Trades 1731-1791”, op cit., p. 107. ■*5 Weber, op cit., p. 406. These characteristics were not peculiar to the legal profession. The education of medics, clergy and the army paralleled that of the lawyers. See the discussion infra.
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