In thk spirit oi- wkbfr 229 Other features which distinguished the English legal system were its treatment of judges as oracles, that is, the charismatic and ultimately irrational nature (in the pre-modern sense) of the relation between bench, bar and society; and, related thereto, the success of a small legal elite (the judges and the bar) in significantly shaping the character of the English legal tradition: its thought, legal education and the legal professions."*^ Other aspects of the English legal system that Weber characterised as irrational include the local justices of the peace who apply a form of “Khadi justicc” and the jury. The jury was irrational “... in as much as it does not indicate rational grounds for its decisions. Nowthis account, with the importance that it attaches to the irrational features of the modern English legal system, contrasts starkly with orthodox legal histories and general histories. Was Weber right in claiming that the English legal systemwas relatively less rational and of a different type fromthat of its continental counterparts? Was this lower degree of rationality peculiar to England? Did the greater irrationality of English law exemplify a wider tendency within English life? What functions did this lower level of rationality serve? Ought this lower rationality be viewed as a rational facet of a rational and modern society or an irrational facet of an irrational and per-modern one? In other words, what implications does the existence of a lower level of legal rationality in England have for the way we characterise nineteenth century English society and for the ways we define “modernity”? What is the relationship between the irrational and the rational in law, state and society? Clearly these are enormous questic')ns. In what follows I would not pretend to do more than scratch the surface of a fascinating but neglected subject. Let us consider Weber’s arguments alongside the historical record. ”47 Weber on England: The Historical Record What is striking is that in a whole series of ways, Weber’s rich analysis of the irrational features of the English legal svstemis amply borne out by the historical record. I. The Content of the Law Extreme legal technicality reached its apogee in the land laws of England. A King’s Counsel informed the Royal Property Commissioners in 1829 that ■*'’ See, also, J. P. Dawson, The Oraelcs of the Law, (Ann Arbor: University of Michigan Law School, 1968), p. 1, also pp. 98-99; F. H. Lawson, “The Academic Lawyer as Jurist”, Journal of the Society of Public Teachers of Law , 1960, pp. 182-192, p. 183, discussed by Dawson, ibid.; M. Cain, “Necessarily Out of Touch: Thoughts on the Organization of the English Bar” in p. Carlen (ed.). The Sociology of Law, (Keele: University of Keele, 1976), pp. 226-50. Weber, op. cit., p. 342. 16
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