David Sugarman 234 Thus, until the late nineteenth century, legal science in England was very largely “lawyers’ law” produced by lawyers. The universities produced a minority of judges and practitioners acquainted with “learned law”, that is, Roman law. Efforts were certainly made to integrate the common law and Roman law. Nonetheless, they largely went their separate ways. The common lawwas, therefore, much more practitioner-orientated than the civil law tradition. In other words, the character of the English lawyer, and his culture, was relatively more lay than that of his continental cousins.Theconsequences of all this for the character of English legal science were wonderfully captured by Maitland. “[Under] the fostering care of the Inns of Court, English jurisprudence became an occult science and its professors ‘the most unlearned kind of learned men’. They were rigorous logicians, afraid of no conclusion that was implicit in their premises. The sky might fall, the War of the Roses might rage, but they could pursue the even course of their argumentation. common law was tough, one of the toughest things ever made. A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule. [The] clumsy, cumbrous system, though it might bend, would never break. It was ever awkwardly rebounding and confounding the state craft which had tried to control it. The strongest King, the ablest minister, the rudest Lord-Protector, could make little of this ‘ungodly jumble’. The English To understand the ambivalence that Benthamgenerated within many a lawyer we must perceive how the common law frame of mind straddled a contradictory field of discourses.A tendency towards scientific rationalism was yoked to an irrational belief in the spontaneous, piecemeal and unconscious development of the law. The lawwas a residue of immutable customor somethingto be discovered inthe unconsciousness of the people. This “ancient constitution” was central to England’s national identity and the protectionof individual freedom.In this aspect of common law culture, Whiggish notions of continuity had been allied to a Burkean conservative tradition, with its veneration of old institutions.For Blackstone, the common lawwas like an ancient building: see, P. Brand, “Courtroomand schoolroom: the education of lawyers in England prior to 1400.,” Historical Research, 60 (1987): 147. F. W. Maitland, “Outlines of English Legal History, 560-1600”, in his Collected Papers. Vol. II, 3 vols., (Cambridge: Cambridge University Press, 1911), pp. 417-96, 483-5. The following paragraph is largely reprinted fromD. Sugarman, “Legal Theory, the Common LawMind and the Making of the Text-Book Tradition”, op cit., p. 40. See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, (Cambridge: Cambridge University Press, 1957). See, J. G. A. Pocock, “Burke and the Ancient Constitution” in his Politics. Language and Time (London: Methuen, 1971). 68
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