Inthe spirit of weber 235 “The common law of England has fared like other venerable edifices of antiquity, which rash and inexperienced workmen have ventured to new-dress and refine, with all the range of modern improvement. Hence frequently its symmetry has been destroyed, its properties disturbed, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. ”71 Thus scientific rationalism was forever being mediated, refracted and sustained by an omnipresent irrationality: thereby lies the peculiar rationality of the common law mind. Thus, lawyers could, with seeming effortlessness, eulogise the haphazard, particularistic and unsystematic evolution of the common law; and trumpet its intrinsic rationalism. Like a magnetic field, the history of English legal thought and education has experienced the perpetual pull and push of these competing poles. As a result, the common law mind was forever betwixt and between. It required a little of history and metaphysics. But it could only continue to maintain its complex equilibrium by keeping history and metaphysics at a safe distance, which usually meant allied to the present needs of the profession. The constitution of the knowledge base of the profession and the relationship between professional knowledge, professional organisation and lay persons was anchored in a profoundly anti-historical and antimetaphysical epistemology. Bentham’s critique of Blackstone’s (and orthodox legal science’s) dependence upon irrationality (in the Weberian sense) detailed the role and importance of irrationality within the culture of the law. But the seeming success of the Benthamite revolution obscured the extent to which the culture of the common law remained crucially dependent upon a complex blend of rationality and irrationality. Thus, whilst the common law mind was relatively more “lay” than its Continental counterpart, neither abandoned their transcendental aspirations. They never wholly threw off the priestly habit for the more congenial one of lay rationality. Hill’s work on Coke^^ ^nd Boorstin’s on Blackstone^^ carefully describe the ways in which lawyers made lawseemboth a science and a mystery. Thus, Hill’s pointed observation that: W. Blackstonc, Commentaries on the Laws of England, 4 vols., vol.i., (Oxford: 1809 ed.,), p. 10. 72 C. Hill, “Sir Edward Coke - Myth- Maker” in his Intellectual Origins of the English Revolution (Oxford: Clarendon Press, 1965, 1980 ed.), pp. 225-65. Coke also invented the myth that the law was the possession of every propertied Englishman and can claim to be the first of the Whig historians: C. Hill ibid., p. 258. It has been argued that the peculiar discourse of lawyers promotes their economic interests. See, for example, S. Stark, “Why Lawyers Can’t Write”, 97, 1984, Harvard Law Review, pp. 1389-93. 72 D. Boorstin, The Mysterious Science of the Law, (Cambridge: Harvard University Press, 1941). Boorstin shows how the contradictions within Blackstone’s Commentaries were harmonised in the sense that they were grounded in an underlying unity. This unity is found in the values which the Commentaries appeared to accept and which they showed to be supremely effectuated in English law.
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