David Sugarman 236 “Coke can hardly be left out of an inquiry into the intellectual origins of the English Revolution, yet he presents difficulties. He was a lawyer, not an Intellectual. The confusion and self-contradiction in his writings are so great that one is apt to dismiss themas of no significance for our purposes. Yet legal historians have no doubts of his importance. ”74 The passage from Maitland above reveals the peculiar irrationality of English legal rationality; and the artificial separation of legal discourse from the rest of the community. For Coke, the object of legal education was to convey “the secrets of the law”; and he is celebrated for distinguishing the isolated logic of the lawyer fromthe common sense reasoning of the lay person. The religiosity of the common law, that is, the non-cognitive, non-rational features of the law, as mystified, sacrilized powers has been explored in a variety of contexts. Douglas Hay’s justly celebrated essay on “Property, Authority and the Criminal Law” is one of the more well known studies which illuminates the coercive structures of dread, awe, uncertainty, resentment, frustration and absurdity that characterise the staging of justice tvpified bv the rituals of the court room.^^ Maitland and Pollock, amongst others, pointed to the highly empirical, particularistic character of English law.^^ Its conceptual core, the forms of action and the dichotomy between common law and equity, were irrational in the Weberian sense. The law was organised in complex procedural terms: around forms of action and remedies rather than as a small body of clearly defined, substantive rules arranged in discrete spheres. Despite the efforts of those such as Hale, Blackstone and Benthamto present the common law as an internally coherent whole,^^ the technicalities of special pleading became more rather than less dug-in as a result of the so-called reforms of the 1830s. Real reform had to wait until the IS/Os.^^ Hill, op. cit, p. 227. Ibid., p. 254. See D Hay, “Property, Authority and the Criminal Law” in D Hay et al (eds.), Albion’s Fatal Tree, (Allen Lane, 1977), pp. 17-64. See also p. Carlen, Magistrates’Justice, (London: Martin Robertson, 1976). See F.W. Maitland, The Forms of Action at Common law, (Cambridge: Cambridge University Press, 1936); F. Pollock and F.W. Maitland, The History of English Law, 2nd ed., 2 vols., vol.ii, (Cambridge: Cambridge University Press, 1898), pp. 558-674. On the centrality of procedure and, in particular, pleading, see T. F. T. Plucknett, A Concise History of the Common Law, 5th ed., (London: 1956), pp. 353-418. On Blackstone’s juristic enterprise, see Boorstin, op. cit., passim;]. Cairns, “Blackstone, an English Institutionalist”, Oxford Journal of Legal Studies, 4, 1984, pp. 318-60; and M. Lobban, The Common Lawand English Jurisprudence 1760-1850, (Oxford: Clarendon Press, 1991). On Bentham’s legal science, see David Lieberman’s exemplary. The Province of Legislation Determined, (Cambridge: Cambridge University Press, 1989) and his “From Bentham to Benthamism”. Historical Journal, 28, 1985, pp. 191-220; also, G. J. Posterna. Bentham and the Common LawTradition, (Oxford: Oxford University Press, 1986). The Civil Procedure Act of 1833 delegated to the ludges the power to draft the rules govern-
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