In thh spirit oi- weber 237 Avariety of other features heightened this irrational dimension. There is the importance of “common sense” over the rational. Then there is the common laws Burkean-Whigg notions of gradual, organic change. This conservative view of the law treats major reforms as interfering with the natural evolution or path of the law.^° There is also the Whiggish, double-talk that characterises a legal discourse which disguises change, manufactures continuity, resorts to strange fictions and invents spurious “traditions”. This was charmingly described by Maine in his celebrated Ancient Law: With respect to ... cases ... we habitually employ a double language, and entertain ... a double and inconsistent set of ideas. When a group of facts come before our English court(s) ... the whole course of the discussion ... assumes that [nothing] ... will call for the application of any principles but old ones ... It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet, the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a newlanguage and a train of thought. We nowadmit that the newdecision has modified the law. The rules applicable have ... become more elastic. In fact, they have been changed. ”81 In fact, lawyers accommodate legal change through a battery of artificial divides or “ideological buffer zones”:^^ notably those that separate public law/private law,^^ law/politics, law/administration, substance/procedure, common law/statute law, law/morality, law/state, law/history, form/substance. These have cc'ime to form part of the basic assumptions and beliefs of the common law mentality. They make it more tenable to regard lawas “pure” and “scientific”. In his study of the origins of workmen’s compensation in Ontario, Risk concluded with a brief and tantalising discussion of the ways in which the legal mind absorbed a signal change in legal regulation. “Meredith and Wegenast”, ing pleading The new scheme came into force in the “Hilary Rules” of 1834. These rules extended the old and archaic rules governing special pleading to many cases that had previously not heen so handicapped. All this led to a general hardening and intensification of the formalistic tendencies of the common law. See, for .example, W. Holdsworth, “The New Rules of Pleading of the Hilarv Term, 1834”, Cambridge LawJournal, 1, pp. 261-278. See Pocock, “Burke and the Ancient Constitution”, op. cit passim. H. S. Maine, Ancient Law, (London: John Murray, ed. 1916), pp. 35-36. Maine’s views on the “elasticity” and “fictions” of the common law were not universally welcomed. See, for exampie, Pollock’s sour and defensive reposte in the notes that he prepared for the above edition of Ancient Law, see pp. 46-7. M. J., Horwitz, “The Conservative Tradition in the Writing or American Legal History”, American Journal of Legal History, 7, 1973, pp. 275-94, p. 276. Cf. Symposiumon the Public/Private Distinction, University of Pennsylvania Law Review, 130, 1982, pp. 1289-1609.
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