David Sugarman 238 he writes, “accommodated these changes, and the structure of the rule of lawin their minds by making two compartments. One contained law, which included principle, the common law, and its interstitial legislation. The other included politics, expediency, legislation, and the change to compensation. A gulf between law and politics had existed in lawyers’ minds for at least two centuries, but it probably became deeper and more apparent at this time, perhaps because the massive changes were usually done by legislation and made the lawyers’ need for the gulf more pressing. ”84 IVJudges and the Courts English literar\^ sources, such as Smollett, Thackeray, Dickens and Gilbert and Sullivan are testimony enough to the low esteem in which the civil courts and the legal profession, particularly chancerv lawyers, have been held. Writing in 1839, George Spense, a leading authority on the Court of Chancery, observ^ed that “no man as things nowstand can enter into a chancery suit with any reasonable hope of being alive at its termination if he has a determined adversary. Dickens, of course, is perhaps the most celebrated portrayer of the bizarre, premodern, irrational (in Weberian sense) world of the common law.^^ The law, for instance, as represented by the chancery suit in Bleak House and the Circumlocation Office in LittleDorritt is a maze, a labyrinth or a prison. In an important recent essay, Rubinstein has shown howthe “Old Corruption” remained alive and well until at least the 1850s and 1860s.^^ Now “Old ”85 “This Nuisance of Litigation’: the Origins of Workers’ Compensation in Ontario” in D. Flaherty (eti.), Essays In the History of Canadian Law, Vol. 2, (Toronto: University of Tortinto Press), pp. 418-91, p. 472. Cited in Lord Bowen, “Progress in the Administration of Justice During the Victorian Period”, in (various authors). Select Essays in Anglo-American Legal History, (Boston: Little, Brown and Co., 1907), vol.i., pp. 516-57, p. 529. See, generally, Rubinstein, op cit., pp. 84-5. For an interesting discussion of Dickens and the irrationality of legal institutions see, N. Frye, The Stubborn Structure, (London: Methuen, 1970), pp. 228-32; and M. Stone, “Dickens, Bentham, and the Fictions of the Law'”, Victorian Studies, 29, 1985, pp. 125-54. Rubinstein, op. cit., passim. I found this article extremelv suggestive when I was writing this paper. Nonetheless, my work differs fromRubinstein’s in two crucial respects. Firstly, his treatment of Weber concentrates upon Weber’s conflation of modernity with increasing rationality. By ignoring Weber’s discussion of the deviant case of England (and, therefore, Weber’s sensitivity to the continuing importance of the irrational in modern societies), Weber appears as a straw-man. Secondlv, having insightfully articulated the importance of the irrational in earlv l9th centurv England, Rubinstein, nevertheless, concludes with a ratification of the orthodox view of modernity. We are reassured that:” ... nothing whatever now remains of the pre-modern, non-Weberian elements [The] radical ... nature of Victorian Liberalism... becomes apparent, as do the real bases of ‘Victorianism’: not sexual prudery, but the imposition of rationality and ‘modernitv’ upon the irrational and pre-modern ...”: Rubinstein, op Cit., p. 86. My essay seeks to transcend this either/orism: I emphasise the long-standing and continuing juxtaposition of the irrational and rational, as well as the problems of adopting sharp binary conceptualisations in historical and social thought. These criticisms notwithstanding, my debt to Rubinstein is very great.
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