In thk spirit of weber 261 are more peculiar than others. Germany’s middle classes got the economic prosperity and class ascendancy it wanted without having to fight for it in the political sphere. As this particular controversy testifies, crude assertions about “normal paths”, “backwardness” and “specialness” require much more careful handling: in what particular ways was one country more advanced than another? And what normative criteria are being used to determine a nation’s “peculiarities”? It has to be acknowledged that on this count, Weber’s contrast between the formal law of the Continent and the relatively irrational empirical justice of England is not entirely satisfactory. Indeed, I believe that conceptually, and in terms of the historical record, there are striking similarities as between the form of Continental law and the common law in ways Weber did not perceive.’*^'* Weber was no doubt correct to characterise the common law as relatively more open-ended than the civil law. Nonetheless, the common lawwas significantly more formally rational than he assumed.Itscommitment to the notion of lawas founded upon a handful of general, internally coherent principies and the doctrine of judicial precedent meant that it was grounded in general, abstract norms from which specific results could be deduced - that is, those very properties that Weber associated with the logical formal rationality of the civil law.'*^^ It is not just that Weber significantly mischaracterised the common law. He also failed to perceive an increasing convergence between the common law and civil law during the nineteenth and early twentieth centuries. The civilian influence on the common law had always been stronger than many commentators had acknowledged. More specifically, doctrinal innovation in contract, torts and commercial law during the nineteenth century was significantly influenced by civilian ideas - notably, the writings of the great Continental textwriters such as Pothier and Savigny.*^^ English law was systematised as never before through the new text-books produced by Blackburn, Benjamin, Lindley. Pollock, Anson, Dicey, Markby, Holland and others. 188 D. Blackbourn and G. Eley, The Peculiarities of German History, (Oxford; Oxford University Press, 1984). For example, contrast the judiciaries in Britain and Italy: see, G. Di Federico, “The Italian Judicial Profession and its Bureaucratic Setting”, in D.N. MacCormick, (ed.). Lawyers in their Social Setting, (Edinburgh: Green and Son, 1976), pp. 115-32. See Ferguson, “Lawand Commercial Order”, op. cit., pp. 139 et seq., and 334 et seq. See Sugarman, “Legal Theory, the Common Law Mind and the Making of the Text-Book Tradition”, op. cit.; Hoeflich op. cit., passim; T. Grey, “Langdell’s Orthodoxy”, University of Pittsburgh Law Review, 45, 1983, pp. 16-27. See Simpson op. cit., and passim and “The Rise and Fall of the Legal Treatise”, 48, 1981, I S3 184 1S.S 186 187 pp. 632-79. See Simpson, ibid.; Sugarman, “The Legal Boundaries of Liberty”, op cit., passim; “Legal Theory, the Common Law Mind and the Making of the Text-Book Tradition”, op cit., passim. 188
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