Legal History, the Common Lawand “Englishness” In passing, it is worth noting that this conception of law enshrines what has often been portrayed as quintessentially English qualities: a stubborn individualism that is heroic to the point of eccentricity, and a hatred of authoritarianism and bureaucracy wonderfully captured in the celebrated Ealing Film Comedies of the post-war period, notably, “Passport to Pimlico” and “The Titfield Thunderbolt”; a philosophy that can be summed up by the slogan “Small is beautiful; old is good; English is best”. The second principal way in which law has been theorised is the notion that the field of law is objective insofar as it adopts the conventional viewof scientific method as mirroring nature and treats law as a certain and internally coherent body of rules. The intellectual pedigree of this discourse embraces disparate thinkers including Newton, Bacon, Bentham, John Stuart Mill, English civilians such as Selden, and Continental European thinkers, albeit, repackaged for domestic treatment. In practice, these two ways of conceptualising the permissible character and scope of law, legal theory, legal history and legal education have not operated discretely. They are often yoked together in complex and contradictory ways. Though relatively indeterminate, in practice, both conceptualisations have often tended to constitute and legitimate the notion of lawas relatively closed and autonomous; that meaning is relatively static and monolithic; and that social and economic life arises largely from choices freely made by individuals. These two conceptions of law not only permeate much of English legal thought and legal education as traditionally conceived; but they have also paralleled and sustained a plurality of overlapping cultures and institutions that portrayed Britishness and Englishness as Anglo-Centric, highly introverted and pre-democratic. Frc^m this perspective, the dominant traditions of theory and history in law and British national identity are related like Siamese twins. For example, both have sought to resist the three major challenges to a relatively static and monolithic conception of meaning and national identity: notably, the empirical challenge associated with the ideas of, say, Francis Bacon; the historicist challenge presented by the Scottish Enlightenment, Montesquieu, Hegel and de Tocqueville, Savigny, Maine and Maitland; and the interpretative or hermeneutic challenge that began with post-Reformation arguments over biblical exegesis, continued through Schleimacher and nineteenth-century Romanticism, and became important in English philosophy when the seriousness of the challenge posed to Oxford analytical philosophy by the late Wittgenstein was finally realised. In other words, both are grounded in and have reproduced pre-modern conceptions of the representation of the real, conceptions which modern art, science and history, for example, have long regarded as problematical.'- I hope that this helps to clarify the not infrequent claim that the common See, generally, Horwitz, M. J. “Why is Anglo-American jurisprudence unhistorical?” 17 (1997) OxfordJournal of Legal Studies 551-586. 219
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