David Sugarman 220 lawand English culture are characterised by an aversion to Theory. In fact, the dominant theories of law and Britishness that I have outlined were seen as necessary for particular conceptions of nationality, the state, the public sphere, professional power and the character of the British polity. What made Britons and their legal culture was their non-Europeanness. The traditional aversion to “Theory” in English legal education and scholarship is in part deeply rooted in that self-conscious non-Europeaness. Thus even that pioneer of the sociological perspective in England and one of the great intellectuals of the late Victorian era, Leslie Stephen, based his creed on Dr Johnson’s aphorism, “Stick to facts and resist anarchy”. For Stephen, Hegel, the epitome of high theorv was “little more than an ass”. V The invention of the British nation was centrallv linked to that towering teature in the national landscape, the notion of Britain as a Protestant nation; and the gulf between Protestants and others, most notably, Roman Catholics. As Colley and others have shown, what united England, Wales and Scotland and made the relationship with Ireland so problematical and distinctive was that England, Wales and Scotland shared and celebrated their Protestantism. In many respects, Ireland was the laboratory of the British Empire. Neither Reformation nor Counter-Reformation did anything other than sharpen religious intolerance. The importance of the continuing power of the notion that Catholics were the hereditary enemy and therefore the hostilitv to Continental Europe, especially France, and therefore Roman law, cannot be stressed enough. Successive (and successful) wars against France throughout the eighteenth and nineteenth centuries helped to consolidate British national identity, while constructing France as aristocratic, despotic, impoverished and Catholic. Right up to the end of the nineteenth century, most British lawyers, politicians, militarv experts and popular pundits continued to see France as Britain’s most dangerous enemy. Britain’s sense of a beleaguered bastion of Protestantism, and of a common purpose, was further sustained through imperial rivalry and its dominance in trade and the empire, extending to the ownership of one-quarter of the globe. This, and, from the 1870s onwards, an increasing concern about foreign competition, also helped to foster more absolutist notions of identity and ethnicity, coupled to the superiority of law and state in Britain. In short, English legal history has often yoked Whiggish notions of the superiority of England and its lawto a Romanophobic hostility, in conscious opposition to the Other beyond England’s green and pleasant lands. And it was in this context that Maitland, Pocock, Kelley and others have illuminated the manifold ways in which the discourses of the common law and its history were Anglocentric and insular, an insularity that refused to acknowledge that the history of English law had anything to do with Roman law and the Civil lawtradition.
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