David Sugarman 222 comparative scholarship. And it is this that distinguishes the mental furniture of the common law from that of a Civil law tradition that at its most cosmopolitan was willing to entertain and acknowledge diverse extra-canonical sources, fromliterary to historical materials. VI In order to understand the traditional confines of English legal history it is helpful to remind ourselves of the belated character of university legal education in England: that is, that there was no thoroughgoing university education in English law from the mid-seventeenth to the mid-nineteenth centuries (though Oxbridge provided teaching in Roman and canon law); and that the possession of a law degree has never been a prerequisite for legal practice. Indeed, until the 1970s most lawvers did not studv law at universitv but learned their lawin practice. Since judges were the oracles of the common law and legal writing was the virtual monopoly of practitioners, jurists were marginal and marginalised. The profession’s condescension towards jurists is evidenced in the bizarre customthat the scholarship of a living author could not be cited before the courts—with its implication that the only good jurist is a dead one! The nature of legal history is also a product of the complex relationship between the disciplines of law and history. Law and history have always been closely intertwined. History grew out of law and the development of legal and historical argument and proof were intimately connected.Both worked in tandem (alongside religion) to construct and reconstruct the “imagined community” of national identity*^ and were leading players in the conSee Kelley, D. R. “Hermes, Clio, Themis: Historical Interpretation and Legal Hermeneutics.” Journal of ModemHistory 55 (1983): 350—67. See, further, Berman, Harold, Lau' andRevolution: The Formation of the Western Legal Tradition, (Cambridge, Mass.: Har\ard University Press, 1983); Kelley, Donald R., Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance, (New York: Columbia University Press, 1970) and The Human Measure, (Cambridge: Harvard University Press, 1993); Shapiro, B. J., Probability and certainty in 17th century England: a study of the relationships between natural science, religion, history, law and litigation., (Princeton: Princeton University Press, 1983) and Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence, (Berkeley: University of California Press, 1991); Iggers, Georg G., The German Conception of History, (Middletown, CT.,: Weslevan Universitv Press, 1968); Cousins, Mark, “The Practice of Historical Investigation,” Postructuralismand the Question of History, ed. D. Attridge, and et al. (Cambridge: Cambridge University Press, 1987); Nerhot, Patrick, Law, Writing, Meaning: An Essay in Legal Hermeneutics, (Edinburgh: Edinburgh University Press, 1992) chap. 15; Vernon, James, “Narrating the Consitution: The Discourses of ‘the Real’ and the Eantasies of Constitutional History,” Re-Reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth-Century, ed. James Vernon (Cambridge: Cambridge University Press, 1996). Anderson, B., Imagined Communities, (London: Verso, 1983).
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