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Gone and forgotten: Vinogradoff's historical jurisprudence

Published online by Cambridge University Press:  21 January 2021

Lorren Eldridge Open the ORCID record for Lorren Eldridge [Opens in a new window]
Lorren Eldridge*
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Corpus Christi College, Oxford University, Oxford, UK
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Abstract

Sir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.

Keywords

legal historyjurisprudencehistorical jurisprudencePaul VinogradoffHenry Mainecritical legal history
Type
Research Article
Information
Legal Studies , Volume 41 , Issue 2 , June 2021 , pp. 194 - 213
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

†

An earlier version of this article was delivered at the Oxford Legal History Forum in June 2020, whilst the forum was taking place online and combined with the Cambridge Legal History Seminar series due to Covid-19. I am grateful to the seminar audience for their time and their comments. I would also like to thank Joshua Getzler and Liz Fisher for their many helpful and insightful comments on earlier drafts.

References

1 Vinogradoff, P Villainage in England (Oxford: Clarendon, 1892) p 212Google Scholar.

2 Dubber, M ‘New historical jurisprudence: legal history as critical analysis of law’ (2015) 2(1) Critical Analysis of Law 1Google Scholar.

3 For example Mar, M Del and Lobban, M (eds) Law in Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing, 2016)Google Scholar. See also Musson, A and Stebbings, C Making Legal History: Approaches and Methodologies (Cambridge: Cambridge University Press, 2012)Google Scholar; a special edition of the Virginia Law Review entitled Jurisprudence and (its) History (2015) 101(4) Virginia Law Review; and MD Dubber and S Stern (eds) Special Issue, New Historical Jurisprudence & Historical Analysis of Law 2:1 Critical Analysis of Law (Toronto, 2015).

4 Tamanaha, B ‘The third pillar of jurisprudence: social legal theory’ (2015) 56(6) William and Mary Law Review 2235 at 2237Google Scholar.

5 For a recent discussion of the importance of methodology and the role of ‘thickness’ in thinking about law see Fisher, E ‘Through “thick” and “thin”: comparison in administrative law and regulatory studies scholarship’ in Cane, P et al. (eds) The Oxford Handbook of Comparative Administrative Law (Oxford: Oxford University Press, 2020)Google Scholar. See also on ‘thickness’ Getzler, J ‘Brian Simpson's empiricism’ (2012) 3(2) Transnational Legal Theory 127 at 137–139Google Scholar. Simpson's methodology had much in common with Vinogradoff's, although Simpson himself was somewhat dismissive of his philosophy: see below text to n 179.

6 Gordon, RW ‘Historicism in legal scholarship’ (1981) 90(5) Yale Law Journal 1017Google Scholar; Gordon, RW ‘The past as authority and as social critic: stabilizing and destabilizing functions of history in legal argument’ repr in RW Gordon Taming the Past (Cambridge: Cambridge University Press, 2017) p 282CrossRefGoogle Scholar; Gordon, RW ‘The arrival of critical historicism’ (1997) 49 Stanford Law Review 1023Google Scholar. See further section 1 below.

7 Tamanaha, B Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford: Oxford University Press, 1997)Google Scholar.

8 From the back catalogue of Legal Studies itself, Hutchinson, AC ‘Casaubon's ghosts: the haunting of legal scholarship’ (2001) 21 Legal Studies 65CrossRefGoogle Scholar calls for ‘ghost-busting’ ‘useful jurisprudence’ which ceases to claim universal, objective validity and instead embraces the richness and contingency of law, historical and otherwise. Ceri Warnock does something similar in a more immediately practical context when she calls for a less impoverished discourse about dynamic forms of adjudication in environmental courts and tribunals: Warnock, C ‘Reconceptualising specialist environment courts and tribunals’ (2017) 37(3) Legal Studies 391Google Scholar.

9 Maine's historical jurisprudence and Vinogradoff's were both compatible with analytical jurisprudence, but they have not been used as such: Cosgrove, R ‘Sir Henry Maine: historical jurisprudence and social reform’ in Cosgrove, R Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York: New York University Press, 1996) p 119; p 144Google Scholar.

10 Tamanaha, above n 4, at 2237.

11 ibid, at 2252, citing Ehrlich, E ‘Montesquieu and sociological jurisprudence’ (1916) 29 Harvard Law Review 582CrossRefGoogle Scholar; Ehrlich, E Fundamental Principles of the Sociology of Law (Walter Moll trans, 1936)Google Scholar.

12 Pound, R ‘The scope and purpose of sociological jurisprudence’ (1911) 24 Harvard Law Review 591CrossRefGoogle Scholar.

13 Tamanaha, above n 4, at 2261; in general, Gordon (1981), above n 6, at 1029; Gordon (2017), above n 6, p 287.

14 Elliot, D ‘The evolutionary tradition in jurisprudence’ (1985) 85 Columbia Law Review 38Google Scholar; Cocks, R Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge University Press, 1988) pp 213–215CrossRefGoogle Scholar.

15 Lacey, N ‘Jurisprudence, history, and the institutional quality of law’ (2015) 101(4) Virginia Law Review 919 at 920Google Scholar.

16 Lobban, M ‘Introduction: the tools and the tasks of the legal historian’ in Lewis, A and Lobban, M (eds) Law and History Current Legal Issues, vol 6 (Oxford: Oxford University Press, 2003) p 4Google Scholar.

17 Ibid, p 19.

18 D Ibbetson ‘What is legal history a history of?’ in Lewis and Lobban, above n 16, p 34.

19 As Peter Stein argued in the 1980s: Legal Evolution: the Story of an Idea (Cambridge: Cambridge University Press, 1980) p 126 and in P Stein ‘The tasks of historical jurisprudence’ in N MacCormick and P Birks (eds) The Legal Mind: Essays for Tony Honoré (Clarendon Press, 1986) p 304.

20 See above n 6.

21 Gordon (1981), above n 6, at 1029.

22 C Tomlins ‘Historicism and materiality in legal theory’ in Del Mar and Lobban, above n 3, p 58. Tomlins is sceptical of the value of historicism and favours materiality as a standpoint from which to revise legal theory.

23 Gordon (1981), above n 6, at 1017.

24 Tomlins, above n 22, p 61. In later work Kennedy moved away from structuralism. See also Kennedy, D ‘Three globalizations of law and legal thought 1850–2000’ in Trubek, DM and Santos, A (eds) The New Law and Economic Development (Cambridge: Cambridge University Press, 2006) p 19Google Scholar.

25 Gordon (2017), above n 6, p 305.

26 Gordon (1981), above n 6, at 1028–1036.

27 Discussed in section 3 below.

28 Gordon (1981), above n 6, at 1023.

29 Tomlins, above n 22, p 65.

30 Vinogradoff, P Outlines of Historical Jurisprudence, vol 1 (Oxford: Oxford University Press, 1920–1922) pp 153–154Google Scholar.

31 Twining, W ‘Evidence and legal theory’ in Twining, W (ed) Legal Theory and Common Law (Oxford: Blackwell, 1986) p 64Google Scholar.

32 HLA Hart The Concept of Law (Oxford: Oxford University Press, 3rd edn, 2012); Austin, JL How to Do Things with Words (Oxford: Clarendon Press, 1962)Google Scholar.

33 Tamanaha, above n 4.

34 HLA Hart ‘Definition and theory in jurisprudence’ (1954) 70 LQR 37; N MacCormick ‘Hart: moral critic and analytical jurist’ in N MacCormick HLA Hart (Stanford University Press, 2nd edn, 2008) p 17.

35 Samuel, G ‘What is (or perhaps should be) the relationship between legal history and legal theory?’ (2018) 6(1) Comparative Legal History 97 at 103Google Scholar.

36 For core examples see Raz, J The Authority of Law (Clarendon Press, 2nd edn, 2009) p 104Google Scholar; Shapiro, SJ Legality (Cambridge, MA: Harvard University Press, 2011) p 406CrossRefGoogle Scholar; Gardner, J Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press, 2012)CrossRefGoogle Scholar.

37 As expressed by Kelsen, H ‘The pure theory of law and analytical jurisprudence’ (1941) 55 Harvard Law Review 44, at 52–53CrossRefGoogle Scholar, and more recently by the late Gardner, J Law as a Leap of Faith, and Other Essays on Law in General (Oxford: Oxford University Press, 2012) pp 273–274CrossRefGoogle Scholar. Cf M Lobban ‘Legal theory and legal history: prospects for dialogue’ in Del Mar and Lobban, above n 3, p 4.

38 For criticism of this narrowing of jurisprudence see R Cotterrell ‘Why jurisprudence is not legal philosophy’ (2014) 5 Jurisprudence 41.

39 See F Schauer ‘The path-dependence of legal positivism’ (2015) 101(4) Virginia Law Review 957 for a consideration of this relatively recent development in legal positivism; similarly MJ Horwitz ‘Why is Anglo-American jurisprudence unhistorical?’ (1997) 17 OJLS 551; GJ Postema ‘Jurisprudence, the sociable science’ (2015) 101 Virginia Law Review 869. For an alternative view relating to the use of legal history see M Del Mar ‘Beyond universality and particularity, necessity and contingency: on collaboration between legal theory and legal history’ in Del Mar and Lobban, above n 3, p 22.

40 Hart, above n 32, pp 26–27; HLA Hart ‘Review’ (1990) 105(416) The English Historical Review 700 at 701.

41 This is exactly the dialogue proposed by Lobban, above n 37, p 7.

42 PA David ‘Clio and the economics of QWERTY’ (1985) 75(2) The American Economic Review 332. Schauer, above n 39, takes precisely this approach in respect of legal positivism itself, see also the response paper by S Watt (2015) 101(4) Virginia Law Review 979. The use of critical legal history to do so as a method is indicated by Gordon (2017), above n 6, p 308.

43 See Hutchinson, above n 8, on the need for useful jurisprudence.

44 This is the legal philosophy bereft of ‘metaphysical baggage’ which Hutchinson enthusiastically calls for: above n 8, at 90.

45 Lobban, above n 37, p 13.

46 Cotterrell, above n 38, at 48.

47 Gordon (1981), above n 6, at 1026.

48 This argument is not new: see Del Mar, above n 39, p 25; S Collini et al That Noble Science of Politics (Cambridge University Press, 1983) describe the contemporaneous attempt to make use of ancient history as offering ‘laboratory studies’ for theories of politics in a similar way: p 190.

49 Encyclopædia Britannica, vol 15 (Cambridge: Cambridge University Press, 11th edn, 1911) p 580.

50 HJ Berman ‘The origins of historical jurisprudence: Coke, Selden, Hale’ (1994) 100(7) Yale Law Journal 1651 at 1693.

51 One scholar who did seem to agree with Vinogradoff's approach was James Barr Ames, who similarly sought to test analysis of rules against historical facts, but Vinogradoff's direct influence on American scholarship seems to have been forestalled by Pound's denunciation: Gordon (1981), above n 6, at 1041, citing JB Ames ‘Two theories of consideration’ in JB Ames Lectures on Legal History (1913) p 323; JB Ames ‘The doctrine of Price v Neal’ in JB Ames Lectures on Legal History (Cambridge, MA: Harvard University Press, 1913) p 270 at p 284.

52 A Levett and G O'Brien ‘Obituary’ (1926) 36(142) The Economic Journal 310 at 311. Maitland's work included helping Vinogradoff present his work in English: Vinogradoff, Villainage, above n 1, p x.

53 RW Gordon ‘J Willard Hurst and the common law tradition in American legal historiography’ (1975) 10 Law and Society Review 9 at 17.

54 Letter from Frederic W Maitland to Reginald L Poole (15 July 1895) in HAL Fisher and FW Maitland A Biographical Sketch (Cambridge: Cambridge University Press, 1910) p 86.

55 Letter from Frederic W Maitland to Paul Vinogradoff in ibid, p 49; JW Burrow ‘The village community and the uses of history in late nineteenth-century England’ in N McKendrick (ed) Historical Perspectives: Studies in English Thought and Society in Honour of JH Plumb (London: Europa, 1974) p 257.

56 Letter from Frederic W Maitland to Paul Vinogradoff (20 February 1889) in Fisher and Maitland, above n 54, p 49.

57 P Wormald ‘Maitland and Anglo-Saxon law: beyond Domesday Book’ (1996) 89 Proceedings of the British Academy 1 at 8.

58 WS Holdsworth and B Pares ‘Sir Paul Vinogradoff’ (1926) 4(12) Slavonic Review 529 at 530.

59 PNR Zutshi (ed) Letters of FW Maitland, vol 2 Selden Society Supplement 11 (London: Selden Society, 1995) p 129; FW Maitland ‘Why the history of English law is not written’, reprinted in HAL Fisher (ed) Collected Papers of Frederic William Maitland, Downing Professor of the Laws of England, vol 1 (Cambridge: Cambridge University Press, 1911) p 480, p 490.

60 Holdsworth and Pares, above n 58, at 532.

61 Letter from Frederic W Maitland to ‘a friend’ (12 March 1889) in Fisher and Maitland, above n 54, p 50. Despite this apparent praise, it was clear that Maitland generally disapproved of the comparative method, and any pursuit of general ‘laws of progress’ which could never be formulated: FW Maitland Domesday Book and Beyond (Cambridge: Cambridge University Press, 1897) p 403.

62 P Vinogradoff The Growth of the Manor (George Allen & Co Ltd, 2nd edn, 1911) p 587.

63 Nowadays there is a rich literature on ‘legal transplants’, eg A Watson Legal Transplants: an Approach to Comparative Law (Athens: University of Georgia Press, 1993); W Ewald ‘Comparative jurisprudence (II): the logic of legal transplants’ (1995) 43 American Journal of Comparative Law 489; D Nelken ‘Legal transplants and beyond: of disciplines and metaphors’ in A Harding and E Örücü (eds) Comparative Law in the 21st Century (London: Kluwer, 2002).

64 K Mantena Alibis of Empire (Princeton, NJ: Princeton University Press, 2010) p 85. Maine briefly engaged with the idea in relation to India: H Maine Dissertations on Early Law and Custom (London: J Murray, 1883) p 45.

65 Stein (1980), above n 19, p 104 cites this as a criticism of Maine without apparently noticing that Vinogradoff sought to address it.

66 Encyclopædia Britannica, above n 49, p 585.

67 Vinogradoff was active in trade union disputes with miners in the 1920s so cuttings include, for instance, Amalgamated Society of Railway Servants v Osborne [1910] AC 87.

68 Heddon v Evans (1919) 35 TLR 642, concerning the rights of soldiers, for example.

69 Hartabove n 32.

70 Vinogradoff, above n 1, p 127.

71 Ibid, p 127. It is interesting to note that the question of whether legal principles do in fact succumb and fail to deal with certain complex factual situations would later become a core debate in jurisprudence, for example in R Dworkin Law's Empire (Cambridge, MA: Harvard University Press, 1986).

72 Vinogradoff, above n 1, p 128.

73 H Maine Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (J Murray 1906) p xvii. In more recent scholarship, it resembles Brian Simpson's model of English common law as a customary law system: B Simpson ‘The common law and legal theory’ in Twining (ed), above n 31, p 8.

74 This is, in fact, comparative jurisprudence in one sense, and was consistent with Maine's interest in the gaps between social ideas and law – see Vinogradoff's definition in the Encyclopædia Britannica, above n 49; Mantena, above n 64, p 107.

75 Vinogradoff, above n 1, p 127.

76 Vinogradoff ‘The Roman elements in Bracton's Treatise’ (1923) reprinted in HAL Fisher (ed) The Collected Papers of Sir Paul Vinogradoff, vol 1 (Oxford: Clarendon, 1928) p 237.

77 Vinogradoff, above n 1, p 223. For the idea that politics, law, and agriculture were all interlinked in historical jurisprudence generally see Stein (1986), above n 19, who traces it from Montesquieu via Adam Smith.

78 In the twentieth century, Ronald Dworkin would deploy the same tactic as a critique of Hart: Taking Rights Seriously (London: Bloomsbury Academic, 2013) p 105.

79 HAL Fisher ‘A memoir’ in Collected Papers, above n 76, vol 1, p 50.

80 Gordon, above n 53, at 11.

81 P Vinogradoff ‘The study of jurisprudence’ in Collected Papers, above n 76, vol 2, p 205.

82 The Online Symposium on the European Legal History Society's Journal Comparative Legal History held on 10 June 2020 largely centred on the need for such methodology. A similar process of collaboration within a general framework established by a former wave of scholarship occurred in sociology of law between sociologists and lawyers in the 1960s: P Selznick ‘The sociology of law’ in R Merton et al (eds) Sociology Today (New York: Basic Books, 1959).

83 B Tamanaha ‘The unrecognised triumph of historical jurisprudence’ (2013) 91 Texas Law Review 615 at 628.

84 J Getzler ‘Law, history, and the social sciences: intellectual traditions of late nineteenth and early twentieth-century Europe’ in Lewis and Lobban, above n 16, p 224.

85 Getzler, ibid, p 223. See further above n 42.

86 Vinogradoff, above n 81, p 214.

87 Fisher, above n 79, p 49.

88 Vinogradoff, above n 30.

89 Fisher, above n 79, p 47.

90 The types were the totemistic, the tribal, the ancient city state, the medieval system of feudalism and canon law, and modern industrial society.

91 Vinogradoff, above n 30, p 123; p 157. For a more recent conceptualisation of legal positivism as an ideal type see F Pirie ‘Legal theory and legal history: a view from anthropology’ in Del Mar and Lobban, above n 3, p 39.

92 Fisher, above n 79, p 32.

93 B Tamanaha ‘How history bears on jurisprudence’ in Del Mar and Lobban, above n 3, pp 329, 334.

94 Vinogradoff, above n 1, p 1.

95 P Vinogradoff Russian Thought (January 1980) reproduced in A Meyendorff (trans) ‘Sir Paul Vinogradoff: a bibliographical appreciation’ (1926) 5 Slavonic Review 157 at 158.

96 FK von Savigny On the Vocation of Our Age; H Kantorowicz ‘Savigny and the historical school of law’ (1937) 53 LQR 326; Vinogradoff, above n 1, p 10.

97 Vinogradoff, above n 30, p 160.

98 Ibid, p 160.

99 Gordon (1981), above n 6, at 1029–1030.

100 Gordon (2017), above n 6, p 287.

101 Collini et al doubt whether the comparative approach was really novel in the 1860s rather than a consistent feature of ‘whiggish’ approaches to history, but it is certainly the case that this was the period and the author who popularised the comparative and historical jurisprudence; above n 48, p 185.

102 Cocks, above n 14, p 77.

103 Ibid, p 149; R Cocks ‘Sir Henry Maine: 1822–1888’ (1988) 8(3) Legal Studies 247 at 252.

104 ME Grant Duff Sir Henry Maine: a Brief Memoir of His Life (New York: Henry Holt and Co 1892) p 80; ‘Obituary: Sir Henry Maine’ 11 February 1888 Saturday Review, p 150.

105 H Maine Village Communities in the East and West: Six Lectures Delivered at Oxford with other Lectures, Addresses and Essays (1st edn 1871; New York: Henry Holt and Co, 1889) p 6.

106 Mantena described comparative philology as an ‘inspirational analogy’ rather than a methodological model: Mantena, above n 64, p 74.

107 In any case the lack of a recognised Mainian school makes it temptingly easy to align him with the German school when categorising: Cocks (1988), above n 103, at 248.

108 The school is thought of as founded by Frederick Charles von Savigny, whose views can primarily be found in Of the Vocation of Our Age for Legislation and Jurisprudence (Abraham Hayward trans, London: Littlewood, 1831). It is questionable how far Maine engaged with the substantive arguments of the German scholars: see Cocks, above n 14, pp 24–27. It has been argued that Maine was nodding to a shared intellectual culture rather than to the substance of the German scholars’ works: Cosgrove, above n 9, p 126; and alternatively that he was heavily influenced by Niebuhr: N O'Brien ‘“Something older than law itself”: Sir Henry Maine, Niebuhr, and “the path not chosen”’ (2005) 26(3) JLH 229; or by both Niebuhr and Savigny: Mantena, above n 64, p 65; p 100.

109 P Vinogradoff The Journal of the Ministry of Education (Russian, December 1883), reproduced in Meyendorff, above n 95, at 164.

110 P Vinogradoff ‘The teaching of Sir Henry Maine’ (1904) 20 LQR 119, reprinted in Collected Papers, above n 76, vol 1, p 173; p 180.

111 Vinogradoff, above n 1, p 25.

112 Vinogradoff, above n 110, p 181.

113 Vinogradoff, above n 30, p 135.

114 H Maine The Effects of Observation of India on Modern European Thought: The Rede Lecture 1875 (London 1875) p 23.

115 R von Jhering The Struggle for Law (J Lalor trans, Chicago, 1915).

116 JF Stephen (1861) 114 Edinburgh Rev 456 at 482.

117 Maine was particularly influential in the adoption of a policy of ‘indirect rule’: see generally Mantena, above n 64.

118 Burrow, above n 55, p 256; C Dewey ‘Celtic agrarian legislation and the Celtic revival: historicist implications of Gladstone's Irish and Scottish Land Acts 1870–1886’ (1974) 64 Past & Present 30.

119 P Stein ‘Maine and legal education’ in A Diamond The Victorian Achievement of Sir Henry Maine (Cambridge: Cambridge University Press, 2009) p 195.

120 Cocks, above n 14, pp 52–53.

121 Duff, above n 104, p 7; p 80.

122 Cocks, above n 14, p 250 per James Fitzjames Stephen; G Feaver From Status to Contract: A Biography of Sir Henry Maine 1822–1888 (New York: Humanities Press 1969) p 174; p 245.

123 Sir Frederick Pollock to Frederick Maitland, 28 December 1900; 26 October 1902, Frederick Maitland Papers, Cambridge University Library; see further Cosgrove, above n 9, p 142.

124 B Simpson ‘The Corpus Chair and Oxford jurisprudence as evolved by 1952’ in B Simpson Reflections on ‘The Concept of Law’ (Oxford: Oxford University Press, 2011) p 17.

125 Vinogradoff, above n 110, p 174; pp 183–185.

126 Vinogradoff, above n 1, p 28. More recently the same point has been made by R Hilton ‘The content and sources of English agrarian history before 1500’ (1955) 3(1) The Agricultural History Review 3 at 4.

127 Criticism of a writer for failing to come up with an idea which they are, in retrospect, required to develop is precisely the phenomenon Quentin Skinner referred to as part of the ‘mythology of doctrine’ in ‘Meaning and understanding in the history of ideas’ in Q Skinner Visions of Politics (Cambridge: Cambridge University Press, 2002) p 67. Pollock had made this point about Maine as early as 1888: (1888) Edin Rev 1 at 6.

128 Stein (1980), above n 19, p 90.

129 H Maine Dissertations on Early Law and Custom (London: J Murray, 1883) p 361; ‘Obituary: Sir Henry Maine’ in H Ward (ed) Eminent Persons: Biographies Reprinted from the Times, vol 4, 1887–1890 (London: MacMillan, 1893) p 25; Feaver, above n 122, p 43. It is doubtful how familiar Maine was with the substance Darwin's ideas, or how committed Maine or even Vinogradoff really were to the idea of ‘science’ in history – the association is by virtue of impact, not substance: Feaver, above n 122, p 44; KE Bock ‘Comparison of histories: the contribution of Henry Maine’ (1974) 16(2) Comparative Studies in Society and History 232 at 236; K Kumar ‘Maine and the theory of progress’ in Diamond, above n 119, p 78.

130 Vinogradoff, above n 1, pp 29–30.

131 Vinogradoff, above n 110, p 189. See also Cocks, above n 14, p 150. This developmental arc from grand theory to method is not dissimilar to Selznick's description of the development of sociology, to which historical jurisprudence was related, most notably via Weber. Arguably, historical jurisprudence is only now reaching the third and final stage of ‘intellectual maturity’: Selznick, above n 82, p 115.

132 Maine, above n 105, p 7.

133 Vinogradoff, above n 1, p vi. Amusingly, Vinogradoff foresaw that the history of the nineteenth century would include an ‘important and attractive’ chapter on the development of historical writing: ibid, p 1. For a summary of the difficulties encountered by early legal science see MDA Freeman (ed) Lloyd's Introduction to Jurisprudence (London: Sweet & Maxwell, 8th edn, 2008) pp 6–8.

134 Maine, above n 105, p 266.

135 Vinogradoff, above n 1, p 9.

136 This comment was made specifically in relation to – but was not limited to – Coke, who Vinogradoff saw as seeking to use history to illustrate the present through selective interpretation of case law: ibid, p 5.

137 EA Kosminsky ‘The Hundred Rolls of 1270–80 as a source for English agrarian history’ (1931) 3(1) Economic History Review 16 at 20.

138 Sir Paul Vinogradoff ‘Obituary – Frederic Seebohm (1833–1912)’ in Collected Papers, above n 76, vol 1, p 276.

139 Collini et al, above n 48, p 186. This description from John Stuart Mill might be taken as a direct commentary on Maine, or Mill himself: p 155.

140 Ibid pp 175–177; citing Maine, above n 129, p 192.

141 Collini et al, above n 48, p 211; H Maine Lectures on the Early History of Institutions (New York: 1875) p 365; p 563.

142 Vinogradoff, above n 110, p 177, citing Maine, above n 141, p 361.

143 Collini et al, above n 48, p 216; Mantena, above n 64, p 50.

144 Vinogradoff, above n 110, pp 180–183.

145 Holdsworth and Pares, above n 58, at 530.

146 Lobban, above n 16, p 19.

147 Maine, above n 73, p 116; see also Mantena, above n 64, p 100 on Savigny's influence on Maine's understanding of Roman law as ‘scientific’.

148 R Cocks ‘Maine, progress and theory’ in Diamond, above n 119, p 70.

149 C Dewey ‘Images of the village community: a study in Anglo-Indian ideology' (1972) 6(3) Modern Asian Studies 291 at 306.

150 This included the establishment of the Selden Society and involvement in the first three dozen of its publications, and Vinogradoff's editorship of both the British Academy volumes in Records of the Social and Economic History of England and Wales and nine volumes of the Oxford Studies in Social and Legal History series.

151 Vinogradoff, above n 110, p 184; Encyclopædia Britannica, above n 49, p 580.

152 Vinogradoff, above n 110, p 185; this was also Bryce's approach to comparative jurisprudence, see Stein (1980), above n 19, p 119.

153 Above n 118.

154 Encyclopædia Britannica, above n 49, p 584.

155 DM Stenton English Justice between the Norman Conquest and the Great Charter (Philadelphia: American Philosophical Society, 1964) p 16.

156 For Vinogradoff's assessment of the status of English university education, see P Vinogradoff ‘Oxford and Cambridge through foreign spectacles’ in Collected Papers, above n 76, vol 1, p 277.

157 Ibid, p 3.

158 Encyclopædia Britannica, above n 49, p 584.

159 Vinogradoff, above n 1, p 3.

160 Vinogradoff, above n 81, p 208.

161 Vinogradoff, above n 1, p 12; Palgrave History of the English Commonwealth (Murray, 1832); Palgrave Normandy and England (London: Macmillan, 1840). How possible it is to approach materials in a value-free way has since been considered in depth by Skinner, above n 127.

162 See generally Stein (1980), above n 19.

163 Vinogradoff was forced out of Russia in 1903 for being too liberal, and although he continued to return regularly for many years after, 1917 decisively severed his ties with the country and precipitated an application for British citizenship: HAL Fisher ‘A memoir’ in Collected Papers, above n 76, vol 1, p 59.

164 Ibid, p 67; Vinogradoff, above n 1, p 31.

165 Maxime Kovalevsky had made the same point in relation specifically to Seebohm's work: ‘The origin and growth of village communities in Russia’ (1888) 1(4) The Archaeological Review 266.

166 Encyclopædia Britannica, above n 49, p 586.

167 Getzler, above n 84, p 215.

168 J Burrow ‘Henry Maine and mid-Victorian ideas of progress’ in Diamond, above n 119, p 56.

169 KB Smellie ‘Sir Henry Maine’ (1928) 22 Economica 64 at 80; Vinogradoff, above n 110, p 187.

170 Smellie, above n 169, at 80.

171 Vinogradoff described it on more causal terms as a map to how static could become progressive, but this overlooks the fact Maine gives no explanation of causation: Vinogradoff, ‘above n 110, p 187.

172 Gordon (2017), above n 6, pp 286–287.

173 Getzler, above n 84, p 225. Cf Kumar, above n 129.

174 Cocks, above n 148, p 72.

175 Kumar, above n 129, pp 79–87.

176 Cocks, above n 148, p 75.

177 Cocks, above n 14, p 187.

178 Vinogradoff, above n 30.

179 Simpson, above n 124, p 27.

180 Getzler, above n 84, p 223; PA David ‘Clio and the economics of QWERTY’ (1985) 75(2) The American Economic Review 332.

181 C Parker ‘Paul Vinogradoff, the delusions of Russian liberalism, and the development of Russian studies in England’ (1991) 69(1) The Slavonic and East European Review 40 at 42; and in general Collini et al, above n 48.

182 R Pound ‘Review of outlines of historical jurisprudence vol 1’ (1921–1922) 35 Harvard Law Review 774. This claim would be much more true of Maitland.

183 JW Burrow A Liberal Descent (Cambridge: Cambridge University Press, 1981) p 20 briefly considers this point.

184 F Seebohm The English Village Community (London: Longmans, Green, and Co, 1883).

185 Lobban, above n 16, p 19.

186 Lacey, above n 15.

187 Hilton, R The English Peasantry in the later Middle Ages: The Ford Lectures for 1973 and Related Studies (Oxford: Clarendon, 1975) p 4Google Scholar.

188 Getzler, above n 84, p 258; Raftis, JA ‘Marc Bloch's comparative method and the rural history of medieval England’ (1962) 24 Medieval Studies 349 at 355Google Scholar.

189 Raftis, ibid, at 356–357.

190 Encyclopædia Britannica, above n 49, p 587. In a recent article, Russell Sandberg made precisely this point: ‘The time for legal history: some reflections on Maitland and Milsom fifty years on’ (2018) 180 Law & Justice 21 at 25.

191 Lobban, above n 16, p 1.

192 Raftis, above n 188, at 355.

193 Stein (1980), above n 19; Elliot, above n 14; Getzler, above n 84, p 256; Lacey, above n 15; Tamanaha, above n 4, at 2250; Samuel, above n 35; A Diamond ‘Introduction’ in Diamond, above n 119, p 5; C Woodard, ‘A wake (or awakening?) for historical jurisprudence’ in Diamond, above n 119, p 217.

194 O'Brien, N ‘“In vino veritas’: truth and method in Vinogradoff's historical jurisprudence’ (2008) 29 The Journal of Legal History 39 at 42CrossRefGoogle Scholar.

195 Ibid, at 39.

196 Tamanaha, above n 4, at 2250; Lacey, above n 15, p 919.

197 For Pollock's apparently intentional avoidance of theory building, see Duxbury, N Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004) pp 7, 49CrossRefGoogle Scholar; Simpson, above n 124, p 25.

198 Cocks, above n 14, p 185.

199 Fisher, above n 79, p 3.

200 Students of Vinogradoff included the legal historian Holdsworth, the Roman lawyer Zulueta, and medieval historians including Cam and FM Stenton.

201 F de Zulueta ‘Paul Vinogradoff 1854–1925’ (1926) 42 LQR 202 at 206.

202 Vinogradoff, above n 1, p 5.

203 Ibid, p 254.

204 Generally, Vinogradoff, above n 1, p 5; and above n 62.

205 Maitland, above n 59, p 16; for a more recent example, Dworkin, above n 71; Samuel, above n 35, p 98. The system of registration introduced by the Law of Property Act 1925 can only have helped sever the tie between lawyers and history, at least with regard to land law.

206 Parker, above n 181, at 42; and in general Collini et al, above n 48; P Vinogradoff ‘Aims and methods in jurisprudence’ in Collected Papers, above n 76, vol 2, p 324.

207 Maine, H Popular Government (London: John Murray, 3rd edn, 1886)Google Scholar.

208 As Vinogradoff himself noted: R Pound ‘The scope and purpose of sociological jurisprudence’ (1911) 24(8) Harvard Law Review 591 at 601; P Vinogradoff ‘Review of Interpretations of Legal History by R Pound’ (1923) 38 The English Historical Review 298.

209 See Schauer, above n 39; Priel, D ‘Toward classical legal positivism’ (2015) 101(4) Virginia Law Review 987Google Scholar; Letter from Paul Vinogradoff to Melville Madison Bigelow (2 July 1904) (Bigelow Collection, Howard Gotlieb Archival Research Center, Boston University, Bigelow Collection, Box 2, Vinogradoff Folder).

210 Gordon (1981), above n 6, at 1022.

211 Cocks, above n 14, p 146.

212 See n 208 above.

213 The similarities with Ehrlich are not coincidental – they even worked together on an edited volume at one point: Vinogradoff, P and Ehrlich, L Year Books of Edward II: 6 Edward II, AD 1312–1313, Publications of the Selden Society, vol 34 (London: Quaritch, 1918)Google Scholar.

214 P Vinogradoff ‘The crisis of modern jurisprudence’ in Collected Papers, above n 76, vol 2, p 216; p 224.

215 Vinogradoff, above n 30, p 148.

216 As in Critical Legal History: Gordon (1997), above n 6.

217 A small sample of examples might include Gardner, S ‘Trashing with Trollope: a deconstruction of the postal rules in contract’ (1992) 12 OJLS 170CrossRefGoogle Scholar; MacMillan, C ‘Rogues, swindlers and cheats: the development of mistake of identity in English contract law’ (2005) 63 CLJ 711Google Scholar; Bright, S ‘The uncertainty of certainty in leases’ (2012) 128 LQR 337Google Scholar, all of which are useful in teaching core undergraduate law subjects.