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Is legal knowledge cumulative?

Published online by Cambridge University Press:  02 January 2018

Geoffrey Samuel
Geoffrey Samuel*
Affiliation:
Kent Law School and École de droit, Sciences-Po, Paris
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Abstract

A relatively recent collective work published in France examines the extent to which social science knowledge is cumulative. However this work includes no chapter on law. The purpose of this paper is to imagine what a chapter on law might look like had one been invited by the editor. Is legal knowledge cumulative? This present paper is sceptical, although much depends on where one erects the boundaries between law and other social science disciplines. Yet, despite the scepticism, a reflection on cumulativeness and legal knowledge is not without interest. Indeed quite the opposite: for it generates a range of interesting sub-questions such as whether or not there have been paradigm changes in the discipline of law amounting to scientific revolutions.

Type
Research Article
Information
Legal Studies , Volume 32 , Issue 3 , September 2012 , pp. 448 - 479
Copyright
Copyright © Society of Legal Scholars 2012

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References

1. Walliser, B (ed) La cumulativité du savoir en sciences sociales (Paris: Éditions de l'École des Hautes Études en Sciences Sociales, 2009)Google Scholar. Hereinafter cited as Walliser.

2. One might note the comment of the late Peter Birks: ‘But Ulpian could sit in the House of Lords tomorrow, without a moment's preparation…’ Birks, P ‘Roman law in twentieth century Britain’ in Beatson, J and Zimmermann, R (eds) Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-Century Britain (Oxford: Oxford University Press, 2004) p 249 CrossRefGoogle Scholar at 267.

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6. The Walliser book deserves a full and detailed review in itself but this would probably be a more difficult exercise, at least in terms of space, than one might at first think since each contribution could probably generate its own review article. Accordingly, although there will be frequent references and citations from the various contributions in the Walliser collection, the present contribution will primarily focus on what a law chapter might have looked like had one been invited.

7. J Revel ‘Le pied du diable: Sur les formes de la cumulativité en histoire’ in Walliser, pp 85–110.

8. Ibid, p 103. Popper's falsification test was formulated by him as a means of determining whether or not an assertion is a scientific statement (as opposed to a non-scientific statement such as ‘God loves man’). A scientific statement is one that is capable of being falsified by empirical experience: Popper, K The Logic of Scientific Discovery (London: Hutchinson and Co, 1959)Google Scholar (reprint Routledge, 2002) p 18. Thus the statement ‘all swans are white’ (Popper's own example) is a scientific one because it can be falsified by the appearance of a black swan.

9. Revel, above n 7.

10. Ibid, p 104.

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12. Ibid, p 21.

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16. On which see eg Laing, B Du ‘Promises and pitfalls of interdisciplinary legal research: the case of evolutionary analysis in law’ in Van Hoecke, M (ed) Methodologies of Legal Research: Which Kind of Method for Which Kind of Discipline? (Oxford: Hart, 2011) p 241 Google Scholar.

17. Bouvier, above n 15, p 313.

18. G Lenclud ‘En sait-on plus et mieux, aujourd'hui qu'hier, en anthropologie?’ in Walliser, p 328 at 352–357.

19. Ibid, p 356.

20. Ibid, p 357.

21. Revel, above n 7, pp 108–109.

22. Lenclud, above n 18, p 359.

23. Ibid, p 360.

24. Ibid.

25. Ibid. See also Bouvier, above n 15, p 293.

26. D Pumain ‘L'espèce, médium d'une construction spiralaire de la géographie, entre société et environnement’ in Walliser p 163 at 182.

27. Ibid, p 196.

28. Ibid, p 197.

29. Lenclud, G ‘L'anthropologie et sa discipline’ in Boutier, J, Passeron, J-C and Revel, J (eds) (2006) Qu'est-ce qu'une discipline? (Paris: Éditions de l'École des Hautes Études en Sciences Sociales, 2006) p 69 Google Scholar.

30. Ibid, pp 90–93.

31. J Revel ‘Les sciences historiques’ in Berthelot, above n 3, p 25.

32. Kelley, D Foundations of Modern Historical Scholarship (New York: Columbia University Press, 1970) p 2 Google Scholar.

33. Ibid.

34. Ibid, p 24.

35. Ibid, p 39.

36. Ibid, p 40.

37. An excellent brief but authoritative survey of the compilations of Justinian (the Corpus Iuris) and its subsequent history in Europe from the eleventh to the twentieth century can be found in Stein, P Roman Law in European History (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar.

38. As Kelley, above n 32, p 40 puts it: ‘Like the Latin language, Roman law had undergone a long process of corruption and displacement.’

39. Ibid, p 41. On this period and these jurists see Stein, above n 37, pp 76–79. One should note here Desjeux's point about the level of observation: different levels of observation reveal different kinds of knowledge: Desjeux, D, Les sciences sociales (Paris: Presses Universitaires de France, 2004), p 5 Google Scholar. There is no doubt at a higher level of abstraction the sixteenth century humanist jurists (mos Gallicus) represented a break with the older medieval approach to law known as the ‘Italian method’ (mos Italicus). The humanists, for example, started the process of reorganising Roman law in a more systematic way (as will be seen). However Maclean has shown that at a lower level of abstraction, namely the doctrinal works devoted to interpretation, the position appears different in that it is much harder to discern any clear break between the Post-Glossators and the humanist jurists: see Maclean, I Interpretation and Meaning in the Renaissance (Cambridge: Cambridge University Press, 1992)Google Scholar.

40. Kelley, above n 32, p 40.

41. It would of course be idle to claim that the enormous volume of glosses and commentaries on the Roman texts were somehow irrelevant to the humanist project any more than it would be sensible to claim that Newton was irrelevant to twentieth century physicists. The obvious question is the extent to which the commentaries of the medieval jurists contributed to legal knowledge. Certainly their interpretations and applications of the texts resulted in an accumulation of authoritative material and their distinctions, inductions, definitions and regulae added to the conceptual structure of law. Indeed Harold Berman argues that there was a scientific revolution in the twelfth century. ‘The Western jurists’, he says, ‘applied a new dialectical method to the Roman texts’ and they ‘were thus able to draw from these texts conceptual implications which the Romans themselves never dreamed of – a theory of contract law, a concept of rights of possession, elaborate doctrines defining justifications for the use of force, and the like.’ And he continues: ‘They taught the West to synthesize cases into rules, rules into principles, principles into system’: Berman, H Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983) p 529 Google Scholar. This is, surely, an overstatement? There is plenty of evidence in the Corpus Iuris itself of Roman jurists synthesising cases into principles (see eg D.9.2.31) and principles into system (ie the Insitutiones). A scientific revolution in the Kuhn sense involves such a complete change of paradigm that a jurist like Ulpian would find it difficult to understand Western law after the twelfth century. Given the observation in D.9.2.31 (and of course all the regulae in D.50.17), would a Roman jurist really have that much difficulty in understanding articles 1382 and 1383 of the Code civil?

42. Kelley, above n 32, p 302.

43. Revel, above n 31, p 25.

44. Ibid, pp 44–52.

45. The notion of a ‘legal fact’ is examined from an epistemological viewpoint in Samuel, G Epistemology and Method in Law (Aldershot: Ashgate, 2003)Google Scholar. Yet nothing in this work really tackles the issue of the accumulation of factual data within the discipline of law. For example does a slow but continuous accumulation of cases dealing with factual causation increase one's knowledge of cause in fact? One epistemological difficulty here, which space prevents from being discussed in any depth, is the distinction between explanation and understanding: see R Makkreel ‘Expliquer et comprendre’ in Mesure, S and Savidan, P (eds) Le dictionnaire des sciences humaines (Paris: Presses Universitaires de France, 2006) p 441 Google Scholar; Revel, above n 31, pp 52–62.

46. Kelley, DR The Human Measure: Social Thought in the Western Legal Tradition (Cambridge: Harvard University Press, 1990)CrossRefGoogle Scholar.

47. Ibid, pp 196–199.

48. Stein, above n 37, p 79. See also Kelley, above n 46, pp 197–198.

49. Stein, P Legal Institutions: The Development of Dispute Settlement (London: Butterworths, 1984) pp 125–129 Google Scholar.

50. See G.I.8.

51. Kelley, above n 46, p 12.

52. Ibid, p 9.

53. Birks, P ‘Introduction’ in Birks, P (ed) English Private Law: Volume I (Oxford: Oxford University Press, 2000) p xliv Google Scholar.

54. See further Samuel, G ‘Classification of obligations and the impact of constructivist epistemologies’ (1997) 17 LS 448 Google Scholar. The Gaian schemes provides the passerelle by which one can move from fact to law and from law to fact.

55. Kelley, above n 46, p 49.

56. Stein, above n 37, p 81. The main jurist responsible for this development was Hugues Doneau (1527–1591): see Villey, M La formation de la pensée juridique moderne (Paris: Presses Universitaires de France, Quadrige, 2006) p 482 Google Scholar.

57. Stein, above n 49, pp 127–129. In raising obligations to the status of an institution the humanists in fact undermined the empirical orientation of Gaius' actual scheme since ‘obligations’ do not have the same empirical flavour as actions. The actio was the empirical means by which one enforced an obligation or property ‘right’ and thus fulfilled the role played by ‘right’ in humanist and post-humanist thinking. But rights, of course, have no empirical aspect (save the text in which they are asserted); they are purely a normative concept. Consequently it can be argued that while the humanists modified the Gaian scheme they did not necessarily improve upon it in any epistemological sense. But cf Kelley, above n 46, p 60.

58. Dig.50.17.

59. On which see Y Thomas ‘L'extrême et l'ordinaire: Remarques sur le cas médiéval de la communauté disparue’ in Passeron, J-C and Revel, J (eds) Penser par cas (Paris: Éditions de l'école des hautes études en sciences sociales, 2005) 45 Google Scholar.

60. Thireau, J-L Introduction historique au droit (Paris: Flammarion, 2001) pp 232–238 Google Scholar. Again this reorientation is not necessarily discernible in all the humanist literature and so again one must not over-exaggerate the position on the ground so to speak: see Maclean, above n 39.

61. It was the ‘procedures of mathematical reasoning – the mos geometricus–[that] constituted [for the jurist Jean Domat] an infallible method, which could be employed in all areas and in particular law’: Renoux-Zagamé, M-F, ‘Domat, Jean’, in Arabeyre, P, Halpérin, J-L and Krynen, J (eds) Dictionnaire historique des juristes français XIIe–XXe (Paris: Presses Universitaires de France, 2007) p 254 Google Scholar at 255. Even Maclean seems to recognise that jurists such as Doneau were moving away from the traditional scholastic logic: Maclean, above n 39, pp 122–123.

62. H Maine Early Law and Custom (London: John Murray, 1890 edition) p 363.

63. The sixteenth century jurist Hugues Doneau can certainly be credited with taking the Gaian system of persons, things and actions to what might be considered by many a higher level of sophistication. As has been mentioned above, Gaius had certainly distinguished between property and obligations but mainly at the level of the law of actions; he emphasised the distinction between an actio in rem and an actio in personam (G.IV.1–3). Doneau recast this from the position of the subjective right distinguishing between two categories of things, those that are ours and those that are owed to us (quod propre nostrum est, quod nobis debetur): see Villey, above n 56, p 482. However, both the idea of an ius in rem (see eg D.4.2.13) and of a substantive distinction between property and obligations (D.44.7.3pr) are to be found in Roman law itself.

64. See eg Ullmann, W Medieval Political Thought (Harmondsworth: Penguin, 1975) pp 46–47 Google Scholar. Ullmann's view of history is not above criticism, but his view of the ideological importance of the Corpus Iuris is surely convincing.

65. Kelley, above n 46, pp 8–9, 48–52 and 60.

66. Ibid, pp 60–61.

67. For a history of the nominalist revolution and of a ius and its gradual change of meaning see Villey, above n 56; but cf Tierney, B The Idea of Natural Rights (Michigan: Eerdmans Publishing Co, 1997)Google Scholar.

68. Kelley, above n 46, pp 64–66.

69. Murphy, WT The Oldest Social Science? Configurations of Law and Modernity (Oxford: Oxford University Press, 1997)Google Scholar.

70. But cf Maclean, above n 39. One might note also that it is not being suggested that there was some kind of sudden and complete change from one type of authority (textual) to another type (coherence and system). Textual authority remains even today an important epistemological foundation for legal reasoning and analysis.

71. ‘Deduction and induction mark two stages in the development of science, the stages themselves being framed within an initial stage and a final stage. In fact it appears that all the sciences follow, in distinguishing themselves only by their degree of advancement, a similar course, passing or being called to pass, successively through the descriptive, inductive, deductive and axiomatic stages': Blanché, R Épistémologie (Paris: Presses Universitaires de France, 3rd edn, 1983) p 65 Google Scholar.

72. Stein, P Legal Evolution: The Story of an Idea (Cambridge: Cambridge University Press, 1980) p x Google Scholar (Preface).

73. Villey, above n 56, p 612.

74. On Maine, Ancient Law and its aftermath see Stein, above n 72, pp 86–115. And see generally Cocks, R Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar.

75. Stein, above n 72, p 94.

76. There were many editions of Ancient Law, but this famous quote is to be found at the end of ch V. See generally Stein, above n 72, pp 94–97.

77. F Pringsheim ‘The inner relationship between English and Roman law’[1935] CLJ 347.

78. Jones, JW Historical Introduction to the Theory of Law (Oxford: Oxford University Press, 1940) p 59 Google Scholar.

79. Blanché, R Le raisonnement (Paris: Presses Universitaires de France, 1973) pp 219–220 Google Scholar.

80. Hedley, S ‘How has the common law survived the twentieth century?’ (1999) 50 NILQ 283 Google Scholar.

81. P Birks in P Birks (ed) Classification of Obligations (Oxford: Oxford University Press, 1997) p v, 1–35.

82. Stein, above n 72, p 123.

83. Birks, above n 81, p v.

84. Ibid.

85. But cf Waddams, S Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003) pp 9–10 CrossRefGoogle Scholar.

86. Stein, above n 72, p 122.

87. This is certainly Kelley's thesis, although he sees law as a system of thought finally being subverted by all the other social science disciplines: Kelley, above n 46, pp 252–275.

88. See eg Mannino, V and Orphèle, C (eds) L'enrichissement sans cause [et] La classification des sources des obligations (Université de Poitiers/LGDJ, 2007)Google Scholar.

89. Ibid. And see most recently Descheemaeker, E The Division of Wrongs: A Historical Comparative Study (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar.

90. Kelley, above n 46, pp 213–219.

91. Bergel, J-L Théorie générale du droit (Paris: Dalloz, 4th edn, 2003) p 291 Google Scholar.

92. Ibid, pp 291–292.

93. Ibid.

94. Ibid, pp 293–295. On schemes of intelligibility and their application to law see Samuel, G ‘Taking methods seriously’ (Parts One and Two) (2007) 2 Journal of Comparative Law 94 and 210 Google Scholar.

95. Samuel, G ‘Can legal reasoning be demystified?’ (2009) 29 LS 181 Google Scholar.

96. Bergel, above n 91, p 295.

97. Waddams, above n 85.

98. See generally W Twining Karl Llewellyn and the Realist Movement (London: Weidenfeld and Nicolson, reprint 1985).

99. See Cohen, F ‘Transcendental nonsense and the functional approach’ (1935) 35 Colum L Rev 809 CrossRefGoogle Scholar.

100. Twining, above n 98, p 382.

101. Michaels, R ‘The functional method of comparative law’ in Reimann, M and Zimmermann, R (eds) The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) p 339 Google Scholar.

102. Berthelot, J-M L'intelligence du social (Paris: Presses Universitaires de France, 1990) pp 65–70 Google Scholar.

103. Birks, P ‘Equity in the modern law: an exercise in taxonomy’ (1996) 26 UWAL Rev 1 Google Scholar at 5.

104. See eg Robertson, A ‘Constraints on policy-based reasoning’ in Robertson, A and Wu, TH (eds) The Goals of Private Law (Oxford: Hart, 2009) p 261 Google Scholar at 271–272; Birks, above n 103, at 97.

105. Twining, W and D Miers How to Do Things with Rules (Cambridge: Cambridge University Press, 5th edn, 2010) pp 32–34 CrossRefGoogle Scholar.

106. Birks, above n 103, at 97.

107. Ibid.

108. Beever, A and Rickett, C ‘Interpretive legal theory and the academic lawyer’ (2005) 68 MLR 320 CrossRefGoogle Scholar. For a criticism of this new ‘interpretative’ approach see Hedley, S ‘The shock of the old: interpretivism in obligations’ in Ricketts, C and Grantham, R (eds) Structure and Justification in Private Law: Essays for Peter Birks (Oxford: Hart, 2008) p 205 Google Scholar.

109. See eg Jouanjan, O Une histoire de la pensée juridique en Allemagne (1800–1918) (Paris: Presses Universitaires de France, 2005) p 208 Google Scholar.

110. Note however that some would dispute this point by drawing a distinction between causation and imputation: see Troper, M La philosophie du droit (Paris: Presses Universitaires de France, 2003) pp 63–65 Google Scholar.

111. Legrand, P and G Samuel Introduction au common law (Paris: La Découverte, 2008) pp 94–96 Google Scholar.

112. R Dworkin Taking Rights Seriously (London: Duckworth,1977) p 117.

113. Dworkin, R Law's Empire (London: Fontana, 1986) p 229 Google Scholar.

114. Birks, above n 81, p 2. Cf Samuel, G ‘Can Gaius really be compared to Darwin?’ (2000) 49 International and Comparative Law Quarterly 297 CrossRefGoogle Scholar.

115. Birks, above n 81, p 35.

116. A term employed by Professor Birks himself: ibid, p 19.

117. See G.III.91; Birks, above n 81, p 18.

118. Birks, above n 81, p 19. The analogy is of course inexact as pigeons and sparrows have an objective existence not dependent upon interpretation of social fact; the classification under ‘quasi-delict’ of an action against an occupier in respect of an injury caused by an object falling or thrown from a window is always dependent to an extent on how the social facts (causative event) are interpreted by the observer. The taxonomy used in zoology is founded on explanation while taxonomy in law is one of understanding: see generally Makkreel, above n 45.

119. ‘Jurisprudence’ in the common law tradition embraces, or has embraced in the past, what in the civil law tradition would be spread over several more precise theory areas such as ‘general theory of law’, ‘legal philosophy’ and ‘legal epistemology’: see eg Bergel, above n 91, pp 3–6. In addition the civil law tradition also employs the expression ‘legal science’ (traceable back to Roman Law: scientia iuris) which embraces two rather separate ideas: law as a science and the science of law, the first concerning itself with the object of this legal science and the second founded on the notion of law itself as the object of a science: see Troper, above n 110, p 27–43.

120. Compare eg Jolowicz, HF Lectures on Jurisprudence (London: Athlone, 1963)Google Scholar and Dias, Rwm Jurisprudence (London: Butterworths, 5th edn, 1985)Google Scholar with the latest edition of Lloyd, D and Freeman, M Lloyd's Introduction to Jurisprudence (London: Sweet and Maxwell, 8th edn, 2008)Google Scholar. Dias still had chapters on individual legal concepts such as ownership and possession.

121. See eg Holland, TE Elements of Jurisprudence (Oxford: Oxford University Press, 12th edn, 1916)Google Scholar.

122. See generally Brundage, JA The Medieval Origins of the Legal Profession (Chicago: University of Chicago Press, 2008)CrossRefGoogle Scholar.

123. Ibid, pp 19–20.

124. All of these various techniques are exhibited in Kolbert, C Justinian: The Digest of Roman Law (London: Penguin, 1979)Google Scholar which contains the main texts (in translation) from the Digest dealing with delictual (tortious) liability. See also Samuel, above n 45, pp 98–104.

125. Samuel, above n 45, p 104.

126. Ibid, pp 126–131.

127. Ibid, pp 96–97.

128. See generally Jolowicz, above n 120; Kelley, above n 46; Stein, above n 37.

129. See eg Ullmann, above n 64. One thinks of the practical importance of the Accursian Gloss and the commentaries of Bartolus and Baldus.

130. D.41.3.30. See also D.5.1.76.

131. Jones, above n 78, at 8.

132. Ullmann, above n 64, p 47.

133. See generally Berman, above n 41.

134. See generally Brundage, above n 122.

135. Ibid, p 125.

136. Ullmann, above n 64, p 15.

137. On the gradual separation see Ullmann, W Law and Politics in the Middle Ages (Cambridge: Cambridge University Press, Sources of History, 1975)Google Scholar; Tierney, B Religion, Law, and the Growth of Constitutional Thought 1150–1650 (Cambridge: Cambridge University Press, 1982)CrossRefGoogle Scholar.

138. See generally Jouanjan, above n 109.

139. See eg Birks, above n 81, pp 2–4.

140. Atias, above n 11, pp 114–120.

141. Lenclud, in Walliser, p 358.

142. Patault, A-M Introduction historique au droit des biens (Paris: Presses Universitaires de France, 1989) p 110 Google Scholar. See also Biondi, B Istituzioni di diritto romano (Milan: Giuffrè, 4th edn, 1972) p 228 Google Scholar.

143. See Canning, J The Political Thought of Baldus de Ubaldis (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar.

144. See R van Caenegem ‘History of European civil procedure’ in International Encyclopedia of Comparative Law vol XVI, ch 2 (JCB Mohr) (completed 1971).

145. Jones, above n 78, pp 11–25. See in particular the importance of the loci; ibid, p 23.

146. Ibid, p 30.

147. Ibid, p 32; Pichonnaz, P Les fondements romains du droit privé (Zurich: Schulthess, 2008) p 81 Google Scholar.

148. Ibid, p 35.

149. Ibid, p 34, note 2.

150. Ibid, p 39. See also Kelley, above n 46, pp 209–213.

151. See generally Jones, above n 78.

152. Ibid, pp 98–138.

153. Omnia principis esse intelligantur: C.7.37.3. And see Jones, above n 78, pp 79–97.

154. Dig 1.4.1.

155. Thus one can argue that even American Realism infiltrated practical legal reasoning in the way the English judges finally abandoned a conceptual structuralist approach to land law and adopted an approach more orientated towards social functionalism: see Gray, K and Gray, S ‘The rhetoric of reality’ in Getzler, J (ed) Rationalizing Property, Equity and Trusts (London: Butterworths, 2003) p 204 Google Scholar.

156. Leading of course to complaints from practitioners that what is going on in the law faculties no longer has relevance for professional lawyers and law in practice: Jestaz and Jamin, above n 13, pp 293–295.

157. Atias, above n 11, p 71.

158. Ibid, p 83.

159. Maclean would seem to support this thesis: see Maclean, above n 39, p 205.

160. Kelley, D Historians and the Law in Postrevolutionary France (Princeton: Princeton University Press, 1984) p 47 Google Scholar.

161. O Kahn-Freund ‘Introduction’ in K Renner The Institutions of Private Law and Their Social Functions (Toronto: RKP, 1949; reprint 1976) p 6.

162. See Brundage, above n 122, pp 248–262.

163. See further on this point Samuel, above n 5.

164. See Teubner , G [R Adler and A Bankowska (transl)] Law as an Autopoietic System (Oxford: Blackwell, 1993)Google Scholar.

165. Lloyd and Freeman, above n 120, p 877. Lloyd and Freeman make the comment that perhaps ‘the preoccupation with systems and boundaries can be attributed to German legal tradition’ (p 878). One writer sees Luhmann's theory in terms of a mixture of several schemes of intelligibility: structuralism (system), dialectics (conceptual oppositions), function and hermeneutics: Reese-Schäfer, W ‘Luhmann Niklas 1927–1998’ in Mesure, S and Savidan, P Le dictionnaire des sciences humaines (Paris: Presses Universitaires de France, 2006) p 727 Google Scholar.

166. See generally Lloyd and Freeman, above n 120, which now runs to over 1500 pages.

167. Lloyd and Freeman, above n 120, now devote a whole chapter to Dworkin (‘the most significant jurist of our times’: p v).

168. Lenclud, in Walliser, p 356.

169. Pumain, in Walliser, p 196.

170. Lenclud, above n 29, pp 90–93.

171. Cownie, F Legal Academics: Culture and Identities (Oxford: Hart, 2004) p 50 Google Scholar. Perhaps summarised (implicitly) in the following judicial observation: ‘The function of a judge of first instance is to find the relevant facts and, with the assistance of counsel, to ascertain the law as set out in any relevant statutory provisions and in principles to be derived from the decisions of the House of Lords and the Court of Appeal, and to draw the appropriate legal consequences. It is not open to the judge in performing this primary function to consider, far less express an opinion, as to the correctness of a decision of the Court of Appeal or the House of Lords except in those rare cases where he is faced with conflicting decisions of the Court of Appeal and must choose which to follow. That does not rest solely upon the feelings of deference and respect which a judge of first instance will naturally and properly approach a decision of the Court of Appeal or the House of Lords. An opinion which the judge may entertain as to the correctness or otherwise of, for instance, the interpretation of a decision of the House of Lords by the Court of Appeal, is simply irrelevant to his primary duty which is to ascertain the statutory provisions and the principles stated in decisions that are binding on him which govern the case before him’: J Vinelott in Derby and Co v Weldon (No 5)[1989] 1 WLR 1244 at 1250.

172. Weir, T ‘Contracts in Rome and England’ (1992) 66 Tul L Rev 1615 Google Scholar at 1616.

173. Cownie, above at 171, p 49–50.

174. One should perhaps note a difference here between Anglo-American law faculties and civil law faculties: see generally Cownie, above n 171, and Jestaz and Jamin, above n 13. Cownie's empirical study of law academics in the UK suggests that a distinction must now be made between those teaching and researching law (legal academics) and those practising law. Cownie concludes that in general there is a commitment among academics both to black-letter law and to presenting this law in a social context: Cownie, above n 171, pp 197–198. Jestaz and Jamin present a rather different image for France where there is a clear divorce in law faculties between law and the other social sciences: Jestaz and Jamin, above n 13, p 172–176. See also M Siems ‘A world without law professors’ in Van Hoecke, above n 16, p 71.

175. Brundage, above n 122, p 248.

176. Jestaz and Jamin, above n 13, pp 217–239. Kelley makes the point that ‘so much professional legal apparatus – methods, arguments, and centuries of precedents and literature – was attached to the Roman tradition’: above n 160, p 47. See also Orianne, P Apprendre le droit: Éléments pour une pédagogie juridique (Brussels: Éditions Labor, 1990)Google Scholar.

177. Cownie, above n 171, pp 197–198. And see eg Jones, G ‘ “Traditional” legal scholarship: a personal view’ in Birks, P (ed) Pressing Problems in the Law: Volume 2: What Are Law Schools For? (Oxford: Oxford University Press, 1996) p 9 Google Scholar, at 10. However there is no doubt that many academic lawyers in the UK think that there is more to a law degree than this: see generally the series of books edited by the late Birks, Peter: Examining the Law Syllabus: The Core (Oxford: Oxford University Press, 1992)Google Scholar; Examining the Law Syllabus: Beyond the Core (Oxford: Oxford University Press, 1993); Reviewing Legal Education (Oxford: Oxford University Press, 1994); Pressing Problems in the Law: Volume 2: What Are Law Schools For? ibid. The papers to be found in these books indicate, on the whole, a more ‘liberal’ approach to legal education than is perhaps to be found in the civil law world (see eg Jestaz and Jamin, above n 13, pp 265–301, who describe the US legal education system as an ‘anti-model’). Nevertheless this more interdisciplinary and contextual approach is not completely new: some sixteenth century humanists thought ‘that nothing but good could come from an alliance between law and humanities’ (Cum enim in Iure multa sint quae sine cognitione studiorum humanitas percipe nequeant): Jones, above n 78, p 31 quoting Alciatus.

178. Jestaz and Jamin put the emphasis on literature rather than the university curriculum itself, but it is clear that the two cannot be divorced. See also the books cited above on the law syllabus and on law schools edited by Birks.

179. See further Samuel, above n 95.

180. Strömholm, S A Short History of Legal Thinking in the West (Stockholm: Norstedts, 1985) p 46 Google Scholar. One might note also the imposition in certain faculties of a prescribed methodology: see (on the mos Italicus) Jones, above n 78, pp 34–35 and (on contemporary France) Jestaz and Jamin, above n 13, pp 217–232. On the position in English law see P Birks ‘Editor's preface’ in Birks (ed) What Are Law Schools For? above n 177, p v, at xv–xviii; D Oliver ‘Teaching and learning law: pressures on the liberal law degree’ in Birks (ed) Reviewing Legal Education, above n 177, p 77, at 80–82. Note also Jolowicz's comment made during the 1950s: ‘Modern text-books are important. . . as guides to the case-law with which they are concerned. But if they are good they are more than mere guides, for they seek not only to arrange the cases systematically but to extract from them the general principles of the law and to show how those principles may be developed. And the same is true, on a smaller scale, of articles in the Law Reviews’: Jolowicz, above n 120, p 314. Nevertheless the attitude of the professions in England remains ambiguous towards university law faculties. As the late Professor Birks noted, the ‘bar's admission policy for 1992 and 1993 has demonstrated its contempt for legal education, a curious attribute for a profession which continues to describe itself as learned and compares its role to that of consultant physicians’: P Birks ‘A decade of turmoil in legal education’ in Birks (ed) Examining the Law Syllabus: Beyond the Core, above n 177, p 9, at 14. Indeed, he later observed, ‘Patrick Phillips QC… told the sixth-formers who had gathered to hear him that a law degree was a complete waste of time’ (p 17). This was written of course nearly 20 years ago, but even today one wonders whether the professions think the law school is doing too much or too little in terms of a prescribed methodology.

181. See eg Siems, above n 174, pp 82–84.

182. Jones, above n 78, p 31.

183. Ibid, p 39–41.

184. Lloyd and Freeman, above n 120, pp 620–627.

185. Jones, above n 78, pp 235–269.

186. See eg Lord Hoffmann in Stovin v Wise[1996] AC 923 and Wildtree Hotels Ltd v Harrow LBC[2001] 2 AC 1.

187. See eg Mackaay, E and Rousseau, S Analyse économique du droit (Paris: Dalloz, 2008)Google Scholar.

188. Lloyd and Freeman, above n 120, pp 835–983.

189. See Cownie, above n 171.

190. Jones, above n 78, p 235.

191. Atias, above n 11, p 95.

192. Ibid, pp 93–103.

193. Twining, above n 98, p 382. And see generally Cownie, above n 171.

194. Cohen, above n 99.

195. Beever and Rickett, above n 108. And see Hedley, above n 108. For a summary of interpretivism see R Bagshaw ‘Tort law, concepts and what really matters’ in Robertson and Wu, above n 104, p 239, at 245–248.

196. Bagshaw, above n 195.

197. See D.50.16; Maclean, above n 39. And see also Kelley, above n 46, pp 132–137 and 209–211.

198. Kelley, above n 46, pp 196–199 and 234–239; Dubouchet, P Sémiotique juridique: introduction à une science du droit (Paris: Presses Universitaires de France, 1990) pp 37–70 Google Scholar.

199. In fact Maclean makes the point that ‘a writer in 1460 could have communicated coherently with one in 1630’ and so it is unlikely that one can talk of a ‘paradigm shift’ in the sixteenth century: Maclean, above n 39, pp 205–206.

200. This point is well exposed by Walter Jones discussing the importance of John Austin: Jones, above n 78, pp 95–97.

201. Atias, above n 11, pp 21–28.

202. On ‘black letter’ law see also Vick, DW ‘Interdisciplinarity and the discipline of law’ (2004) 31 Journal of Law and Society 163 CrossRefGoogle Scholar at 178–179.

203. Cf Jones' thoughtful reflection: Jones, above n 78, pp 264–269.

204. Ibid, p v (Preface).

205. ‘Human inventiveness has, for good or ill, been fruitful within the law as well as outside it’: Jones, above n 78, p 265.

206. Canning, above n 143.

207. Atias, above n 11, pp 94–95.

208. See generally Jouanjan, above n 109.

209. D.3.4.7.1.

210. D.1.4.1pr.

211. See Tierney, above n 137.

212. Jones has a chapter devoted to the idea of legal theory as legal fiction: Jones, above n 78, pp 164–186. Jones was writing during the 1930s and thus it would be interesting to speculate if this chapter on fiction theory would now embrace jurists such as Hart and Dworkin.

213. Note Jones's comment on Austin's approach: it ‘was that of a political theorist rather than of a lawyer’ (p 96).

214. See eg Armstrong, K The Battle for God: Fundamentalism in Judaism, Christianity and Islam (London: Harper Perennial, 2004) pp 91–92 Google Scholar.

215. See eg Perelman, C Logique juridique: Nouvelle rhétorique (Paris: Dalloz, 2nd edn, 1979)Google Scholar.

216. See Siems, above n 174.

217. See eg Descheemaeker, above n 89.

218. See eg Weir, above n 172.

219. Morin, E Introduction à la pensée complexe (Paris: Éditions du Seuil, 2005)Google Scholar.

220. Dworkin, above n 113, p 14.

221. Toddington, S ‘The Emperor's new skills: the academy, the profession and the idea of legal education’ in Birks, P (ed) Pressing Problems in the Law: Volume 2: What Are Law Schools For? (Oxford: Oxford University Press, 1996) 69 Google Scholar at 74.

222. Twining and Miers, above n 105, p 353.

223. One work that places Dworkin in this historical context, although only briefly, is Stein, P and Shand, J Legal Values in Western Society (Edinburgh: Edinburgh University Press, 1974) 97–102 Google Scholar; however this only deals with one early paper by Dworkin. Of course at a more general level Dworkin can be placed within the historical tradition of natural law thinking that, via the expression ius naturale, can be traced back to Roman law.

224. Although, of course, it functions as if it has no past: Atias, C Questions et réponses en droit (Paris: Presses Universitaires de France, 2009) pp 204–205 Google Scholar.

225. This may even be true today at the professional stage of legal education which, when compared with the past, may well display differences, for example as a result of technological changes in data storage and retrieval, office management methods and so on: see eg PA Jones ‘Skills teaching in legal education – the legal practice course and beyond’ in Birks (ed) Examining the Law Syllabus: Beyond the Core, above n 177, p 97. Are these developments really ones that have taken place within the discipline of law or are they developments which have taken place outside law but impinge upon the way lawyers go about their business? In fact at this professional level the emphasis is now on skills: see Earis ‘Epilogue’ in Beyond the Core, ibid, p 117.

226. On which see now Rochfeld, J Les grandes notions du droit privé (Paris: Presses Universitaires de France, 2011)Google Scholar.

227. Hohfeld, W Fundamental Legal Conceptions (Yale: Yale University Press, 1919; reprint, 1966)Google Scholar.

228. One good example in the area of comparative law is A Riles ‘Comparative law and socio-legal studies’ in Reimann and Zimmermann, above n 101, p 775.

229. ‘The law lives by its very long memory, which differentiates it from most of the other disciplines’: Jestaz and Jamin, above n 13, p 254.

230. Cf Samuel, above n 5.

231. ‘However… the majority of university-based legal training is not very sophisticated from an epistemological perspective but is predominantly knowledge transmission’: Siems, above n 174, p 75.

232. See Cownie, F and Cocks, R ‘A Great and Noble Occupation’: the History of the Society of Legal Scholars (Oxford: Hart, 2009) pp 216–226 Google Scholar.

233. See Jestaz and Jamin, above n 13, p 195 fn 28. One might note how the Law Society once threatened to sue Professor Peter Birks in defamation for some academic comments in The Reporter (SPTL Reporter No 9 Winter 1994, pp 28–29) suggesting that members of the profession were like ‘Stalinist commissars’: Cownie and Cocks, above n 232, pp 221–222.

234. Or of course a threat of defamation proceedings. And see Jestaz and Jamin, above n 13, p 195 fn 28.

235. For example with respect to statutory interpretation: see Twining and Miers, above n 105, pp 243–245.

236. What Siems calls ‘deep research’: Siems, above n 174, pp 82–84.

237. See eg House of Lords European Union Committee European Contract Law: the Draft Common Frame of Reference Twelfth Report of Session 2008–09, HL Paper 95, Minutes of Evidence, p 9 (Q20).

238. Atias, as we have seen, regards this as a process of sedimentation of knowledge: see eg Atias, above n 11, pp 66–77; Atias, above n 224, pp 172–209.

239. Thus Dworkin has stated not just that the ‘rights thesis… provides a more satisfactory explanation of how judges use precedent in hard cases’ but that the good judge (Hercules) ‘must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well’: Dworkin, R Taking Rights Seriously (Duckworth, 1977) pp 87 Google ScholarPubMed, 116–117. This construction-structuralist approach is what places Dworkin within a legal tradition that stretches back to Donellus (Hugues Doneau) (1527–1591), who insisted that the study of private law was about determining what today we would call each person's ‘right’ (jus nostrum). Thus one starts with the rights that each person has as a person (‘human rights’): jura sua in persona ipsa; then one proceeds to the rights one exercises over things: res privatae etc: see L Pfister ‘Doneau’ in Arabeyre, Halpérin and Krynen, above n 61, p 256. Jean Domat (1625–1696) took this a step further and saw such a constructed model as representing a ‘scientific’ (natural) order amenable to mathematical reasoning: the mos geometricus: see Renoux-Zagamé, above n 61, at 255. Finally the German jurists perfected the scientific axiomatic model: law was a scientifically constructed system which was completely coherent and rational in itself, allowing for the creation of no new category, concept or principle that could not be accommodated within the system (a logical impossibility): see Jouanjan, above n 109, p 224. In fact the hermeneutical aspect, once so essential to legal science, became secondary to this constructed formalism (ibid, p 229) and thus Dworkin can be credited with completely rebalancing the model and re-emphasising the central importance of ars hemeneutica. As Dworkin says: ‘No electronic magician could design from my arguments a computer program that would supply a verdict everyone would accept once the facts of the case and the text of all past statutes and judicial decisions were put at the computer's disposal’: Dworkin, above n 113, p 412. So, in a sense, Dworkin has returned legal thinking to the era of Donellus (mos Gallicus), although of course with many important constitutional and literary nuances.

240. See eg Kelley, above n 46; And see eg a work such as Gordley, J The Philosophical Origins of Modern Contract Doctrine (Oxford: Oxford University Press, 1991)Google Scholar.

241. Perhaps it would be better to say continually cumulative since it is arguable that Roman law scholarship certainly contributed to social science scholarship in the late Middle Ages, for at ‘no other time did pure scholarship affect society and government to the degree that the civilians – and later also the canonists – did in the centuries between the Investiture Contest and the Reformation’: Ullmann, above n 137, p 79.