The Oldest Social Science? The Epistemic Properties of the Common Law Tradition
| Author | W. T. Murphy |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02648.x |
| Published date | 01 March 1991 |
| Date | 01 March 1991 |
The Oldest Social Science? The Epistemic Properties
of
the Common Law Tradition
W.
T.
Murphy
*
Is
not
a
worthie Professor of Law
a
starr
in
the firmament of the Common-wealth?
Is
he
not
lux
a
renebris
wheresoever he dwelleth?
Is
not his house
. . .
an Oracle not only to a
Towne
or
Citty, but to
a
whole country round about him?’
ORentimes too, to aggravate the rest, concur many other inconveniences,
unthankful
friends,
decayed friends, bad neighbours, negligent servants
[.
.
.]
thievish slaves, sly cunning varlets,
they break through
a
thousand bolts, they steal, they eat up, they take thc tit-bits; casualties,
taxes, mulcts, chargeable offices, vain expenses, entertainments,
loss
of stock, enmities,
emulations, frequent invitations,
losses,
suretyship, sickness, death of friends, and that which
is the gulf of
all,
improvidence,
ill
husbandry, disorder and confusion, by which means they
are drenched on
a
sudden
in
their estates, and at unawares precipitated insensibly into an
inextricable labyrinth of debts, cares, woes, want, grief, discontent, and melancholy itself.*
What might it mean, in the ‘modern’ world, to characterise the knowledge claims
embedded in the common law tradition as constituting the oldest
social
science?
It has long been commonplace to suggest that a knowlcdge of the law somehow
enablcs
‘a
man’ to understand ‘society’ and equips him with a tool-kit for dealing,
‘organically,’ with the business which social life throws his way.’ It is equally
common
to
dismiss such invocations
of
‘science’ or ‘learning’ as signifying no more
than self-interested attempts by academic lawyers to kit themselves out with the
trappings of the modern university. In the somewhat different context of North
America, this is precisely what has been said about Langdell.4 Yet there is nothing
particularly new about the claim that lawyering
is
a learned profession, nor anything
novel, conversely, about the negative attitude of ‘outsiders’ towards the nature and
effects of such learning. In writings which have both civilian and common law in
*Law Department, London School of Economics.
I
am
grateful
to
Martin Loughlin for the opportunity to present
some
of these ideas at
a
Clydesdale Bank
Seminar
in
tlie Department
of
Public Law at the University of Glasgow
in
February 1989. and to Peter
Miller
and
Mike Power for the chance
to
elaborate some of these in
a
workshop on ‘Law. Accounliiig
and Calculation’ at the
LSE
in
December 1989. For their comments on those occasions,
I
would particularly
like
10
thank
(in
addition
to
the above-mentioned) Tom Canipbcll, Peter Goodrich. Anthony Hopwood.
David Nclkcn and Brad Sherman. Additional thanks are owed
to
Neil Duxbury and Simon Roberts for
scrutinising
a
draft text and for forcing me
to
identify what
it
was
I
was trying
to
say.
I
Davies,
A
DiscoirrseofLnivciriclLnivyers
(1615), quoted with abbrevitttions
in
Pctcr Goodrich, ‘Rhetoric.
Grammatology and tlic Hidden Injuries of Low,’ 18
Eco,tomycirrc/Society
(1989)
p
182.
I
am
grateful
to
Peter Goodrich for supplying
me
with
an
extended version of this quotiition.
2
R.
Burton,
77ic
Altotomy
of
Melnnclroly
(1621, Everyman
cd,
London: Dent, 1932. Vol
I)
p 109.
3 To take
a
recent example.
so
far
as
the time-span with which
I
deal hcrc is concerned, the Haldanc
Coinmission pronounced,
in
1913,
that:
‘The
most
scientific study of [law) which
a
university can
provide will bc the best foundation for professional work, and will alone
fit
a
man
to
deal with intellcctual
freedom and, from
it
wide point of view, with
the
questions lie will have
to
answer from day
to
day
in
his professional practice.
It
will also produce lawyers whose advice and cissistancc will bc
a
reliablc
guidc to the legislature
in
framing statutes
in
organic connexion with tlie
past
and
in
harmony with
the social development of the national life.’ Haldanc Commission of 1913, Final Report para 337,
quoted
in
Re~iorr
of
tlic
Comtnirtcc
on
Legal
Edttcctrion.
Cmnd 4595, 197
I
para 31.
4
cf
Richard
A.
Cosgrove.
Oiir Lndy
tlte
Cottinion
Law:
Air
Atiglo-hericon
kgnl
Cotttfnioiity
1870-1
930
(New York: New York University Press, 1987) pp 31-32: ‘Because nothing but assertion supportcd
the law-as-science ideal,
it
soon
took
on
tlic trappings
of
revealed truth
.
. .
The belief
thiit
the law
existed beyond the reported cases, awaiting
some
legal explorer, helped sow a confusion among those
who sought
a
scientific basis
to
law.’ Cf Grant Gilniorc,
77ie
Ages
of
Antericmi
Lniv
(New Haven:
Yale University Press, 1977) ch 3 (‘The
Age
of Faith’).
111~
Modern
Lniv
Review
54:2 March 1991 0026-7961
182
March
19911
77ie
Oldest
Socirrl
Science?
mind, we find both an inflation in the self-serving claims advanced by lawyers,
and an intense and often bitter condemnation of their pretensions by those who saw
themselves
as
living on the margins of the closed world of the law.s
Kelley has claimed that there
is
a
‘fundamental kinship bctween the old science
of jurisprudence
. .
.
and the modern science of society,’ proposing
a
genealogy
in which the practical science embedded in law is
opposed
to
the Aristotelian tradition
of philosophy,6 and in which law is presented
as
the ancestor of modern social
science.’
I
seek here, however, to address
a
different question, which is that it
is
impossible to view law
as
having any significant affinity with modern social science,
the reason being that law lacks the dimension of ‘positivity’ which
is
crucial to the
constitution of modern social science.
In
the first two parts
of
this essay,
I
seek to compare the common law and modern
social science
as
distinct epistemic practices,
as
distinct ways of ‘knowing’ the nature
of the social world. Since the argument is that the epistemic undercore of the common
law tradition has now become quite implausible,
I
then examinc, in the third part,
some of the preconditions and presuppositions which,
on
a
contextual reading, might
once
have afforded the knowledge claims and epistemic style of the common law
tradition
a
certain plausibility, at least from
a
certain social position or point of view.
Although this essay confines itself to some of the most pronounced features of
the epistemic claims of the common law tradition, it would be wrong
to
suppose
that
all
of these features were exclusive to the common law and wholly absent from
the continental tradition. Van Caenegem has recently suggested, with much bravura,
that the differences with which we suppose ourselves to be familiar today between
common law and civil law are to be understood mainly with reference
to
the different
paths taken by political development in England
on
the one hand and on the continent
5
‘AmOngSt the learned the lawyers claim first place, the most self-satisfied class of people, as they
roll their rock
of
Sisyphus and string together six hundred laws in the samc breath, no matter whether
relevant or not, piling up opinion on opinion and gloss on gloss to makc their profession sccm the
most difficult of
all.’
Erasmus,
Praise ofFolly,
tr B. Radice
(I5
I
I,
Harmondsworth: Penguin,
I97
I)
p
150.
Erasmus proceeds immediately
to
equate such lawyers with sophists: ‘three syllogisms arm
them enough
to
go straight
to
battle on any subject and with any man’
op
cif,
p
151.
6
See Donald R. Kelley, ‘Gaius Noster: Substructures
of
Western Social Thought,’
84
AmHR
(1979)
619-648,
p
620.
Cf Pocock’s view that in the 18th century ‘[wlc are
. .
.
in the era
of
a rcvivcd
and modernised natural jurisprudence, based on the notion that an intcnsive study
of
the variations
of
social behaviour throughout space and time would reveal the underlying principles of human naturc
on
which the diversities of conduct were based and from which
lois
took their
esprit.
Jurisprudence
. . .
was the social science of the eighteenth century, the matrix
of
both the study and the idcology
of
manners
.
.
.’
J.G.A. Pocock,
Virtue, Cortunerce arid History
(Cambridge: CUP,
1985)
p
49.
In
the common law tradition, of course, the naturc of the relationship between law and ‘jurisprudence’
remains today quite problematic for a recent example, see ‘Practising lawyers ignore theory at their
peril,’
Financial
Tinies.
30
January
1989.
7
There
is
no shortage
of
examples
to
support the claim.
To
take one: in
1857,
Henry Brougham, then
seventy-nine, formed a committee
to
establish
a
National Association for thc Promotion
of
Social
Scicncc:
see
Robert Stewart,
Henry Oroicgkam
1778-1868:
His Public Career
(London: Bodley
llead,
1985)
p
358.
Brougham links
us
back through Stewart and Smith and Hutchcson
to
Calvinism and
Dutch law, though this, of course, is
to
construct the gcncalogy with reference to the emergent civil
law as point
of
origin
of
modern social science. The ‘experiments’ of another lawyer, James Loch.
in Sutherland, provide another, rather more momentous example:
cf
Loch quoted
in
E.
Richards,
77ie
Levinrhoti
of
Wealrlt
(London: RKP,
1973)
p
255:
‘The experiment has succceded to the utmost
in some districts,
less
well in others. has failed in some.’ One critic charactcriscd this experiment
as being ‘akin
to
carving
up!
dog alive for the benefit of science.’ In defence, Loch clairncd:
‘I
was
indignant
.
.
.
knowing the years
of
preparation which we had in the care that was taken
to
meet cvery
contingency. A man must
be
a fool and more who undertook to advise such a measure without fccling
the deep responsibility which he incurred in dealing with the comfort, the welfarc and the happiness
of
so
many
of
his fellow beings.’
/bid,
pp
254-5.
183
77ie
Modent
Lniv
Review
[Vol.
54
on the other.s Yet
while
such considerations may help to explain, comparatively,
the structure of the legal profession and of the judiciary, the level of institutionalisation
of law
in
universities and
its
significance
vis-his
legal practice,
as
well
as
elucidating
certain aspects
of
legal codification,
I
am not sure that
it
deals adequately
with
the
epistemic character of the common law tradition and the peculiar manner
in
which
this tradition purported to provide a science
of
society. Why the common law tradition
claimed to know what it knew is one thing; what it claimed to know is another,
and it is the latter which concerns me here. This is not to discount the importance
of contextualising knowledge or
truth
claims. This is precisely what
is
attempted,
however inadequately,
in
the last section of this essay. There is, of course,
a
‘dialectic’
or
a
‘symbiosis’ between knowledges and practices, especially where the relationship
between ‘theory’ and ‘practice’ is posed,
as
it
is here,
with
reference to society
and government.
Yet
if
there is any point in preambles, it is to orient, delimit and qualify the signifi-
cance of what follows them. Given that
we
will
herc be concerned
with
a
legal
tradition
in
which the uniqueness of its past forms its organising principle,
it
is
important to keep
in
mind some aspects of that past which point
in
other directions.
By contrast
with
van Caenegem,
we
should not,
in
other words, overestimate the
differences when we read the early modern period through
the
retrospective grid
of common law compared
with
code.9 It is salutary to remember that it was
as
late
as
the mid-sixteenth century that the Calais which was engraved
on
Mary Tudor’s
heart was lost to English rule; too easy
to
forget the constant traffic of scholars
as well
as
diplomats, both commonly
if
not invariably lawyers of one
sort
or another,
to and from England, Scotland, France and the Low Countries. Nor was
this
new;
at
most, what was new was that an increasing number of such travellers had
exchanged ecclesiastical robes for the secular garments of lawyers, even though
the tasks they discharged and the manner
in
which they were discharged both
remained
in
large measure the same.1o
In
epistemic terms, neither England nor
Scotland can appropriately be regarded
as
insular,
if
by that is meant an immunity
to
the
influence of ‘foreign’ ideas. Yet,
as
we shall see, England, specifically, became
insular
in
the particular sense
in
which its elite culture thcmatised the separateness,
distinctiveness or ‘peculiarity’ of the English,
as
well
as
their unique destiny.”
And
a
recuperation of
the
distinctive character of the manner
in
which
the
common
law tradition afforded
a
knowledge of the social world
is,
perhaps ironically, now
all
the more necessary
in
the light of the enhanced practical significance
of
‘Europe.’I*
~~
8
R.C.
Van
Caencgem,
Jttdges,
Legisla/ors
ntd
Professors:
C/tap/ers
itr
Ertropenrr
Lxgnl
Hisrory
(Cambridge: CUP, 1987).
9 From thc
UK
point of view especially, there is perhaps
a
tcndcncy
to
overstate the siiniloritics bctwccn
the evolution
of
tlic modern
lcgal
systems of tlic principal
Europcan
states,
and
to
overcstiniate the
case
with
which codification
wiis
achicvcd,
and
the
‘natural’
affinities between the inodernising stnictiircs
of the European polities
and
thc
codification movcmcnt.
In
particular,
thc
cnornious difficulties
of
German codification
are
not infrcqucntly
too
rcadily overlooked. For cxccllent discussion of tlicsc
difficulties, see Michael
John,
Politics
arid
//re
Lmv
in
La/e
Nirieteerrr/r-Cerr/rtry Gerrtratiy:
//re
0rigitr.s
ofh
Civil
Codc
(Oxford: Oxford University Prcss, 1989). For comparison
with
earlier difficultics
in
France, see Donald
R.
Kellcy,
His/oriarts
oird
//re
Lnw
irr Post-Revolrrriotictr)~
Fratice
(Princeton:
Princcton University Prcss,
1984)
chs
4
&
5.
10
R.W.
Southern,
Western
Socic/y arid t/re
C/iurc/i
it1
//re
Middle Ages
(Harinondsworth: Pcnguin, 1970)
rciiiains fundamental. For
a
valuable recent study of
tlic
late niedievallcarly modern period, see Pctcr
Gwyn.
7?rc
King’s
Cardinal:
771c
Rise
arrdFall
of
7konrcts
Wolsey
(London: Barrie
and
Jenkins, 1990).
I
I
Fortcscue provides one
of
the
most
obvious cxaniples;
but
scc
also
thc
discussion
in
Francis
Yatcs,
A.s/raen:
7/1e
Itriperial
77rcttrc
irr the Six/cctr//r Cetr/roy
(London:
Ark,
1985).
12
See
my
review of
M.
Folcy,
77rc
Silctrce
of
Cotrs/i/ri/ioris
(London: Routlcdge. 1989)
in
(1990)
53
MLR
214.
I84
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