Writing ‘Law and Society’ Histories
| Date | 01 March 1992 |
| Published date | 01 March 1992 |
| Author | David Sugarman |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01879.x |
REVIEW ARTICLE
Writing
‘Law
and Society’ Histories
David
Sugarman*
W.R.
Cornish and
G.
de
N.
Clark,
Law and
Society
in England,
1750-1950,
London: Sweet
&
Maxwell,
1989,
xii
+
690
pp,
f42.00
hb,
f29.50
pb.
Conceived over twenty years ago, this eagerly awaited text has been a long time
in the making. While several draft papers were completed by Geoffrey Clark prior
to his death in
1972,
the vast bulk of the considerable material and writing that
makes up this substantial book is the work of Bill Cornish. Without Cornish’s
assiduous commitment, this book would never have seen the light
of
day. Its
appearance is undoubtedly an important event for modern legal history.
I
Law
and Society
in
England,
1750-1950
(hereafter
Law
and Society)
is a work
of historical synthesis
-
much of it the finest of its kind to date
-
whose low-key
presentation nonetheless demands our attention. Its ambition is dazzling:
to
explain
the development of law and legal practice from
1750
to
1950
in the context of the
surrounding political, economic and social climate.’ This, then, is no antiquarian
legal history but one whose aims are presentist and polemical. Its starting point
is the continuing neglect of recent legal history within lawyers’ legal history and
legal education more generally. Thus, its title is itself a challenge, communicating
a somewhat different vision of the enterprise than earlier, more conventional guides
to
legal history.
But the book aspires to more than the reorientation of legal history courses. Its
ultimate
raison d ’&re
lies in its strong commitment
to
a liberal, contextual approach
to legal education and scholarship. By treating law in a more systematically historical
fashion than usual, the authors hope to contribute towards the broadening
of
legal
education.* This recognises that legal history plays an important role in defining
and legitimating the character of legal education and scholarship. From this
perspective, legal history can and should be refashioned to take on the mantle of
an all-purpose subversive, illuminating the connections between legal, socio-economic
and political change, thereby enlarging and supplementing the study of law. Here,
then, is a
690
page textbook that attempts to historicise in a contextual fashion those
parts of the legal curriculum that other vehicles of liberalisation have not yet reached.
In
so
far as the task can be undertaken, Cornish and Clark do
it
with a style and
panache that can only be admired.
Notwithstanding its undoubted merits, this book also illustrates the considerable
*Professor of
Law,
Lancaster University.
I
should like to thank Ronnie Warrington and Costas Douzinas for their helpful comments, Leonie Sugarman
for her outstanding
support
and Bill Cornish for dealing with my questions with characteristic kindness.
I
p
v.
2
p
v.
292
The
Modern
hw
Review
55:2
March
1992 0026-7961
March
19921
Writing
‘Law
and
Society
’
Histories
pitfalls that await those bold spirits who venture to write general, ‘law and society’
type histories. For this reviewer at least, the authors’ largely unspoken assumptions
about the writing of history, and the means used to fulfil their laudable goals, obstructs
to some degree what they purport to be doing. Thus, from time to time they accept
highly questionable notions of the subject-matter of legal history, thereby unwittingly
reproducing the values and conventions of the historiography and legal scholarship
that they seek to transcend. Increasing the ratio of ‘context’ to ‘law’ and enlarging
the references to the historical literature are undoubtedly useful; but they cannot
of themselves achieve the larger ambitions of this text.
I1
Law
and
Society
takes the form of seven major survey essays covering the great
institutions and developments of the English legal system (Criminal, Labour and
Land Law, as well as Poverty and Education, Commerce and Industry, the Family
and Accidents). It is prefaced by a wide-ranging introduction which explores ‘the
relation of law and the legal system to society
in
general, and to the economy and
the organisation of politics.’.’ The chronology of the introduction, and several of
the other essays, is divided into two periods:
1750
to
1875
and
1875
to
1950.
In
this way, the Judicature Acts
1873-75
serve as a convenient marker to separate
the two halves of the narrative
in
most chapters.
The book draws together a wealth of materials from a multitude of different sources,
legal as well as social, political and historical, and one of its excellent qualities
is the way these coalesce to make what is often a readable
if
highly compressed
and detailed story. The text is clear and engaging, and although there are occasional
lapses, its crafting has obviously been a labour of love. It takes you along the many
trails of English legal history in a manner that produces a most stimulating read.
The occasional references to the literature of the period add to the pleasures of the
text. Usually the main issues of concern are identified and the reasons for their
importance stressed,
so
that
it
is known what to expect and
why.
Most books on legal history select and organise their material around those institu-
tions that are distinctively ‘legal,’ thereby replicating the core categories and
assumptions of modern substantive law. Cornish and Clark largely break with this
paradigm. Instead, their work is more functional and problem-orientated. It is
organised around topics such as ‘commerce and industry,
’
‘labour relations’ and
‘poverty and education.’ Thus, alongside the usual fare, you also find an illuminating
discussion of law reform in the context of poverty, poor relief, education, debt,
public health and housing. Not all the chapters are of the same high quality. But
at its best, as in the chapter on land, the history of legal doctrine is treated within
a framework sensitive to issues such as urbanisation, the exploitation of land and
the control of land use. Here, perhaps more than
in
the rest of the work, is a
pioneering effort to bridge and unite the all too often separate fields of economic,
urban, social and legal history.
This broader approach is related to another admirable feature of the book. While
the increasing importance of legislation is only grudgingly acknowledged in much
of lawyers’ legal history, Cornish and Clark devote a great deal
of
attention to
legislation and those areas transformed by ~tatute.~ These new directions are aided
3
p
1.
4
cf the critical comments
in
s
V1
below.
293
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