BOOK REVIEW Essays on the Anglo-American Legal Treatise
Reviewed by: Robert Whitehouse
Author: Edited by Angela Fernandez and Markus D. Dubber
Publisher: Hart Publishing
In this collection of essays on the 19th-century legal treatise, there emerges a detailed history of the rise of a form of legal literature that assumed to itself a high intellectual pedigree. But it would be a mistake to conclude that such pedigree would make the legal treatise a source of certain authority within the courtroom. It is, however, precisely this assumption that the editors of this book advance without providing a convincing account of the use and significance of these works for the practising lawyer.
For example, in considering 19th-century English contract law, Stephen Waddams believes that the treatise writer is comparable in authority with Counsel arguing his case before the bar. For Waddams, it is impossible to avoid the conclusion that these texts are nothing other than compelling exercises in the most profound advocacy. In the same vein, Angela Fernandez in reviewing the essays as a whole feels justified in claiming that 'judges get to decide the case, but the treatise writer gets to say what the case really decides'. But is this really the case?
Take the giant himself, William Blackstone, who is justly given pride of place in this book. It is a commonplace of legal folklore that he exercised a monumental influence upon common law learning to the end of the 19th century. What is less clear is in what such influence consists. Kunal Parker notes that almost immediately upon the first appearance of the Commentaries in 1765, the work was out of date. Subsequently, it was subject to revision, excision and annotation throughout the succeeding century in the vain hope that the work would maintain pace with developments on both sides of the Atlantic.
But there was a more fundamental problem at work than the mere efflux of time. Blackstone attempted to produce an account of the common law in the form of a logical structure derived from Roman law. Blackstone was of course being entirely conventional in doing this, but ultimately he was simply duplicating the failure of Bracton some five centuries earlier. What Blackstone chose to disregard is the fact that the common law in its technical aspect could only be adequately understood through the forms of pleading. This had, after all, been the common law’s defining characteristic since inception.
Blackstone’s attempt to found the common law upon a system of rules was nothing but a rationalist mirage. If anywhere, the common law could only be located in the various remedies volunteered by the collection of writs that were the foundation of the activity in the courts. These remedies could only be articulated by the advocate and whether he succeeded or not was down to his dexterity in presenting the remedies via the technicalities of these forms of action.
From this we can see that Lindsay Farmer’s conclusion that 19th-century treatises were, quite simply, the law is misconceived. The starting point for every judge is always reality. Even at the height of Blackstone’s authority, the master was routinely dispensed with. In 1788, for example, his unambiguous declaration of a common law right to glean was simply ignored when the principle was found to be obstructive.
This book gives due weight to those treatises published in the United States, but the fate of the treatise there is less impressive still. In his magisterial treatment of the American judicial tradition, G Edward White has provided a compelling account of the elastic, free-wheeling activity of 19th-century judges who had no time or empathy for the dogmas of books. The renowned Chief Justice of Massachusetts (1830-60), Lemuel Shaw, encapsulated this approach: 'It is one of the great merits and advantages of the common law that instead of a series of detailed practical rules it consists of a few broad and comprehensive principles founded on reason, natural justice, and enlightened public policy modified and adapted to the circumstances of all the particular cases which fall within it.'
Those American authorities included in this book such as James Kent and Joseph Story neither hoped nor desired to compress the broad extent of the common law within their texts. Each had the authority of the Constitution to rely on. But for the local practising lawyer, the discretion afforded by the common law in ordinary adjudication was boundless and free of any particular authority or text. What counted then as now was the practical experience of the life of the courtroom. And this is why this book’s title assumes a very special irony as the law books considered in this volume did not inspire the action or significance that is claimed.
Assessing the achievement of Blackstone some 50 years ago, Professor SC Milsom concluded his lecture with the reflection that between the law book and life, something must give. Nothing he or the other treatise writers gathered together in this book could say changed the way the lawyers themselves spoke to one another inside the courtroom. It is an observation that should have provided the theme for this book, but unfortunately that has been missed and with it the opportunity to illuminate both the history and more importantly the character of the common law through the medium of the printed word.
Robert Whitehouse is a solictor at Hodders