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Historical jurisprudence

Published online by Cambridge University Press:  02 January 2018

Geoffrey MacCormack*
University of Aberdeen


While it is no doubt possible to subsume many kinds of inquiry under the head of historical jurisprudence one should certainly distinguish between two rather different kinds. First there is the kind that takes a particular legal notion or idea as it becomes crystallised at some point in a country’s legal history and traces its subsequent history in legal thought, investigating its diffusion and influence and assessing its continuing utility. Such an inquiry is concerned only with the facts in the sense of the ascertainment of what has actually happened. It is in no degree speculative; nor does it seek to investigate the relationship between social conditions and legal notions or rely upon any particular theory of social evolution.

Research Article
Copyright © Society of Legal Scholars 1985

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1. Three examples which I use co illustrate the argument of this paper are Bernard Jackson's Essays in Jewish and Comparative Legal History (1975), Roberto Unger's Law in Modern Society (1976) and Katherine Newman's Law and Economic Organisation (1983).

2. Cf the decline in the quality of Roman law in the post classical period.

3. A possible example is furnished by the pre-Judicature Acts rules of pleading in England.

4. This notion comprises (i) the technological means open to the society (the ‘forces of production’), (ii) the use of the environment, of labour and of the product (the ‘social relations of production’) and (iii) the result of stratification (the class structure) created in society through inequalities in the distribution of surpluses —op cit, pp 106ff.

5. Op cit, p 117.

6. Op cit, p 144.

7. Op cit, p 145.

8. Unger, op cit, pp 58ff.

9. Ibid.

10. Op cit, p 48.

11. Op cit, pp 58ff.

12. Op cit, pp 68ff.

13. Max Gluckman's ‘multiplex relationships’. See his The Judicial Process among the Barotse of Northern Rhodesia (2nd edn, 1967), p 19.

14. In Roman and African Litigation, Tijd XXXIX (1971), p 221 I attempted to apply this hypothesis in a study of early Roman society.

15. Newman, op cit, p 4.

16. Op cit, p 135.

17. Unger, op cit, p 9f.

18. Op cit, p 14f.

19. Op cit, p 256.

20. Op cit, p 258.

21. Jackson, op cit, p 11.

22. Op cit, p 16f and generally chapters 2, 3, 6.

23. By ‘undifferentiated’ I mean that all transactions belonging to the class were ‘gifts’ not that therr were no distinctions between different kinds of gift.

24. See further my ‘“Gift”. “Exchange” and “Contract”’ in Legal Change. Essays in Honour of Julius Stone (1983), p 68 especially p 78f, and Gift, Debt, Obligation and the Real Contracts, Labeo 31 (1985), 131.

25. This is a version of a paper presented at the W.G. Hart Workshop on Legal Theory in 1984. For help in its preparation I would like to thank Mr P. Duff, Professor F. Lyall and the Editor.