1. T S Eliot ‘Burnt Norton’.

2. 1 Comm 7. The Commentaries (published 1765–69) were the revised and refined outcome of Blackstone's lectures at Oxford beginning in 1753, five years before his appointment as first Vinerian Professor of English Law.

3. Bentham A Fragment on Government J H Bums and H L A Hart (eds) (London: Methuen, 1977) p116. Similarly, Dicey observed that the Commentaries ‘lived by their style’ (1932) 4 CLJ 294.

4. 2 Comm 44.

5. Eg 4 Comm 1.

6. 10 Works 141.

7. See Halvey's summary of Burke's political philosophy. The Growth offhilosophical Radicalism Plamenatz, J (ed) (London: Faber, 1972) p 163 Google Scholar. The Blackstonian institute of common law could be seen to function as did social institutions in general ‘by the disposition of a stupendous wisdom of the human race [institutions move] on through the varied tenor of perpetual decay, fall, renovation, and progression’ Reflectionson the Revolution in France (1790). And see Pocock, J Politics, Language and Time (London: Meuthen, 1972) p 202 Google Scholar.

8. In Bentham's terms, someone ‘who is ever on his knees before the footstool of Authority’: A Fragment on Government, above no 3, p13. For a modern, sustained analysis of the political nature of the Commentaries see Kennedy, D ‘The Structure of Blackstone's Commentaries’ (1979) 28 Buffalo LR 209 Google Scholar; Boorstin, D The Mysterious Science of the Law (Cambridge Mass: Harvard University Press, 1941)Google Scholar; and Burgess, G The Politics of the Ancient Constitution (Basingstoke: Macmillan, 1992)CrossRefGoogle Scholar.

9. 1 Comm 442. And see Boorstin, 55. Blackstone was most critical of law in his treatment of the criminal justice system: 4 Comm, eg ch 1 et seq.

10. See Horwitz, M J ‘Why is Anglo-American Jurisprudence Unhistorical?’ (1997) 17 OJLS 551 at 565–566CrossRefGoogle Scholar.

11. Ford is attributed as saying ‘history is more or less bunk’ Chicago Tribune, 25 May 1916.

12. Comment Burns, J H and Hart, H L A (eds) (London: Methuen, 1977)Google ScholarPubMed quoted in S Collini et al That Noble Science of politics (Cambridge: Cambridge University Press, 1983) p 94. For a more subtle analysis of Bentham's attitude towards the common law's history and reasoning, see Postema, G Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986)Google Scholar. Beyond fierce antipathy over Blackstone's historical methodology, Bentham and others justifiably faulted Blackstone's principles on the nature of law deduced from his historical analysis. Most especially, history and natural law are served up in often uneasy and unconvincing combinations. Whilst never denying parliamentary sovereignty, Blackstone imported natural law doctrine in the form of law not ‘contrary to reason’as the regulator of what judges might legitimately declare to be law. But this fails to reveal just whose ‘rcason’ (an a priori element in reasoning) how, and when, such reasoning is judicially invoked. See generally, Simpson, A W B ‘_{The Common Law and Legal Theory}’ in Simpson (ed) Oxford Essays in Jurisprudence, Second Series, (Oxford: Clarendon Press, 1973)Google Scholar; Lieberman, D The Province ofbgislation Determined (Cambridge: Cambridge University Press, 1989) ch ICrossRefGoogle Scholar; and Lobban, M The Common Law and English Jurisprudence 1760-1850 (Oxford: Clarendon Press, 1991) ch 2Google Scholar.

13. ‘Austin on Jurisprudence’ (1863)118 Edinburgh Review 439.

14. Mill's characterisation of Austin's technique. Dissertations and Discussions (London, 1859) III, 207.

15. Austin's attitude to the value of historical analysis was complex and a source of contention in modem times. See particularly Rumble, W ‘John Austin and his Nineteenth Century Critics: the Case of Sir Henry Maine’ (1988) 39 NILQ 119 Google Scholar for the view that Austin was offering an empirically based system not divorced from historical realities. For a contrary analysis see Lobban, above n12, ch 8, who argues that although Austin's aims were purely analytical, he‘did allow for judicial legislation: which was a form of turning custom into law. To some degree, his arguments on custom are therefore a half-way house between Bentham and the historical approach’ (p 229). Some indirect support for this construction can be found in Mill's reconciling of Austin's and Maine's approaches to legal theory. See J S Mill ‘Austin on Jurisprudence’ (1863)118 Edinburgh Review 439, discussed by Collini, S Public Moralists: Political Thought and Intellectual Life in Britain 1850–1930 (Oxford: Oxford University Press, 1991) p 261 et seq.Google Scholar

16. Immediately subsequent historians and theorists of English law never believed that central principles of legal reasoning or science could be deduced from the development of law. See particularly Reeves' History of English Law (London, 1787 and1829). Pollock regarded the work as ‘fairly correct but wholly unreadable’. (1924/8) JSPTL 37 at 39. Reeves and his ilk (eg, in many respects, Ritso, F An Introduction to the Science of Law (London, 1815))Google Scholar viewed common law as a highly pragmatic institution developing through ad hoc accretive processes. See T Plucknett ‘John Reeves: printer’ (1965) 61 Col LR 1201.

17. Professor of Law at King's College London. See Park's attack on codification, A Contre – Projet to the Humphreysian Code (1827).

18. Dissertations on Early Law and Custom (London: John Murray, 1883) p 360, quoted by Holdsworth Some Makers of English Law (Cambridge: Cambridge University Press, 1938) 260n.

19. See particularly J C Heron Introduction to the History of Jurisprudence (1860); H Broom The Philosophy of Law (1876); and S Amos The Science of Law (1874), analysed by R Cocks Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988) pp 14–17.

20. Maine's own claimed scientific analogy was geology. Ancient Law (London, 1861) ch 1 and later Village Communities in the East and West (London: John Murray, 1871)ch. 14. On the general background Intellectual influence of Savigny and the German historical school, see Stein, P Legal Evolution (Cambridge: Cambridge University Press, 1980) ch 3Google Scholar; and Cocks, above n 19, ch 1. Unlike Maine, Savigny made no systematic attempt to explain the evolution of legal institutions across disparate nations and cultures. Pollock regarded Savigny as ‘the greatest expounder of legal principles in modem Europe’: For My Grandson (London: John Murray, 1933) p169.

21. Ancient Law p120 ‘[I]f indeed history be true, it must teach that which every other science teaches – continuous sequence, inflexible order, and eternal law’ Village Communities in the East and West (1895) p 266. Cf Bagehot's rejection of evolutionary stages in political institutions. Physics and Politics (London: Kegan Paul, 1869).

22. Ancient Law p 120.

23. Introduction, Ancient Law (2nd edn, 1908) viii. And similarly Leslie Stephen: ‘The importance of taking into account the genetic point of view, of inquiring into the growth as well as the actual constitution of things, is obvious in all the sciences which are concerned with organic life’: The English Utilitarians (London: Duckworth, 1900) III, 374.

24. See Maine's Popular Government (London: John Murray, 1886). In crude terms, a wider franchise led to retrogressive collectivism, the antithesis of laissez faire individualism. See generally, That Noble Science of Politics ch 7.

25. Cocks, above n19, p 200.

26. ‘Sir Henry Maine as a Jurist’ (1893) 177 Edinburgh Review102.

27. Including challenges to the evidential base of Maine's analysis. See generally, Stein Legal Evolution (1980) pp 107–113.

28. For a wide-ranging analysis of the general intellectual impact of Maine's comparative method, see That Noble Science of Politics, ch 7.

29. As termed by Hart, Austin's The Province of Jurisprudence Determined Hart (ed) (London, 1954)viii. Austin claimed that his analytical jurisprudence was historically based.

30. Sheldon Amos, Professor of Law, University College London. See eg A Systematic View of the Science of Law (London: Stevens, 1872) and the Science of Law (London: Stevens, 1874).

31. E C Clarke, Professor of Civil Law, Cambridge. See eg Practical Jurisprudence (Cambridge: Cambridge University Press, 1883), which shows Clarke's somewhat equivocal views.

32. See William Markby, Reader in Indian Law, Oxford Elements of Law (Oxford: Clarendon Press, 1871).

33. T E Holland, Professor of International Law, Oxford Elements of Jurisprudence (Oxford: Clarendon Press, 1880).

34. Sir John Salmond The First Principles of Jurisprudence (London: Stevens and Haynes, 1893).

35. Sir Frederick Pollock First Book of Jurisprudence (London: Macmillan, 1896). Pollock, Maine's successor in1883 to Maine's chair of historical and comparative jurisprudence, also wrote a lengthy introduction to the Second Edition of Ancient Law (1908).

36. Lord Bryce, Professor of Civil Law, Oxford Studies in History and Jurisprudence (Oxford: Clarendon Press, 1901). Bryce distinguished the historical from the comparative method: the historical method was specific to any particular society and time, and not a sufficient basis for any universal theory of law; this could only be derived from employment of a comparative analysis which excluded features of a non-universal nature. Whilst accepting Maine's historical comparative method, Bryce deduced no anti-democratic consequences from it. Albert Dicey's view of the function and value of historical analysis is not easily identified. For instance, see his Introduction to the Study of the Law of the Constitution (London: Macmillan, 1885). See generally Cosgrove, R Rule of Law: Albert Venn Dicey, Victorian Jurist (London: Macmillan, 1980)CrossRefGoogle Scholar and particularly S Collini Public Moralists: Political Thought and tntellectual Life in Britain 1850–1930 pp 287–301 and cf Horwitz, above n10, at 570–573.

37. Appointed 1904. See Outlines of Historical Jurisprudence (Oxford: Clarendon Press, 1920–22) and Custom and Right (Oslo, 1925) and see Stein Legal Evolution, pp 115–119.

38. See generally, Sugarman, D ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in Twining, W (ed) Legal Theory and Common Law (Oxford: Blackwell, 1986) pp 26, 29–33.Google Scholar

39. Adding that ‘English lawyers have for the last six centuries exaggerated the uniqueness of our legal system’. ‘Why the History of English Law is not written’ (1888) Collected Papers of Frederic William Maitland Fisher, H (ed) (Cambridge: Cambridge University Press, 1911) 1, p 488.Google Scholar

40. Doomsday Book and Beyond (Cambridge: Cambridge University Press, 1897) p 354, and Township and Borough (Cambridge: Cambridge University Press, 1898).

41. See Fisher, H Frederick William Maitland [sic] (Cambridge: Cambridge University Press, 1910) p18 et seqGoogle Scholar. But at an individual national level contemporary German and other European scholarship sympathetic to broader theories of historical explanation and development was largely ignored or unemployed by English legal historians. See Graziadei, M ‘Changing Images of the Law in XIX Century English Thought’ in Reimann, M (ed) The Reception of Continental Ideas in the Common Law World, 1820–1920 (Berlin: Dunker and Humblot, 1993) pp 115–164.Google Scholar

42. ‘Why the History of English Law is not written’ (1888) above n 39, p 485. Typical of the contemporary American reception of Maitland's work is Beale's glowing review of Maitland's edition of the Year Books of Edward II (1903): ‘It is hard to speak with due moderation of such a book as this.’ (1903-4) 17 HLR 291. See similarly Thayer's review of Pollock and Maitland's History (1895–6) 9 HLR 364.

43. Vinogradoff, P Collected Papers of Paul Vinogradoff (Oxford: Clarendon Press, 1928) 1, p 265 Google Scholar quoted by Cocks, op cit, p 144.

44. Fifoot, C H S Frederic William Muitland, A Life (Cambridge, Mass: Harvard University Press, 1971) p 94.CrossRefGoogle Scholar

45. ‘Why the History of English Law is not written’ quoted by Elton, G F W Maitland (London: Weidenfeld and Nicolson, 1985) p 23 Google Scholar. In 1887 Maitland was ‘chief promoter’ in the enormously important venture of establishing the Selden Society, principally for the editing and publication of Year Books. Pollock For My Grandson (1933) p 190. Maitland was literary director of the Society from 1885 until his death.

46. Maitland to Dicey, c 1896, quoted by Fifoot in Maitland, A Life (1971) p143. On Maitland's dispute with Henry Sidgwickover the possibility of legal theory's kin, ‘inductive political science’, see The Letters of Frederic William Maitland Fifoot, C H S (ed) (London: Selden Society, 1965) p 128 Google Scholar and That Noble Science of Politics pp 300–301. In many respects Maitland's circumspect and painstaking approach to archival legal history can be seen earlier in Kenelm Digby's (Vinerian Reader in Civil and Common Law) history of land law, and especially the work of medievalist, William Stubbs, who resisted Maine's clear evolutionary systems and structures in accounting for institutional development. See Constitutional History of England (Oxford: Clarendon Press, 1874–8) and Select Charters (Oxford: Clarendon Press, 1870). Stubbs was appointed Regius Professor of Modem History at Oxford in1866. Cf Maitland's The Constitutional History of England (Oxford: Clarendon Press, 1908). See also L O Pike's somewhat quirky A History of Crime in England, Illustrating the Change of the Laws in the Progress of Civilization: written from the Public Records and other Contemporary Evidence (2 vols) (London, 1873 and1876). In some respects, the methodology is a bridge between Maine and Maitland. Pike's later Year Books editing led the way to Maitland's Selden Society work. By contrast, Fitzjames Stephen's History of the Criminal Law (London: Macmillan, 1883) use d largely institutional works and secondary sources as an historical backg round to a speculative and expositional account of nineteenth-century substantive and procedural criminal law.

47. ‘Why the History of English Law is not written’. And see Elton, p 24 n 11.

48. An attitude keenly reflected in Pollock and Maitland's introduction to The History of English Law (Cambridge: Cambridge University Press, 1895) vol 1, xxiii.

49. Eg Holmes confessed to being ‘one of his worshippers’. 5 October 1889, Letters, Maitland Fifoot (ed) p 73. Holdsworth regarded him as the ‘greatest’ of English legal historians. Some Makers of English Law p 279.

50. For a recent telling critique of some of Maitland's methodology and interpretations of social structures, see particularly Milsom, S ‘A Lawyer's Retrospect’ in The History of English Law: Contemporary Essays on Pollock and Maitland Hudson, J (ed) (Oxford: Clarendon Press, 1996) p 243 Google Scholar; and Milsom's ‘heretical’ observations in his Introduction to Pollock and Maitland's History (Cambridge: Cambridge University Press, 1965 edn). Cf, generally, Brand, P The Making of the Common Law (London: Hambledon Press, 1992)Google Scholar, Hudson, J Land, Law and Lordship in Anglo-Norman England (Oxford: Clarendon Press, 1994)Google Scholar, and P Wormald Frederic William Maitland and the Earliest English Law‘ (1998) 16 Law and History Rev 1. And note Elton, above n 45, for the teleological dangers of historiography of early times approached retrospectively from later points:’.the known present may get unhistorically projected backwards. In addition such parts of the past as did not make it into the known present are liable to get discarded' (pp 52–54).

51. Fifoot, C H S Judge and Jurist in the Reign of Victoria (London: Stevens, 1959). p 79.Google Scholar

52. De Howe, M (and) The Pollock-Holmes ‘ Letters (Cambridge: Cambridge University Press, 1942) vol 31, 4 March 1888Google Scholar.

53. Ibid. When commenting on Herbert Spencer's sociological theories, Holmes characterised Spencer like Maine, as a vulgarisateur p 58, 2 July 1895. Besides a long and famous friendship with Pollock, links between Oxford and Harvard Law Faculties were by then well developed. See eg R Gordon (Review) (1981) 94 HLR 903 and Lawson, F H The Oxford Law School (1850–1965) (Oxford: Clarendon Press, 1968).Google Scholar

54. Maitland thought that ‘for a long time to come [The Common Law] will leave its mark wide and deep on all the best thoughts of American and Englishmen about the history of their common law’. ‘The Materials of English Legal History’ in Fisher, (ed) Collected Papers of Frederic William Maitland (1911) vol 2, p 8 Google Scholar.

55. First published 1826–30. Holmes was editor of the12th edition (1870–73). And see generally Horowitz, M J The Transformation of American Law (1780–1860) (New York: Oxford University Press, 1977)Google Scholar.

56. Maine's patent influence was, curiously, played down by Holmes. Eg see Holmes-Laski Letters (Cambridge, Mass: Harvard University Press, 1953) Vol 1, 1922, pp 429–430 Google Scholar. The Common Law (Boston: Little Brown, 1881). See generally De Wolfe, M Howe Justice Oliver Wendell Holmes: The Shaping Years (1841–1871) (Cambridge, Mass: Harvard University Press, 1957)Google Scholar and The Proving Years (Cambridge, Mass: Harvard University Press, 1963). And see, especially, White, G Justice Oliver Wendell Holmes, Law and the Inner Self (New York: Oxford University Press, 1993)Google Scholar. Holmes's role as a ‘proto-realist’ will be considered in Part III below.

57. The Common Law M De Wolfe Howe (ed) (1963) p 5.

58. Christopher Columbus Langdell, first Dean of Harvard Law School, appointed in 1870. On Langdell's notion of legal science, see particularly Grey, T C ‘Langdell's Orthodoxy’ (1983) 45 U Pitt LR 1 Google Scholar.

59. Holmes to Pollock, 10 April 1881. Pollock-Holmes Letters, vol 1, p 17 Google Scholar.

60. Pollock to Holmes, 17 September 1897, Pollock-Holmes Letters, vol 1, p 80. J B Ames, a junior colleague of Langdell, though a teaching disciple of Langdell's case method, nevertheless produced some historically based publications not dissimilar to Holmes's Common Law genre (below).

61. Eg Bigelow, M History and Procedure in England 1066/1204 (London: Macmillan, 1880). See Part III belowGoogle Scholar.

62. The Letters of Frederic William Maitland C H S Fifoot (ed) (1965) pp 84–87. Maitland goes on ‘Every day my admiration for Stubbs grows and you know what this form of worship condemns one to’ (p 86) On Stubbs's style, Pollock aptly records ‘Stubbs is not usually counted among the more readable Historians, [his work being] to close packed to leave much room for literary grace’: For My Grandson p 48.

63. A History of English Law, vol 1 (London: Metheun, 1903).

64. (1903) 19 LQR 335.

65. Ibid. Lord Wright well captured the essence of Holdsworth's literary style in a comparative description: ‘Holdsworth's style was simple, nervous, forthright. It would be unfair to compare it with the style of Maitland or Pollock. Maitland's style was peculiar in its vivid picturesqueness, while Pollock's was coloured by the philosophical and literary culture in which he was steeped. But Holdsworth's style was unaffectedly aimed at conveying in the fewest possible words the enormous mass of fact and ideas which he wanted to express. It was just the instrument for his work.’ Obituary of Holdsworth (1944) 60 LQR139 at142.

66. Anxious to be scrupulously fair, Maitland notes that Holdsworth had, at least, in respect of the Middle Ages, ‘gone to the best books’. However, for later periods ‘Mr Holdsworth occasionally vouches a warrantor who is open to exception’. In particular, ‘we see Lord Campbell's name in footnotes rather more frequently than we like.Lord Campbell vividly described a great many things that he never saw and some things that were never seen by anyone’ ((1903) 19 LQR 355 at 336).

67. A judgment on Holdsworth's endeavours by a section of the wider literary establishment may be implicit in his failure to gain inclusion in successive editions of The Oxford Companion to English Literature. Eg the Harvey 4th edition, revised D S Eagle (Oxford: Oxford University Press, 1967) carries entries for Maine, Maitland and Pollock but not Holdsworth. Maitland survives into babble's 5th edition, but not her 6th edition (Oxford: Oxford University Press, 1985 and 2000).

68. Reviews of vols 7 and 8 covering property, contract, tort and criminal law. (1924/8) JSPTL 37 at 39. In similar vein, see Lord Macmillan's review of vol 12 (1938)Google Scholar 2 MLR 245.

69. See also Pollock on the theme ‘The Continuity of the Common Law’ (1898) 11 HLR 423.

70. Historians of Anglo-American Law (New York: Columbia University Press, 1928) p 96.

71. See generally vol13, A L Goodhart and H G Hanbury (eds) (1952), and review of A Hargreaves (1953) 16 MLR 527.

72. See vols 14 and 15 and the reviews of D Williams (1964/7) 8–9 JSPTL 343 and M J Prichard (1966) 24 CLJ 134.

73. (1965) 28 MLR 375 at 376.

74. Historians of Anglo-American Law p 139. And see Parker, G ‘The Masochism of the Legal Historian’ (1974) 24 U Toronto LJ 279 at 299CrossRefGoogle Scholar.

75. History, vol 13, p 55.

76. G E Woodbine (New Haven: Yale University Press, 1932).

77. 4 vols (1915-42). Arguably the most significant American legal medievalist from the nineteenth century was Melville Bigelow, Professor of Law, Boston University. See particularly History and Procedure in England 1066–1204 (London: Macmillan, 1880) and Placita Anglo-Normannica (1879). A contemporary assessment by Holmes was mercilessly spot on: ‘He is a man whom I greatly respect for his sincere love of learning which has proved in spite of poverty etc., but there is Nothing incisive or masterly about him – so that whatever he does will have to be done over again. He is, however, getting to be a really learned man.’17 June1880, Holmes to Pollock, Pollock –Holmes Letters DeWolfe, M (ed) (1942) vol 1, 15 Google Scholar. See also pp 142–143.

78. (1923) 39 LQR 127.

79. 5 vols (1968–77). On the considerable extent of these revisions and reinterpretations see M J Prichard (1970) 28 CLJ 314 and (1978) 37 CLJ 167 and (1969) Am JLH 304.

80. (1927). Whilst at Harvard Plucknett published the Ames Foundation Year Books of 13 Richard II (London: Cambridge University Press, 1929) and the first edition of the enduring A Concise History of the Common Law (London: Butterworth, 1929). He had already published Statutes and their Interpretation in the First Halfof the Fourteenth Century (Cambridge: Cambridge University Press, 1922).

81. Considered below. Pound credits the German jurisprude Josef Kohler with inspirational early theorising; Interpretations of Legal History, (Cambridge: Cambridge University Press, 1923) p 141 et seq.

82. The contemporary impact on prominent members of the Cambridge Law Faculty is plain from Downing Professor H D Hazeltine's enthusiastic lengthy introduction to Interpretations of Legal History. And see eg Kenny's book review (1923) 1 CLJ 378.

83. 16 February 1923, Pollock-Holmes Letters, vol II, pp 112–113. Holmes characterized the book as ‘a larger masterly panoramic view of the whole show.’(p 114).

84. Ibid, p 115. Two other works of this period from the highly prolific Pound making imaginative use of legal history are An Introduction to the Philosophy of Law (New Haven: Yale University Press, 1922) and Law and Morals (Chapel Hill: University of North Carolina, 1924). Reviewing both, Pollock was happy to endorse their agreeable conclusions reached through differing routes, particularly the notion of continuity in the common law as a vehicle for adhering to a judicially constructed standard of reasonable behaviour. (1922) 38 LQR 509 and (1925) 41 LQR108. See also Holdsworth's review of Pound's later work on Contemporary Juristic Theory (Claremont: Claremont Colleges, 1940) 56 LQR 557 at 558, where Holdsworth refers to Interpretations of Legal History's ‘engineering interpretation’ as confirming Holdsworth's theory of professional development and continuity in the common law.

85. See Milsom, below.

86. Interpretations of Legal History, p 21.

87. The Spirit of the Common Law (Boston: Beacon Press, 1963, orig1921) p 205, discussing von Jhering's theory of secured legal interests.

88. (1st edn, 1929; 5th (and final) edn, 1956). The book is overwhelmingly devoted to pre-eighteenth century legal history; hardly 10% of the work ventures beyond this period.

89. Plucknett records a prefatory acknowledgment to Holdsworth's, by then (1929), ‘nine masterly volumes’.

90. Maitland became literary director of the Selden Society in 1895.

91. See SFC Milsom Proceedings of the British Academy (1965) li, p 505. Of Plucknett's later works, see Legislation of Edward I (Oxford:Clarendon Press, 1949); Edward I and Criminal Law (Cambridge: Cambridge University Press, 1960).

92. See particularly Legislation of Edward I and The Medival Bailiff reprinted in Plucknett, Studies in English Legal History (London: Hambledon Press, 1983) V, pp 1–33.

93. Presidential Address to SPTL ‘Legal History in England’ (1954) JSPTL 191 at 199.

94. Ibid at 199–200.

95. Proceedings ofthe British Academy (1965) li, p 505

96. See Milsom's ‘Introduction’ to the re-issued second edition of Pollock and Maitland's History (1968, Cambridge) p xxv. This essay contained many of the themes later fully developed in Historical Foundations of the Common Law (London: Buttenvorths, 1969).

97. Historical Foundations of the Common Law, second edition (London: Butterworths, 1981) p 6. For the radical scale of Milsom's thesis see particularly D Yale (1970) 33 CLJ 319 and M T Clancy (1981) 44 MLR 597. See also Milsorn's more narrowly focused The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976).

98. Ibid, p vi.

99. ‘Introduction’ p lxxii.

100. As Literary Director of the Selden Society, Baker has also been responsible for editing and cataloguing a wealth of primary sources, including in relation to the legal profession (with S E Thorne) Readings and Moors at the Inns of Court in the Fifteenth Century (London: Selden Society, 1990) and ‘The Third University of England: the Inns of Court and the Common Law Tradition’ (1990) Selden Society lecture. More generally, see Brand, P The Origins of the English Legal Profession (London: Blackwell, 1992)Google Scholar, and Oldham, J The Mansfield Manuscripts (Chapel Hill: University of North Carolina Press, 1992)Google Scholar. Forensic sifting of original sources is equally axiomatic in emphatically doctrinal ‘intemalist’ analyses, as well illustrated in Brian Simpson's two classic historical studies, A History of contract. The Rise ofthe Action of Assumpsit (Oxford: Clarendon Press, 1975) and An Introduction to the History of the Land Law (Oxford: Clarendon Press, 1961). And cf Ibbetson, D A Historical Introduction to the law of Obligations (Oxford: Clarendon Press, 1999)Google Scholar, and Wormald, P The Making of English Law: King Alfred to the Twelfth Century vol 1 (Oxford: Clarendon Press, 1999)Google Scholar.

101. Up to the 1960s, arguably the only out and out attempt at an ‘external’ narrative account of the full span of English legal history was A Harding's A Social History of English Law (London: Penguin, 1966). See Alsothe many institutional studies particularly of D M Stenton and H Cam listed in Milsom's select bibliography in Pollock and Maitland History vol 1, p lxxxviii.

102. Judge and Jurist in the Reign of Victoria, p12. In this vein, Fifoot also produced Lord Mansfield (1936); The Letters of Frederic William Maitland (1965); and Frederic William Maitland, A Life (1971). For examples of the broad genre of legal ‘intellectual’ biography, see White, G E Justice Oliver Wendell Holmes, Law and the Inner Self (New York: Oxford University Press, 1993)Google Scholar; Cosgrove, R A The Rule of Law: Albert Venn Dicey (London: Macmillan, 1980)CrossRefGoogle Scholar; Cocks, R Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar; and Smith, K James Fitzjames Stephen, Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar. More generally see eg Simon Schama's ‘popular’ account of the French Revolution in Citizens (London: Viking, 1989). For a radical postmodern remodelling of biography as a methodology for legal history, see ‘New Historicism’ Part V below.

103. See Schlegel, J H American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995)Google Scholar and generally, Duxbury, N Patterns ofAmerican Jurisprudence (Oxford: Clarendon Press, 1995)Google Scholar chs1 and 2, and cf White, above n 102, pp 170, 365–368.

104. Arguably, in large measure through a combination of the growing awareness of the true vastness and complexity of such an enterprise, and the onset of the Second World War engendering unease at Realism's apparent moral relativism. This in turn enhanced the appeal of certainty of moral values and the legitimacy of the orthodoxy of central institutions, including the law.

105. Llewellyn's judicial periods are1820/, 1880/ and1930s onwards. See generally Twining, W L Karl Llewellyn and the Realist Movement (1973) (London: Weidenfeld and Nicolson, revd edn, 1985)Google Scholar.

106. A notable, more specialised earlier example of Realist scholarship is Jerome Hall's Theft, Law and Society (Boston: Little, Brown & Co, 1938).

107. Cf Morton Honvitz's The Transfonnation of American Law 1780/1860 (1977) below n 117.

108. Hurst became a member of the University of Wisconsin, Law Faculty in the late 1930s.

109. On the suggested influence of Dewey, see R W Gordon ‘J. Willard Hurst and the Common Law Tradition.’ (1975) 10 Law and Soc Rev 9, 45–47. Aside from historiography of a jurisprudential variety and English medieval studies by American authors, the relatively moribund history of American legal institutions received a boost in the early1930s with Columbia University's establishment of the Foundation for Research in Legal History, along with the American Historical Association's publications programme for American and colonial legal sources. See eg Goebel, J Cases and Materials on the Development of Legal Institutions (New York: Ad Press, 1937)Google Scholar and DeWolfe, M Howe Readings in American Legal History (Cambridge: Harvard University Press, 1949)Google Scholar. More generally, see Moms, R Studies in the History of American Law (Philadelphia: J M Mitchell Co, 1959)Google Scholar and Haskins, G L Law and Authority in Early Massachusetts (New York: Macmillan, 1960)Google Scholar.

110. (1950). On this occasion, Hurst employed a range of existing studies on which to base his analysis. See also Law and the Conditions of Freedom in the Nineteenth Century United States (Madison: University of Wisconsin Press, 1956); Law and Social Process in United States History (Madison: University of Wisconsin Press, 1961); Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836/1915 (Madison: University of Wisconsin Press, 1964); The Legitimacy of the Business Corporation in the Law of the United States, 1780–1970 (Madison: Un iversity of Wisconsin Press, 1970); and Law and Markets in United States History: Different Modes of Bargaining Among Interests (Madison: University of Wisconsin Press, 1982).

111. (New York: Simon and Schuster, 2nd edn, 1985) Preface p12 and Prologue p 18. Cf the developments in the English ‘Law and Economy’historiography, most especially the clarion call of Rubin and Sugarman in Law Economy and Society Essays in the History of English Law 1750–1914 (Abingdon: Professional Books, 1984).

112. D Trubek ‘Where the Action Is: Critical Legal Studies and Empiricism’ (1984) 36 Stan LR 575, 577: Critical Legal Studies was an ‘outgrowth of American Legal Realism’. M Tushnett ‘Critical Legal Studies and Constitutional Law.’ (1984) 36 Stan LR 623, 626: Critical Legal Studies was a ‘direct descendant of Realism’.

113. G E White ‘From Realism to Critical Legal Studies: A Truncated Intellectual History’ (1986) 40 South West Law J 819.

114. Duxbury, N Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995) p 477.Google Scholar

115. Particularly Gordon, R ‘Historicism in Legal Scholarship’ (1981) 90 Yale LJ 1017 CrossRefGoogle Scholar and ‘Critical Legal Histories’ (1984) 36 Stanford LR 57.

116. Law's Empire (London: Fontana Press, 1986) (1991 edn, p 273). Dworkin's rights based jurisprudence was, of course, a prime target of Critical Legal Studies. See eg M Tushnett ‘An Essay on Rights’ (1984) 62 Texas LR 1363.

117. On the influence of Duncan Kennedy, see J Williams ‘Critical Legal Studies etc’ (1987) 62 NYUL Rev 429, and Kennedy's ‘The Structure of Blackstone's Commentaries’ (1979) 28 Buffalo L Rev 209, elaborating the core notion of ‘fundamental contradiction’ in life and in law: that ‘relations with others are both necessary to and incompatible with our freedom’ (at 213). Kennedy, however, ‘jumped ship’ in the early1980s, having decided that ‘structuralism had lost the destabilising value it once possessed he dropped it for a post-modem stance’. Ernst, D ‘The Critical Tradition in Writing of American Legal History’ (1993) 102 Yale LJ 1019, 1032CrossRefGoogle Scholar.

118. Transformation pp 258–266.

119. On the question of causation, see G E White ‘Transforming History in the Postmodern Era’ (1993) 91 Mich LR1315, 1321 et seq.

120. Particularly the prestigious Bancroft Prize for history in 1978.

121. On Horwitz, Simpson ‘The Horwitz Thesis and the History of Contracts’ (1979) 46 U Chicago LR, 533, 600, and in Legal Theory and Legal History (London: Hambledon Press, 1987) p 203. See also eg Bridwell, R ‘Theme -v- Reality in American Legal History’ (1978) 53 Ind LJ 449 Google Scholar and Karsten, P Heart versus Head: Judge-Made Law in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1997)Google Scholar. On Atiyah see J Baker (Review) (1980) 43 MLR 467 and C Turpin (Review) (1980) CLJ 396. Cf the approach of Kostal, R in The Law and English Railway Capitalism (Oxford: Clarendon Press, 1994)Google Scholar and Simpson, A W B ‘Victorian Law and the Industrial Spirit’ (London: Selden Society, 1995)Google Scholar.

122. Crisis (New York, 1992) pp 3–4.

123. Preface p viii.

124. White (1993) 91 Mich LR 1340.

125. But cf Hay and Langbein dispute, below section 3.

126. On the general issue of historicism and legal history see particularly Gordon, R ‘Historicism in Legal Scholarship’ (1981) 90 Yale LJ 1017.CrossRefGoogle Scholar

127. ‘Critical Legal Histories’ (1984) 36 Stan LR 57, 125. Gordon concludes But they are trying; they are getting there'. Optimism of this nature, one assumes, was not la ter born out by Crisis. Amongst the general sceptics of CLS see eg Reid, J The Concept of Liberty in the Age of American Revolution (Chicago: Chicago University Press, 1988)Google Scholar. But Critical Legal Studies has underpinned the quest to expose the linkages between interest, politics and legal development in Anglo-American legal culture more generally. Eg certain methodological assumptions fundamental to Critical philosophy have info rmed and been developed in feminist legal theory, with gender rather than class as the cultural and political hegemonic focus. For important examples of feminist historiographical studies, see below ‘Canadian Legal History’ nn 202–203 and text.

128. No attempt is made to provide a comprehensive bibliographical account of the very extensive body of published work in this area. Rather, this section offers an illustrative analysis of the principal evolving and contrasting historiographical approaches to criminal justice history.

129. Plucknett (1949) 12 MLR 389, 390. Beyond the subsequent volumes of Radzinowicz's History, few works of substance emerged during this period, eg Critchley, T A A History of Police in England and Wales (London: Constable, 1967)Google Scholar; Tobias, J J Crime and Industrial Sociery in the Nineteenth Century (London: Penguin, 1972)Google Scholar; and most especially Walker, N Crime and Insanity in England, vol 1 (Edinburgh: Edinburgh University Press, 1968 Google Scholar).

130. Sir Carlton Allen observed that ‘we have here an examination, not so much of criminal law. as of sociology’: ‘The Broom's Progress’ (1949) 65 LQR 337, 338.

131. History, vol 1 The Movement for Reform (London, 1948).

132. History, vol 2 The Clash Between Private Initiative and Public Interest in the Eilforcenient of the Law (London: Stevens 1956); vol 3 Cross-Currents in the Movement for the Reform of the Police (London: Stevens 1956).

133. In Hay et al Albion's Fatal Tree: Crime and Society in Eighteenth Centuy England (London: Allen Lane, 1975).

134. Similar general views on class manipulation of the system appear in E P Thompson's study of the notoriously repressive Waltham Black Act 1722 in Whigs and Hunters (London: Allen Lane, 1975). Also Munsche, P Gentlemen and Poachers: The English Game Laws 1671–1831 (Cambridge: Cambridge University Press, 1981)Google Scholar for adetailed case studies analysis of the enforcement of specific ‘class’ offences in their economic, social and political context, and Getzler, J ‘Judges and Hunters: Law and Economic Conflict in the English Countryside, 1800–60’, in Brooks, C and Lobban, M (eds) Communities and Courts in Britain 1150–1900 (London: Hambledon Press, 1997) p 199 Google Scholar. An earlier broader deterministic economic or Marxist analysisof criminal justice, is Rusche, G and Kirchheimer, O Punishment and Social Structure (New York Russell and Russell, 1939)Google Scholar. See also McGowan, R ‘The Image of justice and reform of the criminal law in early nineteenth-century England’ (1983) 32 Buffalo LR 89 Google Scholar, for the contention that advocates of reform of the criminal justice system were much concerned with gaining broad support for the system through presentation of a ‘more pleasing image of justice’. Cf eg Beattie's evidence (below n 139) suggesting wide acceptance of the criminal justice system in the eighteenth century, and earlier (pp 622 et seq).

135. Above n133, p 45: ‘the criminal law. was crucial in sustaining the hegemony of the English ruling class.’

136. The Broom's Progress' (1949) 65 LQR 344. On the social and psychological functions of public executions and their role in a system of ‘class power’ see Gatrell, V The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1995).Google Scholar

137. ‘Property, Authority and the Criminal Law’, pp 54–56. And see also, eg, Horwitz, Transformation and Crisis, discussed above.

138. See Innes, J and Styles, J ‘The Crime Wave: Recent writing on crime and criminal justice in eighteenth century England’ in Wilson, A (ed) Rethinking Social Histon, (Manchester: Manchester University Press, 1993) p 201.Google Scholar

139. Beattie, J M Crime and the Courts in England 1660–1800 (Oxford: Clarendon Press, 1986) p 632.Google Scholar

140. J H Langbein ‘Albion's fatal flaws’ (1983) 98 Past and Present 96; P King ‘Decision makers and decision making in the English criminal law, 1750–1800’ (1984) 27 Historical Journal 25, and Crime, Justice and Discretion in England 1740–1820 (New York: Oxford University Press, 2000). See also Phillips, D and King, P in Hay, D and Snyder, F (eds) Policing and Prosecution in Britain 1750–1850 (Oxford: Clarendon Press, 1989)Google Scholar at pp 113 and 171. And see Shoemaker, R Prosecution and Punishment (Cambridge: Cambridge University Press, 1991)Google Scholar, a study of the prosecution and punishment of misdemeanours between 1660 and 1725 at the London and Middlesex Quarter Sessions, and Sharpe, J Crime in Early Modern England, 1550–1750 (London: Longman, 1984).Google Scholar

141. Langbein, above n 140, and see Brewer, J and Styles, J (eds) An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries (London: Hutchinson, 1980)Google Scholar.

142. Crime, Justice and Discretion (2000) above n140, p 371. King concludes his extensive study of the prosecution of property offences in Essex between 1740–1820: ‘Although the criminal justice system was mainly aimed at controlling the labouring poor, the poor were able to utilise a range of legal arenas to protect their property, resolve their disputes, or appeal for wages or relief. Although the landed elite enacted the criminal law and sometimes made strategic use of it to strengthen their authority, it was a very much broader grouping—the heterogeneous middling sort – who dominated its everyday workings, who most needed to protect their property, and who therefore had most opportunity to make it their own. The criminal law was an arena not only of terror, of exploitation, and of bloody sanctions but also of struggle, of negotiations, of accommodation, and almost every group in eighteenth century society helped to shape it, just as their behaviour was partly shaped by it.’ (p 373).

143. Discipline and Punish: The birth of the prison (London: Allen Lane, 1977). And see Ignatieff, M A Just Measure of Pain (London: Macmillan, 1978)CrossRefGoogle Scholar. For a critique of Foucault, see eg Garland, D Punishment and Modern Society (Oxford: Clarendon Press, 1990)CrossRefGoogle Scholar ch 7 and Wright, G Between Guillotine and Liberty (New York: Oxford University Press, 1983)Google Scholar.

144. The Emergence of Penal Policy (London: Stevens, 1986). Cf Friedman's, L Crime and Punishment in American History (New York: Basic Books, 1993)Google Scholar for a broad narrative synthesisof the principal features of criminal justice history. Through employing a basically ‘law and history’, economic and social analysis, Friedman identifies contrasting dominant social features to which the criminal justice system responds in the course of two and a half centuries, with the focus on the pre-twentieth century period.

145. See J Davis (1986) 45 CLJ 521 and M Wiener (1987) Journal of British Studies 83.

146. Wiener, above n145at 89 and 93, and generally Reconstructing the Criminal – Culture, Common Law and Policy in England 1830–1914 (New York: Cambridge University Press, 1990).

147. In some respects, Wiener's analysis has a narrower base than Radzinowicz and Hood's. As Wiener openly notes, his analysis is ‘by and large confined to the milieu of the central government's policy making classes’. Furthermore, Reconstructing the Criminal ‘focuses on a consensus within officialdom, rather than on conflict, on images and values that were widely held at a given moment within that social stratum, rather than those that were in intense dispute’ (p10). Cf D Garland's (Foucault influenced) study of twentieth-century professional expertise and policy change Punishment and Welfare: A History of Penal Strategies (Aldershot: Dartmouth, 1985) and Leps, M-C Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse (Durham: Duke University Press, 1992)Google Scholar.

148. Eg Zedner, L Woman, Crime and Custody in Victorian England (New York: Oxford University Press, 1991)Google Scholar: Byrne, P Criminal Law and Colonial Subject: New South Wales 1810–1830 (Cambridge: Cambridge University Press, 1993)CrossRefGoogle Scholar; W'omen, Crime and Criminal Justice in Phillips, J et al (eds) Essays in the History of Canadian Law (Toronto: Osgoode Society, 1994)Google Scholar; Sullivan, B The Politics of Sex: Prostitution and Pornography in Australia Since 1945 (Cambridge: Cambridge University Press, 1997)Google Scholar; and Kermode, J and Walker, G (eds) Women, Crime and the Courts in Early Modem England (London: UCL Press, 1994)Google Scholar.

149. Crime p 637. Beattie shows that in the seventeenth century courts regarded criminals as morally corrupt and, in varying degrees, wicked. During the eighteenth and nineteenth centuries tailoring punishment to the character of criminals was steadily relegated to the question of the criminal's rationality and matters of general deterrence.

150. Beattie's study involved serious offences against the person and property tried at Assizes and Quarter Sessions in Surrey and Sussex (ch 8). More recently see J Beattie Urban Crime and the Limits of Terror: Policy, Prosecution and Punishment in London, 1660–1750 (forthcoming). For a study of early institutional development, see Musson, A and Ormrod, W M The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century (London: Macmillan, 1999)CrossRefGoogle Scholar. Of earlier works, including North American Studies, see also eg Sharpe, J Crime in Seventeenth-Century England. A County Study (Cambridge: Cambridge University Press, 1983)Google Scholar featuring Essex; Chapin, B Criminal Justice in Colonial America 1606–1660 (Athens, Ga: University of Georgia Press, 1983)Google Scholar covering New England, Virginia and Maryland; Green, T Verdict According to Conscience (Chicago: University of Chicago Press, 1985)CrossRefGoogle Scholar; Dodge, T Crime and Punishment in New Hampshire (1812–1914) (New York: PLaing, c1995)Google Scholar; and Shoemaker, R Prosecution and Punishmenr (Cambridge: Cambridge University Press, 1991)Google Scholar. For a more ‘internalist’ approach to criminal justice historiography through manuscript and primary sources, see particularly the work of Langbein, J H, eg ‘The Criminal Trial Before the Lawyers’ (1978) 45 U Ch LR 263 Google Scholar; ‘The Historical Origins of the Privilege Against Self-Incrimination at Common Law’ (1994) 92 Mich LR1047; and ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors’ (1999) 58 CLJ 314; and D Cairns Advocacy and the Making of the Adversurial Criminal Trial 1800–1865 (Oxford: Clarendon Press, 1998).

151. Madness and Civilisation: A History of Insanity in the Age of Reason (New York, Pantheon, 1965). Foucault's study was of continental medical practice and culture. And cf, eg, Harris, R Murders and Madness (Oxford: Clarendon Press, 1991)CrossRefGoogle Scholar.

152. Witnessing Insaniry (New Haven: Yale University Press, 1995) pp 4–5. See also, Mohr, J Doctors and the Law:Medical Jurisprudence in the Nineteenth-Century (Oxford: Clarendon Press, 1989)Google Scholar. For the effects of consumerist forces in the very early history of the criminal justice system, see Masson and Ormrod The Evolution of English Justice (above).

153. Eg psychiatric medicine'ssupportfor bringing into insanity defenceimpaired volitional control.

154. Crime, Reason and History (London: Weidenfeld and Nicolson, 1993) p 221.

155. Cf Smith, K Lawyers, Legislators and Theorists (Oxford: Clarendon Press, 1998)Google Scholar for an historical account of substantive doctrinal developments suggesting a far more haphazard, judicially insulated process driven by the simplistically linked notions of deterrence and moral agency.

156. Parker, G ‘Canadian Legal Culture’ in Knafla, L Law and Justice in a New Land: Essciys in Wesfern Canadian Legal Histon (Calgary: Carswell, 1986) pp 3, 18Google Scholar.

157. Castles, A Annorated Bibliogruphy of Prinred Materiols on Australian Law, 1788–1900 (Sydney: Law Book Company. 1994)Google Scholar.

158. See eg Kennedy, W The Constitution of Canada (Oxford: Oxford University Press, 1st edn, 1922)Google Scholar, together with a previously published collection, Documents ofthe Canudian Constitution (Toronto: Oxford University Press, 1918). R Risk ‘TheMany Minds of W.P.M. Kennedy’ (1998) 58 University of Toronto Law Journal 353, 357–358 points to the adherence of Kennedy to a reformist Whig tradition that stressed the importance to constitutional and legal development in Canadaof the proponents of responsible government.

159. See eg Riddell, W R The Bar arid Courts of the Province of Upper Cannda or Ontario (Toronto: Macmillan of Canada, 1928)Google ScholarPubMed; The Lqe of William Dunimer Powell: First Judge at Detroit and Fifth Chief Justice of Upper Canada (Lansing: Michigan Historical Comnussion, 1924); The Lega1 Prufession of Upper Canodu in its Early Periods (Toronto: Law Society of Upper Canada, 1916); The Constitution ofCanada in Histoy arid Practical Working (New Haven: Yale University Press, 1917). On the life and work of Riddell, see Bates Neary, H ‘William Renwick Riddell: Judge, Ontario Publicist and Man of Letters’ (1977) 11 Law Society of Upper Canada Gazette 144 Google Scholar.

160. Murdoch, Beamish Epitome ofrhe LAM'S of Nova Scotia 4 vols (Halifax, 1832)Google Scholar. See also Girard, P ‘Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and his Epitome oftke kiws of Nova Scotia’ (1993) 11 Law and History Rev 101–144 Google Scholar.

161. The figure who comes most readily to mind is William Renwick Riddell of Ontario (see above n 159) who did plumb the archives to support his work. For the rest biographies of bench and bar were panegyrics, often bordering on hagiography.

162. Risk, R ‘A Prospectus for Canadian Legal History’ (1973) 1 Dalhousie LJ 227.Google Scholar

163. Risk, R ‘The Nineteenth-Century Foundations of the Business Corporation in Ontario’ (1973) 23 University of Toronto LJ 207 Google Scholar; ‘The Golden Age: The Law About the Market in Nineteenth-Century Ontario’ (1976) 26 University of Toronto LJ 307; ‘The Last Golden Age: Property and the Allocation of Losses in Ontario in the Nineteenth Century’ (1977) 27 University of Toronto LJ 199; ‘The Law and the Economy in Mid-Nineteenth Century Ontario: A Perspective’ (1977) 27 University of Toronto LJ 403.

164. A particularly instructive piece which shows how as time went on Ontario's judges became increasingly less creative is Risk, R ‘Sir William R. Meredith: The Search for Authority’ (1983) 7 Dalhousie LJ 713 Google Scholar.

165. Gordon, R and Sugarman, D ‘Richard C. B. Risk: A Tribute’ in Blaine Baker, G ed Phillips, J (eds) Essays in the History of Canadian Law, Volume 8: In Honour of R. C. B. Risk (Toronto: Osgoode Society, 1999) p 3 at 5Google Scholar. In British Columbia interesting and substantial biographical work was being done by lawyer turned legal historian, David Williams. See Williams, D The Man for a New Country' Sir Matthew Baillie Begbie (Sidney: Gray's Publishing, 1977)Google Scholar; Duff: A Llfe in the Law (Toronto: Osgoode Society, 1984). This latter book was noted in particular for the connections drawn between politics and judicial activity, and its candid treatment of Duffs insensitivity to issuesof racial and sexual inequality. See, from the many reviews, that of F Murray Greenwood in (1986) 68 BC Studies 62.

166. The Society has a professional historian, Peter Oliver of York University at the helm as general editor.

167. The first two volumes of essays focused largely on central Canada, in particular Ontario — see Flaherty, D (ed) Essays in the History of Canadian Law, Vols I and II Google Scholar (Toronto: Osgoode Society, 1981, 1983). Since those volumes there have been six more, two dedicated to other regions ( Girard, P and Phillips, J (eds) Essays in the History of Canadian Law, Vol 3 Google Scholar, Nova Scotia (Toronto: Osgoode Society, 1990); Foster, H and McLaren, J (eds) Essays in the History of Canadian Law, Vol 4 Google Scholar, British Columbia and the Yukon (Toronto: Osgoode Society, 1995)), two to the history of the legal profession Wilton, C (ed) Essays in the History of Canadian Law. Vol 4 Google Scholar, Beyond the Law:Lawyers and Business in Canada, 1830–1930 (Toronto: Osgoode Society, 1990); Essays in the History of Canadian Law, Vol 6 Google Scholar, Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: Osgoode Society, 1996)), one to a substantive theme ( Phillips, J, Loo, T and Lewthwaite, S (eds) Essay in the History of Canadian Law, Vol 5 Google Scholar, Crime and Criminal Justice (Toronto: Osgoode Society, 1994)) and one to a festschrift ( Baker, and Phillips, (eds) Essays in the History of Canadian Law, Vol 8 Google Scholar, Richard C. B. Risk: A Tribute). This approach differs from that in Australia, for instance, where several pioneers in the field have written national legal histories. See Castles, A An Introduction to Australian Legal History (Sydney: Law Book Company, 1971)Google Scholar. The revised version is entitled An Australian Legal History (Sydney: Law Book Company, 1982). Also Kercher, B An Unruly Child: A Legal History of Australia (Sydney: Federation Press, 1995)Google Scholar.

168. Flaherty, (ed) Essays in the History of Canadian Law, Vol 1 p 12 Google Scholar. Flaherty was at that time a specialist in American colonial history teaching at the University of Western Ontario.

169. Above n 168, pp 13–19.

170. Among Knafla's many publications on English legal history is Law and Politics in Jacobean England: The Tracts of Lord Ellesmere (Cambridge: Cambridge University Press, 1977). Previous to the1986 work, he had staged several conferences and published their proceedings. See Bercuson, D and Knafla, L (eds) Law and Society in Canada in Historical Perspective (Calgary: University of Calgary Press, 1979)Google Scholar; Knafla, L (ed) Crime and Criminal Justice in Europe and Canada (Waterloo: Wilfred Laurier University Press, 1981)Google Scholar.

171. Knafla, L (ed) Law and Justice in a New Land: Essays in Western Canadian Legal History (Calgary: Carswell Ltd, 1986)Google Scholar. His introductory essay is entitled: ‘From Oral to Written Memory: The Common Law Tradition in Western Canada’ (pp 31–77). Rod Macleod, an historian of criminal justice and author of the definitive work on the Northwest Mounted Police at the University of Alberta worked with Knafla on rationalising the provincial archives for legal historical research, while continuing his own path-breaking research in policing and criminal justice. See Macleod, R The Northwest Mounted Police and Law Enforcement 1873–1905 (Toronto: University of Toronto Press, 1975)Google Scholar.

172. The conference was organised by Wesley Pue and Barry Wright at Carleton University.

173. Pue, W and Wright, B Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press, 1988)CrossRefGoogle Scholar. The founding of the Canadian Law and Society Association and its journal in1985 no doubt encouraged this trend.

174. Above n 173, p 12.

175. The legal historians who had emerged in the early to mid-1980s by this time had vigorous research agendas. New adherents had been added to the ranks during the latterpart of that decade, and the expansion of legal history courses was producing graduate students working in the field and moving into teaching positions. The momentum was also assisted by interaction with legal historians elsewhere. United States legal historians, most notably Willard Hurst, John Philip Reid, Morton Horwitz, Robert Gordon and Lawrence Friedman, had had a profound influence on Canadian legal historians over the years as graduate supervisors, workshop leaders and through the influence of their writings. The emergence of legal historians in Britain whose focus is modem legal history and who counted themselves as critical legal studies or law and society enthusiasts also enhanced interaction and communication.

176. For a helpful overview of this process in the English context, see Porter, R English Society in the Eighteenth Century (Harmondsworth: Penguin Books, 1982) pp 329–357 Google Scholar. Landes, D The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge: Cambridge University Press, 1972) pp 41–192 Google Scholar traces both the Industrial Revolution in Britain and then its emulation on the continent. Stearns, P The Industrial Revolution in World History (Boulder: Westview Press, 1993)Google Scholar looks at the global implications of the Industrial Revolution.

177. For a succinct and helpful examination of the connections between trade, technology and empire, particularly in the British context, see Hobsbawm, E Industry and Empire (Harmondsworth: Penguin Books, 1969) pp 50–54 Google Scholar. On the cultural significance of the connection, see Colley, L Britons: Forging the Nation 1707–1837 (London: Vintage Press, 1992) pp 61–77 Google Scholar.

178. See Waite, P B Canada 1874-1896 : Arduous Destiny (Toronto: McClelland & Stewart, 1971)Google Scholar. On the symbiotic relationship between the state and industry in the primary resources sector in Canada, see Nelles, H The Politics of Development: Forests, Mines & Hydro-Electric Power in Ontario 1849-1941 (Toronto: Macmillan of Canada, 1974)Google Scholar.

179. See eg Struthers, J The Limits of Affluence: Welfare in Ontario, 1920-1970 (Toronto: University of Toronto Press, 1994)Google Scholar.

180. Huttenback, R Racism and Empire: White Settlers and Coloured Immigrants in the British Self-Governing Colonies, 1830–1910 (Ithaca, NY: Cornell University Press, 1976)Google Scholar; Ward, P White Canada Forever: Popular Attitudes Towards Orientals in British Columbia (Montreal and Kingston: McGill-Queens Press, 2nd edn, 1990)Google Scholar; Roy, P A White Mans’ Province: British Columbia Politicians arid Chinese and Japanese Inmigrants (Vancouver: UBC Press, 1989)Google Scholar.

181. For examplesof the historiography of Aboriginal-settler relations, see Fisher, R Contact and Conflict:Indian-European Relations in British Columbia, 1774–1890 (Vancouver: University of British Columbia Press, 1977)Google Scholar; Miller, J R Skyscapers Hide the Heavens: A Histoty of Indian- White Relations in Canada, (Toronto: University of Toronto Press, revised edn, 1991)Google Scholar; Dickason, O P Canada's First Nations: A History of Founding Peoples from Early Times (Norman: University of Oklahoma Press, 1992)Google Scholar; Ray, A J I Have Lived Here Since the World Began: An Illustrated History of Canada's Native People (Toronto: Lester Publishing, 1996).Google Scholar

182. For an evocative treatment of this reality in English legal history, see Sugarman, D and Rubin, G ‘Towards a New History of Law and Material Society in England 1750-1914’ in Rubin, G and Sugarman, D (eds) Law, Economy and Society, 1750– 1914: Ehsays in the History of English Law (Abingdon: Professional Books, 1984) p 1.Google Scholar

183. The effects of this reality on scholarship can be observed at a very simple level by comparing the organisation and substance of a standard text on English legal history in a medieval and early modern context, such as Baker, J H Introduction to English Legal History (London: Butterworths, 3rd edn, 1990).Google Scholar

184. Sugarman, D (ed) Law in History: Histories of Law and Society, Vol 1 (Aldershot: Dartmouth, 1996 Google Scholar) in ‘Introduction Histories of Law and Society’ pp xi-xxx, xv-xvi. Sugarman encapsulates this scholarly trend and its intellectual impact well: ‘The last three decades ’ have witnessed a remarkable renaissance of the history of law, legal institutions and the relationship between law and society. While remaining distinct fields of inquiry, a degree of convergence has taken place as more and more historians are recognising that the history of law in society is too important to be left to lawyers. The traditional boundaries separating legal histories from other varieties of history (social, political, intellectual, economic, cultural, gender business etc) have been challenged by a ‘new legal history’. Increasingly, law is treated not as some dryfunctionally dependent variable or superstructure, separate from and marginal to‘society’ and economy', but as one of the major constitutors of society and economy. From this perspective, law, society and economy were (and are) inextricably mixed.'

185. Pound The Spirit of the Common Law, above n 87, p 205.

186. On the historical as well as the legal significance of this, see Vaughan, F ‘The Use of History in Canadian Constitutional Adjudication’ (1989) 12 Dalhousie LJ 59 Google Scholar.

187. For work on magistrates courts, see P Craven ‘Law and Ideology: The Toronto Police Court1850-80’ in Flaherty (ed) Essays in the History of Canadian Law, Vol II, above n 167, pp 248–307; G Homel ‘Denison's Law: Criminal Justice and the Police Court in Toronto,1877-1921’ [1973] Ontario History 171; T Thorner and N Watson ‘Keeper of the King's Peace: Colonel G E Sanders and the Calgary Police Magistrate's Court, 1911–1921’ (1984) 12 Urban History Rev 45; J McLaren ‘Maternal Feminism in Action – Emily Murphy, Police Magistrate’ (1988) 8 Windsor Yearbook of Access to Justice 234. On family courts, see Chunn, D Family Courts and Socialized Justice in Ontario 1880–1940 (Toronto: University of Toronto Press, 1992)Google Scholar.

188. Walker, J St G ‘Race.’ Rights and the Law in the Supreme Court of Canada (Toronto: Osgoode Society, 1997)Google Scholar. Fred Vaughan and James Snell for their part have noted that a weak court, which is how the Canadian Supreme Court was viewed for much of its history, says as much about external expectations and lack of support as it does about the quality of the jurists and their work. See Snell, J and Vaughan, F The Supreme Court of Canada: History of the Institution (Toronto: Osgoode Society, 1985) pp xi–xiii Google Scholar.

189. On the undiscriminating side are: Arnup, J Middleton: The Beloved Judge (Toronto: Osgoode Society, 1988)Google Scholar; Boyer, P A Passion for Justice, the Legacy of James Chalmers McRuer (Toronto: Osgoode Society, 1994)Google Scholar. More scholarly and insightful are: Brode, P Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto: Osgoode Society, 1984)CrossRefGoogle Scholar and Kaplan, W Bad Judgement, the Case of Mr. Justice Leo Landreville (Toronto: Osgoode Society, 1996)Google Scholar.

190. Two books of essays from the Osgoode Society stable deserve mention here: Wilton, C (ed) Essays in the History of Canadian Law, Vol. 50 Google Scholar, Beyond the Law: Lawyers and Business in Canada,1830-1930 (Toronto; Osgoode Society, 1990); Essays in the History of Canadian Law, Vol. VII, Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: Osgoode Society, 1996). The former volume contains essays by Robert Gordon and David Sugarman on American and British historiography in this field.

191. See eg McQueen, R and Pue, W Misplaced Traditions: British Lawyers, Colonial Peoples (Sydney: Federation Press, 1999)Google Scholar. Work is in progress by some of these scholars that suggests that what may have seemed like a monolith was in fact sometimes fragmented and challenged from within. This was a mark not so much of differences of opinion on the need for a legal profession, but of ideological divergence over whose interests needed the greatest protection. See the paper presented by Rob McQueen, ‘Together We Fall, Divided We Stand: The Victorian Legal Profession in Crisis 1890–1940’ at ‘Land and Freedom’, 18th Annual Australia and New Zealand Legal History Conference, Newcastle, NSW, July 1999.

192. Also valuable in this context are Moore, C The Law Society of Upper Canada and Ontario's Lawyers, 1797-1997 (Toronto: University of Toronto, 1997)CrossRefGoogle Scholar and Kyer, C and Bickenbach, J The Fiercest Debate: Cecil A. Wright, The Benchers and Legal Education in Ontario,1923-1957 (Toronto: Osgoode Society, 1987)Google Scholar. On the important role of Attorneys General in the administration and political life of Canadian colonies and provinces, see Romney, P Mr. Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature 1791-1899 (Toronto: Osgoode Society, 1986)Google Scholar.

193. A prime example of this is Brian Young's study of the process of drafting the Quebec Civil Code, The Politics of codification: The Lower Canadian Civil Code of 1866 (Toronto: Osgoode Society, 1994). See also Loo, T Making Law, Order and Authority, in British Columbia 1821-1871 (Toronto: University of Toronto Press, 1994)Google Scholar.

194. See Ward, J Colonial Self Government: The British Experience 1759-1856 (Toronto: University of Toronto Press, 1976)CrossRefGoogle Scholar.

195. On the roots of these considerations, see Reid, J The Concept of liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988)Google Scholar; J Greene ‘Empire and Identity from the Glorious Revolution to the American Revolution’ in Marshall, P (ed) The Oxford History of the Brirish Empire, Vol 11 Google Scholar, The Eighteenth Century (Oxford: Oxford University Press, 1998) pp 208–230. For its impact in later legal and political discourse, see Marquis, G ‘In Defense of Liberty: 17th-Century England and 19th-Century Maritime Political Culture’ (1993) 42 University of New Brunswick LJ 69 Google Scholar.

196. This was true whether the colony's governance replicated British legislative institutions and those of English law, or the territory was closely held under gubernatorial diktat.

197. The British North American witnessed vigorous and sometimes vicious debate about the role of law as the delimitation, regulation and facilitation of human conduct. Discussion of these matters overflowed from the legislative bodies into the courts, the press and other public forums. The two Canadas (Lower and Upper) had been formed in 1791 with the hope that they would be models of what good colonisation and settlers could achieve under the benign tutelage and guidance of mother Britain in the wake of the American Revolution. It was evident, however, within the first ten years of their existence that there were inner tensions within the settler communities and between them and imperial and colonial governments over the nature of governance and constitutional and legal rights. The frustration level caused by these tensions was to result in the rebellions of 1837-38 in the two colonies. J Ward Self Government, above n 194, pp 4–81. On the tensions, see Murray, F Greenwood Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: Osgoode Society, 1993)Google Scholar: Enington, J The Lion, the Eagle and Upper Canada: A Developing Colonial Ideology (Montreal and Kingston: McGill-Queens Press, 1987)Google Scholar; R Fraser “All the privileges which Englishmen possess”: Order, Rights and Constitutionalism in Upper Canada' in Fraser (ed) Provincial Justice: Upper Cunadian Legal Portraits from the Dictionary oj Canadian Biography (Toronto: Osgoode Society, 1992) pp xxi-xcii. An important milestone in the historiography of law and the struggle for rights in colonial and post-colonial societies, be they political, religious, social, economic or cultural, is likely to be the set of volumes on Canadian state trials edited by Barry Wright and Murray Greenwood. The first volume, published in 1996, provides a model for presenting political trials in modern historiography. F Murray Greenwood and B Wright Canadian State Trials, Vol I, Law, Politics, and Security Measures 1608-1837 (Toronto: Osgoode Society, 1996). Unlike the State Trials series in the United Kingdom, which took a discrete and identifiable series of cases in which the state prosecuted crimes against the state and public order, this collection ranges more widely in the jurisprudence for both reported and unreported cases involving the prosecution of political dissent. Rather than in series form, cases are presented through a collection of historiographic essays on the state's prosecution of dissenting individuals and groups, with a selection of relevant primary documents germane to each episode or theme. The editors provide the overarching commentary that puts the essays and case materials into a broader analytical and critical matrix (pp 3–51).

198. See in particular, Sid Harring's recent penetrating study of the treatment of Canada's First Nations by the law during the nineteenth century, White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: Osgoode Society, 1998).

199. Foster, H ‘Sins Against the Great Spirit: The Law, the Hudson's Bay Company and the Mackenzie River Murders, 1835–1839’ (1989) 10 Criminal Justice History 23 Google Scholar; ‘Long Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas’ (1990) 34 Am J Legal History 1; ‘Forgotten Arguments: Indian Title and Sovereignty in the Canada Jurisdiction Act Cases’ (1992) 21 Manitoba LJ 343; ‘The Queen's Law is Better than Yours: International Homicide in Early British Columbia’ in Phillips, J, Loo, T and Lewthwaite, S (eds) Essays in the History of Canadian Law, Vol 5, pp 41–111 Google Scholar; ‘Letting Go the Bone: The Idea of Indian Title in British Columbia, 1849–1927’ in Foster, H and McLaren, J (eds) Essays in the History of Canadian Law, Vol 4, pp 28–86 Google Scholar; ‘British Columbia: Legal Institutions in the Far West from Contact to 1871’ (1996) 23 Manitoba LJ 293; ‘A Romance of the Lost: Tom MacInnes' Role in the History of the B.C. Indian Land Question’ in Baker, G Blaine and Phillips, J (eds) Essays in the History of Canadian Law, Vol 8, pp 171–212 Google Scholar. This, like much other work in this field, benefits from careful readings of the theories of international lawyers about sovereignty, nationhood and title, imperial law and policy, a rich vein of archival material on the making and application of government policy and comparative treatment of law relating relationships between the British Crown and native peoples and the reciprocal impact of those practices within settler colonies and territories.

200. Borrows, J ‘A Geneology of Law: Inherent Sovereignty and First Nations Self Government’ (1992) 30 Osgoode Hall LJ 291 Google Scholar; ‘With or Without You: First Nations Law in Canada’ (1996) 41 McGill LJ 629.

201. James (sakej) Youngblood Henderson ‘The Struggle to Preserve Aboriginal Spiritual Teaching and Practices’ in McLaren, J and Coward, H Religious Conscience, the Stare and the Law: Historical Contexts and Contemporary Significance (Albany NY: State University of New York Press, 1999) pp 168–188 Google Scholar; ‘Mickmaw Tenure in Atlantic Canada’ (1995) 18 Dalhousie LJ 196.

202. See also Chambers, L Married Wormen and Property in Victorian Ontario (Toronto: Osgoode Society, 1997)CrossRefGoogle Scholar.

203. See Backhouse, C Petticoats und Prejudice: Women rind the Law in Nineteenth Century Canada (Toronto: Osgoode Society, 1991)Google Scholar. Backhouse does an equally impressive job in de-constructing Canadian racism and its impact on the law in her latest book, Colour Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: Osgoode Society, 1999). For other impressive work that blends both feminist and Foucaultian readings, see Valverde, M The Age of Soap. Light and Water (Toronto: McClelland & Stewart, 1989)Google Scholar; Strange, C Toronto's Girl Probleni: The Perils and Pleasures of the City 1880–1930 (Toronto: University of Toronto Press. 1995)CrossRefGoogle Scholar; Strange, C and Loo, T Making Good: Law and Moral Regulation in Canada (Toronto: University of Toronto Press, 1997)Google Scholar.

204. D Sugarman “A Hatred of Disorder”: Legal Science, Liberalism and Imperialism’ in Fitzpatrick, P (ed) Dangerous Supplements: Resisrunce and Renewal in Jurisprudence (London: Pluto Press, 1991) pp 34–67 Google Scholar. More generally, see also Collini, S et al That Noble Science of Politics (Cambridge: Cambridge University Press, 1983)CrossRefGoogle Scholar chs 4 and 7; and Collini, S Public Moralists (Oxford: Oxford University Press, 1991) ch 7Google Scholar.

205. In Canada legal education evolved out of earlier systems of apprenticeship that were borrowed from England. A key question was whether legal education would be directly run and controlled by the legal professiods or based in the universities. The results varied, depending on the province in question, and whether the legal profession sought to maintain its earlier monopoly over legal education or was willing to leave the teaching of substantive principle to the universities. See J McLaren ‘The History of Legal Education in Common Law Canada’, and Brierly, J E C ‘Historical Aspects of Law Teaching in Quebec’ in Matas, R and McCawley, D Lpgal Education in Canada (Montreal: Federation of Law Societies of Canada, 1987) pp 111–156.Google Scholar

206. Examples are Richard Weldon, the first Dean of the Dalhousie University Law School founded in 1883, and W P M Kennedy, the Dean of the first Faculty of Law at the University of Toronto from the late 1920s to the late 1940s. See R Risk ‘The Many Minds of W.P.M. Kennedy’ (1998) 58 U Toronto LJ 353.

207. Much of the early legal scholarship in Canada was in the field of constitutional law. See eg the contribution of constitutional law scholars to the Canadian Bar Review from the early 1920s. This was also an area in which comparative commentary was often used because of comparisons and contrasts between the Canadian and American constitutions.

208. Stevens, R Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983) pp 35–50 Google Scholar.

209. Above n 208, pp 92–111, and see Auerbach, J Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976)Google Scholar.

210. Stevens, above n 208, pp 51–72.

211. See Barr, J Ames Lectures on Legal History and Miscellaneous Essays (Cambridge, Mass: Harvard University Press, 1913)Google Scholar. Ames was responsible for changing the format of the early case books from a chronological to a subject oriented approach ‘so that students might trace “by slow steps the historical development of legal ideas”’ see Stevens, above n 208, p 56.

212. Holmes, O W The Common Law (Boston: Little, Brown, 1881)Google Scholar; R Pound The Spirit of the Common Law (1921); Interpretations of Legal History (1923); Readings on the History and System of the Common Law (1927).

213. Pound was a great advocate of the American Law Institute's programme of restating and codifying the law in various areas to bring some order to the mass of case law from the states – see Stevens, above n 208, p 136.

214. For instance, on Holmes's education and reading, see Bowen, C Yankee fiom Olympus: Justice Holmes and his Family (Boston: Little, Brown, 1944)Google Scholar; De Wolfe, M Howe Justice Oliver Wendell Holmes: The Shaping Years (1841-1871) (Cambridge Mass: Harvard University Press, 1957)Google Scholar; and White, G E Justice Oliver Wendell Homes: Law and the Inner Self (New York: Oxford University Press, 1993)Google Scholar. Although qualifying for the Bar, Pound spent but one year at Harvard as a student, and taught botany in which he had earned a PhD at the University of Nebraska before answering the call to teach law. See Stevens, above n 208, p 136.

215. Above.

216. See eg Pound's influence on Cecil (Caesar) Wright later Dean of Osgoode Hall Law School and of the Faculty of Law, University of Toronto discussed in Kyer, C and Bickenbach, J The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario,1923/ (Toronto; Osgoode Society, 1987) pp 86–91 Google Scholar, and on Fred Cronkite, later Dean of Law, College of Law, University of Saskatchewan noted in W McConnell Prairie Justice (Saskatoon: Western Producer Press, 1974) pp 120–121. Pound's ideas also affected a young English graduate student, John Willis who had gone to Harvard from Oxford, who subsequently became a distinguished Canadian law teacher: see R Risk ‘John Willis – A Tribute’ (1987) Dalhousie LJ 521 at 525–526.

217. See Llewellyn The Common Law Tradition and see text above n 105.

218. Stevens, above n 208 at p 158.

219. For the origins of this commitment of the elite graduate programmes, see Stevens, above n 208, p 169, n 48.

220. See text to n 108 above.

221. Manchester, A A Modern Legal History of England and Wales,1750/ (London: Butterworths, 1980)Google Scholar; Sources of English Legal History: Law, History and society in England and Wales1750/ (London: Butterworths, 1984). Modern Legal History provided a largely descriptive account of the historical development of law and legal institutions. Little attempt was made to assess the relationship of the law and legal development within a social, economic and political context.

222. Eg the exponents of critical socio-legal studies such as Alan Hunt and of critical criminology such as Stuart Hall.

223. See particularly Rubin, G and Sugarman, D Law, Economy and Society; Essays in the History of English Law1750/ (Abingdon: Professional Books, 1984)Google Scholar.

224. One result was the increasing volume of published work on modem legal history by broadly established academics. Eg, see Atiyah, P The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979)Google Scholar; Cornish, W and de, G Clarke, N Law and Sociew in England,1750/ (London: Sweet & Maxwell, 1989)Google Scholar.

225. Until this move legal history at Cambridge at graduate level ended at 1700.

226. For a taste of the significance of these workshops see Gordon, R and Sugarman, D, ‘Richard C.B. Risk: a Tribute’ in Baker, and Phillips, (eds) Essays in the History of Cadian Law, Vol 8, pp 3 Google Scholar,5/. Among other legal historians who lectured at workshops were Morton Horwitz, G Edward White, Dirk Hartog, John Beattie, Connie Backhouse and David Flaherty. Interestingly, these programmes and the beneficial effect they had coincided with a critical and insightful study of legal education in Canada. See Consultative Group on Research and Education in Law, Law and Learning: Report to Social Sciences and Humanities Research Council (Ottawa: SSHRC, 1983)Google Scholar (the ‘Arthurs Report’).

227. Such as the work of Lou Knafla in history at Calgary, Russ Smandych in sociology at Manitoba and of Barry Wright from the Department of Legal Studies at Carleton University.

228. Although the courses are separately listed at the three institutions, the course materials that are all available on the web are common.

229. Once facility with on line discussion has developed, students move onto interactive modules in which discussion in groups comprising students from each of the three schools is set off by a series of provocations. These modules are more focused than the earlier ones and cover five themes: crime and morality; Aboriginal-settler relations; immigration and citizenship; labour unrest; and, the cultures of the legal profession. Video conferencing is also used to introduce the three groups of students to each other. Apart from the merit of providing a forum for reflection among and communication by students on two continents, the programme also allows for the pooling of faculty expertise and the participation of other legal historians elsewhere in the world as commentators and resource experts.

230. For fuller accounts of the programme and its challenges, see D Harris, J McLaren, W Pue, S Bronitt and I Holloway “‘Community Without Propinquity” - Teaching Legal History Intercontinentally’ (1999) 10 Legal Education Rev 1;Ozcan ‘Webbing the Pacific -Teaching an Intercontinental Legal History Course’ (2000) 18 Law and History Rev 445. A visitors site can be accessed at: http://www.web2.uvcs.uvic.cdcourses/lawderno/.

231. Fisher Collected Pupers vol 1, above n 39, p 491.

232. Collected Papers vol 1, above n 39, p 489 Google Scholar.

233. Above n 39, p491. As Boorstin observed of Blackstone's Commentaries: ‘The past was, then, the court of appeal for the institutions of the present.’ The Mysterious Science of the Law, above n 8, p 55.

234. Introduction p ix, Historical Foundations of the Common Law. Cf eg C Sunstein ‘The Idea of a Useable Past’ (1995) 95 Col LR 601.

235. Eg that a particular act of Parliament was passed in 1861.

236. Eg the reasons or motivating forces for the enactment of that particular 1861 Act. On the issue of the objectivity and interpretations of facts, see generally Novick, P That Noble Dream – The ‘Objectivity Question’ and the American Historical Profession (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar and White, G E ‘Truth and Interpretation in Legal History’ in Intervention and Detachment, Essays in Legal History and Jurisprudence (New York: Oxford University Press, 1994) p 17 Google Scholar.

237. R Gordon ‘Foreward: The Arrival of Critical Historicism’ (1997) 49 Stan LR 1023, 1024.

238. Cf Elton, above n 45, p 54.

239. Above n 237. Gordon was sketching the characteristics of what he terms ‘critical history’. Such structuralist ambitions are notably prominent in Duncan Kennedy's ‘The Structure of Blackstone's Commentaries’ (1979) 28 Buff LR 205. Cf P Gabel and D Kennedy ‘Roll Over Beethoven’ (1984) 36 Stan LR 1.

240. Though a view rejected by historians of the calibre of Collingwood, R G The Idea of History (Oxford: Oxford University Press, 1946) p 214 Google Scholar.

241. For a strong claim of the general intellectual autonomy of legal institutions and strength of legal tradition, see Watson, A The Evolution of Law (Oxford: Blackwell, 1985)Google Scholar: ‘Law. is above all. the culture of the lawyers and especially of the law makers - that is, of those lawyers who, whether as legislators or jurists or judges, have control of the accepted mechanisms of legal change. Legal development is determined by their culture; and social, economic and political factors impinge on legal development only through their consciousness [as] conditioned by the legal tradition.’ (pp 118–119). And also Legal Origins and Legal Change (London: Hambledon Press, 1991). Of course, this contentious view is challenged by many. Eg, see the review of certain features of Watson's standpoint in Cotterrell's, R ‘Is there a Logic of Legal Transplants’ in Nelken, D and Feest, J (eds) Adapting Legal Cultures (Oxford: Hart, forthcoming)Google Scholar.

242. See eg, D Sugarman ‘Simple Images and Complex Realities: English Lawyers and Their Relationship to Business and Politics1750/’ (1993) 11 Law and History Rev 257; and M Osiel ‘Lawyers as Monopolists, Aristocrats and Entrepreneurs’ (1989) 103 HLR 2009; Nelson, R et al (eds) Lawyers' Ideals and Lawyers' Practices: Transformations in the American. Legal Profession (Ithaca: Cornell University Press, 1992)Google Scholar; and see Watson, above n 241.

243. Eg Friedman, L A History of American Law (New York: Simon and Schuster, 1973)Google Scholar and Horwitz, M The Transformation of American Law 1780-1860 (New York: Oxford University Press, 1977)Google Scholar.

244. Eg Horwitz, M The Transformation of American Law 1870-1960 (New York: Oxford University Press, 1992)Google Scholar. Dubbed ‘Metaexplanatory’ by G E White ‘Transforming History in the Postmodern Era’ (1993) 91 Mich LR 1315, 1351. And see generally J Feinman ‘The Role of Ideas in Legal History’ [1980] 78 Mich LR 722. Cf P Atiyah The Rise and Fall of Freedom of Contract, above n 224.

245. Eg, Simpson, A W B Leading Cases in the Common Law (Oxford: Clarendon Press, 1995)Google Scholar and ‘Legal Iconoclasts and Legal Ideals’ (1990) 58 U Cin LR 819. Note, however, the marked caution, if not downright scepticism, of historians, such as Cornish who, rather than causal claims, seek to put legal history’beside the surrounding politics and. beside the economic and social conditions which gave the law its essential significance’. Preface, Law and Society in England, above n 224.

246. For a cogent overview, see especially W Fisher ‘Texts and Contexts: the Application to American Legal History of the Methodologies of Intellectual History’ (1997) 49 Stan LR 1065.

247. The most celebrated examples of such an approach include Pocock, J The Machievellian Movement (Princeton: Princeton University Press, 1975)Google Scholar and The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957); Skinner, Q ‘Meaning and Understanding in the History of Ideas’ in Meaning and Context Tully, J (ed) (Cambridge: Polity, 1988) p 29 Google Scholar. More recently, see the contextualist approach to legal history in eg Hovercamp, H Enterprise and American Law 1836–1837 (Cambridge, Mass: Harvard University Press, 1991)Google Scholar, (discussed Fisher, above n 246, p 1076) and Novak, W The People's Welfare: Law and Regulation in Nineterrzth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; W Fisher ‘Ideology and Imagery in the Law of Slavery’ (1993) 68 Chi-Kent LR 1051; R Ross ‘The Legal Past of Early New England: Notes for the Study of Law, Legal Culture and Intellectual History’ (1993) 50 Wm and Mary Q 28. and ‘The Memorial Culture of Early Modem English Lawyers: memory as keyword, shelter and identity, 1560–1640’ (1998) 10 Yale J Law and the Humanities 229.

248. See Collingwood The Idea of History, above nn 240, 283 and Gordon, above n 237.

249. Generally, the foundation text of J Derrida Of Grammatology trans G Spivak (Baltimore: Johns Hopkins University Press, 1976) and G Peller ‘The Metaphysics of American Law’ (1985) 73 Cal LR 1151.

250. See Fisher (1997), above n 246, p 1070. See also the general critique of M Speigel ‘History, Historicism and the Social Logic of Text in the Middle Ages’ (1990) 65 Speculum 59.

251. See eg, Rawlings, P Drunks, Whores and Idle Apprentices: Criminal Biographies of the Eighteenth Century (London: Routledge, 1992)Google Scholar, P Schofield ‘Peasants and the manor court: gossip and litigation in a Suffolk village at the end of the 13th century’ (1998) 159 P & P 3; M Wiener ‘The Trial of Annette Myers: the “Crime of Passion” in Victorian England’– American Society for Legal History annual conference, Toronto, October 1999; and cf Goodrich, P LAW in the Courts of Love (London: Routledge, 1996)Google Scholar.

252. T Plucknett ‘Legal History in England’ (1954) 2 JSPTL 191, 199.

253. R Collingwood The Idea of History, above n 240, p 18 quoted by Parker, above n 14, p 305.

254. Cam, H (ed) F. W. Muitland: Historical Essays (Cambridge: Cambridge University Press, 1957) p 21 Google Scholar.

255. Above n 253, p 214. And see Fisher (1997). above n 246, p 1094.

256. Birks, P (ed) Examining the Law Syllabus, The Core (Oxford: Oxford University Press, 1992) pp 7–8.Google Scholar

257. And see Fisher (1997), above n 246, p 1096.

258. Clive, J Not by Fact Alone (London: Collins Harvill, 1989)Google Scholar Preface x.

259. Collingwood, above n 240, p 283.

260. Gordon, above n 237, p 1024. A frequently used tool of the trade in CLS and New Historicism analyses.

261. The title of the subsequent lecture-based article published in (1997) 17 OJLS 551. Historical jurisprudence should be distinguished from various forms of historical analysis of jurisprudence. See particularly, Cocks, R Sir Henry Maine, A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar. Lieberman, D The Province of Legislation Determined (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar; Lobban, M The Common Law and English Jurisprudence 1760-1850 (Oxford: Clarendon Press, 1991)Google Scholar; and Postema, G Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986)Google Scholar.

262. (1997) OJLS 551 at 585.

263. (1997) OJLS 551 at 553–554.

264. Or post-Hartian positivists, such as Raz. For a general review of the deficiencies of decontextualised jurisprudence see Cotterrell, R The Politics of Jurisprudence (London: Butterworths, 1989), ch 1Google Scholar.

265. (1997) OJLS 551 at 585–586.

266. On what might be reasonably drawn in under the label ‘jurisprudence’, see the illuminating, exploratory dialogue between Twining, W and MacCormick, N ‘Theory in the Law Curriculum’, in Twining, W (ed) Legal Theory and Common Law (Oxford Blackwell, 1986) p 238.Google Scholar

267. Horwitz, above n 261, p 565. As few have noted (one exception is A W B Simpson ‘Introduction’ in Legal Theory, and Legal History (London: Hambledon Press, 1987)), the Oxford chair of Jurisprudence occupied by Hart was a chair of Legal History and Jurisprudence. The holder's ‘first duty’ was to ‘expound the history of laws’.

268. The Concept of Law (Oxford: Clarendon Press, 1961) p 119 et seq. Beyond showing the analytical inapplicability of positivist method to such legal systems, even the positivist argument that analytically separating law and morals is good legal practice would be subverted by sustained evidence of the demonstrably beneficial effect of its judicial non-separation.

269. Concept, above n 268, p 189 et seq.

270. Concept, above n 268, Preface, p vi, particularly in relation to the difference between citizens acting out of compliance with rules or out of habit. See MacCormick, N H.L.A. Hart (London: Edward Arnold, 1981) p 33.Google Scholar

271. On Hart's observations about the social origins of law, see eg, M Krygier ‘The Concept of Law and Social Theory’ (1982) 2 OJLS 155. For a recent avowedly empirically based form of positivism see Schauer, F ‘Positivism Through Thick and Thin’ in Bix, B (ed) Analyzing Law (Oxford: Clarendon Press, 1998) p 65.Google Scholar

272. Law, Liberty and Morality (Oxford: Oxford University Press, 1963) p 50. And see Hart ‘Positivism and the Separation of Law and Morals’ in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) p 49.

273. Law's Empire (London: Fontana Press, 1991) p 12.

274. Ibid, p 225 et seq.

275. Ibid pp 12–15. Dworkin also says ‘we need a social theory of law, but it must be jurisprudential just for that reason. Theories that ignore the structure of legal argument for supposedly larger questions of history and society are therefore perverse. They ignore questions about the internal character of legal argument, so their explanations are impoverished and defective.’ (p 14). The meaning that Dworkin gives to ‘internal’ is far from clear. As has been seen, historical analysis can be either ‘externalist’ or ‘internalist’. Moreover, legal history may or may not ‘ignore the structure of legal argument’.

276. See particularly, R Cotterrell ‘A Legal Concept of Community’ (1997) Can J of Law and Soc 75.

277. See Duxbury, above n 103, p 6, and N MacCormick ‘Reconstruction after Deconstruction’ (1990) 10 OJLS 539.

278. See eg W Twining ‘Some Jobs for Jurisprudence’ (1974) 1 BJ Law and SOC 49, and cf G Samuel ‘Science, Law and History: Historical Jurisprudence and Modern Legal Theory’(1990) 41 NILQ 1.

279. Particularly Twining, W Karl Uewellyn and the Realist Movement (London: Weidenfeld and Nicolson, 1985 edn) p 245 et seq.Google Scholar

280. An umbrella term taking in sociology of law and subsequently ‘law and society’ approaches. See above.

281. Jurisprudence, vol 1 (St Paul, Minn: West Publishing, 1959 edn) p 354. For a comparison of Pound and Dworkin, see R Cotterrell The Politics of Jurisprudence, above n 264, ch 6.

282. Discussed by Parker, above n 74, pp 314–316. And see Murphy ‘The Jurisprudence of Legal History: Willard Hurst as a Legal Historian’ (1964) NYUL Rev 900.

283. ‘The Tasks of Historical Jurisprudence’ in N MacCormick and P Birks (eds) The Legal Mind, Essays for Tony Honore (Oxford: Clarendon Press, 1986) pp 293 at 304.

284. Ibid, p 305.

285. See eg Douzinas, C, Warrington, R and McVeigh, S Postmodern Jurisprudence (London: Routledge, 1991)Google Scholar.

286. J Balkin ‘Understanding Legal Understanding’ (1993) 103 Yale LJ 105, 110.

287. Law in the Courts of Love (London: Routledge, 1996) pp 2–3. And see also Languages of Law (London: Weidenfeld and Nicolson, 1990).

288. Cf the examples of ‘New Historicism’, above.

289. Ibid. In search of its subconscious features, Goodrich puts English common law doctrine on the psychiatrist's (and moralist's) couch in Oedipus Lex: Psychoanalysis, History, Law (Los Angeles: University of California Press, 1995).

290. See Gordon, Collingwood, and Maitland, above; and even Holdsworth Historians of Anglo- American Law, above n 70, p 139.

291. Law in the Courts of Love, above n 287, p 8.

292. Introduction to Pollock and Maitland Histoty (2nd edn, 1959) cited by Parker, above n 74, p 307n.

293. See G E White Intervention and Detachment, Essays in Legal History and Jurisprudence, above n 236.

294. Cf particularly, J H Baker's 1998 Downing Professor's Inaugural Lecture,’Why The History of English Law Has Not Been Finished’, published in (2000) 59 CLJ 62.

295. Cf the evaluative role of Kuhn's ‘Rhetorically Induced and Professionally Shared Imperatives’, in Kuhn, T The Essential Tension (Chicago: Chicago University Press, 1977) p 292 Google Scholar, and White, op cit, pp 22–27, with M Horwitz Crisis, Preface p viii, discussed text ton 123. above.