a foundation course for the law school curriculum

COMMENTARY

A FOUNDATION COURSE FOR THE LAW SCHOOL CURRICULUM: History and Philosophy of Law

Patrick Kavanagh

History and Philosophy of Law is the beginning unit in the Macquarie University Law School degree programs. School policy insists that every student who completes a degree within the School (LL.B. or B.Leg.S.) must study this unit.

Credit is never granted for the unit on the strength of studies completed elsewhere. Students are required to complete the unit before undertaking further study in the School, although in appropriate circumstances students will be permitted to study another unit concurrently with the second half of History and Philosophy of Law. The unit then is clearly perceived as an introduction to study in the School and as a foundation for a student’s life in the study of law.

Gill Boehringer, in a piece published elsewhere in this issue has referred to the crisis in modem legal education and reminded us that there has always been a conviction at Macquarie Law School, found as far back as the foundation professor’s inaugural lecture, that the law student of today must be educated to respond creatively to the pressures that will be placed on law and lawyering in the future. The crisis in legal education is itself part of a wider crisis in liberal legalism. Perhaps the most significant aspect of this crisis in legal education and in law scholarship is the slow but steady disintegration of the specialist character of legal discourse. This has been marked for some time in statutory interpretation as judges and lawyers

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swing to purpose and policy oriented interpretation, but is alsc apparent in the common law itself as the judiciary “develops” the common law to meet what they take to be the “needs of society”. It can be seen also in the white-mting of judicial independence when governments are happy to use the legislative power of parliament to instruct the judiciary to interpret statutes so as to “promo e the purpose or object underlying the Act”.1 In modem politics, the claim of the jidiciary to speak for a set of values transcending the demands of the moment appears less and less convincing.

It is in constitutional interpretation that the pressure on legal discourse has been most interesting to observe. For many years the justices of the High Court were agreed at least on a basic common law approach.2 If this unanimity has disintegrated, there has been no coherence that has replaced it. Some have sought to root the Constitution in an idealised “acceptance” by “the people” so that the Constitution constantly guarantees attention to the “needs of society” by impartial institutions operating through strictly democratic processes. This approach vould foster the development of a critical jurisprudence drawn from the essentials of Westminster constitutionalism.3 Others have sought to root the Constitution in the history of its own making which is elevated to a movement of normative significance.4 This approach is not only unconvincing; it holds no promise as the foundation of a critical constitutional jurisprudence and may not even deliver on its promise to break longstanding, knotty, constitutional conundrums.5

What is the responsible and thoughtful legal educator to do in tiese circumstances? One approach is to laud the passing of specialist legal discourse as a longstand- j

1 Acts Interpretation Act 1901 (Cth) S.15AA. Even more remarkable is s.UAB which threatens to collapse the distinction between legislative, executive and judiciary intc one policy-directed state machine.

2 Amalgamated Society of Engineers v The Adelaide Steamship Co. Ltd (Tie Engineers' Case) (1920) 28 C.L.R. 129; Sir Owen Dixon, The Common Law as an Ultinate Constitutional Foundation (1957) 31 Australian L.J. 240.

3 The late Lionel Murphy was the most articulate exponent of this appnach: “The original authority for our Constitution was the United Kingdom Parliament, but theexisting authority is its continuing acceptance by the Australian people”. Bistricic v Rokov (1976) 135 C.L.R. 552, 567. “The framers of the Australian Constitution, ... were certainly awire of United States history. The struggles for independence, the declaration of independence, tie revolutionary war, the framing of the United States Constitution, as well as the contributions o the liberty of man by the great figures of the United States are part of the history of the Englisi-speaking peoples. This history is part of our cultural heritage”. Attorney-General for Australii (ex. rel. McKinlay) v The Commonwealth (McKinlay s case) (1975) 135 C.L.R. 1, 72.

4 This approach has significant support on the current High Court Bench. Set, e.g., on s. 92 Cole v Whitfield (1988) 165 C.L.R. 360; on s. 117 Street v Queensland Bar Association (1989) 63 A.L.J.Rep. 715.

5 See the disunity following Cole v Whitfield in Bath v Alston Holdings (19$8) 165 C.L.R. 411.

1988-89 COMMENTARY 135

ing legal fiction and to celebrate the recognition of law as an instrument of policy. The problems in this approach are to determine in what can the traditional critical function of jurisprudence be grounded and to avoid the optimism of “progress” according to which “the power of ‘the social’ has acquired an autonomous ethical momentum in human affairs”.6 Another approach is the mirror image of the one just summarised. It is to argue for a radical re-separation of law and policy and a return to the traditional values of the rule of law. The problem with this approach is that it drives lawyers into a self-justifying tradition which has its own validity but is more and more peripheral to the facts of modem legal life and is less and less able to grasp the real problems facing us.7

An interesting feature of the second approach above summarised is that it not infrequently rests upon an historical argument. A typical form is that a range of constitutional crises, from the granting of Magna Carta in 1215 to the baronial wars in the reign of Henry III to the constitutional tensions in the reign of Edward I to the relations between the Tudors and their parliaments to the civil war of the 1640s to the rapid growth of the common law in the 19th century, are presented as events in the long struggle for the rule of law:

British constitutional history is an allegorical drama which has played withoutinterval for 14 centuries. The leading characters in the drama are the King, thePeople and the Law.8

This type of legal historiography views the past through the problems and ideals of the present. It assumes the problems of law and government are always essentially the same: a struggle for power in a Hobbesian war of all against all. The past becomes “a mere prologue to a present” in which we seek “the realisation of the liberal vision of individual freedom and collective prosperity captured in the idea of progress”.9 The rule of law becomes a trans-historical concept, an absolute good that can be taken for granted.

The unit H istory & Philosophy of Law is a response to the crisis in legal education which we have been considering. It selects an historical approach as its tool but it avoids the historiography just criticised. The unit does not attempt a broad narrative sweep of its subject matter. Rather it adopts a “problems” approach, i.e. the unit selects a series of distinct but related historical junctures which posed particular problems in the ideas of law and government. The problems are chosen on the conviction “that men and women make their own history (including their legal

6 Cp. Fraser, Statement of Objectives, in Study Guide for LAW 112 History & Philosophy of Law 3 (Macquarie University 1990).

7 See, e.g., Bayne, Administrative Law & the New Managerialism in Public Administration, 62 A.L.J. 1040(1988).

8 Allott, On the Long Struggle for the Rule Of Law, The Times Higher Education Supplement, No 854, 17 March 1989. See also G. De Q Walker, The Rule of Law, Ch 3, “Development of the Doctrine” (Melb. U.P. 1988). For a convincing criticism of this type of legal historiography see Horwitz, The Conservative Tradition in the Writing of American Legal History, 17 Am. J. of Leg. Hist. 275 (1973).

9 Fraser, supra note 6.


history) without always realising that they are so doing”.10 The aim is to encourage in students the development of an historical consciousness to carry into their continuing study and thereby to assist them to gain a measure of themselves as students and practitioners of law. It is common to begin all sorts of courses with historical background, often treated as not really relevant to modem practice but offered for interest. History & Philosophy of Law is not like that. Its aims are serious and ambitious: to encourage students to see themselves as actors in an historical process, with a thoughtful and responsible feeling for themselves as lawyers, able to respond creatively to the deep moral and political issues posed in their time and place.

The unit History & Philosophy of Law is taught through a set of materials put together in the School, printed in the University printery and purchased in the University bookshop. The materials were selected and edited and the editorial commentary written, largely by Andrew Fraser (a senior lecturer in the School) in the late seventies/early eighties. Each year the teaching team, usually about six, monitor the materials and commentary. Much of the materials now have had substantial revision. The materials proceed by raising issues and problems and are designed to be taught in tutorial discussion. Full-time students meet with a tutor for two, two hour tutorials per week. There are no lectures in the unit, consistent with the School’s emphasis on small group teaching. External students are offered a number of intensive tutorial sessions, compulsory and voluntary, held on campus and in out-of-Sydney locations. Telephone contact between external students and their tutors is frequent. External students also receive a number of audio cassettes (usually about 20 over the year, each of about 50 minutes duration) in which issues for discussion are identified and outlined. Assessment is by written assignments which require students to come to grips with issues raised in the materials.

The unit begins by proposing to students some characteristic features in the thinking of western people about law. We assume that students have come into the School expecting to be exposed to intellectual puzzles about the rules of law, their meaning and interaction, but not expecting anything profoundly puzzling about the idea of law itself. We deliberately assault this complacency at the outset of the unit. Students cannot be expected to develop an historical consciousness of themselves as lawyers if they are unaware that our own taken-for-granted idea of law is not somehow “natural” but is itself related to our own historical time and place.

The easiest way to make students aware of the contingency of their own circumstances is to introduce them to something entirely different. The materials therefore open with a piece comparing western European and Chinese ideas of

10 Id. at 4.


nature, order and law.11 Not only does this piece make the comparison and establish the contingency, it grounds western thinking in ideas of transcendent religiosity, the god given dominion of humans over lesser beings of the earth (“command psychology”) and the economic and social conditions of the pastoral peoples who formed the Hebrew tribes. Reference is also made to the Greek & Roman capacity for abstraction.12 These elements in western thinking are then related to a specific form of law, namely positive law, which, whether in natural law or in human law, emerged as a characteristic “western” form of law.13 The point is pushed by looking at customary law in stateless societies and observing the impossibility of abstracting custom from behaviour and expressing it artificially as rules in the manner of positive law.14

By the end of this section of the materials students should appreciate that, in western thinking, society, human interaction, order and law are not immanent in nature but are products of reason and will, be they human or divine. The issue then is : how do reason and will interact? How do we know they have not parted company? In the case of God’s reason and will this is a theological issue. Thus, for a medieval thinker such as Thomas Aquinas, his jurisprudence and his constitutionalism were part of his theology. In the case of human reason and will the issue is a philosophical and constitutional one: how do we understand the normative power of reason so that we can institutionalise it to ensure public acts of will accord with it?

The remaining materials in the unit could be regarded as addressed to that last question. If we believe in the normative power of human reason, approaching this issue historically must offer students a richer narrative in which to base their interpretive commitments than the “history” at present attracting the justices of the High Court in constitutional interpretation:

(T)he materials are selected on the basis that the question whether a rational legal order might have been or might become possible in the context of a particular historical setting must remain a continuing problem for all of us.15

So far the materials have not introduced the idea of history itself. This introduction occurs through a piece extracted from an article by the late Robert Cover.16 17 Students study this piece and two case studies discussed by Cover himself, namely the law of the Old Testament, especially that given to the people through Moses, and the First Amendment to the U.S. Constitution as it was understood in Bob Jones University v United States.'1 In these examples law, history and destiny appear as

11 J. Needham & C. Ronan.The Shorter Science and Civilisation in China, Vol. 1, at 276-280, 282-284, 285-289, 301- 305 (Cambridge U.P. 1970).

12 The reference here is to geometry. Reference is later made to the invention of the Greek alphabet and writing in this connection, through the work of Eric Havelock.

13 See R. Unger, Law in Modern Society, Ch. 2 (The Free Press 1976) who draws similar connections between transcendent religiosity, “command psychology” and the form of law.

14 See Unger, supra note 13, on this point also.15 Fraser, supra note 6, at 4-5.16 Cover, Nomos and Narrative, 97 Harv. L.Rev. 4 (1983).17 461 U.S. 574 (1983).


one composite package. The law constitutes the people who are its adherents and becomes part of their history as they reach for their destiny. For example, the Lord through Moses gave the people their law as part of their history in which he constituted them his people and led them on an epic journey from bondage to deliverance. The law cannot be understood apart from it:

When your son asks you in time to come, “What is the meaning of the precepts, statutes, and laws which the LORD our God gave you?”, you shall say to him,“We were Pharaoh’s slaves in Egypt, and the LORD brought us out of Egypt with his strong hand, sending great disasters, signs, and portents against the Egyptians and against Pharaoh and all his family, as we saw for ourselves. But he led us out from there to bring us into the land and give it to us as he had promised to our forefathers. The LORD commanded us to observe all these statutes and to fear the LORD our God; it will be for our own good at all times, and he will continue to preserve our lives.”18

A later piece from Rudolf Bultmann19 could be interpreted as arguing (inter alia) that once God seemed to the Jewish people no longer to work through history there was uncertainty about the proper narrative within which to locate the law. The consequence was a crisis of meaning to which the characteristic response was legalism. It was on such legalism that Jesus poured scorn. The suggestion is made to students that the origins of Christianity lie in a messianic movement attempting to return God’s providence to a narrative history of redemption and deliverance.

Of course, rules of law may be stated abstractly. But Cover argues that their meaning, and hence their real existence in our lives, depends upon locating them in a narrative of the history and destiny of our communal life:

We inhabit a nomos - a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. The student of law may come to identify the normative world with the professional paraphernalia of social control. The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention. No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.20 (Footnotes omitted)

Thus is an inevitable connection established between law and human ideals and aspirations:

18 Deuteronomy 6:20- 25, The New English Bible, The Old Testament (Oxford & Cambridge 1970).

19 R. Bultmann, Primitive Christianity 59-61 (R. H. Fuller transl. New American Library 1956).

20 Cover, supra note 16, at 4-5.


our visions hold our reality up to us as unredeemed ... But law gives a vision a depth of field, by placing one part of it in the highlight of insistent and immediate demand while casting another part in the shadow of the millennium.21

In a context like that of Australia which is made up, as it is, of a number of communities, the effect of Cover’s argument is that they could be allowed “insular autonomy”, under an overarching set of “imperial virtues”, through an appropriate legal orconstitutional device (e.g. incorporation), to realise their own jurisgenerative capacity. The question of narrative would arise at two levels : that of the “imperial” Constitution and that of the constitution of each nomic community.

At this point the argument is proposed that, in western thinking, reason, history and law enter human experience together. It is proposed to students that people who live in stateless societies and understand their existence as thoroughly integrated in the harmony of their surroundings can have no idea of history in the relevant sense. Lacking a consciousness of the contingency of their own existence they can have no sense of altemity. Consequently, they constantly reproduce themselves. History and law in the relevant sense require an awareness of contingency, a sense of critical distance from the normative basis of existing social arrangements, an understanding that things might be other than they are. It is in this sense that, in the western legal tradition, reason, history, law, justice, human ideals and aspirations enter human experience together and are inextricably associated in one intellectual package.

Continuing the theme of law as an expression of reason and will, the materials proceed to examine the “discovery of the mind” as the spring of human action. We begin with some exercises designed to bring to students’ awareness the extent to which, in modem thinking, we root moral responsibility in the individual mind. The point of this is to give them a sense of the momentousness of the discovery of the mind and the significance of this in the understanding of morality. Thus the materials invite students to empathise with people who thought otherwise by imagining away our taken for granted beliefs as to moral capacity.

With the discovery of the mind as the spring of human action appear the beginnings of the idea of the power of moral judgment within each individual. These issues are raised firstly through an interpretation of classical Greek literature,22 followed by some material on the moral philosophy of Socrates and Plato. There then follows material from Aristotle, (The Politics) on the city or state as “a perfectly natural form of association”, politics and citizenship, together with a description of the working of Athenian democracy about the time that Aristotle was writing. The materials then raise a serious issue of legal historiography by inviting a comparison

21 Id. at 9.22 The interpretation offered comes from B. Snell, The Discovery of the Mind: The Greek

Origins of European Thought (Basil Blackwell 1953).


of the analyses of the Greek polis, citizenship and freedom, offered by Hannah Arendt23 and Perry Anderson.24 Was the polis an institutionalisation of the normative power of human reason appropriate and convincing within the moral environment of the Greeks, or was it merely a political appendage to an oppressive and exploitative mode of production? In dealing with this issue students not only have to analyse some fairly subtle and sophisticated arguments, they have to take a stand on well argued but opposing points of view. Students also have to deal with some issues that are important now and throughout the unit, e.g., the relationship between law, authority and power, law and reason; the nature of politics in both ancient and modem understandings; different understandings of the notion of property and of the relation between property and government, again in the ancient and modem minds. It is through such problems and comparisons that the development of the historical consciousness at which the unit aims is encouraged.

The unit then offers material on the remaining sources of the western legal tradition: ideas of law and justice in ancient Israel, Roman public law and jurisprudence, Christianity. Particular attention is paid to the Christian church and its adoption of a system of government modelled on the Roman imperium: division of the community into rulers and ruled (clergy and laity), episcopal and later papal monarchy. The organisation ofthe Church in this way marked a retreat from classical politics with the substitution of the faithful for the citizenry, knowledge for action, monarchy for democracy, humility for courage, and the appearance within the political community itself of mere subjects. It was a very specialised understanding of the normative power of reason which led to this institutional structure for its expression. Students are therefore asked, through a study of the history of later Judaism and early Christianity, whether the organisation of the Church on a model drawn from the Roman imperium was in fact a necessary development within Christianity; indeed, whether it was consistent with the essence of Christianity. The issue is important as the fact that Christianity was organised in this way was simply crucial throughout the medieval period. It conditioned the character of all political

23 An extract is taken from The Human Condition 28-37, 61-67 (University of Chicago Press 1958).

24 An extract is taken from Passages FROM Antiquity to Feudalism 18-28 (New Left Books 1974).


debales throughout that time. It led to a mystification of politics and ensured that all political debate was conducted in terms of descending theories.25 According to some historians the papal monarchy, as a governmental and jurisdictional institution, became the catalyst and later the model for the absolutist royal monarchies of the young nation states of early modem Europe.26 Other historians argue that the inevitable conflict of spiritual and temporal authority was an essential factor in the secularisation of politics27 and in the generation of the modem phenomenon of the legal system and modem legal science.28

The materials now proceed to examine the emergence of feudalism from the mins of the Roman empire. We observe the decay of classical politics in the replacement of political bonds with personal bonds of dependence, the decline of the cities and the union of economic and political power. It is suggested nonetheless, through the work of Berman,29 that in the feudal law appears the genesis of many ingredients of modem legal consciousness. This brings out two important theses of Harold Berman, which are subjected to critical examination; viz a new periodisation, arguing for an essential continuity of European history from the late eleventh century down almost to our own time; and a view of law as itself a factor in history, not only regulating but grasping and redeeming the social relations to which it applies.30

The striking characteristic of the legal landscape in medieval western Europe is legal particularism, a range of legal systems limited to specific contexts: feudal law, manorial law, royal law, urban law, mercantile law, guild law, canon law. Can there be generated out of these disparate legal orders a distinctively western legal tradition? Yes, comes the answer from Berman, and the crucial circumstance is the Papal Revolution. The term refers to the reform movement within the Church of the 10th, 11th and 12th centuries by which the Church sought to purge itself of secular control and establish itself as a corporate legal structure under the ultimate

25 W. Ullman describes ascending and descending theories of government in several of his works, see, e.g.. Medieval Political Thought 12-13 (Penguin Books 1975). In descending theories original power was seated in a supreme being and percolated down through a principle of delegation.

26 See Kantorowic/., Mysteries of State: An Absolutist Concept and its Late Mediaeval Origins, The Harv. Theological Rev., Vol. XLVII1 No. 1 (1955) at 65, where he discusses this with particular reference to King James I of England (1603-24).

27 See, e.g., ULLMAN, PRINCIPLES OF GOVERNMENT & POLITICS IN THE MIDDLE AGES Part 1, Ch. 4,“Assessment of Papal Principles” (Methuen & Co. 1961). The argument appears frequently in Ullman’s work. . ... . .

28 This is forcefully argued by Berman. The classic statement is in his artic le The Orig ins of Western Legal Science, 90 Harv. L.Rev. 894 (1977). Berman also argues that the roots of the secularisation of politics are to be found in the “Papal Revolution.”

29 In this connection extracts are taken from Law & REVOLUTION: The FORMATION OF THEWestern Legal Tradition, (Harvard U.P. 1983). ^

30 I have used the word “redeeming” to suggest a reference to Robert Cover for whom “the term ‘redemptive’ ... has the connotation of saving or freeing persons, not only ‘worlds’ or understandings”. Cover, supra note 16, at 35.

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jurisdictional authority of the vicar of Christ the King on earth, the Pope. For Berman and other historians the Papal jurisdictional claim created the very concept" Western Europe” itself, not only by uniting Western Europe under a common Christian consciousness that maintained in one tradition the now separated ecclesiastical and secular authorities, but also by splitting off eastern Europe where the ultimate authority of the bishop of Rome and his directing it to political ends were rejected.31 Furthermore, according to Berman, the Papal claim generated a jurisdictional conflict out of which grew the modem idea of legal system, the first of which was the “new canon law” (jus novum).32 This is a provocative thesis as the idea of legal system, with its attendant characteristics of the separation of adjudication from government in general, the autonomy of legal reasoning and the appearance of expert practitioners, has often been presented as a necessary aspect of modem liberal political theory.33 The provocation of Berman’s thesis itself shows the value of history in developing a critical study of law.

The Papal Revolution was a legal/jurisdictional event but it grew out of a spiritual movement. The spiritual roots of the Papal Revolution lie in the reformed monastic movement which began at Cluny in the early 1 Oth century. Having removed themselves from the world, physically, politically and spiritually, the monks of Cluny, under the spiritual and intellectual leadership of their charismatic and saintly abbots, reflected back on it, subjecting it to a sort of holy critique. The monks thereby sought not to condemn the world from which they had withdrawn, but to spiritualise, redeem and transform it. In the 12th century they were joined in this holy task by the monks of Citcaux and Clairvaux. If the Papal Revolution is part of this history then the legalism and jurisdictions which it generated are set in a narrative of redemption and transformation. Therefore, while for some historians the Church reform movement is characterised by the Investiture Contest, for Berman and other historians its meaning is far deeper:

However important the Investiture Contest appears in political history, it wasin fact merely symptomatic of far deeper problems in the interplay of secular

31 BERMAN, supra note 29, at 2. Walter Ullman argues that the longer survival of the ancient political tradition in eastern Europe made the ecclesiological jurisdictional claim there much weaker, supra note 27.

32 Berman, id.33 See, e.g., UNGER supra note 13, at 52 el seq.


and ecclesiastical forces in the period. It was, in Tellenbach’s familiar judgment, not simply a dispute over investitures, but “a struggle for right order in the world”: a struggle for all that was summed up in the Gregorian concept of iustitia, or righteousness and true order in Christian society.34

For Berman, not only is “the zeal to refonn and redeem secular society” crucial, so is “the concept that competing plural polities and legal systems can serve as instruments of such reform and redemption,”35 along with the revival of Roman law, the appearance of the universities and the development of scholastic method, which structured and located the debate. The western legal tradition, the idea of legal system and legal science itself were generated in the resulting intellectual and moral ferment. The western legal tradition then is founded upon a specifically western conception in which the desire for justice through law is woven into a common Christian consciousness. If the characteristics of the Western legal tradition are being compromised in contemporary legal thinking, then not only the western legal tradition is in crisis. Also in crisis is the very idea of “western” itself as we teeter on the brink of an age not only “post- liberal” but “post-western”.36

Berman’s work, it is submitted, provides the basis for the development of a powerful critical jurisprudence.37 It is, therefore, itself submitted to critical analysis in the unit as students are asked to compare Berman’s work with that of otherauthors. Some of these other authors, especially Perry Anderson in equally powerful writing,38 offer provocative historical perspectives on the beginnings of modernism in the appearance in the late 15th century of absolutist royal states, differentiated from civil society. These comparisons also require students to confront thorny issues of legal historiography, the role of law in history and the relationship between legal and social change. Berman would place the roots of “modernism” in the second half of the 11 th century and reject the sharp division between medieval and modem, even when it is mediated through the reformation and renaissance. The broad issue has already been met in the materials : is the law itself, in its redemptive role, an agent of social and historical change? Indeed, are social and historical change even possible without law within which to locate an alternative vision? Does the western legal tradition incorporate a set of moral and intellectual ideals that are transhistorical

34 Duggan, From the Conquest to the Death of John, The ENGLISH CHURCH AND THE Papacy IN the Middle Ages 65 at 70-71 (C.H. Lawrence ed. Burns & Oates 1965).

35 Berman, supra note 29, 363. In his Influence of Christianity in Western Law, The Sociology OF Law 424 (W.M. Evan ed., The Free Press 1980), Berman argues Christianity, unlike Judaism, sought to embrace people already subject to secular law. Christianity needed its own law which could, if necessary, ground a critical attitude to secular law. Thus, the early martyrs relied on their Christian nomos to dissent from the law by which they would otherwise be bound. In this sense and granted that martyrdom was a central issue in the orthodox/gnostic controversy as it was perceived by bishop Irenaeus in the second century, the Catholic Church has always existed as a “nomos” or law-created world; but this does not demand a monarchical form: “ ... the early Christian martyrs ... founded the Church by their disobedience to Roman law”, BERMAN, Law and Revolution, supra note 29, at 31.

36 This is a constant theme of Berman. See Law AND REVOLUTION, supra note 29, at 41; The Origins of Western Legal Science, supra note 28; The Religious Foundation of Western Law, 24 Cath. U. of Am. L. R. 490 (1975).

37 See, e.g., supra note 29, at 39 et seq..38 See especially LINEAGES OF THE ABSOLUTIST STATE (New Left Books 1974).


to the extent that they may provide the basis for a convincing independent moral critique of an existing order?

The introduction of the issue of separation of state and civil society, in the English context, enables the matter of the common law to be raised : how did the English common law emerge and develop a distinctive identity within the broader western legal tradition? Students have already been introduced to the birth of the common law in the 12th century, securely located within the monarchical kingship of Henry II who sought to “re-state custom” in order to repair the damage done to the kingship in the previous reign and to recoup the very substantial jurisdictional losses from the same time, which jurisdiction had accrued to the benefit of both baronial and ecclesiastical authorities.

The issue of the growth and character of the common law is posed in the context of the emerging English nation state in the late 15th century. Every such nation state had to make some sort of accommodation with the Papacy and the English answer came with the Reformation of the 1530s. The resulting constitutional upheaval strengthened both the English state and civil society.

The English reformation crisis developed from an explosive complex of constitutional, political and theological issues of both English and European dimension, that were brought to a head and demanded attention in the late 1520s. The materials postulate the importance of Roman legal concepts and thinking in conceptualising both the problem and its solution. This keeps before students the European perspective and suggests to them that the English Reformation of the 1530s is part of that history whereby the western European Christian community disintegrated into secular nation states. The question is : what impact did the new constitutional theories and practices of the sixteenth century have on the traditional constitutional structure?

In the context of the common law the materials begin with the famous hypothesis of F. W. Maitiand39 that the English medieval common law entered the 16th century weakened, discredited in the eyes of litigants, and likely to sink into obscurity before the Romanised legal thinking coming with humanism, social and economic change and powerful centralised imperial government. However, we know this did not happen. To Maitland, the common law emerged triumphant, a feat that he attributed to its strong intellectual integrity. In this way, Maitland presented the history of the common law in early modem England in terms of threat and survival, and of essential continuity from the medieval to the early modem period. Strong in the hearts and minds of a dedicated corps of professional lawyers the common law floats above

39 English Law and the Renaissance, the Rede lecture for 1901 delivered in the University of Cambridge. The lecture is published in several collections and, in our materials, is taken from Select Essays in Anglo-American Legal History, Vol I, edited by a Committee of the Association of American Law Schools (Wildy & Sons 1968).


the social and political upheavals of the 16th century and thereby survives the forces that would otherwise destroy it.

Maitland’s thesis was challenged by Sir William Holdsworth.40 It is presumably the stature of these two giants of English legal historiography, creating a debate between them, that has led to a remarkable response whereby many historians interested in the period have analysed and criticised Maitland’s thesis, often in lectures or essays under the same title. This is a little surprising. Maitland’s lecture when published might have been weighed down with the erudition and scholarship of “seventy-eight footnotes which displayed his copious learning in four languages”,41 but the lecture itself is speculative, apparently designed to entertain and provoke rather than to convince. Many authors concluded that Maitland had “overstated” the argument or some such but fewer questioned whether the model of threat and survival is, in fact, the appropriate model through which to study the common law in the 16th century. However, Maitland’s thesis had some distinctly instrumental themes,42 as if the government of the 1530s had some sort of political choice as to the law within which it would operate. If this were so, the western legal tradition would have entered a period of crisis in England 400 years earlier than Berman would have it. Also, Maitland tended to equate legal science characteristic of the western legal tradition generated out of the academic analysis of the re-discovered Roman law with the principles of the Justinian code itself. It has been suggested that Maitland misrepresented the nature of Roman law “reception”, even as it occurred on the Continent.43

Following this issue of the history of the common law and of legal consciousness in 16th century England, students are introduced to the debate whether the Tudor regime was absolutist and, if so, in what sense; they are asked whether Cromwell intended to fit the imperial state of the 1530s into the existing constitutional structure; the trial of Sir Thomas More in 1535 is studied as an important moment in the humanisation of the law and the secularisation of politics. Students are

40 W. Holdsworth, A History of English Law, Vol. IV, 3rd ed., 252 et sea (Methuen & Co. 1945).

41 M. Blatcher, The Court of King’s Bench, 1450-1550 : A Study in Self-Help 10 (The Athlone Press 1978). Dr Blatcher offers a spirited and vigorous defence of Maitland’s thesis supported by her own research.

42 “... the perplexity of detail should not obscure the broad truth that there was pleasant reading in the Byzantine Code for a king who wished to be monarch in church as well as state : pleasanter reading than could be found in our ancient English law books”, Select Essays, supra note 39, 182-3.

43 “Continental legal historians have already begun to question whether what has been called the Reception can properly be viewed simply as the displacement of old local custom by the law of Justinian”, Baker, English Law and the Renaissance, the James Ford Special Lecture delivered before the University of Oxford on 4 May 1984, reprinted in J. Baker, The Legal Profession and the Common Law 461 at 466 (Hambledon Press 1986).


reminded of the manner in which lawyers of the period thought of law and politics, as manifestations of order and reason creating a framework within which litigants, lawyers and judges moved:

Law, like medicine, cannot fall victim, as abstract theological and philosophical systems may, to sudden changes in mere intellectual fashion for it finds its justification independently in its success in dealing with the problems life presents to it.44

This approach, too, enables the issue to be re-cast. Recent historians of the common law in the 16th century have focussed not on continuity but on the law itself. They have found rapid change in the law and have searched for its connections with political, social and economic change. At the same time, because the changes were facilitated by the use of equity, legal fictions and signi ficant procedural reforms, the common law retained an organic or surface continuity. Like the Church itself, the law was renovated and reformed rather than overturned.45 This suggests changes not only in doctrine but in common law technique consistent with the political, constitutional and intellectual temper of the times. The Year Books may have ceased in 1535, the “year in which More was done to death” as Maitland darkly noted,46 but they were rapidly replaced with the more modem reports of Spelman, Plowden and Dyer, which, in the case of Plowden especially, concentrated on the decision and reasons therefor. Compared to the style of the Year Books, Plowden’s and later reports suggest consciousness of a more active role for judges in shaping the law, although within a continuing tradition. This “may have something to do with Renaissance humanism”47 and a belief that human relations respond to the application of human reason. Selected material suggests to students that only in the 16th century do law, equity and statute begin to be differentiated clearly in the legal mind, and that this in itself is an index of legal modernisation. Thus it is through “the problem” of the legal historiography of 16th century England that the appearance of the common law within the broader western legal tradition is dealt with, along with the role of law in the early modernisation of England.

In the 17th century the Englishness of the common law, its historical character as custom, its affinity with reason and its preservation in the accumulated intelligence of lawyers are converted to a constitutional doctrine by the greatest synthesiser of them all, Sir Edward Coke. Students study in some detail this doctrine and its role in the constitutional conflicts of the 17th century. They observe how the doctrine was undermined by the developing science of history and repudiated

44 S.E. Thorne, English Law and the Renaissance, in Essays in English Legal History 187 at 195 (Hambledon Press 1985).

45 A classic article is Thorne, Tudor Social Transformation & Legal Change, 26 N.Y.U.L.R. 10 (1951) which appears in the materials. See also Baker, Introduction to The Reports of Sir John Spelman, Vol n, (Selden Society 1978); the above text draws especially on p.28.

46 Supra note 39, at 192.47 Baker, supra note 43, 471 et seq; the quotation is at 476. J. Dawson, The Oracles of the

Law, Ch. 1 at p. 54-67 (Greenwood Press 1978) identifies factors internal to English legal practice in the 15th and 16th centuries influential in the decline of the Year Books and in the appearance and structure of Plowden’s reports. The history of law reporting is not dealt with specifically in the unit materials.


by Thomas Hobbes in his new science of politics. However, the political and intellectual attractions of the theory of the ancient common law were enough to ensure its survival. As in the sixteenth century matters needing legal resolution were resolved within the common law.

The eighteenth century English constitution operated in a web of patronage and dependencies among the members of the political nation. The sovereign power of the Crown in parliament can be seen as the institutionalisation of this politics and ensured the State was a mere extension of society in the sense that social and political power were not effectively distinguished. Students are offered a range of material enabling them to identify and assess this thesis and thereby form a view on the nature of the English state that emerged from the constitutional settlement of 1688-1701 and on the political context of its central constitutional principle, the sovereignty of the Crown in parliament.

Students are also offered material to enable them to consider whether the eighteenth century principle of parliamentary sovereignty is an adoption of the Hobbesian theory of sovereignty. If one takes the view that parliamentary sovereignty was an institutionalisation of the politics of influence and patronage the answer must be no. In this case parliamentary sovereignty merely seals off the political nation so as to enable its jurisgenerative capacity to function, an analysis which stands Hobbes’ theory of sovereignty on its head. The issue, when posed to students, also raises important issues of legal historiography and of the relation of law to society which can be addressed through some well known pieces authored by Douglas Hay, John Langbein and Peter Linebaugh.48 The question is important as the materials proceed to argue that the American colonists perceived the sovereignty of the U.K. parliament in the eighteenth century as not only oppressive but a corruption of the parliamentary tradition and therefore a threat to the integrity of their own institutions and to their own tradition of political freedom; a threat which, in the extrovert republican tradition, demanded their resistance. Using the framework suggested by J.G.A. Pocock49 the materials examine the American resistance and revolution as events within the British constitutional tradition. To this end the questions are posed ; did the war of independence result in the creation of a revolutionary and uniquely modem form of the state? or was the American Constitution of 1787 simply a restoration of the eighteenth century English constitution in the novel setting of American independence?50

The answer to these questions is approached through a detailed study of American thinking on the sovereignty of the people. The same study provides a

48 Hay, Property, Authority and the Criminal Law in ALBION’S Fatal Tree 17 (D. Hay et al eds.Allen Lane 1975); Langbein, Albion’s Fatal Flaws, 98 Past and Present 96 (1983); Linebaugh, (Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein, 60 N.Y.U.L.R. 212 (1985). .

49 Pocock, The Limits and Divisions of British History : In Search of the Unknown Subject, 87 Am. Hist. Rev. 311 (1982); 1776 : The Revolution Against Parliament, in J.G.A. POCOCK, THREE British Revolutions : 1641,1688,1776,265 (Princeton U.P. 1980).

50 These questions are lifted from part of the unit outline written by Fraser, for the LAW 112 STUDY Guide, supra note 6, at 27.


basis for assessing the threefold gift of eighteenth century Americans to modem constitutionalism : the device of a written constitution; the theory of federalism; the institution of judicial review. The historical significance of these is especially important in Australia where we have made a conscious decision to incorporate them in our own constitutional structure. Students are, therefore, initiated into the scholarly debate as to the meaning of that Australian adoption. To determine the historical meaning of those three developments, the materials begin with the proposition that they were designed to institutionalise the achievements of the American republican movement. This immediately raises the question of what was the American republican movement, i.e. how did the Americans understand the idea of popular sovereignty? It rapidly becomes clear that there is no simple answer to this question; that it raises the problem of how the American constitutional theorists of the eighteenth century understood their constitutional heritage and their own historical narrative, reaching back to the foundation of their settlements in pursuit of freedom and to escape persecution at home. We study the foundation decisions Marbury v Madison5' and McCulloch v Maryland1 and observe the Supreme Court justices, led by John Marshall, locate the Constitution in a particular narrative understanding of American republicanism and the consequent effect on the meaning of federalism and judicial review.

The theory of federalism as a principle of political association and the institution of judicial review as a source of a normative constitutional order are tested through a study of the sectional conflict over slavery. After a study of some judicial decisions and scholarly comment, students are asked if the problem of slavery could have been handled through such legal/constitutional means, rather than the trauma of disunion and civil war.

The United States is not the only example of a modem republican constitution bom of revolution. France provides the other great model to the modem world. We examine the French experience of popular sovereignty as well. In doing so, we Find that revolutionary France presents the starkest possible image of a political modernity marked by the sharp separation of the state (representing the “general will” of the nation) and civil society (the aggregate of the “particular wills” of the individuals who together constitute the population of the state). A monopoly over the exercise of public authority is vested in the state as the sole legitimate representative of the national will. It follows that corporate bodies must be outlawed as potential usurpers of public authority. Is that outcome inherent in the constitutional logic of popular sovereignty? We consider whether the early legal history of the corporation in the American republic might have opened up other possibilities for the autonomous development of modem civil society. Neither w'holly private nor wholly public, the corporation straddles the boundary between state and civil society. If legal moder- 51 52

51 1 Cranch 137 (1803).52 4 Wheat 316 (1819).


nisation entails the institutional separation of state and civil society, where does the private business corporation fit into the constitutional order of a republican polity?53

From this point the materials proceed to consider the role of the law, in the Anglo-American context, in institutionalising an autonomous civil society. Anglo- American legal history of the nineteenth century is dominated by the rapid and unprecedented growth in private law, especially in the law of property, contract and torts. This phenomenon can be seen as the legal institutionalisation of the will of the morally autonomous individual. In that sense we see the law giving public institutional setting to the ideals around which social interaction is organised, so that those ideals might be realised in the life of the society. The question is : how much further can we take this analysis? Can we form any firmer conclusions about the relationship between the life of the law and the life of the society? The materials proceed to address this question in relation to change in the nineteenth century law of contracts, law of negligence and law of industrial accidents. The message from a necessarily brief survey is that the matter is complex and the answers far from straightforward; but students are introduced to the issues. Within the confines of the unit, the issue for students could be generalised as: is 19th century Anglo- American law, with its emphasis on private law, continuous with the western legal tradition, its ideas and values, its ancient and medieval sources? This question incorporates a deeper question also addressed in the materials: do the principles of interaction in modem civil society engage the moral personality of the individual social actor?

For example, in relation to the law of contract, nineteenth century development (the “will theory” of contract) appears to defer to a philosophical understanding of the essential subjectivity of value. No external restraint on the moral judgment of individuals can be justified. The “will theory” of contract therefore institutionalises the normative power of individual wills of social actors. Does this legal development indicate a search for principles of human interaction that will be morally convincing in the society, or a mere facilitation of the principles of the market economy and a reduction of all human relations to market principles? Similarly in the law of torts, how should we interpret a gradual shi ft in the basis of responsibility, brought about through judicial reasoning, from strict liability to negligence? Were the judges working out the legal implications of individual moral autonomy in order to ensure that the law of responsibility for civil wrongs was convincing and made moral sense in the society? or were they trying to release the entrepreneurial spirit of society’s more adventurous members in furtherance of a judicially conceived benefit for all?

Perhaps even more telling is the legal response to industrial accidents. The materials select the fellow servant rule for study. According to this rule, if one

53 This paragraph is also lifted from part of the unit outline written by Fraser for the LAW112 Study Guide, supra note 6, at 28.


employee was injured through the negligence of another, responsibility could not be sheeted home to the employer. Students study judicial statements of the rule in , the English case Priestley v Fowler54 and in the American case Farwell v Boston & Worcester Rail Road Corporation55 as well as in some other less significant cases. Students are offered various interpretations of the historical significance of this doctrinal development. According to one line of thinking it was an attempt to socialise the cost of industrial development in the interests of rapid economic growth to which the judges were committed as a social good.54 55 56 This approach argues that the judges perceived industrial accidents as an economic problem. Other analysts argue that the judges perceived industrial accidents as posing a political problem. Thus, the intellectual sources of the rule lay in political discourse (in the broad sense) not economic discourse. On this understanding, the judges were addressing a political problem of authority and responsibility, not an economic problem of cost distribution. In this view Christopher Tomlins argues57 that plaintiffs were attempting to throw the light of the law and of the judicial process on the process of production and to provoke a critical legal commentary on the structure of m anagerial authority and the issue of industrial safety. Until this time industrial safety had been subordinated to a “political economy of speed’’.58 59 However, Shaw’s decision in the Farwell case “recognised and endorsed the structure of disciplinary power that permeated the employment relationship and yoked the public interest in industrial safety to its perpetuation”.39 Andrew Fraser, however, argues the rule represented a “republican attempt to devise a jurisprudential linkage between the normative requirements of economic modernisation and the civic ideal of a free and independent citizenry”.60 The enterprise appears as an association with the master at the head and representing it to the outside world. Within, it is conceived as a jurisgenerative community composed of free and active “citizens” each playing his/her part to achieve the overall project. The fellow servant rule expresses the resulting moral relations. The intellectual source of the rule is essentially the legal/political discourse of property.

It is intended then, in this part of the unit, to place before the students significant issues of the role of law in the process of capitalist modernisation. If that role is purely instrumental, as some of the above interpretations suggest, then one might

54 1 M. & W. 1 (1837); 150 E.R. 1030.55 45 Mass 49 (1842). .56 Put in the materials via Friedman and Ladinsky, Social Change and the Law of Industrial

Accidents, in American Law and the Constitutional Order : Historical Perspectives 269 (L.M. Friedman and H.N. Scheiber eds. Harvard U.P. 1978).

57 Tomlins, A Mysterious Power: Industrial Accidents and the Legal Construction of Employment Relations in Massachusetts 1800-1850, 6 Law & History Review 375 (1938).

58 Tomlins borrows this term from W.G. CARSON, The OTHER PRICE OF BRITAIN'S OlL: SAFETY and Control in the North Sea, 84-138 (Oxford 1982).

59 Tomlins, supra note 57, at 414.60 The quotation is taken from the outline in the LAW112 S tudy Guide, supra note 6, at 41. An

extract appears in the materials from A.W. Fraser The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (U. of Toronto Press 1990). See also K. Boehringer, Towards a New Understanding of Priestley v Fowler: English Republicanism and the Concept of Civic Virtue (unpublished paper reproduced in the LAW112 History and Philosophy of Law Course Materials 1989).


say the law is so thoroughly involved with the values of capitalism that it cannot be a significant agent of social reform. On the other hand, if the law in responding to the problems of capitalist modernisation was drawing on its own tradition, discourse and values, all of which are critically distant from those of capitalism, then the law does possess the capacity to be a significant agent of social reform. This returns us to the point at which we began : the value of developing an historical consciousness in lawyers. It also maps out an intellectually and morally exciting future for beginning law students as they complete their first year and move to further stages of their study.

In 1989 the unit concluded at this point. In 1990 and in subsequent years the second half of the unit will be re- organised so as to make more clear to students the concept of legal modernisation in the institutional separation of state and civil society. This will include some material dealing with the British settlement of New South Wales and the extension of British legal culture here.

It is important to note the manner in which the Australian material is introduced: the settlement of New South Wales is treated as an event in British history, not as an event merely or mainly in Australian history. The former approach suggests to students that the legal culture transplanted here was British and therefore had its roots in the wider Western legal tradition. The latter approach would direct attention to other considerations; e.g., the impact of British settlers and institutions on the indigenous people. The former approach is thoroughly consistent with the aims of the unit. There is no Australian material in the unit selected on a nationalist argument that Australian students ought to study Australian material. The principle of selection rather is that Australian students ought to be offered material that anchors them in the legal tradition of which they are a part. Then will they be offered a moral foothold to enable them as lawyers to develop a critical jurisprudence with which to confront the deep moral and political issues of their own time and place. This is not mere nostalgia, a foolish desire to attach Australia to a romantic past and thereby dismiss as crude and cheap the real problems of today, to be left to our less sensitive professional politicians. On the other hand, respect for the past is not a mere expression of white Australian arrogance. The clash of cultures within Australia is just one site where a creative, imaginative and sensitive response from lawyers, among others, is required. When it is said that Australia is “an Asian country” we must remember that a very significant part of our culture, philosophy, politics and law lie in the Western tradition. The autonomous history of that tradition doubtless is ending, if indeed it has not already ended; but that does not make it irrelevant. Informed and intelligent politicians, lawyers, etc., who care about the future will ensure that the best of the Western tradition is preserved. That is to do nothing other than to take seriously the moral responsibility that humans have for their own development. According to Harold Berman:


This certainly does not mean that the study of the past will save society. Society moves inevitably into the future. But it does so by walking backwards, so to speak, with its eyes on the past. Oliver Cromwell said, “Man never reaches so high an estate as when he knows not whither he is going.” He understood the revolutionary significance of respect for tradition in a time of crisis.61

To place ones back to the future is not to wish it would go away. It is to demonstrate the courage to deal with uncertainty as it comes, a courage that is drawn from an awareness of and respect for the strengths of the past.

The final question is: how closely is History & Philosophy of Law related to the remainder of Macquarie Law School’s curriculum? The answer is “until now, not very”. The reason for that is that the unit was conceived and put together some years after the Law School began teaching a curriculum organised around quite different pedagogic principles and objectives.62 However, the School recently adopted a proposal put to it by its Curriculum Development and Teaching Committee that the Macquarie Law School curriculum, or at least the core curriculum, be organised around the institutional separation of state and civil society and that the material be presented from an historical or developmental perspective.63 This is expected to lead to a core curriculum composed of units taking as their subject matter contract, torts, crime, property and constitutional law. The introduction of these new units has now been approved by Academic Senate. The plan should ensure that History & Philosophy of Law truly operates as a foundation course, that the historical consciousness it encourages is strengthened in later studies and that students are prepared by their education to act as thoughtful, responsible and well educated lawyers, equipped to react creatively and more than adequately to the demands of the twenty-first century, the coming of the new millennium in more senses than one.

61 Berman, Law and Revolution, supra note 29, at 41.62 See my discussion in the article Legal Education and the Functionisation of the University,

supra, at 21 et seq.63 See Fraser, Modernising the Curriculum: A Discussion Paper, (memo to the Curriculum

Development and Teaching Committee, Law School, Macquarie University) (August 1989); See also Boehringer, Intellectual Background to Curriculum Reform, 2 PEARCED OFf 4:3-4 (1989). Boehringer presented a revised version of her paper to the Law in History Conference at Macquarie University, 20-22 April 1990. In it she gave more attention to the role of history in legal education and in curriculum design.

a foundation course for the law school curriculum

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