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Commentary: Effects of Scale: Toward a History of the Literature of Law

07 Nov, 2015 GENERAL LAW

Commentary: Effects of Scale: Toward a History of the Literature of Law


CHRISTOPHER TOMLINS*


LIKE THE EDITORS of this volume, Angela Fernandez and Markus Dubber, I think it appropriate to begin with the ideas that sparked the October 2010 Toronto Workshop, ‘The Treatise in Legal History’, where most of the chapters assembled here first saw the light of day.


In 1976, Morton Horwitz offered pithy, pungent observations on ‘the importance of legal treatises for research in legal history’.1 The treatise, he held, was an essential but sadly neglected source for legal history.2 By comparing successive editions of treatises, scholars could chart transformations in legal doctrine. The first appearance of a treatise in an area of law was a marker of especial significance: ‘when the first treatise in a particular field was written . . . is almost always an important clue to when a specific subject area has begun to crystallize’.3 Hardly known in the Anglo-American legal world before Blackstone’s Commentaries, the rise of the treatise was attributable to nineteenth-century jurists’ ‘deep and mystical devotion . . . to the proposition that law was a science and that most of its basic problems could be solved through the intensive application of reason’.4 Common lawyers’ faith in the law’s capacity to correct itself led them to use the treatise as a scientific systematising device, a trump played repeatedly to ward off codification’s threat to the juridical elite’s monopoly of law-making. The decline of the treatise in the twentieth century was attributable to Legal Realism’s determined twentieth-century corrosion of that faith. Horwitz’s conclusion – that ‘a history of legal treatises is the single best way to grasp the structure of growth and decline in various areas of . . . law’5 – was shaped by his own developing interests in writing legal history as intellectual history, ‘the rise and fall of paradigm structures of thought’, a project that over the following 15 years would solidly identify ‘critical legal history’ with the history of legal doctrine.6


Characteristically, Horwitz’s comments are both keenly perceptive and somewhat narrowly drawn. First and most importantly, they emphasise the functions of the legal treatise rather than its form. The treatise, for example, was a neglected source for the writing of legal history, not itself a subject in legal history. Second, in so far as they consider the form, Horwitz’s comments define the treatise as a rather particular kind of artifact – a work of scholarship produced by scholars motivated by a deep belief in ‘the logic and internal consistency of legal doctrine’ who engage in the reproduction of that belief through ‘compilation, classification, and systematization’.7 Horwitz evinces both a genial contempt for the belief system that produced the grand treatises of the nineteenth and early twentieth centuries and a certain wistful regret that the contemporary legal scholar could put nothing in the treatise’s place other than ‘mostly worthless casebooks.’8 Considered simply as a legal monument, Samuel Williston’s 1920 Treatise on Contracts (which Horwitz identifies as the last of its kind) appears to haunt its critic.


Many of the individual authors in this collection have been informed by Horwitz’s short essay; collectively they have avoided its limitations. Here, the legal treatise has been examined carefully in form as well as function – indeed, the interrelationship of form and function is a key theme. The definition of ‘treatise’, collectively adopted here, too, is roomy – these essays traverse virtually all forms of legal literature other than case reports. Though considered by some to belong in the genre of ‘institutes’ rather than treatises, for example, Blackstone’s and Kent’s Commentaries are both here (Parker and Girard). So are classic early nineteenth-century American ‘first’ treatises like Tapping Reeve’s The Law of Baron and Femme; of Parent and Child; of Guardian and Ward; of Master and Servant; and of the Powers of Courts of Chancery (Fernandez) and later jewels of the genre on its way to dominance like Story’s Commentaries on Conflicts (Baker). So are the familiar multi-edition classics of English law, many now well into their second century, such as Pollock’s Principles of Contract at Law and in Equity and Anson’s Principles of the English Law of Contract (Waddams). But so are an obscure Justice of the Peace (JP) manual from Nova Scotia (Phillips), Thomas Macaulay’s Indian Penal Code (IPC) (Wright), commission reports (Wright), assorted handbooks, digests and abridgements (Farmer) and even a glimpse of a law dictionary (Farmer).


Many of these forms of legal literature have been ruled out of the definition of treatise by earlier commentators (and indeed by some of this collection’s authors in their individual capacity; for example Fernandez, Phillips and Campbell). Thus, the late Brian Simpson argued in 1981 that a treatise ‘is a monograph, purporting to deal only with a single branch of the law that is conceived of as possessing some quality of unity’, or in other words not comprehensive, and that ‘involves mainly substantive principles’.9 Blackstone’s Commentaries do not qualify; nor, it goes without saying, does a JP manual or a law dictionary. As Fernandez and Dubber affirm, however, it is advantageous to avoid too precise a definition of the object of our attention, and not simply because breadth accommodates the inevitable catholicity of a collection of essays. Breadth of definition allows us access to the quality of intertextuality that underscores the significance of the treatise as artifact. Treatises, it is clear, are conjoined with a wide variety of legal and other texts – successive editions of themselves, other treatises both foreign and domestic, case reports and statutes, reports of legislative hearings and debates, aids to practitioners and students. They exist in a world of newspapers, pamphlets and broadsides, testimony of local custom and knowledge, and literary works. They interact with a diversity of social and economic circumstances, political and religious movements, and ideologies. Whether in itself or in the companionship it seeks, the legal treatise cannot easily be contained within a single textual genre.


Like all other categories of legal text, treatises are sites for the production of knowledge; legal knowledge primarily, but even the most arid legal knowledge is hybrid – that is, it can be accounted historical, political, sociological, anthropological and economic knowledge too. And like all processes of knowledge production, the production of legal knowledge charts power and simultaneously seeks truth. As Mariana Valverde writes, ‘if knowledge is power, so, too, are power relations also knowledge relations, truth relations’. She continues, ‘if power works through knowledge, it should prove useful to undertake an examination of . . . legal events and processes that highlight the knowledge dimension.’10 We discover from these essays that treatises represent a highly refined process of legal power-making and truth-seeking, a process that attempts to strain out as much of the clutter of quotidian discourses and competing knowledge forms as possible in the interests of creating a discrete expertise through which power can work that instructs how legal subjects are to be positioned on a given terrain in order to obtain a particular outcome.11 We also discover that in enacting the specifically legal epistemology that appears to call them forth and to determine the form of knowledge they embody, treatises simultaneously ‘act’ in a rather different way too, as strategic interventions in the ‘constitution, contestation, and circulation of truth in law or in respect to law’.12 It is this combination of roles – the epistemological with the strategic – that the editors capture in their description of treatises as ‘law books in action’. Collectively, finally, these essays confirm Valverde’s contention that ‘[t]he epistemological workings of law . . . cannot be reduced to any one general thesis. Different fields and situations exhibit different logics’.13 What matters most, we will see, is the scalar point in legal practice and culture at which the intervention that a treatise is designed to make takes place.14


We begin with Blackstone’s Commentaries on the Laws of England, not because the Commentaries are the ur-text of the Anglo-American common law world – they are, although chronologically the honour belongs to Thomas Littleton’s Treatise on Tenures –15 but because, as Kunal Parker brilliantly demonstrates in his chapter ‘Historicising Blackstone’, the Commentaries have been a lively presence in that world ever since their first appearance in 1765–69. The question is how, and why. Like many of the treatises described in these chapters, the Commentaries have lived on after their first appearance and after their author’s death in the form of continuous reinvention by successive editors: shaping and reshaping, cutting and replacing, revising, updating, brutally manhandling, retrofitting the original text – each successive iteration cancelling, as it were, the predecessor, attempting to consign it to death, assuming to itself the life-claim of the text, which continues to exist whether as Argo or as palimpsest continually erased and rewritten, so as to take over the work’s soul. Parker contemplates a history of this process that would be told according to an artifact’s transit from a state of active liveliness – as determined, for example, by the artifact’s capacity to be of ‘use’ in the contexts into which it is inserted – to one of passivity, a representative of ‘style’, measured by its aesthetic rather than its practical qualities. He does not deny the truth of such an account. But he wishes to add to it a more disturbing observation; disturbing, that is, to historians who almost invariably assume that history is about change. He wants us to consider how the Commentaries have remained the same over time, and how, by obstinately remaining the same, resisting change, they require that we find ways to incorporate sameness and repetition – recurrence – into the project of writing a history of the legal treatise.


The Commentaries did not emerge out of thin air, but given the almost complete absence (apart from Littleton) of anything like them in English common law since the De Legibus, it seems worth considering how they came to be written in the first place.16 Here Simpson assists us, for he points to Blackstone’s foreignness to English common law, his civilian training and consciousness, as the source of Blackstone’s extraordinary capacity to ‘fly high’.17 Becoming Vinerian professor, Blackstone the foreigner to the common law wrote the Commentaries to take English law into his charge. He could do so, it seems to me, unmuddled by the fears or favours of the common lawyer, which he had not imbibed, and thus produced Commentaries breathtakingly free of the common law’s messy chaos, a renovation of the old Gothic castle for a new inhabitant (himself). Parker shows that Blackstone’s remodelled common law was in its turn successively remodelled, in part regularly to restate it in light of new developments, but perhaps also in the service of reclaiming this civilian-inspired disquisition for common lawyers, by common lawyers.18 Hence the cascading encrustations of new material barnacled onto and into Blackstone’s spare, lean prose, successive attempts to complete the Commentaries by both updating and localising them, each rendered obsolete by the next. In England and in America, the Commentaries were turned from civilian institutes into something desperately attempting to be a practice manual.19


As obvious, perhaps most obviously in the United States, the Commentaries also became the bearer of successive legal-political ideologies, at first of law’s progress and plasticity, later in the post-Civil War hands of Cooley and, later, Hammond of what look like ‘germ’ theories of legal origin and continuity.20 It is significant, I think, that it was at this point that commentary on Blackstone’s style began to surface in the United States to moderate the relentless updating of the text. As Parker argues, style was a signifier of sameness – of recurrence rather than difference, of endlessness. To this point the Commentaries’ primary role as textual artifact had been as utilitarian bearer of successive layers of difference, through encrustation. I should like to propose that style – continuity and sameness – can also be understood as a form of use, one of considerable importance in the Reconstruction/post-Reconstruction United States. The fetishisation of Blackstone’s style is a stance against a certain kind of plasticity or difference, for a way of understanding history not as change but continuity.21 At a moment of revolutionary upheaval in the American republican polity, Blackstone becomes Burke. Style becomes useful. In point of fact, Parker argues, Blackstone’s style had always been remarked upon, the point was always present. The separation of style from utility as distinct phenomena, however, does allow one to raise the question, what if we instead thought of them as competing uses representing the tension of sameness and difference, continuity and change constantly at odds with each other – often a competition plainly on display within the same editor (for example, Henry St George Tucker)? In short, Parker’s journey from style to style is also a journey from use to use.


Let me make two final points, distinct but related. First, Blackstone’s style was of course the measure of his enduring uniqueness; it was grounded in his civilian foreignness, which could not be completed by any common lawyer. Even Bentham could praise Blackstone’s style, perhaps confident that no successor common lawyer could perform the same feat. The common lawyer’s inability to complete Blackstone helps explain the Commentaries’ longevity. It may even explain the eventual decision to produce the text anew in its original pristine form.


Second, one of the uses of style in the Commentaries, it seems to me, is to achieve sameness in the form of translocality. It is clear that the Commentaries have enjoyed an enormous and enduring hold throughout the common law world in good part because of this particular instantiation of sameness, a common template into which the many provincial localities of the Anglosphere could plug their particularities. Philip Girard details precisely this phenomenon in his description of the localisation of Blackstone in the provincial law of late nineteenth-century Upper Canada.22


Girard’s essay comparing the work of Blackstone, Kent and Beamish Murdoch performs as something of a hinge in this collection, in that it enables us to address the transition from ‘institutes’ to ‘treatises’ – or more precisely to register their comfortable intertextual coexistence. Though the first half of the nineteenth century is generally thought of as ‘the rise of the treatise’ as a distinct form of legal text, Girard contends that lawyers needed both institutes and treatises, and that the ‘pantheistic’ legal culture of the nineteenth century afforded ample room for both.23 As I have already noted, the work of other authors here adds multiple additional genres of text to the Anglo-American legal universe.


Girard illustrates the continued salience of the institute genre by discussing three institutional works of marked significance: Blackstone’s Commentaries, Kent’s Commentaries on American Law and Murdoch’s Epitome of the Laws of Nova Scotia. Though institutes and treatises blur at the edges in Girard’s account, become interchangeable, in at least one important respect the institute stands out, meeting a ‘need’ for texts that undertake to call a society’s legal character into focus. Institutes, I have argued, fly high. They aspire to convey law ‘in its historical, political and cultural context’,24 creating legal knowledge but also embedding that knowledge in legal culture – or in Valverde’s terms, in power relations. Girard underscores the strikingly different cultures of power apparent in the three works: Blackstone’s common law culture was a national culture embedding the ascendancy of a WASP ruling class; Kent’s was a defensive Whig barricade against Jacksonian democracy; Murdoch’s a broadly-inclusive settler legal culture that denied the ‘barely human’ indigenous Mi’kmaq membership in its ‘community of shared civic values’.25 In each case the institute form enables the author to splice law into context in a fashion that creates an identity between them – law fused with the cultural landscape of choice in such a way as to naturalise it.


Girard’s conclusions grant the first glimpse of the theme to which I have already adverted, and which other chapters will also allow us to explore, namely that the textual formulation of legal knowledge is also a strategic intervention in the formulation/reformulation of the scale of law. Each of Girard’s authors chose a level of legal practice and culture at which to intervene to maximise their effect, the national (Blackstone, Kent), the provincial (Murdoch). In Blaine Baker’s chapter we find Joseph Story doing the same. Story, Baker tells us, had a ‘knack for seeing the architectonic structure of legal systems’.26 And like Girard’s authors, Story’s ‘seeing’ was an act of creation rather than discovery, for as Baker goes on to recount, Story’s legal architectonics clearly valorised a specific vision of legal culture – in his case a national culture built on ‘the sovereignty and vested rights of individuals’. For Story, ‘citizens and not states were the building blocks of his Republic, and institutions like the Constitution and the federal courts were said by him to have been conceived as the primary guardians of patrimonial and contractual entitlements’.27 Here was a decidedly strategic intervention, an architecture for legal knowledge that spoke against the ‘virulent states’-rights agitation that nationalists like Story regarded as a threat to the new Republic’,28 that marshaled legal science in the service of neutral (self-effacing) presentation of a specific legal culture as if it were a natural occurrence.


Story, says Baker, was not the inventor of the treatise. His nine ‘plump’ texts (a delightful adjective)29 nevertheless mark an important moment of innovation in the legal history of the antebellum republic. Unsurprisingly, they included many ‘firsts’ in their number. First treatises were granted a particular significance by Horwitz in 1976. The subject is taken up again here by Roman Hoyos in his chapter on JA Jameson’s 1867 treatise, The Constitutional Convention.


Whether intentionally or not, Hoyos slightly modifies Horwitz’s theory, as it were, of the first treatise. Horwitz said its appearance was ‘an important clue’ – a sign – ‘to when a specific subject area has begun to crystallize’. Hoyos, more directly, says a first treatise ‘mark[s] the crystallisation’ of a subject area.30 I think there is an important difference here, not just of emphasis, but of function. Is the treatise a sign of crystallisation or its seed? Crystallisation may be a useful concept – but what is the precise nature of the phenomenon, and what is the precise relationship between a first treatise and the phenomenon of crystallisation?


Hoyos answers these questions historically. In the American case, the early treatise writers – notably Story – were engaged in a project of ‘“rationalising” and “systematising”’ the common law, reinterpreting it in light of the changes wrought by the American Revolution, and in creating an orderly common law vision, not only of law, but of the republic and its market economy as well.31 Hoyos employs the pregnant and deeply useful idea that treatise writers created an ‘underlying metaphysics’32 of law – an American legal science – which, through ‘the fabrication of dis/order’ conjured law into existence in particular configurations and simultaneously disciplined (or policed) its use, ‘governing the behaviour of legal actors, like justices of the peace, judges, legislators, or convention delegates’.33 All this makes a great deal of sense. In particular, Hoyos allows us to pursue further the question at which Girard hints, the question of scale. The thrust of Horwitz’s formulation notwithstanding, crystallisation of law is not some naturally-occurring process that a first treatise writer observes and records. The treatise writers did the crystallising. They did it to alter law’s state – to create translocality and uniformity and rights-bearing individuals in the place of the locality and plurality and community that, Laura Edwards has recently shown, was both the post-revolutionary state of law and its prevailing condition.34 This is a contest over the scale of law and the locale of authority, a contest that Hoyos demonstrates was consciously recognised by treatise writers, at least if Joel Bishop is any guide in defining treatise writers as that ‘class of legal persons, whose especial duty it is to give reasons’, and whose product was ‘an orderly statement of those principles in which the law consists’.35 Law, of course, exists at many different levels of scale; and so the issue is not one of rationalising a single domain of action but of exalting (indeed creating) one level of law over, or in place of, another. The underlying metaphysics of crystallisation are metaphysics of removal, almost invariably upward.


The chapters in this collection show that treatise writers had many motives – desires for income, career advancement, professional jealousy and so forth all stimulated the production of treatises. Hoyos suggests that an accumulation of material was an important precondition of their crystallising activity, and that from accumulation emerged a will to create order out of perceived disorder. Disorder, of course, lies in the eye of the beholder: in the American case, disorder was indeed an outcome of rapid accumulation of legal materials, and of a widening circumference of communication, but also of an absence of any systematic record of local or provincial law. What was the law? Only the locality knew. The default was transatlantic – unacceptable to the locality, particularly after the Revolution. But although some writers desired to record locality – George Webb is one example before the Revolution, Zephaniah Swift the main example after –36 overwhelmingly locality per se was identified with disorder. As the chapters by Fernandez, Girard and Baker show, Reeve, Kent and Story all deprecated multiplicity and provincialism and sought generality at a high scalar level of abstraction and interconnection, which they imagined and invented for themselves. In the same vein, Theophilus Parsons deprecated texts on maritime law that ‘treated severally and disconnectedly, topics which in themselves were closely connected and needed the mutual illustration they could give each other’. The law of shipping and of marine insurance, for example, ‘could not be learned fully and accurately excepting in their connection’, even though ‘these topics had been heretofore regarded as in so great a degree isolated and independent’.37 Parsons’ second assertion proves the lie of his first. Clearly shipping and marine insurance could be understood in isolation, because they had been. Parsons’ ‘connection’ was not a clarification but an invention. Similarly, early nineteenth­century projects of manuscript statutory recovery and publication (for example William Waller Hening in Virginia, Thomas Cooper in South Carolina) created an authoritative corpus of provincial law at a scale that could supersede locality.38


‘Crystallisation’, therefore, is an induced process, the product of intellectual labour, ‘the fabrication of order’.39 How much so is demonstrated by Hoyos’ specific example, Jameson’s Constitutional Conventions (1867). Jameson did not react to an accumulation of material, observe incipient crystallisation under way, and record it. He invented the law of constitutional conventions.


The significance of Jameson’s move to bring the constitutional convention ‘within’ law is clear, given the history of the convention. From ratification through the controversy over the Alien and Sedition Acts,40 attempts to redress the Yazoo land fraud,41 serial acts of state formation, the Nullification crisis,42 the Dorr War,43 Bleeding Kansas,44 and secession, the constitutional convention had been the embodiment of the sovereign people, ‘beyond law’s horizon’.45 Conventions, being extra-legal, were by their very appearance disorderly, ill-defined. But, in addition, much of their active history had been one of popular disorder. Jameson fabricated that disorder into something more purposeful, a taxonomy of conventions that loosened their claim on sovereignty by confining sovereign action to a single and rare species of institution, the revolutionary convention, that was, by (his) definition, an extra-legal expression of sovereign violence. All other conventions became subaltern institutions, merely one functional department of constitutional government among many.


In nineteenth-century US terms, the underlying metaphysics of Jameson’s project appear as a continuation of those of the earlier Federalist project of reducing all to law, relocating law in the hands of juridical elites, and resituating it at a remove from the locality. (This was not, Edwards demonstrates, exclusively a Federalist project by any means.) 46 Jameson’s particular motivation in ‘de-institutionalising and disembodying the people’,47 Hoyos suggests, lay in the use of the convention as the means to engineer Southern secession. It is worth noting, however, that his doctrine of limitations was pressed into service to discipline Reconstruction-era conventions.48 Just as I have argued that Cooley’s and, later, Hammond’s turn away from the material retrofitting of Blackstone’s substance emphasised an interest in a supervening legal continuity, in sameness over change, so Jameson supplied the means to establish additional modes of disciplining the people and their agents.


There are important resonances, it seems to me, between Roman Hoyos’s chapter and that of Angela Fernandez. Fernandez discusses another first treatise – Reeve’s Law of Baron and Femme (1816) – and asks essentially the same question of it: what are the underlying metaphysics of law as refracted through the legal consciousness of Tapping Reeve?49


Fernandez’s curiosity is aroused for quite specific reasons. Why did Reeve countermand Blackstonian wisdom, itself grounded in Coke Upon Littleton