The Legal Treatise
Oxford Handbook of Law and Humanities (ed. Maksymilian Del Mar, Simon Stern, and Bernadette Meyler), Oxford University Press, 2019
Posted: 6 Jul 2019
Date Written: July 3, 2019
The legal treatise is a subject with a pedigree. Four seminal articles by eminent legal historians have defined how we think about this particular fabrication of literary form. Writing in the midst of debates over critical analysis of law, A.W.B. Simpson identified the treatise as a common law form of summation for legal doctrine. Its rise was marked by nineteenth-century demands for a tidy form of legal thinking while the doctrinal skepticism of legal realism doomed the genre by the 1930s. Morton Horwitz underscored the importance of treatises for legal historians. In his view, the genre serves as a freeze-frame of law as it is conceived in a given moment of time. Angela Fernandez and Markus Dubber argued that the treatise was a more or less stable mixture of law as it is and law as it should be. They foregrounded the utopian dimension within the legal treatise. Christopher Tomlins identified the treatise as a legal technology with set purposes. Many of these purposes are deeply instrumental—and the very act of recordation is an exercise of power. This essay disembarks from these important contributions. Drawing upon such diverse fields as the history of the book, literary genre studies, information management, and the sociology of knowledge, it underscores the multiplicity of the treatise’s genre ecosystem. The legal treatise simultaneously serves as a site for the production of knowledge, a stepping-stone or even substitute for codes, fabricated order, a mechanism for establishing authorial authority, a professional talisman, a technic of systematizing and organizing information, a legitimization of existing norms, and a means of constructing a national jurisprudence akin to the way a dictionary might define a national language. The essay focusing largely on common law treatises of the long nineteenth-century will examine these and other purposes operating within the social context of the legal profession. How do these competing goals exist within a single literary artifact? What pressures threaten to unravel the legal treatise’s claims to monumental authority? The essay’s salient contribution will be its highlighting the importance of time. The legal treatise is a genre which simultaneously asserts its place as a summa of legal knowledge and—as the commonplace historical introduction especially underscores—will be subject to countless revisions. It is a text readied for obsolescence. Beneath the treatise’s façade of professional authority lies a profound anxiety about its own timelessness.
Keywords: Legal Treatise, Legal Historians, Common Law, Long Nineteenth-Century
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