Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 22 May 2012

On legal treatises

In spite of their undoubted importance legal treatises have been somewhat neglected by scholars and historians. The dominant understanding of the importance of the treatise was established in a article published by celebrated legal historian AWB Simpson in 1981. In this he argued that treatises should be understood as a distinct form of legal literature that emerged over the course of the eighteenth century, the distinctive qualities of which were that it sought to identify the principles that should structure the law in a particular area and thereby reveal (or impose) a kind of doctrinal unity on the area of study. For Simpson this was traced in particular through the emergence of areas such as contract or property as distinct principled fields within the common law as a whole.

This view has now been challenged in a collection of essays published this month. While paying tribute to Simpson's groundbreaking work, the essays make two main points. First, the contributors show that the treatise could take many forms, and that not all treatises could fit easily into the template described by Simpson. There is more emphasis in these essays on the kinds of functions that treatises were expected to perform and who they were written by: were they aimed at students or practitioners? Were the authors judges or magistrates, or just hard up barristers trying to make a bit of money on the side? The answers to these kind of questions are often linked to the kind of literature that was produced, and suggests that many authors did not have the systematising ambitions identified by Simpson. Second, by looking at treatises in a wider geogrraphical context than just England - the essays cover the US, Canada and Scotland, as well as England -  it shows that they played a range of different functions often depending on how developed legal institutions were in that particular place.

It would be wrong of me not to declare an interest in this - I wrote one of the essays in the book (on nineteenth century criminal law books) - but even so, this is still a tremendous collection and definitely worth a look.

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