Geoffrey Samuel has a knack for posing fascinating questions. Rethinking Historical Jurisprudence seeks to answer two: “have there been (Kuhnian) scientific revolutions in the history of law?” and “do jurists of today know more about law as a body of knowledge than jurists of the past?” (p. 2). These questions of progress and accumulation are timely, because, perhaps for the first time in two hundred years, a serious alternative to existing legal methods has been provided in the form of LawTech. To its credit, Rethinking provides direct – and highly ambitious – answers to these conundrums. The general structure of the book is a sandwich. Chapters 1 and 2 provide conceptual arguments about the nature of law as a science and the “authority paradigm” all legal systems, since Ancient Rome, are said to follow. Chapters 3 to 7 constitute a whirlwind, hundred-page tour of all of “Western” legal history, from the time of Justinian to the American legal realists and beyond; Chapters 8 and 9 conclude with a brief overview of legal theory. This sizable historical chunk provides the material Samuel supposedly uses to answer his central mysteries in Chapters 10, 11 and 12. Ultimately, however, Rethinking is more interested in the theoretical aspects of law than the historical. As Samuel himself notes, the purpose of his legal history is not necessarily to “elicit much that is new” (p. 57) but to provide a different theoretical perspective on the sources. Indeed, his history is somewhat traditional: it starts in Ancient Rome with the jurists before moving through the medieval glossators, post-glossators, French humanists, the northern law school and eventually the “scientific methods” of France and Germany (skipping even the neo-scholastics). In any event, Chapter 1 and 2 seem to provide decisive conceptual reasons to reject the aptness of Kuhnian revolutions in law regardless of the historical record. Samuel recognises this in Chapter 10 when he suggests that, in light of his earlier arguments, the question of whether legal history exhibits “revolutions” or “paradigm shifts” must be answered “fictionally” (pp. 247, 270). A better way to engage with Rethinking is to consider its theoretical arguments directly. Two aspects in particular stood out to me: first, the argument in Chapters 1 and 2 that law is not a science and therefore inapt for metaphors of scientific revolution; and second, the claim in Chapters 11 and 12 that legal knowledge is not cumulative.
Samuel opens Rethinking by arguing law as a discipline lacks several essential features required for Kuhnian scientific paradigms and revolutions. The typical objections when applying the notion of a paradigm shift to social sciences, such as anthropology or sociology, is that they have a plurality of methods, and thus no “central paradigm”. Interestingly, Rethinking suggests law (alongside theology) does have a central paradigm – the “authority paradigm” – and thus cuts off this potential argument (p. 37). Instead, Samuel suggests law is inapt for Kuhnian metaphors because it is not a science. First, it lacks a “target on reality” (p. 22) – a legal taxonomy is not a taxonomy of anything “out there” but rather concepts which are altered by the act of categorisation itself. Second, a legal model does not attempt to “describe or explain objective (real) phenomena” (p. 24). Rather, the law creates its own reality of concepts which are not anchored to any external truth. Third, it does not engage in predictions which can be validated or falsified. Nor does the law necessarily contain axiomatic terms lending it a coherence like that of mathematics. Samuel does not explicitly state why law “not being a science” – in the sense there is no verification based on experiment – means Kuhnian paradigms do not apply. One could suggest, for instance, that although law is not grounded in empirical evidence, such that experiments can be run and hypotheses generated and tested, there are still “legal puzzles” which can be solved. To give a slightly tired example, we could suggest that synthesising the various “hard” duty of care cases pre-Donohue amounted to a series of “legal puzzles”. The eventual decision of Donohue v Stevenson [1932] A.C. 562 could then be regarded as a “paradigm shift” insofar as past cases were reinterpreted in Donohue-like terms and answers to these past puzzles became either obvious or irrelevant. Likewise, cases previously useful but now forgotten or ignored – despite potentially being able to resolve certain “hard” cases today – could be regarded as instances of “Kuhn-loss”. Whether Kuhn would accept this or not is difficult to say. What is clear, at least, is that Kuhn was not a verificationist or falsificationist, and thus suggesting legal propositions cannot be empirically verified or falsified does not seem to be a relevant counterargument against law possessing Kuhnian “revolutions” (p. 270). This mismatch arises from Samuel’s eclectic use of source material. His definition of “science” is taken from Gilles-Gaston Granger (p. 21) who explicitly rejected Kuhn’s beliefs that past and present scientific theories are “incommensurable” and that linear scientific progress is therefore impossible. Chapters 1 and 2 are generally lacking in this kind of wider theoretical context. For example, Rethinking makes no reference to standard expositions of Kuhn’s ideas such as those of Hoyningen-Huene or Ian Hacking, nor does it mention the work of Kuhn’s precursor, Imre Lakatos. According to Lakatos, there is progressive development towards scientific truth, and past theories must be evaluated (“rationally reconstructed”) according to our modern, more accurate understanding. Lakatos’s model of science seems to match Samuel’s – and Granger’s – view of scientific truth and would strengthen Rethinking’s thesis of disanalogy. With greater focus on these earlier chapters, Rethinking could have provided a general account of the characteristics and features law needs to possess before scientific analogies become useful. Doing so would also have enriched the subsequent historical discussion. For example, Samuel groups both natural law and legal positivism under his unitary “authority paradigm” (p. 272), yet they clearly have different metaphysics. A canon lawyer reasoning towards divine law would surely differ from a modern appellate judge in their attitude towards relativism and truth, and thus the appropriateness of different scientific metaphors.
Samuel’s other central question is whether legal knowledge is “cumulative” (Chapters 11 and 12). As noted above, Kuhn denied there was any form of cumulation towards scientific truth (though conceded different theories might become more “powerful”). Samuel, following Granger, seems to believe there is such progress (p. 278) and, given law’s lack of a “target on reality”, the second question appears to be equally precluded by Chapters 1 and 2. Nevertheless, Chapters 11 and 12 also (alternatively?) make a historical claim that legal knowledge is static because all the tools we have already existed in Ancient Rome. Accordingly, Samuel suggests “Ulpian, Bartolus, and Domat” could, after a short “refresher course”, take up teaching in a modern law faculty (p. 274). These points are provocative, and it is undeniable law as a discipline has not developed as much as, say, mathematics or biology. That said, it seems to frame the question in a backwards way. It overlooks the fact that knowledge is often scarce and costly to produce but once discovered is easy to learn: one might equally transport Aristotle to the modern day, give him a “refresher physics course” and declare he was ready to teach in a modern physics faculty. This framing hides the long and arduous process of actually producing the knowledge. I can think of two instances of such knowledge which modern legal systems have “accumulated” and which a lawyer from the past would struggle to create de novo. First, many legal concepts are formed incrementally through experience. To the extent our problems remain similar to those before us, we rely on the basic building blocks which have been slowly tuned and developed. To put it in other words: “Ulpian, Bartolus, and Domat” would not be able to produce the doctrinal concepts of a modern legal system from scratch. This is because whilst their methods may be similar, there is no shortcut through history, and no way to simply magic out of thin air legal concepts and rules well-adapted to particular circumstances and problems. Hence why countries frequently rely on legal transplants from other legal systems rather than looking in Justinian’s Institutes for answers. Thus, in this sense there is accumulation, the extent of which depends on the lifespan of the usefulness of pre-existing knowledge. Second, Rethinking entirely ignores the fact that modern legal systems are now far more complex and intricate. A modern legal system employs more judges, at greater geographical distances, deciding more cases, of more complexity, at equivalent or greater levels of consistency, than past ones. It is extremely unlikely that an Ancient Roman, seventeenth-century French or eighteenth-century English legal system could handle the degree of complexity modern legal systems do. Nor, for that matter, would their operators be able to easily adapt them to these greater demands. Significant institutional knowledge is present in the modern legal system, including techniques and methods which are not obvious without the benefit of hindsight. Given legal doctrine is connected to procedure and the institutional framework of the legal system, and thus needs to be tailored for greater scale and complexity, this “institutional knowledge” also includes “legal knowledge” of the kind Samuel focuses on. Whilst we might deny that law progresses towards truth like science (possibly) does, this does not preclude all development: law, like engineering, is constantly inventing solutions for novel problems and needs.
Perhaps all of this is to simply say that Rethinking Historical Jurisprudence is heavy on method and theory, but light on historical context. Instead, Samuel takes several fairly categorical stances: that there are no scientific revolutions in law (or even significant changes in method across all of history), and legal knowledge does not develop, accumulate or progress. Yet these conclusions preclude many of the fascinating questions which Samuel’s work provokes. Even if legal knowledge is cumulative in some sense, is it able to keep up with other changes in society? How is this knowledge produced, and what kinds of historical conditions explain when legal practice, concepts and techniques undergo significant change? What makes certain legal techniques more effective than others for longer times: why have Ancient Roman methods continued to stay in use whilst the forms of action have been left behind? Above all, can we imagine future changes to our legal methods, and if so, can we predict how these changes will play out given past precedents of upheaval? These are the kind of questions appropriate for twenty-first-century legal studies, and the kind which Rethinking Historical Jurisprudence is so adept at provoking.
