McGILL
LAW JOURNAL
VOLYME 7
MONTREAL, 1961
Nu~mBR 3
LAWYERS AND LEARNING:
THE PROFESSIONAL AND INTELLECTUAL TRADITIONS
by Maxwell Cohen*
“Intellect is at once a body of common knowledge and the channels through which the
right particles of it can be brought to bear quickly, without the effort of redemonstration, on
the matter in hand.”
JAcqus BAuN, The House of Intellect, p. 4.
“In the United States in recent years the failure of local efforts at reforming court procedures
and the persistent clamor, shared in by men of law, against the Supreme Court, show that the
legal Intellect is, for whatever reason, at a disadvantage. Some of its troubles come from the
dominance of casualness in our mores, which makes the law seem to the ordinary citizen a
series of expensive quibbles: ‘What difference does it make what statute you convict him under
if you know he’s guilty?’ A deeper cause is the lowered standard of the linguistic power,
which accounts also for the fact that only a few judges no longer living – Holmes, Brandeis,
Cardozo –
furnish us again and again with the verbal concretions of ideas we should be lost
Op. Cit., p. 248.
without.”
The law has always been at home in both the Academy and the market
place.’ This is not to suggest that the other established disciplines are un-
It is
accustomed to bridging the leap, if any, between intellect and “life”.
only that law as we understand it in western society has had a special quality
in this continiung reconciliation between the disciplined, special and often
abstract quality of intellectual activity and the more artful, immediate and
short-run needs of the day. The locale, “western society”, must be emphasized
because there would surely be common agreement that the method and sub-
stance of the legal orders of our western culture are so identifiable in many
of their principal features that, without injustice to other experiences with
social control, in eastern or African societies, they can be described in distinctive
terms.
The existence of an “intellectual”
tradition in the study as well as in the
administration of law is to be recognized both in the civil law and the common
*Professor of Law and Acting Dean, Faculty of Law, McGill University. This paper in its original
form was presented to the 1960 Conference of British, Canadian and American Law Teachers, New
York University, September 1960.
‘This paper is not concerned with a detailed exposition of problems of legal education as such.
The writer’s views about modern legal studies in Canada, and in general, will be found in two
articles: Cohen, The Condition of Legal Education in Canada (1950) Can. Bar Rev. p. 267, and Cohen,
Objectives and Methods of Legal Education: An Outline (1954) Can. Bar Rev. p. 762; also see survey in
6 Encyclopedia Canadiana p. 112.
McGILL LAW JOURNAL
[Vol. 7
law. Indeed, among the curious features of self-appraisal in the civil law,
when civilian scholars contrast their wisdom with the common law, is the
assertion of a superior role for the “intellectual” or “philosophical” within
their system. 2 This view is “curious” because while from some aspects the
familiarity in the civil law with system and codification, and the general
continental interest in problems of legal philosophy in the broad sense, may
seem to justify so flattering a self-portrait, this estimate misconceives the
function of general ideas, the sense of style and of order, the broad as well as
highly concentrated concerns of scholarship, and the disciplines of practical
lawyership, that are all present in the common law.
Moreover, a Canadian view of the intellectual traditions in the law has
some advantages of comparative perspective because of the presence of both
the civil law and the common law as living legal systems operating side by
side in Quebec and the common law provinces. There are advantages of com-
parative perspective also within the common law itself for the common law
in Canada, while primarily English in origin, has increasingly reflected
American traditions, particularly in some doctrinal areas, in methods of scholar-
ship and professional organization and in the relations of the profession to
the public and to public business. 3
While the simple statement that there is an intellectual tradition in both
the common and the civil law systems, may need no special pleading, what
deserves some analysis is the particular character of that tradition in both
systems and the effect of such a tradition on this continuing reconciliation
between professional need and scholarly activity, between the public image of
law and lawyers and the role they actually occupy in our society. Viewed
historically both in Rome and in medieval Europe, the study of law, and its
organization into a body of manageable materials for study and development,
seems in fact to have appeared earlier than the actual emergence of a professional
apart from those persons responsible for the republican
corps of “lawyers” –
or imperial administration of justice. Certainly the civil law system as the
heir of Rome has tended to the present to give its highest accolade to the
scholar, the codifier, the teacher rather than to the advocate or the judge.
The respected names of modem French law – Domat, Pothier, Froland,
Bouhier, Boullenois, Aubry and Rau, Colin and Capitant, Demolombe, Laurent
are to be found not among judges but are embossed in gold on the covers
–
of their treatises. By contrast the great judges and advocates of the common
law were, until recently, more deeply held in veneration than the more newly
arrived –
scholars. Yet it should not be forgotten
that even in English law the great names of the law in the middle-ages and
early modern period, often are men of books – Bracton, Glanvil, Fleta, and
much later Fortescue and Lyttleton, Coke and Selden, Hale and Blackstone.
let us not say ‘arriviste’ –
2Lcvy Ullman, The English Legal Tradition, passim (1935). Amos and Walton, Introduction to French
Law (1935), passim.
No. 3]
LAWYERS AND LEARNING
But the fact that between Bracton and Blackstone barely a half-dozen can be
mentioned, itself signifies a difference in the two traditions. And after Black-
stone it is another hundred years in England before Pollock, Dicey, Anson
and one or two others established the modern English tradition of textual
writing to be carried on with such comprehensiveness and brilliance in the
United States, in the master treatises of Thayer, Wigmore, Williston, Beale
and classically, of course, in Holmes’ Common law –
although Story and
Kent preceded them to suggest that the new world might one day rescue the
common law scholarship of the old. Yet despite the genuflection made so
many years ago by Harlan Fiske Stone to the emergence of American scholar-
ship to respectability, by recognizing that the profession now had its three
branches in the bench, bar and law schools, there remains a fairly general
professional attitude –
in Canada certainly – which would tend to place the
bench and the bar perhaps on terms of equality without admitting scholarship
as a whole to full membership.
To a large extent, however, the civilian and common law points of view
about scholarship and lawyership now seems to be moving closer together.
Evidence of this general assimilation of attitudes surely is to be found in the
increasing role of the judge and case law in the civilian system and correspond-
ingly in the rise to influence and status of the teacher and his works in the
common law. Perhaps even more significant has been the considerable attention
in the common law world within the past two generations to problems of
legal theory and philosophy.
Indeed it is arguable that some of the more
important modern developments in the field of theory have come from Anglo-
American thought, notably the examination of the judicial process,4 the socio-
logical (Pound) approach5 to legal materials and the intensive studies of funda-
mental legal conceptions that, though it begins with Hohfeld’ and does not
yet end with Hart, 7 may have its true antecedents in the early Austinian efforts
to isolate and define “rights” and “duties”. Yet there is something rather
touching, in remembering how eagerly Wolfgang Friedmann’s “Legal Theory”
was greeted in 19448 when it first was published, filling as it must have done
a much-felt English need for some general view of the ideas that underlay the
main concepts of the law in western society and particularly in the Anglo-
American system.
In short, there has always been in western law an “intellectual”
tradition
that was part of, although sometimes not always entirely in accord with, the
forms and crafts of practical lawyership with which the law has had to be
3Milner, One Canadian View of the Case Method (1935) 3 Jour. Soc. Public Teachers of Law 33.
‘Cardozo, The Nature of the Judicial Process (1922); Frank, Law and the Modern Mind (1936); Lloyd,
Introduction to Jurisprudence (1959) 203-236.
“Pound, Introduction to the Philosophy of Law (1954, revised ed.).
GHohfeld, Fundamental Legal Conceptions (1923); Kocourek, Jural Relations (1927) 362-376.
7Hart, Definition and Theoy in Jurisprudence (1954) 70 L.Q.R. 37.
SFricdmann, Legal Theory (4th ed., 1960).
McGILL LAW JOURNAL
(Vol. 7
concerned as a principal instrument of social control. And this tradition in
different proportions and with a different emphasis was as much part of the
evolving common law as it long has been within the older, more refined and
philosophically perhaps more speculative civil law.
If we were to examine the civil law and the common law today in order
to determine what are the particular concerns of their respective intellectual
traditions, we would find, no doubt, that many of their interests are very
much alike. And although this is not a study of comparative intellectual or
professional attitudes in the civil and common law one or two areas of common
development clearly are recognizable.
such as the Danish Ombudsman’0 –
Both systems share today an unending concern for the relation of the indi-
vidual to increasingly powerful states. Discussions in Canada, Britain and the
United States have revealed the fresh interest all three countries have had for
the work of the Conseil d’Etat of France 9 as well as for other European devices
to assure some higher measure of
–
administrative justice than our own established procedures often may seem to
provide. Similarly, both systems are greatly intrigued at the prospect of
having their legal orders become the models for the many new sovereignties
coming fresh to the stage of history. Indeed, it is one of the ironies of so-
called “colonialism”
juridical
structures are now to be found in the ex-colonial areas, usually they are forms
created from, and steadily borrowing from, the British and French legal,
administrative and political models. Lastly, the impact of World War II on
western legal thought as a whole has been to revive an interest in “natural
law” ideas, in “justice” and the ascertainment of the “just law” not only as
a revulsion against gas-chambers and slave-labour camps – whose framework
of administration was founded on “law”‘” – but also as a reaction to the
general power of the state on the one side and the increasing “relativism” of
thought and in particular of legal thought, on the other.
that whatever usuable administrative and
The important fact is that certain views about fundamental qualities of
“law” and the general western attitude toward the legal order and its role,
scope and limitations, are shared by the civil and common lawyer. For example,
a central intellectual characteristic of the law is the extent to which it is
possible to insist upon rigorous and abstract formulation of concepts at the
same time as the consequences of such formulation must be applied instantr in
the market place. An always fascinating aspect of the law, viewed entire or
in the relations of its speculative to its operational side, is this tension between
the abstract and the immediate, between idea and implementation, between
concept and machinery. It has always seemed quite remarkable that phrases
9Schwartz, French Administrative Law and the Common Law World (1954).
“Blom-Cooper, An Ombudsman in Britain (1960) Public Law (Summer) 145.
“Rommen, The Natural Law (1947) 264-267; Simpson and Stone, Law and Society, Book three
(1949) 1608-1695.
No. 3]
LAWYERS AND LEARNING
connoting ideas over which men have fought with words and swords for
generations –
“right”, “liberty”, “good”, “wrong”, “reasonable”, “duty”
–
should require an instantaneous translation into acts, into life.
The lawyer who argues that a particular rule, alleged to be binding, is
“unjust” or that there are “rights” that are “immemorial” and “inalienable”,
or that behaviour was “fair and reasonable”, is surely asking a great deal from
both thought and action when he insists that these grand symbols find some
immediate and workable application to the dispute now before him and a
court. In the life of the law the “good” and the “beautiful” are not phrases
for a seminar but words that must carry success or failure on their backs.
Another tension that has a significance for the place of intellect in the
law seems to be the chronic misunderstanding between the profession and the
public. This phenomenon perhaps has more application to the United States
and Canada than it has to the United Kingdom or to France. For the United
States is admittedly ein Rechtsstaat, while the federal system in Canada also
commits us to a similar ever-widening role of law and lawyers in our affairs.
This misunderstanding between the public and the lawyer is of very respectable
lineage. “First, let’s kill all the lawyers”, someone says in Henry VI, and
these sentiments are not without support in our own day. Why this should be
that easy panacea to rescue the
so is not a matter of “public relations” –
Instead it seems to be a resentment against the emergence of a
unwanted.
professional class largely in control of much of the machinery of the state,
particularly where that machinery often impinges directly on the individual,
e.g. the courts. The paradox therefore in the relations of the legal profession
and the public is often obvious and painful. A highly skilled corps trained in
resolving the claims of individuals to each other, to groups and to the state,
is at the same time suspect because it appears to be the unwarranted custodian
of an apparatus in which the individual may become enmeshed, certainly to
his cost and often to his sorrow. It would be well, of course, to admit that this
custodianship often has led to abuses and it is not necessary to be a doctrinaire
Marxist to accept the general view that on the whole, despite the pretensions
of “legal aid”, the law operates more oppressively on the poor than on the rich
and lawyers too frequently become the symbols for this conspicuous social
differential.
Now, one effect of this tension between the public and the lawyers is that
the profession in North America frequently has tended to compensate for its
vulnerable status by insisting that it is not an elite, and to prove it, it often
has behaved accordingly. The whole apparatus of legal education in the 19th
and early 20th Century, in the United States and in Canada, with relatively
simple procedures for admission to the bar, seemed to be in part a determined
effort at egalitarianism in the growth of the profession and it has taken the
last fifty years of law school development to assert the significance of intelli-
gence, perspective and training as a proper basis for professional status.
McGILL LAW JOURNAL
[Vol. 7
There is one other feature that should be remarked upon here. In the popular
assemblies of both Canada and the United States, the profession often occupies
a proportion of the seats far out-numbering any other class, except for farmers
in those legislatures where the unequal division between town and country
has been immobilized deliberately in the electoral system. This percentage
posture again tends to convince the’public that too many of the centers of
political authority are in the hands of the legal profession. Yet the resentment
rarely takes the form of insisting on non-lawyers as candidates or of voting
for non-lawyers merely for the sake of expressing private or public indignation.
And so this condition of public and professional tension remains unresolved.
And while ameliorative devices may assist in the narrow public relations sense,
such as legal aid, etc., the essential sources of misunderstanding must remain.
The only difference between ourselves and yesteryear is that our affluent society
tends to reduce the material sense of difference generally between the public
and any specialized elite and to that extent the surfaces of friction may become
diluted in the wider euphoria of well-being.
Then there is the tension within the profession itself –
between the bar
and the bench, the bar and the law schools and the bench and the law schools.
Some curious intellectual problems are associated with these tensions. The
tension between the bar and the bench has both a real and a “make-believe”
content – with the “make-believe” to be found in some of the rituals of the
adversary method. The “real” aspect derives necessarily from the important
differences in their functions. Advocacy demands a special perspective on the
facts and on doctrinal formulations that subserves the needs of a party seeking
so-called “justice”. On the other hand, the judicial process represents a
‘creative” application of some presumed, “existing” rules to the solution of
disputes and there is, of course, a very considerable range of rationalizations
that in many instances can be employed to explain a decision while in others
the range may be much less. Yet the intellectual activity involved in the
process of advocacy often may be of at least the same order of magnitude as
that involved in the judicial process. Indeed, remembering the effort required
to organize evidence and clarify doctrine in order to persuade a court, it very
well may be argued that the intellectual demands in terms of precision, organ-
ization and persuasion, are often greater here than those present in deciding
cases and in drafting judgments.
If we turn to the non-litigious aspects of practice it is arguable that the
quality of effort required to pursue to the very end some complex corporate
re-organization, or any number of other challenges arising out of difficult
business transactions, demands many of the characteristics we associate with
high intellectual activity elsewhere in the profession. The tendency, indeed,
of the leaders of the bar often not to take judicial appointments derives not
only from the extreme differences in financial rewards, but very likely from
the interest they find in partaking in these challenges on levels of complexity
No. 31
LAWYERS AND LEARNING
that, when successfully met, provide much personal satisfaction. It is possible
that from the point of view of self-appraisal of status within the profession,
and of the quality of minds at work, the leaders of the corporate bar already
tend to be modestly superior in their view of the bench except at its very
highest levels and, of course, except for conspicuous individual cases of the
judicial process at its best.
In consequence the courts of Canada (and doubtless of the United States)
face the continuing difficulty of recruiting not always the very best, but often
the second best and the judicial tradition suffers accordingly. Moreover, the
tendency of the bench and the bar to compensate psychologically for the natural
distance they must keep from each other by engaging in considerable social
relations has resulted in recent years, in Canada at least, in members of the
judiciary becoming increasingly active in general professional bodies such as
leading to a
the Canadian Bar Association.
useful exchange of experience, which it may do frequently, it also may result
too often, in subtle forms of inhibition on the part of the Association, when-
ever it ought to take a stand, because the presence of a high judicial person,
in some executive capacity, may discourage it from doing so.
Instead of this “togetherness”
The effect of these various processes has been sometimes to down-grade the
judiciary in contrast with the influence and status of leaders of the bar, parti-
cularly those from great urban centers and with large and varied corporation
and business practices. Then, too, the ancient sense of oracular remoteness
that ought to surround the bench is drained away without any “compensation”
for this loss and when there is added to excessive familiarity the reluctance of
some of the best minds to accept judicial appointments, some undesirable
consequences may follow for the legal order and for the profession.
The tensions between the bench and the law schools, however, tends to
derive in part from a curious mixture of judicial respect with annoyance as to
the role of scholarship as the new final “court of appeal” in reviewing the
activities and decisions of tribunals. It may become particularly acute where
the language of case-notes written by law students is not a wholly respectful
one. It is not difficult to understand the irritation which arises when the Court
of Appeal of a province finds itself condemned in round undergraduate tones
for a judgment particularly when the author of the decision himself regarded
it now as the locus classicus for the issue decided upon. While all of this is good
fun it does not necessarily create the optimum of relaxed relations; and even
here at McGill, we have had the experience of a senior member of the judiciary
complaining that such a practice in the McGill LawJournal was quite improper,
particularly where the criticism was levelled at his own judgment.
There is, of course, a subtler and more important basis for the tension
between the bench and the law schools in the common law provinces of Canada
and the United States at least, and that is the slow replacement, in the profes-
sion’s mind, of the bench by scholarship as a source of doctrinal wisdom.
McGILL LAW JOURNAL
[Vol. 7
The process has been much more rapid in the United States than in Canada, at
least to the extent that there are a dozen or more contemporary names whose
words command as much or more authority as that of many appellate or trial
courts.
In Canada the “rivalry” still stands quite heavily in favour of the bench.
Partly this may be the fault of scholarship in Canada, due to its neglect as yet
to introduce both critical and non-critical works of sufficient importance to
become standard texts. But in the common law provinces the original British
inhibitions in Canada are sufficiently deep, with memories of the remoteness
and seniority of the bench lingering on in the mind of the law teacher, to
prevent scholars from speaking always with the bluntness that has become so
characteristic of much United States legal writing and sometimes of similar
comment today in the United Kingdom. Indeed, there is no one in Canada
who is read with the respect and concern for his approval that British judges
seem to accord Professor Arthur Goodhart whose notes in the Law Quarterly
Review for a generation now have enlivened and enlightened –
and perhaps
occasionally annoyed –
a proud and powerful bench. Such respect, of course,
in the end is a tribute to intellect.
If there are some tensions between the bench and the law schools in Canada,
these have been even more acute, until recently at least, between the bar and
Indeed, if there is any area where the role of intellect, its
the law schools.
respect for precision, for effort, for the fullest mastery of skills, for the arts of
communication, tends to create difficulties, it is in the generally modest ap-
proach to the function of intellect which some sections of the bar seem to hold
in appraising the requirements of professional activity. Here again, of course,
there may be a substantial difference between appearance and reality. The bar
in Canada, again until recently, has tended to view the law schools not only
primarily but almost exclusively as a source of training for the profession and
thus the value placed upon research and scholarship generally has been a good
deal less than that placed upon professional preparation. This may not be
altogether unnatural since, obviously, training for practice must be a primary
reason for the establishment of a law school –
although for generations the
Europeans and the Latin Americans have had their law schools serving far
more broadly-based purposes.
Nevertheless, this very “professional” approach to law schools and scholar-
ship has been more acute until recent years in Canada than the corresponding
situation has been in the United States, Australia and in the United Kingdom
– at least in the established centres of legal scholarship at Oxford, Cambridge,
London and Edinburgh. While on the continent the issue of scholarship versus
professional training really has never seemed to arise in the same form as we
side of European legal education tended
know it, since the “professional”
always to be subordinate historically and technically to the primacy of legal
studies as a university discipline.
No. 3]
LAWYERS AND LEARNING
The reasons for this rather late acceptance of scholarship by the bar in
Canada is not difficult to find. It is rooted both in a colonial and vocational
viewpoint and also in the rather primitive arrangements for training and
admission to the bar which existed in many Provinces up to, say, 192012 and
which, with slight improvements, remained in an unsatisfactory state until
the last thirty-five years. Today there is substantial agreement in the profes-
sion that legal education deserves the attention, respect and support of the
bar; that law schools exist not only to train for the profession but also have
general obligations to scholarship, to the progressive development of the law
and to the wider intellectual community as well.
Indeed, since 1945, it may be argued that important alterations in the
structure and intensity of legal education have taken place in Canada and this
is paralleled, if more slowly, by the acceptance by the bar of the law teacher
and the law school as “separate but equal” entities, even if “equality” here
has not the fullest ring of acceptance as yet. Yet it must be admitted that some
of the difficulty is to be found in the inability of law schools and law teachers
in Canada to command, by their own scholarship, the fullest respect of the
profession at least in so far as that command would be invited by important
works of use to the bench, the bar and other scholars.
Nevertheless, beneath this older resistance to the intellectual role of law
schools and teachers is the reality of the professional appreciation of “intellect,”
to the extent that intellect expresses itself in the most senior demands of
advocacy or office practice. The tendency already is evident in the encouraging
attitude of the bar toward student editors of law journals and those with
first-class records even where in Canada these exercises and measurements are
relatively new. Yet the paradox and the tension remains. The bar in many
Provinces maintains a close concern as to professional training programmes and
desires to have them improved by stiffening the requirements of admission to
the bar itself. At the same time the bar seems not quite clear yet in its own mind
that the scholar and teacher deserve either in status, in power and in pay, a
senior place in the professional community.
There is another area of tension that directly derives from an appreciation
of the role of intellect in the law. And, significantly, this is to be found within
the law schools, within scholarship itself. While the pressure of numbers of
applicants has encouraged the improvement of standards for admission to law
schools, it is no doubt arguable that in Canada, at least, there are not a few
admitted to schools and to the bar whose academic qualifications and intel-
lectual equipment are excessively modest. Here a school faces serious problems
of determining how far its standards should be pressed in the service of creating
a true elite. It is possible that such a view may do a disservice to the practical
needs of the profession itself where a large spectrum of competence, viewed
intellectually, may be desirable for its day-to-day requirements. Some years
12Cohen, supra note 1, The Condition of Legal Education in Canada, at page 266.
McGILL LAW JOURNAL
[Vol. 7
ago, it was argued by an English law teacher in Canada, that a very large
part of professional activity requires only a certain level of intellectual achieve-
ment, and indeed, a temperament and personality able to meet the rigours of
litigation or the patient needs of negotiation, were qualifications as desirable
as intellect. We are here in a very difficult area of analysis. The subject is as
old as the I.Q. tests and the answers remain as unsatisfactory as ever. One
thing is clear, however, and that is no matter how strenuously the Canadian
law schools may teach and strive for an “elite”, the mean averages of Canadian
life are likely to press their results downward towards some less ideal goal
and it may be that this is not only inevitable but not altogether undesirable
considering the varied and unpredictable factors involved in successful profes-
sional activity.
Let us turn away from tensions of this nature which are partly adminis-
trative, to some doctrinal and methodological tensions that have intellectual
implications of some significance. There is hardly a law teacher in Canada
that has not been affected by one or all of the three main currents of theoretical
interest in the law to which I have already referred –
the judicial process,
the sociological approach to legal materials in general and the new analytical
and linguistic concerns that run from Hohfeld to Hart. It is interesting to
contemplate the significance of these three developments from the aspect of
intellectual experience in the law. Most of us would agree that in its essential
preoccupation with the judicial process the American “Realists” on the whole
have had a constructive influence on our approach to legal phenomena. But
what is not discussed with candour is the looseness in analysis that often
comes from making too broad assumptions of unpredictability in the law. It
is arguable that just as the mechanical rigour of the older teaching and analysis
led to a kind of “slot-machine”
theory of judgment-making, so this pre-
occupation with “gastronomical
jurisprudence” may have led to glorifying
the “uncertainty principle”
to the point where rules and their inhibitions
become really meaningless counters.
In Canada a good deal of professional
naivete may still persist with respect to logic and the law, but at the other
end of the scale there occasionally may appear an almost dramatic judicial
candour which is prepared to assert that the ultimate source of a judgment is
essentially visceral rather than cerebral. Who can be certain that the Realists
have not done some disservice to the cause of analytical rigour even though
they have prevented us from treating the law as mechanical “mortis”. In any
case one of the paradoxes of the Realist approach may be a denigration of in-
tellect by implication even though this view may employ the new insights into
the human psyche that are themselves among the high achievements of intellect.
While, for some time, the sociological approach to legal materials has been
fashionable, and rightly so, it is also arguable that one of the consequences of
being so concerned with the social setting of the law and of rules in action, is
to divert attention from rigorous conceptual analysis within the system itself.
No. 3]
LAWYERS AND LEARNING
The “facts” become more “scientifically” relevant than the abstractions into
which they are supposed to fit. Again it is a very nice question how far the
Sociological school has weakened the interest in precision, “mechanical”
though that precision may have been in so much of traditional legal analysis.
Doubtless it can be urged that the same rigour is demanded by sociological
technique and that intellectual standards are not at all affected by the distrac-
tions of a social narrative.
Finally, and perhaps most relevant to present-day philosophical fashions,
are the consequences for the intellectual pretensions of the law as a discipline of
its continuing interest in the problems of language and the belief that conceptual
refinement can lead to a degree of certainty and hence a higher degree of pre-
dictability in the forecasting of jural results. What is significant here, perhaps,
is the easy borrowing of legal scholarship from the best that has been done
elsewhere among those interested in language and logic, 13 and also the difficulty
of applying the results to professional needs. It is surely significant that
though Hohfeld’s work is now almost two generations behind us and Kecourek’s
amendments are almost as old, their impact on professional linguistic usage
has been rather limited –
and this is true despite the extent to which some
of the authors of the American Restatements have been influenced by these
refinements.
In Quebec and elsewhere in the civil law world, few have at-
tempted to apply these technical language tools to the problems of definition
and analysis. The truth is that we see here perhaps as clearly as anywhere,
the reluctance or rather the resistance of law, viewing the needs of the market
place, to being dominated by the Academy. The market is too colourful, too
varied, too noisy, too common, to be entirely comfortable with the grammarian
and his kin. In the house of intellect the law bears evidence of its varied lineage
and service and though it respects and absorbs the high products of intellect,
it converts them of necessity to a much broader range of mundane uses.
Yet in the process of conversion there is the danger of debasement. What,
however, may rescue the dignity of law, and its power to persuade, from the
attack of the mob is, at least, style, almost as much as “justice.” And it is
here that compromises with the market may call on occasions for a price the
law ought not to pay. How, therefore, to provide each generation of law and
lawyers with their varied linguistic and administrative needs that join intellect
and market in a workable union becomes the main task of professional states-
manship and legal education. But at the core of professional and educational
policy must be the breeding and encouragement of at least a few men of the
law whose “. . . linguistic power” as Barzun has said “. . . furnish us again
and again with the verbal concretions of ideas we should be lost without.”
13Flcw, Logic and Language (First and Second Series) passim; e.g. Hart, The Ascription of Responsibility
and Rights (First Series) 145.
