Stern on the Analytical Turn in c19th Legal Thought

Simon Stern of the U of T Faculty of Law continues his breakneck pace of published research with The Analytical Turn in Nineteenth-Century Legal Thought, just posted on SSRN. Here's the abstract:

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.

The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.

Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science

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Simon Stern on case law and detective fiction

When we launched this blog, Jim stated that our mission was to highlight Canadian legal history. Which leads to the question of today--is legal history by Canadians, but not specifically about Canada, 'Canadian'?  TV, movie and book awards have this problem in determining eligibility as well. They tend to err on the side of inclusiveness, so I will too (until vetoed by my co-editor--we haven't discussed this.)

Simon Stern's recent paper, "Detecting Doctrines: The Case Method and the Detective Story," posted on SSRN in the accepted paper series (and forthcoming in the Yale Journal of Law and the Humanities, vol. 2, no. 2, 2011, complicates the 'Canadian' criterion. Simon, as many of our readers know, is on the Faculty of Law at the U of T, where he teaches legal process, ethics, and the legal profession, as well as legal history. He also co-chairs the Law and Humanities Workshop.  His legal historical interests tend to the historical aspects of the Law & Literature subfield (or vice versa).

Intellectual history, and certainly Simon's research, tends to the transnational, but is often relevant to Canadianists, even if indirectly, as extrapolating on the traditions of the common law world to which our jurisdictions belonged. This paper fits that category, and is interesting to boot.

Here's the abstract:    

Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction’s asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell’s work in geology and Charles Darwin’s work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.

This essay explores those connections by considering various historical and structural analogies between the case method and the detective story. Part I takes up the changes in legal education associated with Christopher Columbus Langdell at Harvard, and discusses the intellectual roots of the case method, the justifications offered in its support, and the narrative tendencies that it relies on and promotes. Part II turns to the origins of the modern detective story near the end of the nineteenth century, and shows how the genre developed from the same scientific background as the case method. This section then examines in greater detail some of the ways in which case-method pedagogy may be said to cultivate the same habits as detective fiction, and concludes with some examples in which courts have expressly invoked the analogy to describe their own procedures or have crafted doctrines with the aid of propositions borrowed from detective stories. Part III considers some examples of detective fiction, pursuing the analogy further by asking why lawyers often figure as detectives in these stories. Finally, in a short conclusion, I discuss the analogy’s implications by considering the emergence, around the turn of the nineteenth century, of a doctrinal approach that discovered underlying rights behind express constitutional guarantees.