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10 Tel Aviv U. Stud. L. 33 (1990)
Legal Fictions and Common Law Legal Theory: Some Historical Reflections

handle is hein.journals/telavusl10 and id is 33 raw text is: LEGAL FICTIONS AND COMMON LAW LEGAL THEORY: SOME HISTORICAL REFLECTIONS EBEN MOGLEN* I. Introduction In writing about the role of legal theory in the study of the common law, the difficulties begin with the meaning of the phrase legal theory itself. Perhaps Twining is correct in calling legal theory the theoretical part of law as a discipline,' but this seems to emphasize unduly the sense in which law is an academic enterprise, subject to the forms of professional organization which have dominated the study of the social sciences and humanities since the late nineteenth century. It is only in such social contexts that it makes sense to speak of law as a discipline. Our legal history is long enough, as the common law approaches the close of its first millenium, to exemplify alternate social models for the intellectual activity called law; in its time it has been a craft, a mystery, and a domain of entrepreneurial business - it was only the day before yesterday that law could be called a discipline for the first time. In its various prior social contexts, the common law was a splendidly anti-theoretical contrivance. The reasons are many, but the basic fact stands out above the background of speculative explanation; the distinguishing marks of the common law as an intellectual tradition are its resistance to systematization, its refusal to consider more than the case at hand, and the extraordinary weight of inertia with which it resisted attempts at academic or comprehensively analytical statements of substantive rules and their presuppositions. The great collaborative enterprise of the mid-thirteenth century which we know as Bracton seems a brilliant step towards the synthesis of general jurisprudence and common law results, but the * Associate Professor of Law, Columbia University School of Law, New York. 1. Twining, Evidence and Legal Theory, in Legal Theory and Common Law (1986) 62.

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