Philosophy of Law and Jurisprudence in Britain (1945-1952)

Abstract

BETWEEN THE STUDY AND PROFESSION of the law in England and the same activities in America, there are certain differences which are at least as important as the similarities. Though perfectly familiar to most American lawyers, these differences are often overlooked, and since an account of English legal thought at any period is hardly intelligible unless they are remembered, I shall prefix my account with reminder of the familiar. First, but least important, is the difference in scale. The number of practicing lawyers, law teachers, and students in Britain is minute in comparison with the United States, and the opportunities for the publication of articles on general or abstract subjects connected with the law is correspondingly small. There are at present five legal' and four philosophical journals where such articles may occasionally appear; so compared with the vast flood of American legal writing, the work of English philosophers and jurists is bound to appear mere trickle. Secondly, the English legal profession is still divided into two rigorously separated branches, and in spite of certain overlap in litigation in the lower courts and in conveyancing and advisory work of medium degree of difficulty and importance, this division between solicitors and barristers still represents genuine specialization of function. In addition, there is among English barristers degree of specialization in different branches of the law far greater, I think, than among lawyers in America. For though every division of the High Court of Justice in England has jurisdiction to administer both law and equity, yet the Chancery Division is in practice still very much court of equity and the Queen's Bench Division court of common law. Most barristers regard themselves as either a common-lawyer, or a Chancery barrister and work normally in only one of the divisions of the High Court, and to slightly lesser