Simon Stern, Faculty of Law, University of Toronto, has posted
The Case and the Exceptions: Creating Instrumental Texts in Law and Literature, which appears in
Producing the Eighteenth-Century Book: Writers and Publishers in England, ed. Pat Rogers and Laura Runge (University of Delaware Press, 2009), 95-116. Here’s the abstract:
In early 18th century England, the legal treatise was a young genre (some would say a nonexistent genre). Legal treatises are instrumental books, meant to be usable by the reader who consults a few pages rather than reading the whole book (and to be capable of steering the reader directly to those pages), and meant to be used as fodder for briefs and oral arguments. They are meant to produce more writing, and they are designed with that goal in mind. The changing format of 18th century legal treatises shows how they adapted themselves to these instrumental uses. Cross-referencing was already a familiar feature of law books, but the back-of-the book index underwent significant change during the 18th century. Changes in these books show how their creators came to understand the channeling function of indexes, which can help to frame the question for the reader, rather than serving only those readers who know in advance how the question must be framed. By the end of the eighteenth century, these books had begun to include multi-level indexes that allowed for orderly, visual, telegraphic presentation of doctrinal distinctions. Just as treatises, by rationalizing the basic principles and structure of an area of law, may have helped to facilitate further doctrinal clarity, thoroughness, and specificity, the increasingly effective channeling function of indexes may have played a small part in encouraging lawyers to expect that fine distinctions can be captured quickly and precisely.
These developments were occurring at the same time that the literary marketplace in England was beginning to include books designed for professional writers, such as rhyming dictionaries, thesauruses, and collections of quotations. A comparison between the indexes in law books, and those in books for writers, helps to identify the pragmatic needs of professionals in each area.
