Thursday, June 2, 2011

Stern on the Analytical Turn in 19th-Century Legal Thought

Simon Stern, Faculty of Law, University of Toronto, has posted The Analytical Turn in Nineteenth-Century Legal Thought.  Here is the abstract:
George Sharswood
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 essay focuses on two areas in which the doctrinal effects of analysis readily discernible, involving the newfound concern with the "elements" of criminal offenses and the reformulation of issue preclusion in res judicata. An implication of the argument is 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 [above right], 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.