Legal Research

Legalology

By Michael Lines

It can?t be called Lexography, as it?s too close to lexicography, and Lexology has been taken, at least for commercial purposes. Please not Rechtographical Analysis. So what do people call the study of law that is not the practice of law? Legal Studies, perhaps, but it is a tepid choice. I think people mostly resort to specialties, such as legal history, legal theory, the philosophy of law, and the ?law ands?: law and sociology, law and film, law and economics?

The study of law from non-legal or non-black-letter perspectives can usefully be divided into those that treat data derived from experiments and surveys (such as sociological studies of legal systems, or psychological studies of juries), and those look to the written word for evidence, the latter covering the vast majority of what is conventionally considered ?legal scholarship?. Put another way, we might distinguish empirical from textual legal studies.

Traditional or black-letter legal scholarship analyses legal problems on the basis of existing law (as understood from legal texts), and often suggests what an appropriate legal response would be, and naturally that leads to policy suggestions. Strangely, lawyers and legal scholars deploy their highly developed skills in the analysis of texts seemingly without a thought to the status of the text before them. Call it ex post facto analysis. For a profession concerned with the presence or absence of the comma and the exact interpretation of the virgule, this uncritical acceptance of the text as it presents itself is surprising.

Non-traditional textual legal scholarship will start from different, often humanist perspectives on what is important or interesting about a legal text. As a textual matter, as any literary scholar would say, the law is a living thing. Texts have lives, and not only printed texts. Oral texts are with us always, and before printing, legal texts had scribal lives (thus the importance of paleography for legal history). And now, ?after? printing, the more fleeting histories of digital texts have yet to be fully accounted for.

What are these lives, and how can they be understood? The crucial moment in the life of any text is the moment of transmission from one form to another, because that is when variants are introduced. Intended and unintended, useful, malicious, authoritative, and those made in well-meaning error, these changes to the text are usually small, but are never inconsequential. Better described as revealing,, they offer insight into the people, processes, and social realities through which texts find their form.

For all texts there are several, if not many such moments. Some of the most pivotal are the transfer from manuscript to type, and subsequently between typescript editions (especially when the new edition is a fully re-set version of the text, or these days when it moves to a digital form).
All scholars of legal texts must understand their texts carefully. How does one know that the words under your particular scholarly microscope are words that really deserve serious consideration? Is there a printer?s error in the edition you are holding? Is the legislation on the screen an official version? And even if it is, sometimes the official version contains errors that commercial versions do not, though they are the less authoritative.

It is important to know that you have a reliable text free from error, or better, one that accounts for all the known errors and suggests a preferred reading. That?s where the critical edition comes in. An editor, usually an expert in textual criticism as well as the subject, compares as many existing texts as possible, establishes their relationships, and produces a critical edition that accounts for the variants in its apparatus criticus.

The background needed to establish a scholarly edition of a text is immense. It must take account of the history of the particular presses that produced the work, the processes and materials they used, the methods of distribution, the units of sale, and numerous other factors. Such work comes under the heading of bibliography generally, and is specifically known in three aspects as Historical, Analytical and Descriptive Bibliography.

Despite the long printing history of Canadian laws, and the many core texts that direct the legal professional in his or her thinking, there is not a single critical edition of any English language legal text that I can locate.

I say English because there is a series of such beasts helping legal professionals and scholars explore the history of the text of the Quebec civil codes, produced under the auspices of the Quebec Research Centre of Private and Comparative Law.

These works are interesting because they are the only post-renaissance editions of legal texts that have received any kind of critical attention that I can find. Please correct me if I?m wrong, but not even the Napoleonic Code has had a full critical treatment.

However, even these ?critical editions? of the Quebec Code are not critical editions in the fullest sense. They collect official changes to the codes, thus providing a legislative history, and they provide access to a reliable if not official text of the codes, but they do not provide the analytical materials that a historian of Canadian law would need, especially a detailed accounting of the various editions that have appeared.

Has the time come for scholars to produce critical editions of those works that were close at hand to Canadian lawyers, judges, and politicians as they made the legal decisions that have shaped our past?

Full post as published by Slaw.ca on December 19, 2008 (boomark / email).