Shivprasad Swaminathan, ‘Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy’

ABSTRACT
In his inaugural address as the Vinerian Professor of English law in 1883, Albert Venn Dicey laid down the vision for a new pedagogy for the common law to replace the ‘unaccountable’ arrangement of apprenticeship that had hitherto served the common law. The latter, he likened to ‘brick making’. At the heart of Dicey’s vision was the idea that the common law be cognized as a system of rules and exceptions – in contrast to the classical common lawyers’ self-understanding which took it to be a practice of reasoning – which could then, like other sciences, be expounded and taught by the newly emerging professoriate. Dicey pitched this as supplementing the ‘brick maker’ with a knowledge of the science underlying his craft. This article argues that Dicey’s rationalist pedagogical vision, however, fundamentally altered the very nature of the common lawyers’ enterprise since it was based on a philosophical model opposed to the one the common lawyers’ traditional self-understanding presupposed. On the rationalist model (which Dicey presupposes), the common law is seen as being comprised of standards – with precedents being seen as rules – which it is the task of legal reasoning to bring to bear upon the case. On the reasonableness model – which is how David Hume, along with the common lawyer, understood the common law – the task of legal reasoning is to have a motivational traction on the community and precedents are rhetorical counters that serve to persuade the interlocutor.

Shivprasad Swaminathan, Dicey and the Brick Maker: An Unresolved Tension Between the Rational and the Reasonable in Common Law Pedagogy, Liverpool Law Review. First Online: 17 August 2019.

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