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?


  1. This is fascinating stuff, but before I would be likely to launch myself into the creation of such a critical text, I would want some evidence that there is a problem to solve. Maybe that’s a practical lawyer’s reaction … There are legal textbooks that consider the impact of amendments to statutes over the years, but I think here we are talking about decisions about what text of a legal document) is definitive at any particular moment. Is that a problem? I would have thought that our printing and production methods have been reliable enough, at least since Confederation, that such a question could be answered readily about any Canadian legal text in that period.

    Is the call just for a VERY detailed annotation of legal documents from a historical point of view – something like what the various loose-leaf services do for tax and corporate and other statutes, where they show the current and previous texts – back a few years anyway – and cases under the different versions, but right back to the beginning of the statute or previous texts on the same subject?

    or for this exercise to be undertaken but with a policy eye rather than an ‘advise your client from your thorough understanding of where the law has been to get to where it is today’ viewpoint? So the questions to be answered are how we got to today’s policy?

    again, that is interesting, but I doubt that in Canadian legal publishing we need to do a ton of work on the document itself before we can start the policy or legal analysis. Am I wrong?

    I think I’ll step aside and let others take on this task, while I watch with interest.

  2. Whether or not printing processes are capable of a very high degree of consistency between printings is the crucial question. In general, of course, things have improved since 1436, and especially in the last 150 years. Still, Canada was for a long period a provincial outpost, so any printing operations could be expected to be run on a shoestring with second-hand machinery.

    And that sort of assumes the control of the text by a single printer, which was rarely the case. The Quebec Code editions I mentioned were occasioned by the fact that there had been no official reprint of the Code between 1866 and the late 1960s. In the interim, private publishers had produced their own versions, and their accuracy is an open question.

    How do Canadian official law printers operate today and in centuries past? I doubt that they are any more accurate than other printing operations, and even today we find errors in official versions of legislation, where scrutiny and process are presumably most tightly controlled. In some respects computers should make text easier to control, but we have all had experiences of the unaccountable computer glitch.

    I suspect a scholar would find very interesting changes in the text of legislation, cases, and other important legal works, such as practitioner’s handbooks over time. Works central to practice and in widespread use, and subject to repeated printings would be good first choices for critical editions.

  3. Oh, I forgot to mention the ‘problem’, which is a very good point you made. Broadly put, I see the problem as: to understand our legal past, we need to know what texts legal actors read and referred to, and in particular how what they read formed their perception of the law. For instance, Neil Campbell tells me that many of the first lawyers and judges in Canada were Scots trained in the civil law. On what basis did they apply the common law? What sort of civil law texts would have been their touchstones while touring the wilds of Rupert’s Land?

  4. I have no difficulty understanding the point of the analysis for pre-Confederation usages, or for ‘frontier law’, but I would still think the lapses in accuracy would seldom be significant in the past 150 years. Yes, errors slip in, but very rarely, and are they ever acted on to someone’s detriment?

    I suppose that one of the purposes of the exercise is to answer that question. I would not use my time or subsidize someone else’s to answer it, though, without at least some preliminary evidence that something is out there to find.

    And would there be likely to be instances where a mistaken text led to such an accepted ‘wrong’ understanding of the law that lawmakers have been compelled to go along with it once the error was discovered? In 1550, quite possible. In 1950, quite unlikely.

    I may be missing the interest of the operation, though. Feel free to set me right.

  5. Someone more expert than me in Canadian legal history might know if such preliminary work, such as a history of legal printing in Canada, or a complete enumerative bibliography of all legal works produced in Canada, has been done. I’m pretty certain the latter has not, though it is a lack sorely felt. I do know that an interesting look, again at Quebec history, was taken in “Sources in the Law Library of McGill University for a reconstruction of the legal culture of Quebec, 1760-1890” published by the McGill Faculty of Law and Montreal Business History Project, 1987

    Of course, historical bibliographies of particular Canadian law texts would not only benefit but contribute to such a study, as it can focus on the dispersion and influences of texts. From that POV, a detailed study of a particular text could show more than whether variations in the text produced specific errors in law: it could also support arguments for identifying specific developments in legal culture. Generally, these brands of bibliography are basic research that supports more general scholarship.

  6. I had great trouble understanding the argument being made here. The first part of the post unrolls the relatively familiar straw-man which positions black-letter analysis as context-free and blissfully unaware of deep thiought in order to position it against the critical version riding in a white horse. The usual next move is to describe new and exciting modes of analysis which those black-letter dullards had surely never considered, but the post above seems instead to move to a call for word-by-word comparisons of the content of statutes. Most of us who practice in regulated sectors and who therefore are required to know the minutiae and spend time on detailed interpretation of particular statutes can attest that this sort of word-by-word analysis is both routine and regular.

  7. Well, before I get into too much hot water, let me just say that the idea of a critical edition of a text important to legal history is just a surprising absence, and that is the starting point of my comment. That we don’t know what a critical edition might reveal is the interesting part. Perhaps it is a fools errand – but given how productive for scholarship in other fields such editions are, it seems a good bet they could be useful in law too.

    I might be guilty of a bit of black-hat straw-manning in characterizing legal scholarship, and if so, I didn’t mean to suggest it lacks depth – just that it has not looked at the physical and historical realities of the transmission and circulation of texts.

    I don’t think such critical editions would be of use in practice, but rather in humanities-influenced scholarship of law.