Home > Online > Two Timing the Law

Two Timing the Law

Imagine a benighted student of the law, devoted to attaining a secure professional qualification by learning the rules and passing the exams, who has never read or heard anything about Legal Realism, that is, who has missed out entirely on twentieth century American jurisprudence. Such a Rip Van Winkle of the law, perhaps not so very rare in British law schools, would quickly learn what was at stake in the Legal Realist revolution by reading Professor Edward Rock’s fine essay on corporate law doctrine. In this comment I will summarize my outsider’s understanding of what Professor Rock has taught us regarding the Realists’ conceptions of legal doctrine and judgment, and then offer an English counterpoint. I will show how English lawyers evade the realist embrace of policy by projecting law inter‐temporally—that is, allowing the law to inhabit two successive times and allowing one time state to affect the other—in order to yield legal results, and ultimately effect change in the legal system itself. I will then assess Rock’s juxtaposition of the Delaware courts’ realist approach and the “traditionalist” or formalist techniques of leading English commercial judges when dealing with some of the more difficult areas of corporate doctrine. This proves to be an interesting laboratory for the hypothesis that inter‐temporality can be an effective approach to the determination of complex corporate or civil cases, and is a viable alternative to policy analysis.