SUBMITTED BY:

KAUSTUBH CHOUHAN
ROLL NO.183
SEMESTER 8TH

Book Review of the book “THE LAW’S TWO BODIES”

John H. Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal
History, New York: Oxford University Press, 2001.(ISBN 0-19-924518-5).
This interesting book is one of the more provocative recent works about English legal
history and a significant contribution to the scholarship. Like that of most legal
historians, Baker’s prolific scholarship focuses primarily on the development of legal
institutions and doctrine, as revealed by original sources. This book, however, is
somewhat different as it is as much about jurisprudence as it is about traditional legal
history.
The Law’s Two Bodies is about the nature of law. Baker has pursued this topic in his
earlier writing, but in this book he considerably expands his thinking on the topic. In his
Downing inaugural lecture, the author asked, “What is law for the purposes of legal
history?” The Law’s Two Bodies, subtitled Some Evidential Problems in English Legal
History, provides a comprehensive and insightful answer to that question. The law
consists of two bodies, one formal and the other informal. The latter consists of one
“perceived through practical operation and the actual state of juristic understanding at a
given time, the other in a more abstract and metaphysical way through canonical sources
of authority”.
The Law’s Two Bodies, the published version of Baker’s Clarendon Law Lectures, has
three sections, each of which has a rich appendix with numerous illustrations from
original sources. The book explores the nature of these two bodies and the manifestations
that evidence them. The first of the three lectures discusses the first body of the law, the
formal one of case law and statutes. In this chapter, Baker discusses a number of
problems that impede finding evidence of the law in the yearbooks and reports and those
with statutes as well. For example, he notes that questions of law for the court were
infrequent because of the nature of pleading. The gist of his argument is that although
accessibility and tradition have led legal historians to put great emphasis on the formal
evidence of the law, various problems limit their evidential weight. The second lecture
deals with legal fictions, identifying various fictions and “how they allow the operation of
the law to change while avoiding any outward alteration of the rules”. The author
explains that legal fictions illustrate the problem that the legal historian faces “by reason
of the coexistence of two bodies of law, one formal and the other informal . . . [and] that
legal fictions are striking because of the incongruity of allowing legal consequences at
odds with the law in the books”.
The book’s final chapter, “Common Usage and Common Learning,” is the most
innovative and influential aspect of the book. Its exploration of the law’s informal second
body identifies an important dimension in the study of legal history. Baker’s objective is
to illuminate “the practical problems for legal history which arise from the
multidimensional nature of the sources” and not to invent “a new theory of law”.
Nevertheless, these “evidential problems” implicate interesting jurisprudential notions.
The author seems to reflect a certain ambivalence toward such issues, both recognizing
that his “concerns will be familiar to legal philosophers” while simultaneously eschewing
any desire to “invent any new kind of ism and . . . not keen to become involved in deep
jurisprudential questions . . . “.
His investigation of the law’s second body has the greatest implications for
jurisprudence. In the beginning of the book, Baker articulates the notion of this informal
body of the law as one of “professional consensus.” He further explains that this body of
law arises more as an “art of perception than an exercise in deductive logic . . . a
prediction or prophecy [rather] than the description or interpretation of a series of
commands. The law today is not what particular courts or parliaments in the past have
said it is, but what lawyers at present think the relevant courts would do in a given
case. . . . Alternatively, the law may be perceived as being what the courts ought to do, in
the opinion of the best legal minds of the day . . . “.
In either case, the law’s second body may be different than the law in the books. He
explains that this second body of the law consists of two kinds of legal assumptions
outside the first formal body. One consists of “lay assumptions,” “general propositions of
law, good sense and basic morality” and everyday usages that guide lay people in their
conduct; and the second is the “detailed scholarly professional learning” not shared by
the public.
Most of the third lecture is devoted to further discussion of this second aspect of the
second body and the various manifestations that evidence it. Baker discusses the nature of
“professional thinking” and the notion of “common erudition,” emphasizing the
importance of “The Third University,” the Inns of Court as the “formal source of
common erudition.” He then explains the relationship between this “doctrine” and the
“jurisprudence” of the formal adjudicatory process, making it clear that the former is not
superior to the latter. He notes further “the learning of the coif” as evidence of the second
body and the changes over time in the nature of the evidence of law found in
“professional consensus”.

In addition to prompting further scholarship about the nature of law in the study of legal
history, The Law’s Two Bodies has the potential to spark broader debates about the
nature of legal history and its relation to jurisprudence. First, inherent in its identification
of the law’s two bodies are questions about the nature of legal history. The context of
Baker’s evidence of the second body is primarily from the late medieval and early
modern periods. But the ideas of multiple bodies of law and an informal body evidenced
by “professional consensus” is not restricted to a particular time period nor distinctive to
legal history. Grant Gilmore objected to the term “legal history” because it artificially
segregated the study of law from its past. The broader implications of Baker’s book
confirm Gilmore’s view that the present law cannot be understood without knowing its
past.
Another broader subject that The Law’s Two Bodies implicates is the relation between
jurisprudence and legal history. Many legal historians have not been interested in
jurisprudence nor legal philosophers in legal history. Despite Baker’s skepticism about
“artificial theor[ies] of law” and his explicit claim that he is “not trying to reinvent legal
realism,” this book suggests that there is a rich interrelationship between these subjects.
In conclusion, this book provides much food for thought. Like other slim volumes, it may
produce pages of scholarship and commentary that are many multiples of their catalyst,
this remarkable book.