By Michael Lobban
Volume eight, the 3rd of the historic volumes of A Treatise of felony Philosophy and normal Jurisprudence, deals a historical past of felony philosophy in common-law international locations from the seventeenth to the nineteenth century. Its major concentration (like that of quantity nine) is at the ways that jurists and felony philosophers considered legislations and felony reasoning. the amount starts off with a dialogue of the ‘common legislation brain’ because it advanced in overdue medieval and early sleek England. It is going directly to study the several jurisprudential traditions which constructed in England and the USA, displaying that whereas Coke’s imaginative and prescient of the typical legislation persisted to exert a robust impact on American jurists, in England a extra positivist procedure took root, which came across its fullest articulation within the paintings of Bentham and Austin.
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Additional resources for A Treatise of Legal Philosophy and General Jurisprudence. Volume 8. A History of the Philosophy of Law in the Common Law World, 1600-1900
Bacon 1857–1874b, 106) A maxim in law was thus like a “middle axiom” in natural science. As Kocher has put it, “it is obtained by induction from congruous lines of cases running through several different kinds of law, and, when applied back to those fields, serves to promote consistency within and between them” (Kocher 1957, 11– 2). Bacon was insistent that law came not from abstract opinions, but from the material of judgments. ” Any reconstruction of law must be based on old authorities, “otherwise the work would appear rather a matter of scholarship and method, than a body of commanding laws” (Bacon 1857–1874b, 107, 101).
IV c. 23, which forbad the Chancery from examining cases after judgment in the common law courts, and which some saw as curtailing the jurisdiction of equity (St. German 1974a, 103; cf. St. German 1985, 108). However, when it came to the detail of law, he did in fact show that there were cases where equity would not intervene—since to do so would be to give relief against a statute—but where the party was bound in conscience to recompense (St. German 1985, 116). St. German thus made it clear that the law was not always coincident with reason in every case.
But Maxims are the Foundations of the Law, and the Conclusions of Reason, and therefore they ought not to be impugned, but always to be admitted; yet these Maxims may by the Help of Reason be compared together, and set one against another, (although they do not vary) where it may be distinguished by Reason that a Thing is nearer to one Maxim than to another, or placed between two Maxims. (Colthirst v. Bejushin, Plowden 1816, I: 27a) Although the word “equity” was little used in the courts of common law, some argued that the exposition of the common law was in fact “altogether guided and directed by Epieikeia” (Hake 1953, 103–4, 11–2).
A Treatise of Legal Philosophy and General Jurisprudence. Volume 8. A History of the Philosophy of Law in the Common Law World, 1600-1900 by Michael Lobban
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