By Michael Lobban
Volume eight, the 3rd of the old volumes of A Treatise of felony Philosophy and normal Jurisprudence, deals a heritage of criminal 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 criminal philosophers considered legislation and criminal reasoning. the amount starts with a dialogue of the ‘common legislations brain’ because it developed in past due medieval and early smooth England. It is going directly to study the various jurisprudential traditions which built in England and the USA, exhibiting that whereas Coke’s imaginative and prescient of the typical legislation endured to exert a robust effect on American jurists, in England a extra positivist technique took root, which came upon its fullest articulation within the paintings of Bentham and Austin.
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Extra 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
They were discerned through “discourse,” and were “peculiarly known, for the most part, to such only as profess the study and speculation of laws” (Dodderidge 1629, 45). These secondary principles were drawn from two sources. Some came from custom and experience, but others came from reason deduced in argument (Dodderidge 1629, 47–8, 57). Common lawyers often stressed the importance of nature and custom, for they were the foundations of much of the law. But in practice, it was reason in argument which was the most important source of law.
In it, he added to Littleton’s simple and uncluttered text a detailed series of commentaries on law and legal reasoning, adding reference to statutes, Year Book authorities, and older texts and making observations on them. Three more parts were published posthumously in the 1640s. The second part was a commentary on statutes, the third a discussion of criminal law, the fourth a commentary on the courts. Coke’s Institutes were not a comprehensive overview of the law of England set out in the form of rules: Rather, they were a commentary on the sources of English law by a lawyer keen to impart the art of legal thinking.
The fact that parliament was supreme did not of itself make its pronouncements right; and there were occasions when a party might be bound by conscience to restore what the law said was his. For the law did not always provide a remedy; and in the exceptional cases when it did not, a party was left to his own conscience. 4. Equity, Common Law, and Statute under the Later Tudors The concept of equity which St. German had discussed in its various aspects continued to play an important part in legal thought in the later sixteenth century.
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