By Michael Lobban
Volume eight, the 3rd of the ancient volumes of A Treatise of criminal Philosophy and common Jurisprudence, deals a background 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 felony philosophers thought of legislation and felony reasoning. the amount starts off with a dialogue of the ‘common legislation brain’ because it developed in overdue medieval and early glossy England. It is going directly to study the various jurisprudential traditions which constructed in England and the us, displaying that whereas Coke’s imaginative and prescient of the typical legislations persevered to exert a robust impact on American jurists, in England a extra positivist process took root, which discovered its fullest articulation within the paintings of Bentham and Austin.
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Additional info 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
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). When cases occurred which could not be ruled by the generality of legal maxims (which were constant), they had to be “expounded by the hidden righteousness of those grounds and maxims” (Hake 1953, 11). Hake rejected Plowden’s view that equity was “no part of the law, but a moral virtue which corrects the Law” (Plowden 1816, II: 466a).
Instead, it rested on “many other secondary reasons which be necessary consequence upon other rules and cases in law, which yet may be so deduced by degrees till it come to some primitive maxim, depending immediately upon some prescription or custom” (Foster 1966, 2: 175–6). It was the common law’s foundations, rather than its current details, which were customary. When lawyers spoke of these foundations, they often had in mind the constitutional structure of the kingdom, and the fundamental rules concerning property, whose origins could not be precisely traced, but which had been digested in Littleton.
Bacon’s enthusiasm for the form of the maxim was echoed in his use of aphorisms in De Augmentis Scientiarum (1623), and at various points in his career he planned to put together a comprehensive set of legal maxims. In the end, however, this project remained unfinished and only an incomplete set of maxims, dating from 1596–1597, was published after his death, only to be largely neglected (Coquillette 1992, 35–48). For Bacon, maxims were not simple rules to be learned. On commencing his collection, he deliberately eschewed digesting them into a certain method or order, to give a coherence to the whole.
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