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A Natural History Of The Common Law

Author: S. F. C. Milsom
Publisher: Columbia University Press
ISBN: 0231503490
Size: 72.49 MB
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How does law come to be stated as substantive rules, and then how does it change? In this collection of discussions from the James S. Carpentier Lectures in legal history and criticism, one of Britain's most acclaimed legal historians S. F. C. Milsom focuses on the development of English common law—the intellectually coherent system of substantive rules that courts bring to bear on the particular facts of individual cases—from which American law was to grow. Milsom discusses the differences between the development of land law and that of other kinds of law and, in the latter case, how procedural changes allowed substantive rules first to be stated and then to be circumvented. He examines the invisibility of early legal change and how adjustment to conditions was hidden behind such things as the changing meaning of words. Milsom points out that legal history may be more prone than other kinds of history to serious anachronism. Nobody ever states his assumptions, and a legal writer, addressing his contemporaries, never provided a glossary to warn future historians against attributing their own meanings to his words and therefore their own assumptions to his world. Formal continuity has enabled nineteenth-century assumptions to be carried back, in some respects as far back as the twelfth century. This book brings together Milsom's efforts to understand the uncomfortable changes that lie beneath that comforting formal surface. Those changes were too large to have been intended by anyone at the time and too slow to be perceived by historians working within the short periods now imposed by historical convention. The law was made not by great men making great decisions but by man-sized men unconcerned with the future and thinking only about their own immediate everyday difficulties. King Henry II, for example, did not intend the changes attributed to him in either land law or criminal law; the draftsman of De Donis did not mean to create the entail; nobody ever dreamed up a fiction with intent to change the law.

Rechtsdogmatik In England

Author: Martin Flohr
Publisher: Mohr Siebeck
ISBN: 9783161552809
Size: 38.21 MB
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Lasst sich die Prasenz dogmatischen Denkens als Beleg fur den europaischen Charakter des englischen Rechts anfuhren? Martin Flohr erhellt den geistesgeschichtlichen Hintergrund des englischen Rechtsdenkens, zeichnet ein Bild der englischen Rechtsmentalitat und deckt die institutionellen Hindernisse auf, die der Verbreitung dogmatischer Methoden entgegenstanden. Seit einigen Jahren ist ein tiefgreifender Wandel des Selbstverstandnisses englischer Universitatsjuristen zu beobachten. In der lebhaften Debatte daruber, ob und gegebenenfalls wie das Fallrecht systematisiert werden kann, ohne es zu verfalschen und seiner Anpassungsfahigkeit zu berauben, wird der Mentalitatsbruch besonders deutlich. Wahrend die altere Generation der Rechtslehrer sich mit einer akkuraten Darstellung der Kasuistik begnugt hatte, sucht der wissenschaftliche Nachwuchs nach der inneren Struktur des Rechts sowie den bestmoglichen Erklarungen fur dessen Regeln. Martin Flohr stellt verschiedene Forschungsansatze vor, die eine Rationalisierung des Privatrechts versprechen, und eroffnet damit auch eine neue Perspektive auf die Grundlagen der kontinentaleuropaischen Jurisprudenz.

The Dearest Birth Right Of The People Of England

Author: John W. Cairns
Publisher: Hart Publishing
ISBN: 1841133256
Size: 40.24 MB
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While much fundamental research in the recent past has been devoted to the criminal jury in England up to 1800, there has been little work on the nineteenth century, and on the civil jury. This important study fills these obvious gaps in the literature. It also provides a re-assessment of standard issues such as jury lenity or equity, while raising questions about orthodoxies concerning the relationship of the jury to the development of laws of evidence. Moreover, re-assessment of the jury in nineteenth-century England rejects the thesis that juries were squeezed out by judges in favor of market principles. The book contributes a rounded picture of the jury as an institution, considering it in comparison to other modes of fact-finding, its development in both civil and criminal cases, and the significance, both practical and ideological, of its transplantation to North America and Scotland, while opening up new areas of investigation and research.

Thinking Like A Lawyer

Author: Frederick Schauer
Publisher: Harvard University Press
ISBN: 0674032705
Size: 36.79 MB
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This primer on legal reasoning is aimed at law students and upper-level undergraduates. But it is also an original exposition of basic legal concepts that scholars and lawyers will find stimulating. It covers such topics as rules, precedent, authority, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, legal facts, and burden of proof.

French Administrative Law And The Common Law World

Author: Bernard Schwartz
Publisher: The Lawbook Exchange, Ltd.
ISBN: 1584777044
Size: 62.38 MB
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Schwartz provides a masterly exposition of administrative law through a comparative study of the French droit administratif, arguably the most sophisticated Continental model. As Vanderbilt points out in his introduction, this is an important field that involves much more than administrative procedure. It deals directly with some of the most crucial issues of modern government regarding the distribution of power between governmental units, the resulting effect on the freedom of the individual and on the strength and stability of the state. Reprint of the sole edition. "[T]his book represents a significant achievement.... Unlike so many volumes that roll off the press these days, it fills a real need; and, though perhaps not the definitive work in English on the subject, it fills it extremely well." --Frederic S. Burin, Columbia Law Review 54 (1954) 1016 Bernard Schwartz [1923-1997] was professor of law and director of the Institute of Comparative Law, New York University. He was the author of over fifty books, including The Code Napoleon and the Common-Law World (1956), the five-volume Commentary on the Constitution of the United States (1963-68), Constitutional Law: A Textbook (2d ed., 1979), Administrative Law: A Casebook (4th ed., 1994) and A History of the Supreme Court (1993).