By Michael Lobban
Volume eight, the 3rd of the ancient volumes of A Treatise of criminal Philosophy and basic 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 criminal philosophers thought of legislation and felony reasoning. the quantity starts with a dialogue of the ‘common legislations brain’ because it advanced in past due medieval and early sleek England. It is going directly to learn the various jurisprudential traditions which built in England and the USA, displaying that whereas Coke’s imaginative and prescient of the typical legislation persevered to exert a powerful impression on American jurists, in England a extra positivist process 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 to be derived from legal materials: statutes, Year Book cases, forms of pleading. In De Augmentis Scientiarum, Bacon wrote, It is a sound precept not to take the law from the rules, but to make the rule from the existing law. For the proof is not to be sought from the words of the rule, as if it were the text of law. The rule, like the magnetic needle, points at the law, but does not settle it. (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).
From the late sixteenth century, a number of works appeared which sought to teach logic and method to the lawyer. One example of this was Abraham Fraunce’s Lawiers Logike of 1588, the first treatise on forensic logic published in England, and a work which sought to introduce lawyers to the Ramist method. If the law was “in vast volumes confusedly scattered and utterly undigested,” Fraunce said, it was not the law itself which was to be blamed, “but lawyers 32 TREATISE, 8 - THE COMMON LAW WORLD, 1600–1900 themselves that never knew method” (Fraunce 1588, sig.
Bacon described his project as “collecting the rules and grounds” dispersed through the body of the law. The function of the maxim was to illuminate how the law worked, revealing its underlying principles. He was thus not concerned with the technicalities of the forms of action to be used, or the manner of pleading, but the principles which animated the law. Thus, his first maxim, or regula, dealt with causation in the law. ” But as a principle was not a fixed rule, he illustrated his proposition by showing its limits.
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