scholarly journals Infidels in English Legal Thought: Conquest, Commerce, and Slavery in the Common Law from Coke to Mansfield, 1603-1793

2017 ◽  
Author(s):  
Edward Cavanagh
Keyword(s):  
Common Law ◽  
Legal Thought ◽  
The Common

Response: The Politeness of History

2015 ◽  
Vol 40 (01) ◽  
pp. 264-269
Author(s):  
Kunal M. Parker
Keyword(s):  
Common Law ◽  
Historical Knowledge ◽  
Knowledge Practices ◽  
Legal Thought ◽  
The Common ◽  
Democracy In America

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.

scholarly journals INFIDELS IN ENGLISH LEGAL THOUGHT: CONQUEST, COMMERCE AND SLAVERY IN THE COMMON LAW FROM COKE TO MANSFIELD, 1603–1793

2017 ◽  
Vol 16 (02) ◽  
pp. 375-409
Author(s):  
EDWARD CAVANAGH
Keyword(s):  
Intellectual History ◽  
Political Change ◽  
Common Law ◽  
Legal Thought ◽  
Starting Point ◽  
The Common ◽  
Law Reports ◽  
To Receive

English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.

Some Proposed Legislation of Henry VIII

1936 ◽  
Vol 19 ◽  
pp. 119-144 ◽  
Author(s):  
T. F. T. Plucknett
Keyword(s):  
Legal History ◽  
Common Law ◽  
Henry Viii ◽  
Legal Thought ◽  
Human Material ◽  
History Of ◽  
The Common ◽  
Law Reports

One of the most fascinating features in the study of the history of the common law as revealed in six centuries of law reports is the possibility of tracing the growth of legal thought over long periods of time; hints, suggestions, unsuccessful attempts to establish a rule or a doctrine often appear in such sources long before the innovation has received the final approbation of the courts, and so we are privileged to watch the progress of legal speculation, to overhear the debates upon new departures, and to estimate the forces which produced or obstructed some projected innovation. It is this possibility which gives such life and vividness to legal history. In many fields of thought we are mainly confined to those considered statements of results which have been deliberately left to us by philosophers, theologians, or politaical theorists, but the historian of the common law has more intimate and more human material at his disposal.

scholarly journals Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law

2008 ◽  
Vol 26 (3) ◽  
pp. 649-678 ◽  
Author(s):  
Harry N. Scheiber
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Common Law ◽  
Legal Process ◽  
Legal Realism ◽  
Legal Thought ◽  
Historical Literature ◽  
The Common ◽  
The Rich ◽  
Ocean Law

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

The Predicament of Modern Law: Parker's History of a Law Without a History that Matters

2015 ◽  
Vol 40 (01) ◽  
pp. 238-244
Author(s):  
Marianne Constable
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Legal Thought ◽  
History Of ◽  
The Common ◽  
Democracy In America ◽  
The Way

Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?

Roman law

2018 ◽  
Author(s):  
P.B.H. Birks
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Western Society ◽  
Large Measure ◽  
Legal Thought ◽  
The Common ◽  
The Law ◽  
Normative Order ◽  
To Come ◽  
Law Library

Law was Rome’s greatest gift to the intellect of modern Europe. Even today the Roman law library, and the achievements of the jurists who built it up, live on in the law of the Continental jurisdictions and of other countries farther afield. It is true that over the past two centuries codification has largely interrupted the long tradition of direct recourse to the Roman materials, but the concepts applied in civilian jurisdictions and the categories of legal thought which they use are still in large measure those of the Roman jurists. In England, perhaps for no better reason than that from the late thirteenth century the judges of the King’s Bench and Common Pleas happened to come from a background which cut them off from the clerical education which had given their predecessors access to the Roman library, there was no reception of Roman law. Post-Norman England thus became the second Western society to set about building up a mature law library from scratch. The common law (being the law common to the whole realm of England) and the civil law (being the ius civile, the law pertaining to the civis, the citizen, initially of course the Roman citizen) thus became the two principal families within the Western legal tradition. It is wrong, however, to suppose that the development of the common law was constantly isolated. There have on the contrary been important points of contact at almost all periods. One result is that the categories of English legal thought are not in fact dissimilar to those of the jurisdictions of continental Europe. The study of Roman law has contributed immeasurably to the idea of a rational normative order, an idea fundamental to legal philosophy as indeed to all practical philosophy.

Legal realism

2018 ◽  
Author(s):  
Neil Duxbury
Keyword(s):  
Twentieth Century ◽  
Common Law ◽  
Law School ◽  
Legal Rights ◽  
Legal Realism ◽  
Legal Thought ◽  
The Usa ◽  
Late Twentieth ◽  
The Common ◽  
Late Twentieth Century

‘Legal realism’ is the term commonly used to characterize various currents of twentieth-century legal thought which stand opposed to idealism. (Hence, ‘realism’ in this context ought to be understood not as a body of thought which opposes nominalism, but as an instance of nominalism.) In the Scandinavian countries, legal realism was modelled on Axel Hägerström’s critique of idealist metaphysics, and sought ways to account for legal rights and duties without presupposing or postulating the existence of ideal objects or entities. In the USA, legal realism evolved as a critique of the idealism implicit in the vision of the common law which was promoted by C.C. Langdell, first Dean of the Harvard Law School, and in the laissez-faire ideology of the late nineteenth- and early twentieth-century Supreme Court. Realist jurisprudential sentiments – primarily as articulated in terms of the so-called indeterminacy critique – continue to bear an influence on late twentieth-century critical legal thought.

Unity in the Common Law?: Critical Notice:The Unity of the Common Law: Studies in Hegelian Jurisprudenceby Alan Brudner

1996 ◽  
Vol 9 (2) ◽  
pp. 411-423
Author(s):  
Richard Dien Winfield
Keyword(s):  
Reflective Equilibrium ◽  
Common Law ◽  
Theory And Practice ◽  
Actual Practice ◽  
Ethical Thought ◽  
Legal Thought ◽  
Penal Law ◽  
The Common ◽  
The Right ◽  
The Given

A specter of disunity haunts the common law, threatening to throw property, contract, tort, and penal law into a crisis, where competing paradigms stand intransigently opposed, undermining any claims of coherence and giving sober proof that legality is a battleground of equally unjustifiable ideologies where only force wins out at the end. The impending crisis pits advocates of liberalism, affirming the primacy of the right over the good, against communitarians, upholding the priority of commonly shared ends embodied in an historically given community. Yet although the conflict parallels what many take to be the exhaustive options of ethical thought, the difficulty extends beyond theoretical dispute into the actual practice of common law, where at every turn, tendencies promoting welfare clash with tendencies upholding the formal right of ownership. In face of such division in both theory and practice, the dangers of idealism seem hardly surmountable by fidelity to law or by reflective equilibrium, for if disunity pervades legal thought and convention, neither appeal to the given can locate a coherent kernel in the conflicted shell.

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