By Michael Lobban

ISBN-10: 1402049501

ISBN-13: 9781402049507

ISBN-10: 140204951X

ISBN-13: 9781402049514

Volume eight, the 3rd of the historic volumes of A Treatise of felony Philosophy and basic Jurisprudence, deals a historical past of felony philosophy in common-law nations 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 legislations and felony reasoning. the amount starts off with a dialogue of the ‘common legislations brain’ because it advanced in past due medieval and early sleek England. It is going directly to research different jurisprudential traditions which constructed in England and the USA, exhibiting that whereas Coke’s imaginative and prescient of the typical legislations endured to exert a robust impression 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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As Dodderidge put it, “the efficient ground of rules, grounds, and axioms is the light of natural reason tried and fitted upon disputation and argument” (Dodderidge 1629, 91). 36 TREATISE, 8 - THE COMMON LAW WORLD, 1600–1900 Dodderidge’s typology of nature, custom and reason reflected the way many lawyers viewed the common law. Though the natural law foundations of the common law were commonly invoked, nature was only resorted to in the absence of other authority. “When new matter was considered whereof no former law is extant,” Sir John Dodderidge wrote (quoting words of Justice Yelverton spoken in 1468), “we do as the Sorbonnists and Civilians resort to the law of nature which is the ground of all Laws” (Dodderidge Undated, 4v; Doe 1990, 71; cf.

The distinction between the practice of common law and the Chancery was illustrated most clearly by their respective attitudes to uncancelled bonds. At common law, if a man borrowed money on a sealed bond, but failed to have it cancelled when he paid the money owed, the holder of the bond could sue for the sum, and the debtor would not be allowed to deny the debt. For St. German, the general rule on bonds was a convenient one, designed to prevent people avoiding sealed obligations by means of bare averments.

If the Court of Chancery was a court of conscience, nevertheless the Lord Chancellor must “order his conscience after the rules and grounds of the law CHAPTER 1 - PRECURSORS 23 of England” (St. German 1974a, 111; St. German 1985, 123). This meant that it could not be a perfect court of conscience and that there would remain areas where individuals should depart from the law for conscience’s sake, but where law would not do so. St. German made it clear that Chancery only intervened “If a subpena lie in the case” (St.

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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


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