English Legal Thought Flashcards
What is the 4th strand that English legal thought also relies on?
History
Pleadings
The arguments the barrister needs to make in order to get a writ for the client.
In order to get into Court, you need an existing writ. That writ becomes a precedent.
What are Inns of Court?
They are law schools that teach how to make pleadings.
People who want to be lawyers go to a particular Inn and receive legal training to become a lawyer.
What are the common law versions of the Institutes (in Civil law)?
Glanville, Bracton and Lyttleton’s casebooks and textbooks
What is the common law mind?
It sees law as history
Because of its feudal origins, It sees common law in constitutional terms, rather than in terms of reason and private order.
Edward Coke
The Chief Justice of the King’s Bench in 1613
He promoted the idea that the common law has an important role of restricting the King’s authority because the common law applies to everyone.
He saw the common law as a product of English mentality.
Wrote the highly influential 4-volume Institutes of the Lawes of England.
Sir William Blackstone
Wrote the most influential book on common law - Commentary on the Laws of England.
Associates common law with English nationalism. He saw the common law as a product of English national sentiment, and a reason why England is superior to France.
Also associates the common law with class. For example, the common law entrenches the higher classes with land rights, because we need to provide these members with the liberty to devote their attentions to issues of human development.
What does ‘liberty’ mean in the English common law tradition?
Liberty is a defining characteristic of English legal thought.
One idea of liberty stems from ‘liberal arts’ - that landowners need to be free from having to do manual labour so that they can devote their attention to issues of human development.
When the higher classes already have what they need, they can make decisions based on the public, rather than personal interest. This is an argument in support of which legal jurist?
William Blackstone and his celebration of common law giving rights to people with higher classes.
Edmund Burke
Reflections on the Revolution in France
Despised the French Revolution and thought the English common law system was superior to the French.
Thomas Paine
Rights of Man
Disparages the English constitutional system. Believes that reason should be the source of legitimacy, not history.
He sees the common law as an unjustifiable framework for suppressing ordinary citizens.
A radical effort to supplant the common law with a French vision based on reason.
What is Jeremy Bentham’s utilitarianism?
A reaction against prevailing English moral philosophy
Common law has no legitimacy. Rights are “nonsense on stilts”. An advocate for codification based on reason.
Any political legal system must maximise happiness for its people.
What is Austin’s command theory?
Law is a command made by the sovereign.
When the sovereign issues a law, it is a command to behave a certain way.
What are some critiques and responses to Austin’s command theory?
Critique: Difficult to identify a sovereign in the Austin’s sense. In many modern societies, lawmaking power id dispersed.
Critique: Legal systems include rules that do not impose sanctions, but empower people to do certain things. For example, the power to terminate a contract.
What is Dicey’s rule of law?
The supremacy of “regulatory law”. There is no special law for particular actors or government.
All, regardless of status, are subject to the common law.
It binds both public and private actors equally. Thus, in a sense, the common law has a public law aspect to it.
(4th argument) Because common law is a law generated from process, it is less susceptible to abuse by governments through creative interpretations. In contrast, the rights that civil law guarantees are more abstract because they are only based on text. This makes civil law susceptible to abuse through creative interpretations.
