Week 4: English Legal Theory Flashcards
What is the command theory of law?
Theory based on human behaviour, habits to explain what a legal system is, but without mention of psychological states.
From whose perspective is the command theory of law made?
John Austin, a legal positivist.
What does a command comprise?
A desire with regards to:
- someone’s behaviour
- an expression of that desire
- a sanction or threatened harm for non-compliance
What is a sovereign?
A sovereign is something that
- everyone habitually obeys and
- do not habitually obey someone or something else
What are Inns of Courts?
Inns of Courts are law schools where people receive legal training. There are 4. Just remember “Outer Temple” never evolved.
- Gray’s Inn
- Lincoln’s Inn
- Inner Temple
- Middle Temple
Who is Edward Coke?
Chief Justice of the Common Pleas and then later King’s Bench. Eventually gets dismissed after conflicting with James I. Later on he codifies and rationalises the common law (Institutes of the Laws of England)
What is the ‘common law mind’?
- Sees law as ‘history’
- Sees common law in constitutional terms more so than just in reason and logic
- Focus on liberty
Conflict with Baronial Courts?
Baronial courts shift to focus to determine if an action falls within an established royal writ. This leads to focus on pleadings (rather than argument) and leads to inns of courts
How did the invention of ‘liberty’ come about?
During the English Civil War, Charles I became very regal and liberty becomes a defining appeal to English legal thought. This is closely associated with land-property rights: If someone says they don’t have ‘liberty’, they are simply saying that they lack the freedom of landowners, not being able to do what they want.
Who is Sir William Blackstone?
He wrote probably the most influential book on common law ever written. “Commentary on the Laws of England”
- Common law mind as nationalist project - Blackstone views common law as superior to France
- Common law mind and class - common law entrenches the higher classes and Blackstone celebrates this. Giving upper classes this freedom and liberty ensures they can devote proper attention to proper ruling more than running their business.
Who is Thomas Paine?
He was the beginning of a radical effort to supplant historical legitimacy that legitimates the common law with a much more French vision based on reason.
His book “Rights of Man” was initially illegal but overtime, it became widespread and a large portion of the English population had read and discussed his book.
Who is Edmund Burke?
Burke is the founder of modern conservativism. He looks at the French Revolution and despises it, saying the English common law system is far more superior.
He says that the source of legitimacy should not be Frenchmen who invaded them 600 years ago. (His book “Reflections on the Revolution in France”)
What does Sir William Blackstone say?
- Certain rights are endowed by the immutable laws of nature and the law protects and regulates these rights
- People give up part of these rights when they live in a society
- Having no law = no freedoms, therefore the common law mind is a nationalist project
- Continental law/imperial law is aimed at vesting arbitrary and despotic power to control the masses in a select few (Blackstone even slaves that land in England fall under the protection of English law)
What are William Blackstone’s reflections on the revolution in France?
- Common law reflects the natural flow as rights get passed on just like property and lives do
- Common law institutions inherently secure liberal right and prevent upstart (basically less prone to radical changes)
- French revolution was doomed because they gave up the moderating effect of law rooted in custom and the natural state, instead acceding to an arbitrary power
What are Thomas Paine’s beliefs?
- Governments act as if they were afraid to awaken a single reflection in man
- Simply following precedent without regard to the principles of precedent is a vile system
- People look forward but governments look backward