The Emergence and Provenance of English Common Law in the formation of American Jurisculture (original) (raw)
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Common Law, Revolution, and the Legacy of Constitutionalism-The Boundaries of Britishness.pdf
Korean Journal of British Studies / 영국연구, 2008
This article explores the evolution of Anglo-American constitutionalism in the early modern period and examines the political discourse embodied in American Revolutionary ideology. The historical conceptions of Common Law were a crucial idiom for both the 'Anglo' and 'American' forms of a distinctively law-minded constitutionalism, although in fact interpreted differently in America and the metropole. American Revolutionary ideology and the identity of Americans as a free, self-governing people was shaped by the prominence of American political leaders who were lawyers immersed in this Common Law tradition. A principal American Revolutionary mode of argument was grounded in jurisprudential tradition - specifically the Common Law's historical approach embodied in regard for precedent, and the older, pre-Glorious Revolution conception of fundamental law and rights that were the inheritance of all, rather than dependent merely on the will of Crown or Parliament. In this sense, Americans - then and now - demonstrated a remarkable and persistent degree of a distinctively British, specifically English in a juridical sense, traditionalism at the very heart of their political and constitutional identity. Keywords: Common Law, Political Discourse, American Revolutionary Ideology, Anglo-American Constitutionalism, British-ness, Atlantic World
Introduction: Enlightenment Roots of American Law
2024
The anthropocentric orientation of the Age of Enlightenment and the recognition of reason as the main instrument in the cognition of the world certainly had a huge impact on the development of vitally important legal and political institutions and mechanisms. Among the basic ideas of the Enlightenment, understood as a philosophical movement that emerged in Europe during the seventeenth and eighteenth centuries, are rationalism, empiricism, individualism, and the idea that people had certain natural rights. Although Europe is considered the birthplace of Enlightenment thought, Enlightenment ideas went beyond the old continent, reaching various corners of the world, including, of course, America, and undoubtedly had a significant influence on the legal and political system of the United States. The United States of America was formed on the basis of the ideas and fundamental beliefs of Montesquieu, Jean-Jacques Rousseau, and Voltaire (and others). The Enlightenment emphasizes the basic rights of the individual, such as liberty, equality, and property, placing the individual at the center and using them as a point of reference. This resulted in the development of the concept of human rights as universal and inalienable, as reflected in many constitutions and declarations of human rights, including the Declaration of the Rights of Man and of the Citizen during the French Revolution and in the United States Declaration of Independence. In addition, philosophers like Montesquieu developed the theory of the separation of
Continental Jurists and English Common Law
Glossae: European Journal of Legal History, 2016
We explore continental jurists’ knowledge of and attitude to English (Common) law from (roughly) the 13th to the middle of the 18th century. During this period, English lawyers were constantly aware of the existence of an alternative legal system, the civil law, on the continent. Continental lawyers were mostly oblivious to English law. Among the few instances, where continental jurists refer to English law, a passage by Jacques de Revigny concerning the rule of primogeniture is prominent. Jacques’s statement of English law is mostly, but not entirely accurate. Its inaccuracy apparently bothered neither Jacques, nor the many jurists who took over his example during the following centuries. In this and other cases, the continental lawyers’ interest in English law was limited. They used English law as a source of examples and illustrations. A similar carelessness is evident from Hotman’s derogatory assessment of Littleton’s treatise on tenure. Hotman’s remark, which caused great indig...
A Special Relationship? American Influences on English Legal Education, c. 1870-1965
International Journal of the Legal Profession, 2011
This paper describes and analyses the context in which British legal scholars, c. 1875-1965, experienced the complex influence of American legal education and thought. More generally, it gauges the influence of American legal education on English legal scholars, and the vitality or otherwise of the Anglo-American legal community, again, focusing largely on the period circa 1870-1965. The paper is organised into five parts, with one Appendix. Part one describes the Anglo-American legal community, its leading lights and its leading ideas, and the transatlantic effort to create and establish modern law schools and legal science during c. 1870-1914 – the formative period of “classical legal orthodoxy”. Part two examines the discontinuities and divergences that characterised the relationship between American and English legal education and thought, c. 1914-1965 – divergences that were seemingly so great that some commentators have concluded that the Anglo-American legal community was more-or-less in terminal decline by 1930. Part three problematizes the supposed decline of the Anglo-American legal community through a consideration of the continuities and convergences that also pervade American and English legal education and thought, c. 1914-1965. During this period, significant and energetic transatlantic networks of legal scholars, aided by scholars in other countries and continents, subjected the classical legal orthodoxy to an unprecedented onslaught, and in the process constituted new legal subjects, new areas of expertise, and broadened legal education and scholarship; while other such networks counterattacked, defended and restated the legal orthodoxy. Part four draws on an indicative survey of English legal scholars who studied in the US during c1870-1965 to reflect on the mechanisms by which England’s would-be jurists studied and taught in America, and the significant, complex and elusive influence of America. In problematizing the influence of the US on England, the analysis of this material is augmented by data derived from over twenty interviews with leading English law teachers and scholars undertaken from the 1980’s to the present. The final section of the paper (Part five) sketches some conclusions about the influence of American legal education and thought on English legal education and scholarship, and its larger significance. By melding archival and secondary sources with oral history and bringing to bear both a macro and micro historical approach to the influence of US law schools and jurists on their British counterparts, and the important role of transatlantic networks of legal scholars, the essay contributes to an understanding of the specifics of American influence, its confines and its paradoxical character, and also to the intellectual history of modern legal education.
The Creation of American Common Law, 1850–1880
The Creation of American Common Law, 1850–1880, 2004
This page intentionally left blank The Creation of American Common Law, 1850-1880 Technology, Politics, and the Construction of Citizenship This book is a comparative study of American legal development in the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the crucial formative moment in the development of an American system of common law in northern and southern courts. The process of legal development and the form that the basic analytical categories of American law came to have are explained as the products of different responses to the challenge of new industrial technologies, particularly railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the two regions. American common law, ultimately, is found to express an emerging model of citizenship, appropriate to modern conditions. As a result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative period of the nation.
The Common Law of England in Virgina from 1776 to 1830
2006
The Virginia Court o f Appeals embraced, on the whole, the English legal heritage, despite the violent separation from Great Britai n i n 1776. This loyalty to English precedents was an illustration o f the conservative tenor o f the Revolution i n Virginia. The English common law continued to be revered because i t was perceived to be a bulwark o f English, and hence American, liberty. Adherence to English precedent also maintained stable rules o f law, whic h i n turn protected existing property rights. A t the same time, however, the Court o f Appeals was not slavishly devoted to the common law, and the court's departures from accepted precedent illustrate the nature o f Virginia's revolutionary settlement.
The Cambridge History of Law in America
2008
This publication is in copyright. Subject to statutoty ex~eption and to the provisions of relevant collective licensing agreements. no reproduction of any part may take place without the written permission of Cambridge University Press.
Acta Juridica Hungarica, 2003
A scale of globalisation is witnessed in the present case study as exemplified by (1) the transformation of the role of precedents; (2) the multicultural and multifactorial search for a common solution instead of any law-based administration of justice; (3) dissolving definition by and conclusion from the law in the name of a legal socio-positivist approach; accompanied with (4) some new prerogatives acquired by courts through a) unfolding statutory provisions through principles in judicial actualisation, (b) constitutionalisation of issues, as well as c) the Supreme Court imposing upon the nation as its supreme moral authority. In both cases, the main point is to reconsider the law's normative material in a way somewhat released from nationally positivated self-restriction when searching for a kind of trans-national cultural community. By gradually eliminating the law's substantivity, legal self-identity is mostly preserved in a rather procedural sense.