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?

Law Making

2019 ◽  
pp. 206-238
Author(s):  
John Baker
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Symbiotic Relationship ◽  
Legal Change ◽  
Inns Of Court ◽  
History Of ◽  
The Common ◽  
Common Learning ◽  
Law Making

This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.

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.

Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

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.

• Discusses the finding of the trial judge that under the common law the ‘relevant condition’ could not be relied upon by the sellers. The reason being the seed delivered was ‘wholly different’. (As we have already noted issue 2 (see Figure 4.14, above), the statutory issue, need only be dealt with if issue 1 (see Figure 4.13, above) is decided in favour of the sellers.) • Discusses the finding of Denning LJ in the Court of Appeal. Denning LJ thought the common law issue should be decided in favour of the sellers. He said that the wording of the condition was sufficient to cover the situation. Kerr and Oliver LJJ decided the common law issue against the sellers. • Kerr LJ’s reasoning was that the condition would only cover them for defects in the ‘correct’ named seeds. Not for delivery of the wrong seeds. • Oliver LJ’s reasoning was that the condition did not cover the breach because it only happened through the negligence of the seller. • The Court of Appeal, however, was unanimous in deciding the statutory issue against the sellers. • Lord Bridge discusses the way that Denning LJ traced the history of the court’s approach to such conditions. The conditions being ones that limit’ or totally ‘exclude’ a contractual party’s liability for any damage caused. • Lord Bridge picks out two relevant cases (Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 101 and Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 All ER 101) and uses these to explore the common law issue. Note that the judge is beginning to deal with cases decided previously and commenting upon them in relation to whether he is bound by the doctrine of precedent.

2012 ◽  
pp. 103-103
Keyword(s):  
Common Law ◽  
Trial Judge ◽  
Relevant Condition ◽  
History Of ◽  
The Common ◽  
Court Of Appeal ◽  
Photo Production ◽  
The Way

Is God Really in History?

1979 ◽  
Vol 15 (3) ◽  
pp. 379-390
Author(s):  
Frederick Sontag
Keyword(s):  
Nineteenth Century ◽  
Human Life ◽  
History Of ◽  
The Relationship ◽  
As If ◽  
The Way

For some time it seemed as if Christianity itself required us to say that ‘God is in history’. Of course, even to speak of ‘history’ is to reveal a bias for eighteenth- and nineteenth-century forms of thought. But the justification for talking about the Christian God in this way is the doctrine of the incarnation. The centre of the Christian claim is that Jesus is God's representation in history, although we need not go all the way to a full trinitarian interpretation of the relationship between God and Jesus. Thus, the issue is not so much whether God can appear or has appeared within, or entered into, human life as it is a question of what categories we use to represent this. To what degree is God related to the sphere of human events? Whatever our answer, we need periodically to re-examine the way we speak about God to be sure the forms we use have not become misleading.

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