Natural Law and Common Law

2001 ◽  
Vol 5 (1) ◽  
pp. 4-20 ◽  
Author(s):  
D J Ibbetson
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Company Law ◽  
Practical Significance ◽  
Law Of Nature ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Reports ◽  
Lost Opportunity

If you scan through the law reports ofthe last century or so, you will come across a sprinkling of references to Natural Law, commonly in conjunction with some such phrase as “manifest nonsense”.1 Introductory books dealing with the sources of law hardly place it in the forefront of their treatment, to say the least; and anyone writing a practitioners' manual on some practically useful area of law who began with a chapter on Natural Law would be thought to have taken leave of his senses. Go back two or three hundred years or so and the picture looks very different. References to the law of nature abound in the reports of the seventeenth and eighteenth centuries; institutional writers dealing with the Common Law will regularly list Natural Law as one of its principal sources, and when Stewart Kyd wrote the first English book on what we would now call company law2 the obvious starting pointfor his first chapter was the work of the Natural Lawyers of the previous century. England, like everywhere else in Europe, had been caught up in a fervour of Natural Law thinking. Legal historians, of course, are well aware of this, but commonly portray it in their books as part of the background against which the Common Law was worked out, rather than as an integral part ofthe story of English law's development.3 This downplaying of the practical significance of Natural Law represents something of a lost opportunity, not merely because it can give a frame of reference within which some sense can be made ofthe reorientation of English law in the eighteenth century, but also because it provides an important point ofcontact between the all-too-insular history ofEnglish law and the apparently more homogeneous legal history of the rest of Europe.

Introduction

2016 ◽  
Author(s):  
Kurt X. Metzmeier
Keyword(s):  
American Revolution ◽  
Common Law ◽  
Political Environment ◽  
American Law ◽  
History Of ◽  
Background History ◽  
English Law ◽  
The Law ◽  
State Subsidies ◽  
Law Reports

The introduction provides the background history of American law reporting. After the American Revolution, the early law reporters helped create a new common law inspired by the law of England but fully grounded in the printed decisions of American judges. English law reports, whose reporters eventually achieved the same authority as their reports, were the model. It took time for the first state opinions to appear in print because publication was not commercially feasible. The first law reporters collected the opinions of the court, selected the best, and financed their printing; later they received state subsidies. The early Kentucky law reports were extensions of the personalities of their creators, an individualistic group of rising young lawyers, future and former judges, aspiring politicians, and enterprising journalists. The history of Kentucky courts and the state’s political environment are also surveyed.

scholarly journals Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English

2019 ◽  
Vol 38 (2) ◽  
pp. 339-371
Author(s):  
Ian Williams
Keyword(s):  
Common Law ◽  
Printing Press ◽  
Legal Knowledge ◽  
Charles I ◽  
Professional Control ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Long Term Trend

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

scholarly journals The Common Law of War

2017 ◽  
Author(s):  
Jens David Ohlin
Keyword(s):  
Natural Law ◽  
Common Law ◽  
Armed Conflicts ◽  
Law Of War ◽  
Early American ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Military Commissions ◽  
The Government

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the "common law of war," which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term "common law of war"in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the "common law of war" referred to a branch of the law of nations that applied during internal armed conflicts, such as civil wars with non-state actors. This body of law was called "common," not because it was extended or elaborated by the common law method of judge-applied law, but rather because it was "common" to all mankind by virtue of natural law, and thus even applied to internal actors, such as rebel forces, who were not otherwise bound by international law as formal states were. By recapturing this lost definition of the common law of war, this Article casts some doubt on the U.S. government's position that military commissions have jurisdiction not only over international offenses, but also domestic violations of the law of war.Published: Jens David Ohlin, "The Common Law of War," 58 William & Mary Law Review (2016)

Priests of the Law

2019 ◽  
Author(s):  
Thomas J. McSweeney
Keyword(s):  
Common Law ◽  
Roman Law ◽  
Full Time ◽  
Legal Professionals ◽  
The Status ◽  
Royal Courts ◽  
History Of ◽  
The Common ◽  
The Law ◽  
New Interpretation

Priests of the Law tells the story of the first people in the history of the common law to think of themselves as legal professionals: the group of justices who wrote the celebrated treatise known as Bracton. It offers a new interpretation of Bracton and its authors. Bracton was not so much an attempt to explain or reform the early common law as it was an attempt to establish the status and authority of the king’s justices. The justices who wrote it were some of the first people to work full-time in England’s royal courts, at a time when they had no obvious model for the legal professional. They found one in an unexpected place: the Roman-law tradition that was sweeping across Europe in the thirteenth century. They modeled themselves on the jurists of Roman law who were teaching in Italy and France. In Bracton and other texts they produced, the justices of the royal courts worked hard to establish that the nascent common-law tradition was just one constituent part of the Roman-law tradition. Through their writing, this small group of people, working in the courts of an island realm, imagined themselves to be part of a broader European legal culture. They made the case that they were not merely servants of the king. They were priests of the law.

Blackstone

2018 ◽  
Author(s):  
John V. Orth
Keyword(s):  
Significant Role ◽  
Common Law ◽  
Legal Education ◽  
First Century ◽  
Legal Development ◽  
History Of ◽  
The Common ◽  
The Law ◽  
The University ◽  
Law Professors

This chapter focuses on Sir William Blackstone (1723–1780), the author of the most important book in the history of the common law. The four-volume Commentaries on the Laws of England (1765–1769) and the series of lectures Blackstone delivered at Oxford from 1753, changed the way lawyers thought about the law. Blackstone’s Commentaries were read by more people, non-lawyers as well as lawyers, than any other English law book. Their influence is difficult to overstate, and extends into the twenty-first century. Almost as momentous was Blackstone’s influence on legal education. While gradual, the transfer of legal education from the law office and the courts to the university, which Blackstone pioneered, had an enormous impact on legal development, as law professors contributed to the formation of generations of lawyers and themselves came to play a significant role in legal development.

Quasi-Contract

2019 ◽  
pp. 386-402
Author(s):  
John Baker
Keyword(s):  
General Principle ◽  
Common Law ◽  
History Of ◽  
The Common ◽  
The Law

This chapter traces the history of what used to be called quasi-contract but is now part of the law of restitution. It was principally concerned with the receipt of money which belonged in justice to someone else. The earliest relevant action was account, at first limited to agents and then extended to all receivers of money; this was an impracticable action and went into disuse. Actions on the case came to the rescue, particularly the action for money had and received (a species of indebitatus assumpsit). The latter action was used not only in traditional cases of accountability but also where money was received by mistake or compulsion, where income from property was taken by an interloper, or where a party to a failed contract sought rescission. Much of the history is hidden from view by fictions, but Lord Mansfield declared a general principle based on the equity of the common law.

Echoes of Natural Law

2021 ◽  
pp. 222-250
Author(s):  
Stuart Banner
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Past Century ◽  
Law Schools ◽  
Academic Interest ◽  
Law Of Nature ◽  
The Past ◽  
The Status ◽  
History Of ◽  
The Law

This chapter examines the status of natural law in the legal system over the past century. In law schools, natural law never ceased to be a topic of study. This academic interest in natural law has had almost no effect on the working legal system, where natural law has been relied upon by only the most idiosyncratic of judges and lawyers. The history of our use of natural law has nevertheless continued to exert influence on the legal system, which still contains doctrines and practices that were once based on the law of nature.

Status: Problems of Definition and Use

1984 ◽  
Vol 43 (2) ◽  
pp. 361-376 ◽  
Author(s):  
Geoffrey MacCormack
Keyword(s):  
Social Theory ◽  
Common Law ◽  
Legal Development ◽  
Frequent Use ◽  
Ancient Law ◽  
Tribal Societies ◽  
History Of ◽  
The Common ◽  
The Law

Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.

The Law Merchant and the Common Law Before 1700

1979 ◽  
Vol 38 (2) ◽  
pp. 295-322 ◽  
Author(s):  
J. H. Baker
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Roman Law ◽  
Commercial Law ◽  
Legal Doctrine ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Merchant ◽  
Ius Gentium

In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.

10. Company law II: directors, finance, and capital

2019 ◽  
pp. 143-159
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Company Law ◽  
Public Companies ◽  
Essential Information ◽  
Minority Protection ◽  
Company Directors ◽  
The Common ◽  
The Law ◽  
A Company

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the law governing company directors and shareholders. The common law duties on directors have been codified and expanded through the Companies Act (CA) 2006. Directors are responsible to the company itself, not to individual shareholders. Minority protection (of shareholders) is provided through the CA 2006 to restrict directors’ acts that may unfairly disadvantage them. Public companies must have a company secretary and they must satisfy statutory requirements in relation to their qualifications. Shareholders have no automatic right of management in the company although, through attendance and the rights to vote at shareholder meetings, they may have influence over the business conducted.

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