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By Michael Lobban

Volume eight, the 3rd of the old volumes of A Treatise of criminal Philosophy and normal Jurisprudence, deals a historical past of criminal philosophy in common-law nations from the seventeenth to the nineteenth century. Its major concentration (like that of quantity nine) is at the ways that jurists and criminal philosophers thought of legislations and felony reasoning. the amount starts with a dialogue of the ‘common legislation brain’ because it developed in past due medieval and early glossy England. It is going directly to study the several jurisprudential traditions which built in England and the U.S., displaying that whereas Coke’s imaginative and prescient of the typical legislation endured to exert a robust impact on American jurists, in England a extra positivist procedure took root, which came upon its fullest articulation within the paintings of Bentham and Austin.

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Coke 1794, 97b; cf. Dodderidge 1629, 91) For Coke, law was the professional learning of lawyers. He was not unrepresentative in taking this view. In explaining legal reasoning, Dodderidge distinguished primary and secondary conclusions of reason. The former kind were certain and evident to everyone with capacity. For Dodderidge, some of the law was derived from primary principles, or the law of nature. ” They were discerned through “discourse,” and were “peculiarly known, for the most part, to such only as profess the study and speculation of laws” (Dodderidge 1629, 45).

CHAPTER 1 - PRECURSORS 21 the common law was reasonable, why did it need equity to correct it? More specifically, why was a court of Chancery needed to supplement the common law? This was a matter not touched on by Fortescue, but it was one which St. German, who had practiced in courts of equity, could not avoid. The Chancery’s equitable jurisdiction had developed since the later middle ages (Jones 1967; Avery 1969; Avery 1970; Ormrod 1988). In St. German’s day, the court had attracted significant amounts of business under the Chancellorship of the cleric Thomas Wolsey (1515–1529), whose methods of dispensing justice so antagonised the common lawyers that when he fell from power, the Lords issued articles against him listing complaints about his conduct.

German saw there to be a single system of law, to which different courts with different procedures might contribute (but cf. Yale 1975, 330). If the Court of Chancery was a court of conscience, nevertheless the Lord Chancellor must “order his conscience after the rules and grounds of the law CHAPTER 1 - PRECURSORS 23 of England” (St. German 1974a, 111; St. German 1985, 123). This meant that it could not be a perfect court of conscience and that there would remain areas where individuals should depart from the law for conscience’s sake, but where law would not do so.

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