Imagining the Lawby Norman F. Cantor
"At a time when the role of the legal profession, the jury system and other key aspects of American law are under much dispute, Imagining the Law provides a historical perspective on these critical public issues. Historian Norman Cantor explains how and why common law developed out of Roman law, in response to the needs and assumptions of English society/i>
"At a time when the role of the legal profession, the jury system and other key aspects of American law are under much dispute, Imagining the Law provides a historical perspective on these critical public issues. Historian Norman Cantor explains how and why common law developed out of Roman law, in response to the needs and assumptions of English society and culture from 1000 to 1780, and how it became the basis of the American legal system.
Professor Cantor shows that many of the current debates about the jury trial, the adversarial model and other parts of our legal system stem from this history. He highlights the minds and personalities of prominent judicial leaders, from Cicero and Justinian in the ancient world, through Glanville and Bracton in the Middle Ages, to Coke, Blackstone and Bentham in later centuries. A concluding chapter relates the social and cultural history of common law to the American system of Supreme Court Justices John Marshall and Oliver Wendell Holmes and to the legal profession in the United States today.
Imagining the Law is authoritatively based on the extensive amount of recent research and writing in the field of legal history, and on Professor Cantor's reading of thousands of court cases. It is the first book to examine legal history in a cultural and sociological context and thus illuminates one of our most important institutions in a whole new way.
Norman F. Cantor is a professor of history, sociology, and comparative literature at New York University and author of The Sacred Chain, Inventing the Middle Ages (nominated for a National Book Critics Circle Award), The Civilization ofthe Middle Ages, and nine other books.
In his approach to legal history, Cantor (Medieval Lives, 1994, etc.) draws on an idea from sociology: A developing system reaches a point at which "compelling ideas and social structures attain a centrality of power that is expressed in a deep structure." He says that our legal system's deep structure emerged during the 12th century and was largely in place by the time of Henry VIII. One notable feature of that development was the jury of verdict; some early defendants agreed to it only because of judges' trickery or pressureoccasionally literal (stones were piled on the defendant's chest until he died or accepted the jury trial). Another feature was that the gentry shaped and exploited common law to serve their interests, particularly their interest in land. On the other hand, courts became willing to consider oral contracts and personal actions, such as liabilitya change that eventually put legal remedy into the hands of the lower classes. Cantor's narrative is most engaging when he focuses on people, whether as social classes or individuals (e.g., his portrait of eminent lawyer Sir Edward Coke scrapping with King James I). At times, Cantor indulges in moments not so much of controversy as of baiting, as when discussing how 19th-century courts relaxed liability standards and took the heat off industrialists whose machines could mangle and kill workers. But hey, says Cantor, Germany and Japan, which industrialized with less brutal side effects, started terrible wars. That he conceives of no third possibility suggests at least a failure of imagination.
Whether or not one agrees with Cantor's take on specifics, he persuasively argues that common law's roots are so deeply embedded in our culture that even a new Ice Age might not kill them.
- HarperCollins Publishers
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- 1 ED
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Law and Legal History
Law is the system of state-enforced rules by which relatively large civil societies and political entities operate. This programmed social functioning is backed up by the exercise of power by a politically sovereign body.
What constitutes law among the behavioral codes by which groups or individuals in society live has been defined by legal philosophers in three different ways. Some say that law is the command of a sovereign power to obey a rule, with a penalty for transgressing it. This view is called legal positivism and has been particularly associated with the nineteenth-century English philosopher John Austin.
On the other side are those who say that law is the application within a state or other community of rules that are derived from universal principles of morality rooted in turn in revealed religion or reason or a kind of ethical communal sensibility. This view is associated with Thomas Aquinas, in the Middle Ages, who articulated it in the form of natural law theory, and with Lon Fuller and Ronald Dworkin, among recent American legal philosophers.
In the 1960s the widely esteemed Oxford philosopher H. L. A. Hart tried to find an intermediate position between these two opposing definitions of law according to positivism and natural law. He argued that there are "rules of recognition" in which the obligation of rule conformity is brought about by "social pressure" and customary social behavior rather than by sovereign command and penalty.
Many stipulations, Hart claimed, are recognizable as law that are pragmatic rules for transactions between private parties and functionally lie outside the sphere of sovereign command and penalty.No sovereign power, no matter how ambitious and aggressive, can enforce more than part of the spectrum of laws we live by. Even the concept of sovereign power is problematic and vulnerable.
Whether Hart really established an intermediate position between the two standard positions in legal philosophy or simply found a new way--subtle, perhaps, or confusing--of associating law with ethics in a context of linguistic analysis and pragmatic theory remains a matter of dispute.
The law is divided into two kinds. There is criminal law, by which peace and security are maintained, and whose violation results in publicly administered punishment of greater or lesser severity and brings upon the transgressor the stigma of moral turpitude. Second, there is civil law, which regulates relationships between individuals, families, and corporations involving other than criminal activities and provides state-enforced techniques for accumulating and distributing property and other forms of wealth. For example, murder and robbery fall within the jurisdiction of criminal law. Contracts, personal liability, and marriage and divorce are within the purview of civil law.
There are instances in which criminal and civil law overlap. Torts (liability for personal injury; the word "tort" comes from the Norman French for "wrong") can involve criminal prosecution as well as remedy to the injured party in a civil action. Manslaughter may involve civil penalties as well as punishment under criminal law and similarly, tax evasion can be countered by both criminal prosecution and restitution under civil law. But for the most part criminal and civil law are quite distinct, both conceptually and in practice.
All political entities have legal systems and law courts. But law as it has creatively developed in the Western world, from the Roman Empire to the present, has been mostly in large political units and social organizations, covering extensive territories and diverse populations.
There is much less need for law in small groups. Thus while Orthodox Jews live under the halacha, which literally means "law," in practice they are governed by heads of families and one rabbi or handful of rabbis who make ad hoc decisions to sustain the group'ssocial functions and culture, although for authority the rabbi may judicially cite the Bible and prestigious commentaries on it.
The Greek city-states had legal codes, but since they were small populations and territories with participatory democracies or tightly run oligarchies, they needed little written law. Juries of six hundred drawn by lot from the community or a handful of dictators and oligarchs made up the law as needed.
The Germanic peoples of the early Middle Ages and the Icelanders of the thirteenth century drew up law codes, but these codes dealt only with very narrow disputed areas of their social function. Germanic kings and Scandinavian lords arbitrarily made legal decisions when they wanted to, or the community of active warriors met together over a keg of beer and jawboned a consensus.
The modern state of Israel emerged after 1948 with an unusually rich set of legal heritages--rabbinical, English, and Turkish. But as a matter of fact, not until the 1990s was the judiciary and its determination of the legal system important in Israel. Until economic expansion and increasing size and diversity of the population, due to the Russian immigration of the 1980s, changed the context, Israel's small Jewish population was run by an exotic elite of perhaps two hundred families, and the judiciary drawn in any case from this same elite were mere adjuncts of what was decided in upscale living rooms in Jerusalem and Tel Aviv. Even in the mid-1980s a sophisticated Israeli with a problem did not retain an attorney. He phoned--or had someone else phone--a cabinet minister at home to get the latter's intercession.
This personal approach to problem solving rather than use of a public litigator is generally characteristic of small populations with narrow, powerful elites. Even in now heavily populated wealthy Japan, corporate executives, still bound by the culture of an earlier aristocratic and tribal society, with a small population, are reluctant to resort to litigation, which carries a social stigma.
The early Roman Republic had a similar ad hoc, personally shaped legal system in which a small handful of leaders of prominent families met in the senate and assembly and made sufficient judicial decisions. In the later republic, by 50 b.c., this artful system no longer worked well. The number of people involved were too many, the factional conflicts too fierce, and the entire physical area, covering large stretches of the Roman-ruled imperial Mediterranean coastline, became too expansive for this ad hoc, personal, and in-group approach to law. Therefore the Romans had to develop a formal, public, institutional, state-backed legal system with panels of judges impersonally hearing cases and rendering decisions by the authority of the emperor.
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