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History of the common law legal tradition: quick start

Many of those changes are attributable to him. Like Coke and Hale, Blackstone envisioned the common law as the institutional perfection of human reason that was separate from codified legislation Kellogg Whether these appeals to antiquity and claims of unbroken lineage were intended to validate judicial power or engender national pride is a matter of scholarly debate that exceeds the scope of this essay. Holmes more than Blackstone took into account the manifold rules and regulations that were not judicially made: the countless acts of the state and federal legislatures Kellogg Also more than Blackstone, Holmes accounted for the role of the sovereign, through its legislature, to confer rights and duties upon its citizens.

Following Emerson, Holmes projected onto the common law a vision of history and influence in which present forms and conditions were revisions and extensions of past forms and conditions. The form may stay the same, but the content changes with changing views of policy — the policy upon which all law must ultimately be grounded. The primary difference between Blackstone and Holmes is that the former embraces a common-law paradigm consisting of fixed rules rooted in ancient custom whereas the latter embraces a common-law paradigm consisting of fluid rules responsive to changing social conditions.

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The term superfluity signifies the creative urge to overcome, outdo, move beyond, facilitate, generate, push forward, transcend, outlast, or surpass. It is characterized by an extravagance of style that consists of sound, metaphor, rhythm, and complexity. This theory captures his signature concept of law as prediction, 21 grows out of his prior theories of negligence, 22 and incorporates moral fallibilism insofar as it proposes that a tortfeasor is not judged according to his particular state of mind but according to an objective standard about how reasonable people in general ought to behave in light of their circumstances.

Changing times

Here is Holmes on the prediction theory of law:. The degree of apprehension may affect the decision, as well as the degree of probability that the crime will be accomplished. Holmes There must be an intent to deprive such owner of his ownership therein, it is said. But why? Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another?

That can hardly be.

The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts, under circumstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event.

Holmes 1. The customs, beliefs, or needs of a primitive time establish a rule or formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career.

The old form receives new content, and in time even the form modifies itself to fit the meaning which it has received.

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The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.

However much we may codify the law into a series of seemingly self-sufficient propositions, those propositions will be but a phase in a continuous growth. If truth were not often suggested by error, if old impediments could not be adjusted to new uses, human progress would be slow.

But scrutiny and revision are justified. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

The reader may begin to ask for the proof that all this has any bearing on our law of today. So far as concerns the influence of the Roman law upon our own, especially the Roman law of master and servant, the evidence of it is to be found in every book which has been written for the last five hundred years.

Legal history: England & common law tradition: Legal history

When ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and […] they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted. The history of what the law has been is necessary to the knowledge of what the law is.

Here, however, is one example:. There are crimes which do not excite [revenge], and we should naturally expect that the most important purposes of punishment would be coextensive with the whole field of its application. It remains to be discovered whether such a general purpose exists, and if so what it is. Different theories still divide opinion upon the subject. In Darling v. Whatever science may accomplish in the future we are not aware that it yet has discovered any generally accepted way of avoiding the practical necessity of so using the great natural purifying basin.

City of Newport Thirteen years earlier he had carefully examined scientific studies about bridges, water, typhoid, and navigation to prepare for his opinion in State of Missouri v. State of Illinois We assume the now-prevailing scientific explanation of typhoid fever to be correct. But when we go beyond that assumption, everything is involved in doubt.

The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted.

Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides. State of Missouri v. American Lava Co. Holmes evaluated a patent for acetylene gas burners as well as their processes for burning gas. He described acetylene gas as follows:. It is very rich in carbon, and therefore has great illuminating power, but, for the same reason, coupled with the relatively low heat at which it dissociates and sets carbon free, it deposited soot or unconsumed carbon, and soon clogged the burners then in use.

Can the natural law tradition be revived?

It was possible to secure a complete consumption of carbon by means of the wellknown Bunsen burner. This consists of a tube or cylinder pierced on the sides with holes for the admission of the air, into one end of which a fine stream of gas is projected through a minute aperture, and from the other end of which it escapes and then is burned. A high pressure is necessary for the gas in order to prevent its burning back. The ordinary use of the Bunsen burner is to develop heat, and to that end a complete combustion, of course, as desired.

But, with an immediately complete combustion, there is little light. The yellow light of candles and gas jets is due to free particles of carbon at a red heat, but not yet combined with oxygen, or, as we commonly say, consumed.

Invented tradition

On the appearance of acetylene gas, inventors at once sought to apply the principle of the Bunsen burner with such modifications as would produce this result. In doing so, they found it best to use duplex burners, — that is burners the outlets of which were inclined toward each other so that the meeting of the two streams of gas formed a flat flame, and to let in less air.

Steward v. Finally, here is Holmes, in The Common Law, discussing moral fallibilism:.

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If punishment stood on the moral grounds which are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in criminal classes. I do not say that they should not be, or at least I do not need to for my argument.

I do not say that the criminal law does more good than harm. I only say that it is not enacted or administered on that theory. The law of torts abounds in moral phraseology. It has much to say of wrongs, of malice, fraud, intent, and negligence. But this history also legitimated calls for legal reform to actually give cohabitants marriage-like rights. For these reforms, which would fundamentally change marriage law, could be presented as less of a shift — they would simply formalise pre-existing practice. While common law marriage may be a legally erroneous myth, it has also been socially meaningful and effective.

But is its time now up? The introduction of civil partnerships for heterosexual couples , planned for December , will give couples almost all the rights of marriage without marriage itself. Perhaps common law marriage has done its job — but maybe all too well for those assuming rights they do not have. Edition: Available editions United Kingdom. Loved up and living together. But your relationship might not be as secure as you think it is.

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Simon Duncan , University of Bradford. Changing times Belief in common law marriage is actually quite recent. Invented tradition In the previous decade, many of those who were already married still preferred to commit the crime of bigamy rather than simply live with a new partner.


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