Alain Wijffels
Chaire Européenne (2016-2017)

The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England
Alan Cromartie
Past & Present
No. 163 (May 1999) pp. 76-120
Downloaded to Tab S2

Throughout his early career, Sir Edward Coke joined many of his contemporaries in his concern about the uncertainty of the common law. Coke attributed this uncertainty to the ignorance and entrepreneurship of practitioners, litigants, and other users of legal power whose actions eroded confidence in the law. Working to limit their behaviours, Coke also simultaneously sought to strengthen royal authority and the Reformation settlement. Yet the tensions in his thought led him into conflict with James I, who had accepted many of the criticisms of the common law. Sir Edward Coke and the Reformation of the Laws reframes the origins of Coke's legal thought within the context of law reform and provides a new interpretation of his early career, the development of his legal thought, and the path from royalism to opposition in the turbulent decades leading up to the English civil wars.
-- Offers a new perspective on early seventeenth-century legal thought which will appeal to those interested in the evolution of Anglo-Atlantic constitutional thought
-- Revises the traditional view of a major thinker who is often cited and discussed in both scholarly literature and contemporary judicial decisions
-- Illustrates the importance of confidence in legal and political institutions during a period of contemporary debate about public institutions
Intro not in kindle sample - downloaded excerpt via Air

Lifting the Argentina injunction - the initial rationale(s) and the rationale(s) for what's changed for all the (old and new "me too" players) that changes the calculation of who's entitled to what equitable relief - like, what took so long?

Journal of the History of Ideas,Vol. 67, No. 1 (Jan., 2006), pp. 123-147 -- in an "age of conscience", Heneage Finch attempts to regularize the administration of equity so that the "conscience" of the court wouldn't be simply arbitrary according to the personal biases of the judge -- downloaded pdf to Note

Washington & Lee Public Law Research Paper No. 00-5 -- This article looks closely at the substantial discretion exercised by the premodern English jury. Through the sixteenth century, jurors enjoyed broad autonomy with respect to fact-finding. For much of the medieval period they came to court already knowledgeable about the facts of a case and rendered their verdicts on that basis. Even after they ceased to be self-informed and had to rely instead on evidence presented in court, jurors continued to exercise their fact-finding authority with substantial independence from judicial control and review. The premodern jury also had significant autonomy regarding what we would call questions of law, an aspect of jury discretion that has received little attention from historians. In this article I look closely at the evidence bearing on both facets of jury autonomy, including trial records, accounts of trial proceedings, and legislation relating to the jury. In addition, I attempt to shed some light on the ideological assumptions that justified the early common law's commitment to jury autonomy, a commitment that is hard to understand in light of the modern rule of law idea. -- PDF File: 44. -- downloaded pdf to Note

Andrew S. Gold, DePaul University, College of Law and Paul B. Miller, McGill University Faculty of Law -- This Introduction outlines core questions of fiduciary law theory and provides thematic discussion of the contributions to the volume. The volume includes chapters by Richard Brooks, Hanoch Dagan, Evan Criddle, Deborah DeMott, Avihay Dorfman, Justice James Edelman, Evan Fox-Decent, Tamar Frankel, Joshua Getzler, Andrew Gold, Michele Graziadei, Sharon Hannes, Genevieve Helleringer, Ethan Leib, Daniel Markovits, Paul Miller, Irit Samet, Robert Sitkoff, Henry Smith, and Lionel Smith. -- PDF File: 17 -- Keywords: Philosophy of Law, Legal Theory, Philosophy of Private Law, Private Law Theory, Fiduciary Law, Fiduciary Relationships, Fiduciary Duties, Fiduciary Remedies, Duty of Loyalty, Duty of Care, Duty of Candour -- downloaded pdf to Note

Harvard Law -- In consequence of this common economic structure [agency problem], there is a common doctrinal structure that cuts across the application of fiduciary principles in different contexts. However, (..) the particulars of fiduciary obligation vary in accordance with the particulars of the agency problem in the fiduciary relationship at issue. This explains (1) the purported elusiveness of fiduciary doctrine and (2) why courts apply fiduciary law both categorically, such as to trustees and (legal) agents, as well as ad hoc to relationships involving a position of trust and confidence that gives rise to an agency problem. (...) a functional distinction between primary and subsidiary fiduciary rules. In all fiduciary relationships we find general duties of loyalty and care, typically phrased as standards, (..) we also find specific subsidiary fiduciary duties, often phrased as rules, that elaborate on the application of loyalty and care to commonly recurring circumstances in the particular form of fiduciary relationship. (..) the puzzle of why fiduciary law includes mandatory rules that cannot be waived in a relationship deemed fiduciary. Committed economic contractarians, such as Easterbrook and Fischel, have had difficulty in explaining why the parties to a fiduciary relationship do not have complete freedom of contract. The answer is that the mandatory core of fiduciary law serves a cautionary and protective function within the fiduciary relationship as well as an external categorization function that clarifies rights for third parties. -- PDF File: 14 -- Keywords: fiduciary, agency, trust, loyalty, care, prudence, agency costs, duty

Renaissance jurisprudence strove to be a sociable science. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice. Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics, and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. (..) Rather than reject philosophical reflection, (..) Renaissance jurists sought to locate it in concrete human life and experience. (..) Philosophy.., was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended, and informed by and informing law. Jurisprudence, vera philosophia, was ...the point at which the theoretical and the practical intersected (..) at its “sociable” best sought to integrate them. Analytic jurisprudence began as self-consciously, even militantly, “unsociable,” and its matured and much-sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. (..) It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. (..) my aim is not critical but constructive. (..) to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace, or at least to entertain, of the ambition of jurisprudence as vera philosophia. -- downloaded pdf to Note

Each section a pdf downloaded to Note - combined, c 25,000 entries *--* Section 1: Preface, Introduction, The Westminster Parliament 1-4005. **--** Section 2: The Medieval Parliament 4006-4728 **--** Section 3: Tudor Parliaments 4729-5064 **--* Section 4: Stuart Parliaments 5063-6805 **--** Section 5: The Unreformed Parliament 1714-1832 6806-9589. **--** Section 6: The Reformed Parliament 1832-1918 9590-15067 **--** Section 7: Parliament 1918-2009 15068-21582. **--** Section 8: The Judicial House of Lords 21583-21835. -- The Palace of Westminster 21836-22457. -- The Irish Parliament 22458-23264 -- The Scottish Parliament (to 1707) 23265-23482 -- The New Devolved Assemblies 23483-23686 -- The Scottish Parliament (1999-) 23687-24251 -- Northern Ireland 24252-24563 -- The National Assembly for Wales 24537-24963 -- Minor Assemblies

Helpful discussion of where Burgess fits within historiography debates, both with respect to the legal and political issues of the ancient constitution, (dominated by Pocock) and the broader "causes of the English Civil War" revisionism, anti revisionism, post revisionism etc. Burgess analyzes 3 different discourses each for a different sphere (e.g. king-in-parliament, prerogative, taxation and judicial review spoke the language of law and ancient constitution whereas religious sphere was a discourse of obedience). Major increase in tensions when a sphere (e.g. religious) deployed language from another sphere (e, g. divines advocating taxation in sermons). and juduc Main criticism by Hirst is Burgess significantly reduces the importance of Coke. On the positive side, Burgess explains the nearly universal consensus re significance of the ancient constitution, the common law and role of the judiciary and most of the monarch's prerogative powers. Hirst says Burgess has provided a framework for the consensus that gives a coherent foundation for distinctive key figures like Bacon and Selden. That serves to highlight where constructive ambiguity maintained consensus, where fault lines were hidden, where and how major conflicts emerged and a logic of the dynamics of how conflicts played out. -- downloaded pdf to Note

Cambridge University Press -- Looks well done - Woolf gives high marks for linking the interest of various players, including monarchs, with shifting ideologies and challenges of articulating a legal system that made sense with English ambitions, relations with other European colonial enterprises, and England's peculiar legal framework and its interactions with government - e.g. why the most elaborated jurisprudence, the Spanish, didn't fit with Fortescue commonwealth style thought and ticklish question of "conquest" -- downloaded pdf to Note

La genèse de l'État moderne est le fruit d'une lente évolution à partir de la seconde moitié du XIIIe siècle, qui a d'abord affecté les monarchies féodales d'Occident : il y a quelques années, elle a fait l'objet d'études systématiques de nombreux historiens en Europe, grâce au CNRS et à la Fondation européenne de la Science. Le présent ouvrage est une étude de cas, consacrée à l'Angleterre, à bien des égards la plus précoce et la plus cohérente des constructions politiques médiévales qui, paradoxalement, est peu étudiée par les historiens français. On y retrouve le primat de la guerre et de la fiscalité dans la dynamique de la genèse de l'État moderne, ainsi que la mise en place d'un système judiciaire garantissant la reproduction de la classe dominante dans des conditions satisfaisantes. Mais l'ouvrage permet surtout de relever et d'articuler la corrélation entre le développement et la vitalité de la société politique, dont l'existence est une condition sine qua non pour l'État moderne, et la mutation de la culture et du système de communication médiéval, tant au niveau des médias et de la langue qu'à celui des types de textes produits. Par l'analyse de plus de 2200 bio-bibliographies d'" auteurs " actifs dans les domaines de l'histoire et du politique, et au moyen d'une théorie des champs de production textuelle, se dégage ce qu'a été l'idéologie spécifique du féodalisme d'État. Alors naissent progressivement les catégories modernes du politique, ainsi que la notion d'une société politique " nationale " -- Recommended in Penguin history of England bibliographies

The US created a utilitarian market-based model of intellectual property grants which created incentives for invention, with the primary objective of increasing social welfare and protecting the public domain. The checks and balances of interest group lobbies, the legislature and the judiciary worked effectively as long as each institution was relatively well-matched in terms of size and influence. However, a number of scholars are concerned that the political influence of corporate interests, the vast number of uncoordinated users over whom the social costs are spread, and international harmonization of laws have upset these counterchecks, leading to over-enforcement at both the private and public levels. International harmonization with European doctrines introduced significant distortions in the fundamental principles of US copyright and its democratic provisions. One of the most significant of these changes was also one of the least debated: compliance with the precepts of the Berne Convention accorded automatic copyright protection to all creations on their fixation in tangible form. This rule reversed the relationship between copyright and the public domain that the US Constitution stipulated. According to original US copyright doctrines, the public domain was the default, and copyright a limited exemption to the public domain; after the alignment with Berne, copyright became the default, and the rights of the public and of the public domain now merely comprise a limited exception to the primacy of copyright. The pervasive uncertainty that characterizes the intellectual property arena today leads risk-averse individuals and educational institutions to err on the side of abandoning their right to free access rather than invite challenges and costly litigation. Many commentators are also concerned about other dimensions of the globalization of intellectual property rights, such as the movement to emulate European grants of property rights in databases, which has the potential to inhibit diffusion and learning.

University of Edinburgh - School of Law - Research Paper No. 2014/15 -- A brief discussion of how Scots and English lawyers saw their respective laws and legal systems at the time of the Union of the Crowns, when the prospect of a union of laws was also put before them. Number of Pages in PDF File: 10 -- downloaded pdf to Note

Hooray!

NYU School of Law, Public Law Research Paper No. 09-21 -- I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters. -- Number of Pages in PDF File: 28 -- Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition -- downloaded pdf to Note

Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). 07/17/2014. <http://oll.libertyfund.org/titles/2142> -- A two volume edition of the classic work on English law by Blackstone. This edition is interesting because it includes the commentaries of at least 5 previous editors of Blackstone’s work along with additional notes by Sharswood, the Chief Justice of the Supreme Court of Pennsylvania. Vol. 2 contains Book III on Private Wrongs, and Book IV on Pubic Wrongs. -- downloaded mobi version of book scan OCR

Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 – Books I & II. 07/17/2014. <http://oll.libertyfund.org/titles/2140> -- A two volume edition of the classic work on English law by Blackstone. This edition is interesting because it includes the commentaries of at least 5 previous editors of Blackstone’s work along with additional notes by Sharswood, the Chief Justice of the Supreme Court of Pennsylvania. Vol. 1 contains the Introduction to the Study of the Laws of England, Book I Of the Rights of Persons, and Book II The Rights of Things. -- downloaded mobi version of book scan OCR

Frederic William Maitland, The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1. 07/17/2014. <http://oll.libertyfund.org/titles/871> -- Vol. 1 of a three volume collection of the shorter works of the great English legal historian, including in vol. 1 his “Historical Sketch of Liberty and Equality”, an essay on Herbert Spencer, and essays on aspects of medieval law -- downloaded mobi version of book scan OCR

Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 3. 07/13/2014. <http://oll.libertyfund.org/titles/913> -- Vol. 3 of a 3 vol. set of The Selected Writings. This volume contains Coke’s speech in Parliament (inlcuding the Petiton of Right), a number of official acts related to Coke’s career, and other matters. -- also extensive bibliography, including on people and events, relevant to Coke’s career and thought -- downloaded pdf to Note

Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2. 07/13/2014. <http://oll.libertyfund.org/titles/912> -- Vol. 2 of a 3 vol. set of The Selected Writings. This volume contains Coke’s Speech at Norwich, excerpts from the small treatises, and excerpts from the 4 parts of the Institutes. - includes Coke on Littleton, topics such as heresy and treason -- downloaded pdf to Note

David Womersely, Liberty and American Experience in the Eighteenth Century, edited and with an Introduction by David Womersley (Indianapolis: Liberty Fund, 2006). 07/13/2014. <http://oll.libertyfund.org/titles/1727> -- This volume is a collection of essays which examines some of the central themes and ideologies central to the formation of the United States including Edmund Burke’s theories on property rights and government, the influence of Jamaica on the American colonies, the relations between religious and legal understandings of the concept of liberty, the economic understanding of the Founders, the conflicting viewpoints between moral sense theory and the idea of natural rights in the founding period, the divisions in thought among the revolutionaries regarding the nature of liberty and the manner in which liberty was to be preserved, and the disparity in Madison’s political thought from the 1780s to the 1790s. -- authors include Jack Greene, David Wootton, Gordon Wood. -- downloaded pdf to Note

Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, edited and with an Introduction by Ellis Sandoz (Indianapolis: Liberty Fund, 2008). 07/12/2014. <http://oll.libertyfund.org/titles/2180> -- This is a critical collection of essays on the origin and nature of the idea of liberty. The authors explore the development of English ideas of liberty and the relationship those ideas hold to modern conceptions of rule of law. The essays address early medieval developments, encompassing such seminal issues as the common-law mind of the sixteenth century under the Tudor monarchs, the struggle for power and authority between the Stuart kings and Parliament in the seventeenth century, and the role of the ancient constitution in the momentous legal and constitutional debate that occurred between the Glorious Revolution and the American Declaration of Independence. Authors -- Corinne Comstock Weston - John Phillip Reid - Paul Christianson - Christopher W. Brooks - James Clarke Holt - Editor: Ellis Sandoz -- a lot of historiography discussion of legal history, politics and political philosophy - interesting to see their take on Pocock - original publication date 1993, so bibliography will be a bit dated and the articles won't reflect all the waves of revisionism but important place to start -- downloaded pdf to Note

Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907-09). 07/11/2014. <http://oll.libertyfund.org/titles/2080> -- A massive three volume collection of essays by leading American and English legal experts which surveys the entire body of Anglo-American law.

Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). 3 vols. 07/11/2014. <http://oll.libertyfund.org/titles/1884> -- A 3 vol. set of The Selected Writings. Vol. 1 contains a long introduction by the editor and 13 parts of the Reports [downloaded to Note]. Vol. 2 contains Coke’s Speech at Norwich, exerpts from the small treatises, and exerpts from the 4 parts of the Institutes. Vol. 3 contains Coke’s speech in Parliament (inlcuding the Petiton of Right), a number of official acts related to Coke’s career, and other matters.

Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1. 07/11/2014. <http://oll.libertyfund.org/titles/911> -- Vol. 1 of a 3 vol. set of The Selected Writings. This volume contains a long introduction by the editor and 13 parts of the Reports. -- downloaded pdf to Note

Sir Frederick Pollock, The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). 2 vols. 07/11/2014. <http://oll.libertyfund.org/titles/2312> -- First published in 1895, Sir Frederick Pollock and Frederic William Maitland’s legal classic The History of English Law before the Time of Edward I expanded the work of Sir Edward Coke and William Blackstone by exploring the origins of key aspects of English common law and society and with them the development of individual rights as these were gradually carved out from the authority of the Crown and the Church. Although it has been more than a century since its initial publication, Pollock and Maitland’s work is still considered an accessible and useful foundational reference for scholars of medieval English law

Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). 07/11/2014. <http://oll.libertyfund.org/titles/2141> -- A two volume edition of the classic work on English law by Blackstone. This edition is interesting because it includes the commentaries of at least 5 previous editors of Blackstone’s work along with additional notes by Sharswood, the Chief Justice of the Supreme Court of Pennsylvania

His aim is to challenge interpretations of the civil war that prioritize one element of the English mixture and instead that religion, political thought, and law cannot be separated. ...he claims that it was the very confusion and instability that this mixture created, rather than deep ideological divisions, that led to the civil wars. ... “driven by a complex struggle to define the meaning” of the key religious and political texts. Prior argues that we have concentrated too much on the doctrinal divisions... we need to broaden our perspective to include issues of law, ecclesiology, and church history. Prior provides case studies demonstrating the interaction between these subjects. --...issue of religious conformity, which drew together questions of spiritual and temporal obedience; ...the ensuing debate fostered the creation of rival narratives of English religious history. These narratives are then examined in more detail ....the disputes over ceremonies in worship -- the role played by these different versions of history. The Scots had their own, self-conscious, history of ecclesiastical liberty which could be deployed against Charles; and the events of the late 1630s served to link in Scottish minds liberty and purity of doctrine. ....Charles’s position in Dec 1640, when the canons were condemned by the Commons, was weak. Prior’s focus, though, is resolutely on arguments rather than events, and the debate over the canons is, for him, ...an intensification of positions that had been current since at least 1604. .... the tension between the powers of the Crown and bishops, and the institutions of law and Parliament. ....further constitutional questions generated a plurality of narratives, exacerbating the problem. -- the efforts of two men to overcome this tension: Thomas Aston insisted that episcopacy was part of the English constitution, but Henry Parker refused to accept the legitimacy of custom and precedent. Instead he developed a more complicated argument, which, at root, linked authority to the consent of the governed. ?...neither of these attempted solutions worked, and the continuing instability led to war.

Useful for bibliography and overview of century of revisionism and counter revisionism since Gardiner. See Kishlansky for further counter-counter revisionism on Petition of Right that places more blame on the radical enemies of Buckingham including Selden-- downloaded pdf to Note

This article exonerates Charles I and Attorney General Sir Robert Heath from charges that they tampered with the records of the court of King's Bench in the Five Knights' Case. It refutes allegations made by John Selden in the parliament of 1628 and repeated by modern historians. Selden's attack on Heath and the king's government was based on a fundamental misunderstanding of the nature of King's Bench enrolments and a radical view of the crown's intentions in imprisoning loan resisters. The view that Charles was attempting to establish the prerogative right to imprison opponents without remedy at common law has no basis in either the arguments presented during the Five Knights' Case or the king's behaviour both before and during the parliament. By accepting the most radical critique of Caroline government at face value, historians have concluded that Charles was attempting to establish a `legal tyranny'. This article rejects these views. -- among other criticisms, notes that historians following Pocock have elevated a "common law mentality" to the heart of 17thC political culture, thereby underestimating the radicalism of Selden, Coke et al in forcing the confrontation that converted the Petition of Right into a non-negotiable statue that was subsequently used in proceedings against the king's actions during Personal Rule -- didn't download

Both an historiographical review of the revisionism debates on the English Civil War and n elaboration of Cressy views that inform his work on the 17thC -- Sees decline and rise of Charles I position linked to explosion of revolutions in every category of English society - not only political and religious - and Parliamentarians failure to manage or bring under control. Civil War when governing class, long anxious re social change, took different sides in what to be done. The conflict continued to play out the next 2 decades. -- downloaded pdf to Note

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Recent work on the records of civil litigation in the central courts of Westminster has refined and extended our knowledge of levels of litigation and the types of dispute pursued at law in early modern England. This article discusses two interrelated business disputes at the port of Whitehaven in the first half of the eighteenth century pursued by two of its prominent merchants, both frequent litigants in a period when litigation overall was declining, and suggests some reasons for that decline. It matches the formal court records of King's Bench, Common Pleas, and Chancery with some illuminating, often acerbic, private correspondence, thereby exploring the process and background of litigation, and demonstrating how a third party could influence the conduct and direction of the disputes, while himself remaining almost invisible in the formal legal record. -- downloaded pdf to Note

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Downloaded pdf to Note - bibliography

In the 17thC, leading English jurists introduced into the Western legal tradition a new philosophy of law which both competed with and complemented the 2 major schools of law that had opposed each other: natural law theory and legal positivism. The basic tenet of the historical school is that the primary source of the validity of law, including both its moral and political validity, is its historicity, especially the developing customs and ongoing traditions of the community whose law it is. Historical experience is thought to have a normative significance. This theory was adumbrated by Edward Coke, developed by John Selden, and articulated by Matthew Hale, who integrated it with the 2 older theories. In the late 18thC & early 19thC, the 3 theories split apart & the historical school emerged as an independent philosophy. Historical jurisprudence predominated in Europe and the US in the late 19thC & early 20thC, but has been ignored or repudiated by most American legal philosophers. It continues to play an important role in the thinking of American judges and lawyers, especially in constitutional law and in areas where common law still prevails. Its full-fledged articulation only emerged in the context of the English Revolution and its ideals of judicial independence and parliamentary supremacy. Historical jurisprudence had important connections both with Puritan theology and with developments in the natural sciences. In legal science, it was reflected particularly in the development of the doctrine of precedent. In the 18thC, it was given expression by Blackstone and Burke, and in the 19thC it was finally established as a separate school of jurisprudence by the great German jurist Carl Friedrich von Savigny.

Huge bibliography -- the latest in Oakley articles on English monarchy? -- not cited by others in jstor

JSTOR: The William and Mary Quarterly, Third Series, Vol. 60, No. 3 (Jul., 2003), pp. 471-510 -- downloaded pdf to Note -- huge bibliography

JSTOR: Proceedings of the American Philosophical Society, Vol. 130, No. 1 (Mar., 1986), pp. 37-78 -- downloaded pdf to Note

JSTOR: The Economic History Review, New Series, Vol. 43, No. 1 (Feb., 1990), pp. 21-39 -- The most common understanding of a marriage settlement is strict settlement, which entailed land on a succession of eldest sons. Less well known is the settlement for a married women's 'separate estate', which gave her an independent income in circumvention of the common law. The use of both these varieties of marriage settlement was limited to the very wealthy. However, new sources examined here show that more ordinary people, from the lesser gentry down to yeomen, husbandmen, and even labourers, also employed marriage settlements. The principal purpose of these people's settlements was the protection of the wife's property rights, although 'separate estate' was never mentioned.

JSTOR: Oxford Journal of Legal Studies, Vol. 23, No. 3 (Autumn, 2003), pp. 435-454 -- downloaded pdf to Note -- This article charts the rise of a new, and increasingly influential, theory of public law: common law constitutionalism. The theory can best be seen as a response to a 'crisis' within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization. The core of argument underlying the theory is elucidated by means of an analysis of the work of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity.

Political Research Quarterly March 2013 vol. 66 no. 1, 18-31 Published online before print February 15, 2012, doi: 10.1177/1065912911434160 -- In a late dialogue on English common law, Hobbes addressed a perennial problem: how to allow exceptions to general rules without amplifying divisive claims of sovereign arbitrariness. His solution extended Leviathan’s arguments against lawyers but also relied heavily on a conception of equity that the earlier treatise tended to obscure. For Hobbes, equity was not only a mode of sovereign adjudication, but also an instrument for molding dispositions conducive to “Civill Amity.” Long-term stability therefore demanded that the sovereign power to make exceptions be limited by a general human capacity to treat others fairly.