A.W.B.+Simpson,+'An+Invitation+to+Law'

· Civil Law: Text as “written reason”. Rediscovery (Bologna) · Common law history: Origin – “from tradition expressed in action”. o Diversity of law – local custom, dx courts (e.g. stannary courts for miners.) o System of writs: formal documents issued in the king’s name, to start actions and initiate procedural steps (e.g. summoning juries.) o “The fact that the royal customary common law was well established, backed by a powerful monarchy and the hands of literate experts before the revival of Roman law studies may be the principal explanation for English resistance to the reception of Roman law.” o Process of common law becoming ubiquitous – superseding other courts. Expansion of common law jurisdiction required massive increase in judicial staff: justice of the peace; use of jury (local laymen, unpaid, drafted, inexhaustible supply). o Trends: § Secularization : Before, church alone could provide bureaucratic skill of literacy. By 1300, a small profession of court lawyers had evolved – the only literate yet lay profession in Europe. In time, they developed their own systems of education – mirroring university practices, but operating outside them, and organizing themselves in the fraternity houses in London called Inns of Court. § Judges began to exercise control over substance of how cases were determined, not just procedure. (Cf. when cases were involved by God’s intervention; trial by ordeal.) “[S]ubstantive law evolved as a mechanism for controlling the free discretion of the juries to act as people’s courts;” **decision by experts rather than decisions by common sense.** Special pleading – narrowing function. “[S]ystem of pleading has created a distinction between matters of law, matters to be settled by expert opinion, and questions of fact, to be settled by lay common sense. · Central characteristics of the common law: o Casuistic character: Centrality of the case. Dynamism. Pragmatic. “The virtues and vices of the English bench simply mirror those of the bar, and the same may perhaps be said of the common law itself;” (bumptious self confidence, vanity, egocentricity, inability to think in general terms about the working of law in society, cf. fluency in expression, masterful ability in analysing complex bodies of information and a firm grasp of the workable.) · Historical character of the law o Doctrine of precedent. Belief in “deep rationality” underlying the cases. · Law & Equity: o Stability & rule of law cf. discretionary justice o Decrees – issued by the Chancellor. Provided remedy when common law would not. Early 15th & 16th centuries: Chancellor’s court called a court of conscience (not “equity” or “law”). o equity’s task : “soften and modify the extremity of the law”. Fulfil the law, not undermine it. o Distinction btw L&E abolished in 1876. But, rules developed under each system remain, to a considerable degree separate (e.g. remedies of damages cf. specific performance.) · Sources of Law: o Lawyer’s theory of common law: existed since time immemorial. o “[T]o this day considerable branches of law owe little or nothing to legislation and, more importantly, the general structure of legal thought in the common law world is almost entirely a product of professional development in the courts.” · Legislation and its interpretation o Legislation’s rise in recent times (cf. earlier exceptional, gap-filling role.) Today, most law has as its point of departure an Act of Parliament; even branches of law of basically judicial origin (e.g. K, criminal, property) have been extensively modified. Codification movements (e.g. USA “restatments”.) o Mistaken belief that legislation would reduce significance of judge-made law & increase certainty and clarity of the law. Wrong because: (1) Statutes operate through natural language; conceptions expressed = inherently imprecise. (2) Notion of a purpose underlying legislation is problematical (3) Impossible to anticipate future with precision. o Statutes: come to “resemble old barnacled hulks in harbours, concealed under an encrustation of judicial decisions.” · Judicial precedents as authorities: o More indefinite business than the use of statutes (1) Authority not attributed to the actual text of the judicial opinion (cf. statute). Rather, decisions = source of //statements// by judges as to what the law is; status as authorities depends more on what was done than what was said. It is the ratio decidendi (reason for deciding) that is authoritative. Case = authority for the “deep principles” of the law, which exists independently of the case, of which it is a mere illustration. Law exists in the collective consciousness of expert lawyers. (2) Judges duty = application, not creation, of law. Limited conception of judicial function: (i) judicial decision only authoritative insofar as is consistent with trend of decisions & (ii) what they say is law in tricky/borderline case cannot be authoritative just because they say so – authoritative quality, rather, must derive from something else – intrinsic rationality, or good sense of what they say. (3) Respect for precedent supposed to stem from basic principle of justice: “treat like cases alike”. (4) Literary form of judicial opinions only loosely controlled by convention. Result = rambling, long-winded, and frequently obscurely expressed explanations of legal decisions. Judicial decision as rhetorical argument. “Common law judges, raised in the traditions of the bar, are individualists, and often egocentric with it; their judicial habits are undisciplined. [This] has a good side: the very defects of the system tend to preserve a degree of flexibility which might otherwise be lacking.” · Lawyers as professionals: o Professionalization of the law has meant that groups of lawyers, elaborately organized, have come to regulate and restrict the conditions in which certain legal skills can be sold. Process involves: (i) Monopoly & exclusion of free comptetition in marketplace. Restrict right of audience in court to members of professional group. (ii) Entry into group restricted – formal qualifications & regulation of education. (iii) Restrictive disciplinary control over professional activities of its members. Professional ethics. “Some forms of purely selfish restrictive practice will come to be dignified by being treated as ethical obligations.” o Sense of corporate identity flowing from professionalization. Evolution of traditional forms of behaviour (e.g. wearing wigs). · Barristers o Evolved as court lawyers. o Inns, governed by senior members known as benchers, came to controll admission to practice as court lawyers in the Superior Courts. · Remote and Ineffectual Dons: Academic law – recent development. Until 19th century, common law not taught or studied in the two English universities.