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CLASSICAL COMMON LAW JURISPRUDENCE (PART I)

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Abstract:

This paper, divided into two thematically integrated parts, offers a reconstruction of the conceptions of law that matured in 17th century English jurisprudence. Part 1 begins with a brief sketch of the development of the common law from the 12th to the 17th centuries. Mature common law theory took as central the idea of law as ‘reasonable usage’ which combined, not without tension, the ideas of law as common custom of the realm and law as common reason. Part 1 explores competing understandings of these ideas, and the distinction introduced by Sir Edward Coke between ‘natural reason’ and the special ‘artificial reason’ of the law. In Part 2, the author analyses this notion of law's ‘artificial reason’, and discusses the role of natural law and positivist ideas in common lawyers' view of the normative foundations of law. Sir Matthew Hale's sophisticated attempt to reconcile the tensions evident in his inherited conception of law is a special focus of this section.

Keywords: Coke; common jaw; common reason; custom of the realm; history of common law; immemorial usage; incorporation; jurisprudence; natural law

Document Type: Research Article

Publication date: January 1, 2002

More about this publication?
  • The Oxford University Commonwealth Law Journal (OUCLJ) is the flagship journal of Oxford University's postgraduate law community, produced under the aegis of the Law Faculty.
    It is published twice-yearly and endeavours to foster international academic debate and exchange on a wide range of legal topics of interest throughout the Commonwealth.
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