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CLASSICAL COMMON LAW JURISPRUDENCE (PART II)

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Abstract:

When it is said that law represents the rule of reason, it is appropriate to ask what kind of reason is meant. Custom and reason, we learned in part I of this article, were the organizing concepts of the classical understanding of common law, and because they were central, they were also much contested. We also learned that these notions were regarded as interdependent: custom was always subject to the test of reason, but reason was embodied in the common practices of law. One especially important understanding of the interdependence of these notions emerged at the end of our discussion in part I. The reason of the law, it was said, was the “artificial reason” of the trained common lawyer. Lon Fuller, one of the most important champions of common law jurisprudence in the 20th century, advised us in the epigraph above to take a close look at any claim to associate law with the rule of reason, however ancient or venerable it is. The task of part II of the article is to explore 17th century views of the nature of this “artificial reason” and more generally its account of the normative foundations of common law.

Keywords: Bentham; Blackstone; Coke; Hobbes; artificial reason; common law; legal philosophy; legal theory; natural law; normativity; precedent; statute

Document Type: Research Article

Publication date: January 1, 2003

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