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Custom, time and reason: early seventeenth-century conceptions of the common law

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Abstract:

The writer examines the evidence regarding the claim that English lawyers of the early seventeenth century exhibited a jurisprudential outlook dominant enough to be correctly called ‘the common law mind’ - an understanding in which the common law was conceptualized as immemorially-old custom. He argues that there was no dominant common law mind in the period; that there were at least two widely-held orientations to the common law among common lawyers. One, held by some of the more traditional lawyers, did emphasize the antiquity of the common law and identify it with custom; the other, taken by equally prominent lawyers who had been influenced by their educations in philosophy, logic and humanistic scholarship, was more concerned with conceptualizing the law as reason. The writer examines what lawyers meant when they spoke of the law as reason and about the artificial reason of the law.

Document Type: Research Article

Affiliations: Dept. of Political Science, University of Wisconsin-Eau Claire, Eau Claire, WI 54702-4004, USA.

Publication date: 1998-03-01

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